The Prophet said, ‘Isn’t the witness of a woman equal half of that of a man?’ The women said, ‘Yes.’ He said, ‘This is because of the deficiency of the woman’s mind.” (Bukhari, 48:826).
Sharia, literally meaning the “path”, shapes all aspects of Muslim society. Sharia law has a profound effect; from the legal code in many Muslim countries, to life’s daily routines, personal relationships and financial transactions (Vriens). Sharia’s sway over the Muslim way of life has become quite contentious. Varying elucidations have provided for some to validate harsh sentences that could lead to physical harm, disfigurement, and even death. Disparate judgments against women in the areas of finance, appropriate attire, and individuality are prevalent. The controversy of Sharia law continues to escalate, as it appears it is headed for a collision with the modern and secular world.
Sharia was formed as the Islamic empire was advancing, especially in North Africa in the west, and to China in the east. Sharia law draws from both the Quran and the customs and teachings (the Sunnah) of the Prophet Mohammed. The populace requested that the Prophet render direction on a range of matters, and he would assert his findings. Many issues concerning individual behavior, community and family associations, civic concerns, etc. were attended to during the era of the Prophet, and inscribed. The Sunnah illuminates particulars of what is declared broadly in the Quran. Islamic academics, clerics and scholars utilize prior authoritative edicts, reasoning and analogies to tackle contemporary matters of contention. The general will and consensus of the Muslim community also plays a significant role in defining Sharia law (Vriens). This quaternary blending— the Quran, the Sunnah, analogical reasoning and consensus formed the underpinnings for the jurisprudence process.
The Prophet Mohammed is recognized as the most devout of all. His approach to life became the ideal for all other Muslims to try to emulate. The Prophet’s customs and practices were compiled by sages into what has become acknowledged as the Hadith. Eventually, divergent philosophies developed as varying regions merged parochial rituals and Islam. Over the course of several generations, experts or scholars became the overseers of the law. The Hadith evolved into two basic belief systems—the Sunni’s and the Shiite’s. Within the Sunni tradition, there are four Schools of Law today. They are referred by the names of their founders. These four schools are the Hanafi School, the Maliki School, the Shafi’i School and the Hanbali School.
The Hanafi school is generally regarded as the one that has accorded the most latitude for the individual opinions of legal scholars. It is considered a moderate form of Islam, calibrated on rationale and analogy. The Hanafi school is established in India, Pakistan, Egypt and Central Asia (Vriens). The founder of the Shafi’i school is normally associated as the one who initiated the process of structuring the legal system. The Malikis tend to place a great emphasis on the significance of Hadith. The Hanbali school is considered to espouse the most doctrinaire type of Islam. It is widely accepted in Saudi Arabia, also in Afghanistan and parts of Pakistan controlled by the Taliban. The Shiite School of law is known as Ja’fari. In Iran, where the Shiite Muslims are the majority, the Ja’fari school is preeminent.
The focus of this research paper will be concentrated on the most conservative or radical form of Islam, the Hanbali school. Henceforth, the propensity of our examinations will fixate on the impact of Sharia on Islamic culture in Saudi Arabia, and where the Taliban influence is substantial, most notably Afghanistan and the Swat Valley region in Pakistan.
The onset of Taliban extremists in Pakistan’s Swat valley has kindled a swift deterioration of civil liberties, by imposing their Hanbali school brand of Sharia law. Adversaries have been executed, music has been forbidden and schools have been closed down. Thousands have escaped to safer locations of the country. The Swat valley was once a booming vacation destination; citizens from all over Pakistan came to see the majestic mountains and clear running streams. It was a peaceful locale, but that was prior to August 2007, when the Taliban took over (Nair). The Swat valley was renowned for cultivating gifted artists and performers. One year ago, a female entertainer called Shabana, who had resisted Taliban laws to continue performing at weddings and public events, was killed. Her remains were dumped in town square, along with her CD’s and photographs. This was an obvious warning to all not to disobey the Taliban on their prohibited activities. Hair salons have been shut down, and women are forced to keep covered up by their burqas without regard to their freedom of choice (Nair).
At first, many Pakistanis of the Swat welcomed the arrival of the Taliban, and their implementation of Sharia law. After hundreds of years of relative autonomy, Pakistan’s laws were finally and formally extended to the region in 1969. However, corruption and incompetence beleaguered the legal system and the government. Ineffectual leadership destined the government to lose credibility with the citizenry. In fact, during the 1990’s, before the Taliban entered Pakistan, there was a lobbying effort to bring some facets of Sharia to the courts. Today, it would be only a small minority that would like to continue with the current situation under the Taliban. However, it is obvious that when a system is chaotic and devoid of honesty, the people will settle for order (Zakaria).
It was the sad case of The Girl from Qatif that brought the Saudi Arabian legal system into the world’s consciousness. This 19 year old was brutally raped by seven men, all who signed a confession when they were initially arrested. Three men had also raped her male friend who was in the car with her, when they were assaulted. When the trial had ended, the men received anywhere between 1 to 5 years, along with 80 to 1,000 lashes. The prosecutor had asked for the death penalty. The big shock came when the Judge handed down a verdict of 90 lashes to the girl for being alone with a man at the time of the attack (Abou-Alsamh).
Under Saudi Arabia’s strict interpretation of Islamic Sharia law, women are not allowed in public in the company of men other than their male relatives. The sentence was substantially increased to 200 lashes and six months in prison after her husband objected to the initial punishment. Saudi Arabia ordered a judicial review, after outcry from the international community and human rights organizations. However, the Saudi Justice Ministry asserted that the decree was legal and followed the “the book of God and the teachings of the Prophet Muhammad” (Levy).
Eventually Saudi Arabia’s King Abdullah did pardon the Girl from Oatif. Saudi Justice Minister Abdullah bin Muhammed al-Sheik told al-Jazirah newspaper that the pardon does not mean the king doubted the country’s judges, but instead acted in the ”interests of the people.”
The king always looks into alleviating the suffering of the citizens when he becomes sure that these verdicts will leave psychological effects on the convicted people, though he is convinced and sure that the verdicts were fair (Abou-Alsamh).
This case initiated questions about Saudi Arabia’s jurisprudence, in which judges have broad discretion in sentencing defendants. In many cases no defense attorneys are present. These include one in which a group of men got heavier sentences for simply harassing women, than the men in the Girl of Qatif rape case (Abou-Alsamh).
Saudi Arabia justice is carried out by a system of religious courts according to the stringent understanding of Islamic Sharia law. The courts have sole discretion to set punishment. The exception is when Sharia defines a sentence, as in the case of capital offenses. That means no two judges would be apt to hand down the same verdict for comparable crimes. It is quite feasible, that a rapist, could receive the death sentence or no sentence at all, contingent upon who is adjudicating the case (Abou-Alsamh).
There are two main groupings in Islamic law for evidentiary qualifications, when the crime of rape is alleged. They are eyewitness accounts and oath taking. If eyewitness evidence is available, four male eyewitnesses must emerge and must have seen the act of penetration itself “like a well-rope in a well.” for eyewitness evidence to suffice. The evidence requirements are tremendously inflexible in these cases, making it quite burdensome to ascertain guilt, especially since rape often takes place in isolated areas. In the pre-modern Islamic legal system oath taking was an opportunity for prevailing proof in the court, and from time to time rape victims would avail oath taking for redress. A witness, who sore by God, in the presence of a judge, whether a crime had taken place or not, was listened to quite intently. Sometimes midwives would testify in court as an attestation to the physical condition of the rape victim as it would apply to forced entry (“Rape”).
Rape has progressively developed as a topic of dispute as modern codes of law have presented loopholes for rapists to escape harsh disciplinary action. In current times, laws have made it more difficult for women to prosecute their attackers. In some instances, mostly in Egypt, the courts have even encouraged victims to marry their attackers. The reasoning behind this practice was that it was hoped this would prevent women from being kidnapped. During the early modern period, the directives promoted sentencing such as castration and imprisonment. Many times however, the rapist just had to pay “compensation” to the victim. A widespread legal ploy that is often used by rape offenders is the women who are “asking for it” defense. Several cases in Pakistan show that females who are employed, especially those women who work at night, are often considered of low moral character, are frequently targets of a sexual assault (“Rape”).
Westernized women are portrayed as “prostitutes”. These were women who smoked cigarettes, wore jeans or attained employment. Rape and throat slashing were often the techniques used to penalize these women. Leaving home without a proper chaperone is also considered to violate Islamic moral code. The 1992 gang rape of a young Egyptian woman illustrates a most distressing event. The woman was attacked in a crowded bus station in Cairo. The case was dismissed for lack of evidence, despite the overwhelming number of witnesses. Public sentiment did not seem like it was on the victim’s side. Even the Egyptian media chastised the family for permitting their daughter to leave the home unattended. As a direct result of this case a law was submitted to the Egyptian National Assembly that put the blame on the families of rape victims, for allowing their daughters out of the home. The law did not pass the assembly (“Rape”).
The prosecution of rape in several Muslim countries in the recent past has been mired for two basic reasons. First, the belief that women are the standard bearers of morality and henceforth, are liable for the dereliction of decency such as rape. The injured party turns out to be the evildoer. The second reason is the accepted wisdom in many strict and fundamentalist Islamic thought, is that only women are to serve punishment for any sexual indiscretion, including rape. This interpretation of Sharia law supports male superiority, at the expense of women in those Muslim countries that advance this viewpoint (“Rape”).
The Sharia doctrine that is observed in Muslim countries such as Afghanistan and Iran has directly influenced their civil codes when it comes to marriage, divorce, custody and inheritance. It places women in a decidedly detrimental place in the community (“Domestic Violence”).
In the Hanbali school, as well as the Ja’fari school of Islamic law, the meting out of punishment is claimed exclusively by the male gender. Although beating a woman is not sanctioned, some men feel the need to subjugate women, even if that includes violence. The response of clerics to a question on domestic violence is:
Islam does not recommend men to beat their wives, nevertheless, if a wife is not compliant, they are authorized to beat her. A woman is called ‘untamed’ if she refuses to satisfy the desires of her husband. Husband’s sexual satisfaction being part of tampkin, the rape of a wife cannot be considered as an assault! Thereafter, punishing her becomes a right for men (Ardalan and Khaksar 1994).
Even in the realm of crime the supremacy of men is blatant. Islamic criminal law states a woman’s life is equal to half that of a man, a state of affairs that habitually ensures that men can avoid retribution after perpetrating offenses against women (“Domestic Violence”).
The most noteworthy portions of Sharia concern marriage and divorce, but the penal code is the most hotly debated. In Sharia there are certain crimes that the Quran stipulates explicit sentencing. These are known as Hadd punishments. There are five Hadd offenses: illegal sexual intercourse (outside of marriage), unlawful accusations of illegal sex, the drinking of alcohol, theft and highway robbery. Hadd punishments are resolved in an “eye for an eye” circumstance at the judge’s discretion (Vriens). Flogging, stoning, amputation and even execution are all punishments for Hadd crimes. Even though these sentences are fairly rare in most Muslim countries, they do draw a considerable amount of attention, especially in the world press. Ali Mazrui, of the Institute of Global Cultural Studies states:
In reality, most Muslim countries do not use traditional classical Islamic punishments, but there are exceptions – such as Sudan, Afghanistan, and Saudi Arabia. These countries use the criminal provisions of Sharia that may lead to amputation for stealing or flogging for adultery. While infrequently used, these punishments make headlines – and alarm even some Muslims (Vriens).
In spite of a disinclination to apply Hadd punishments, many in the citizenry still think it is just to take the law into their own hands. Honor killings are executions that are administered in revenge for bringing shame on one’s family. Honor killing is an extreme form of gender-based violence, often involving women murdered by their own family members. This type of violence is usually committed by fathers and brothers, rather than the woman’s spouse or boyfriend (Miller). This is an issue that crosses over globally in the Muslim community. However, it is specifically condoned by the Taliban leadership. While precise statistics are scarce, the UN estimates thousands of women are killed annually in the name of family honor (Mayell). In Pakistan it has been estimated that one in five murders are honor killings. T. Kumar, advocacy director for the Asia and Pacific region at Amnesty International comments:
One of the biggest challenges in trying to halt honor killings is their long tradition of being seen as a way of upholding the moral values of society. Any lasting shift in how honor killings are viewed would have to come from the community itself. The pressure to maintain the practice is so great that in some instances, family members may feel they have no other options, despite not wanting to harm their child or sister, their respect in the community was tarnished by that family member so they want to regain that, If you don’t do it then you have been laughed upon (Miller).
The carrying out of honor killings is unlawful, and is deemed as murder under Pakistan’s legal system. However, it is rare when a perpetrator receives the full punishment for the act. The family of the victim is permitted to pardon someone found guilty of the crime. The obvious issue is in the practice of honor killings, the one charged with the crime is typically part of that family (Miller).
Greatly complicating the subject of honor killings is the support it has from many women in the communities, and even in the family where it has occurred (Mayell). It is viewed as a private matter for the family to deal with, and not a matter for the courts to interfere with. Zaynab Nawaz, a program assistant for women’s human rights at Amnesty International says:
Females in the family—mothers, mothers-in-law, sisters, and cousins—frequently support the attacks. It’s a community mentality (Mayell).
Tahira Shahid Khan, a professor specializing in women’s issues at the Aga Khan University in Pakistan, wrote in Chained to Custom, a review of honor killings published in 1999.
There is nothing in the Koran, the book of basic Islamic teachings, that permits or sanctions honor killings. However, the view of women as property with no rights of their own is deeply rooted in Islamic culture. Women are considered the property of the males in their family irrespective of their class, ethnic, or religious group. The owner of the property has the right to decide its fate. The concept of ownership has turned women into a commodity which can be exchanged, bought and sold (Mayell).
Women accused of bringing dishonor to their families are hardly ever afforded the occasion to establish their innocence. In many countries where the practice is sanctioned or at least disregarded, there are only a small amount of shelters and insufficient official security. According to Widney Brown, advocacy director for Human Rights Watch, if a Jordanian woman is in fear for her life from her family, she can check herself into a local jail. However, she will not be able to leave unless a male relative retrieves her. Often times that could be the same person who poses the threat (Mayell).
Honor killings are committed for a broad array of transgressions. Matrimonial infidelity, pre-marital sex, flirting, or even failing to prepare a meal in a timely manner, can all be regarded as casting doubt on the integrity of the family (Mayell).
Many feel that progress on this issue will be quite gradual, as in the areas where honor killings occur, it does have wide acceptance within those communities. However as more awareness is given to this topic, and the world awakens there is hope that the number of honor killings will decline in the future. The real change has to come within the Islamic people and within traditional and religious leadership circles to condemn, and not condone this brutal practice. Kumar, again:
Progress on this issue will be slow. It boils down to what’s the definition of honor and changing that (Miller).
Further rituals that are put forth into the Sharia controversy, such as female genital mutilation, adolescent marriages, polygamy, and gender-biased inheritance rules, provoke as much debate. There is widespread disagreement over what the Quran instructs and what practices were culled from tribal traditions and antecede Islam. Those that seek to abolish or alter these contentious rituals refer to the holy precept of tajdid. The notion is one of revitalization, where the Islamic social order must be transformed continuously to maintain it, in its wholesome form. Dr. Abdul Fatah Idris, head of the comparative jurisprudence department at Al-Azhar University in Cairo states:
With the passage of time and changing circumstances since traditional classical jurisprudence was founded, people’s problems have changed and conversely, there must be new thought to address these changes and event (Vriens).
Though a preponderance of academics concur with this consideration, there are those who regard the purest form of Islam to be the one observed 1,300 years ago.
As it was stated earlier in regards to honor killings, it would be a misnomer to assume that an overwhelming majority of Muslim women are opposed to Sharia law. According to an article published on October 8th, 2009 in the UK Telegraph by Andrew Gilligan and Alex Spillius chronicled statements made by Dalia Mogahed who was appointed by President Barack Obama as an advisor on Muslim affairs. Miss Mogahed is quoted as saying that:
The Western view of Sharia was oversimplified” and “The majority of women around the world associate gender justice, or justice for women, with Sharia compliance. I think the reason so many women support Sharia is because they have a very different understanding of Sharia than the common perception in Western media (Feldman).
Dalia Mogahed described one of her main functions, is to provide insight for the Obama administration on the desires of the Muslim people. Miss Mogahed is also Executive Director for Muslim studies for Gallup, which scientifically polls public opinion in Islamic society.
Many Muslim women would argue that the Quran granted women economic and social rights long before they were achieved by Western women. Under Islam, a woman is called upon to behave modestly in public and, as in the West until recently, is commonly expected to give a full commitment to making a family home, a home within which, she possesses a paramount position.
Such an outlook is markedly dissimilar from those views now generally thought of by women in the West, just as the steadfastness of family existence and the security of women in Islamic society differ noticeably from the circumstances which women now face in Western culture.
From the commencement of Islam, women have been lawfully permitted to inherit and bestow possessions, holding their wealth in their own names even after marriage, without compulsion to confer those assets to their husband or their family.
In Saudi Arabia, girls benefit from a higher level of educational prospects than ever before. It is accurate that women are still limited in vocational opportunities but even here the case is amplified. Advancement is no longer insurmountable, as women now have leadership positions in business and even in the state run Oil Company. Even so, there is a major distinction amid the composition of the suitable role for females in Islam and that established in Western culture.
The quote below from Dalia Mogahed explains the sentiments that Muslims have that the answers to their problems can be found within Islam, and its values. This would seemingly support the notion that imposing Western ideals on Muslim society would never succeed.
What Muslims around the world tell us they believe is that the key to progress is attachment to their spiritual and moral values. They really do see, many of them, that Islam offers a solution for their problems and they see Islam as their society’s greatest asset. When we asked people what they admired most about the Muslim world, what they tell us is their attachment to Islam, Islamic values, value of hospitality, the value of family. So I think that whereas people around the world do feel that the problems are diverse, many of them do mention Islam as a part of that solution, and when we ask people what can Muslims do to help themselves, one of the most frequent responses is for them to unify and another is for them to follow Islam and make it a greater and more authentic part of their lives (Stillwell).
Muslims would point to the many social ills that befall the West. Although one can never pinpoint exactly the causes of social upheaval, the breakdown of the family structure would seemingly play a pivotal role. When Muslims view the West they see increases in crime, materialism and an erosion of moral values. In both European and American cities many women and many of the elderly live in fear, and are afraid of being assaulted on their sidewalks. Single parent families reliant on governmental assistance battle just to try to provide the bare necessities for their children. These sets of circumstances would certainly not convince Muslims that the West has the better solution.
There is a sharp divide between the Western and Muslim societies and thus wide debate over Sharia. Noah Feldman is a law professor at Harvard University and an adjunct senior fellow at the Council on Foreign Relations has written extensively on this subject. Feldman conjectures that Sharia is totally misunderstood and perverted in the West. Feldman writes:
In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Sharia for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act (Feldman).
While Feldman here correctly states the relative historical contribution Sharia has had through the ages, he does neglect a differing viewpoint, when he writes about the “high standards of proof”. As discussed earlier, obtaining a rape conviction is extremely hard given the four male witness rule, and as far as an adultery conviction goes, the chance of the courts rather than the family meting out “corrective measures” is slim indeed.
According to Feldman, the West has never truly understood what the word Sharia means to the believer. For Muslims it is more than a set of legalisms to adhere to. Sharia, properly understood, is not just a set of legal rules. It suggests a way of life that is blessed with the divinity. Fundamentally, Sharia embodies the ideal that all people, and all human governments, are subject to justice under the law (Feldman). Feldman does strike at the heart of the controversy with this analysis of how Sharia is viewed differently. The West certainly cannot understand the metaphysical qualities that Sharia has on the Muslim people. This is the crux of this great divide.
The paradoxical question that must be asked is, “can Sharia and Democracy coexist?” This is a subject of intense discussion. Some hard line Muslims squabble that democracy is entirely a Western model forced upon Islamic nations. Others believe Islam compels a democratic arrangement and that democracy has a foundation in the Quran since “mutual consultation” among the people is commended (42:38 Quran) (Esposito, and Voll). Noah Feldman agues that the full incorporation of Islamic law is viewed as:
Creating a path to just and legitimate government in much of the Muslim world.” It places duplicitous rulers alongside their constituents under the rule of God. “For many Muslims today, living in corrupt autocracies, the call for [Sharia] is not a call for sexism, obscurantism or savage punishment but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law (Feldman).
Other Muslim academics oppose the inclusion of Islamic law. Abdullahi Ahmed An-Na’im a professor of law at Emory University and author of a book on the future of Sharia states that secular government is the best way to observe Sharia.
Enforcing a [Sharia] through coercive power of the state negates its religious nature, because Muslims would be observing the law of the state and not freely performing their religious obligation as Muslims (Esposito, and Voll).
The role of women in Islamic society, and in particular the countries with strong fundamentalist ties such as Saudi Arabia and Afghanistan is a complex and regularly misunderstood issue. It is certainly true that Muslim and Western views of the role of women show striking cultural differences.
The discourse on Sharia law inside and outside of the Islamic community could last for generations. The most likely scenario for success will be a gradual mixture of secularism combined with Islamic reinforcement. Those who will embrace the gradual approach, with all its perils and snares, must possess the ambition to revive traditional meanings of the code of law, at the same time acceding with current factors. This is most challenging and inspiring, and it may be the last, best hope for a durable and evenhanded government that would enhance the lives of Muslim women and men, and the world community as a whole.
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