Op-ed: Islamic law and communal autonomy
The western European states have shown understanding and sympathy to demands for permission to build mosques and maintain special graveyards. Such matters are truly of a personal nature. However, marriage, divorce and inheritance are matters which require justice and equity for everyone on a universal basis
Some Islamic organisations in the West have been asserting a human rights claim to communal autonomy to apply Islamic law, Shariah, to their family or personal matters. Among personal matters are always included marriage, divorce and inheritance. I will argue below that such autonomy would create serious legal and political problems and would actually play in the hands of the racist political movements and ideologies currently prevalent in the West.
The recognised schools of Islamic jurisprudence (fiqh) regard marriage as a central institution of Muslim society. In legal terms marriage is not a sacred bond but a civil contract between two free individuals. However, the consent of the guardian to a marriage is considered necessary by some jurists, while others do not consider it obligatory for an adult female. A girl may not be coerced into marrying someone of whom she does not approve, but since traditional law does not prescribe an age limit even very young individuals can be married. In such a case, it devolves upon the guardian (usually the parents) to decide the terms of the contract. Also, according to traditional fiqh, a Muslim male may simultaneously marry up to four wives. Such a right is not subject to any limitations. A man can dissolve a marriage by pronouncing such an intention three times. There are different ways of doing it, but in principle a man can secure divorce at will even when he is advised to seek reconciliation. Women can apply for divorce under exceptional circumstances. Allegations of cruelty, insanity and impotence are strong cases for demanding divorce. However, it does not mean that a woman can secure divorce at will. Normally she has to be ready to pay an agreed sum of money to the husband who must agree to such a proposal. The Shariah does not allow Muslims to marry polytheists or atheists. However, a Muslim male may marry a woman from among the people of the book, that is Jews, Christians and by now an extinct sect, the Sabians. Ithna Ashari Shiism allows marriage to a Zoroastrian female. On the other hand, a Muslim woman cannot marry a non-Muslim.
As regards inheritance, besides the shares of different wives, the distribution between the children of a deceased father follows the principle that the female children inherit one-half of the shares of male children. Further, while Muslim wives are entitled to a share non-Muslim wives are not. However, through a will or testament the husband can gift some property to his non-Muslim wife. Further, property of a Muslim may not be inherited by non-Muslim children or parents. The property of an apostate cannot be inherited nor can the property of a Muslim be passed on to an apostate. As regards children born out of wedlock, according to the Hanafi School the illicit child cannot inherit from the father but may do so from the mother’s side. Moreover, children of a deceased son are excluded from inheriting the property from the grandfather. Instead the share is distributed among the siblings of the deceased son. Finally, although Muslims are encouraged to take care of orphans, there is no right to adopt a child. Thus an adopted child cannot inherit property of the adoptive parents. On the other hand, a part of the property can be left to such a child through a testament.
It is quite clear that the Shariah laws pertaining to family matters differ radically from the European systems. For example, only the monogamous form of marriage is legally recognised in Europe. Any restrictions on marriage between a Muslim and a non-Muslim cannot be condoned by a European legal system because the western states have ratified the International Convention on the Elimination of all Forms of Discrimination against Women (1979) which envisages equality between the sexes on all matters. Article 16 unequivocally places women on a par with men in matters of marriage and allows them freedom to chose a spouse. Similarly divorce, the rights of the child (born within or outside wedlock), inheritance and adoption are matters on which traditional discriminatory practices have been eliminated.
Moreover, serious procedural questions arise with regard to the practical application of Shariah: Who would be competent to interpret and enforce the Muslim family law? Can non-Muslim judges be competent to consider cases involving Islamic law or should the state set up separate courts with Muslim judges to try cases involving disputes over family matters? Even more intractable would be problems stemming from mixed marriages. Additionally, there is a distinct possibility that some Muslims may prefer to seek redress from the mainstream legal system or worse still the conflicting parties may appeal to the two different legal systems. Who should decide which court is appropriate for a Muslim?
It is worth noting that even among Muslim states there is no agreement on how to apply the Shariah including its rulings on family matters. Saudi Arabia and Iran apply the Shariah in an all-encompassing sense. Mauritania, Libya and Egypt do so in principle but do not consistently base their legal praxis on the Shariah. The United Arab Emirates, Oman and Pakistan recognise the Shariah as the supreme law of the land, but deviate from it in practice. Twenty countries retain Shariah courts for the personal law, while fourteen make reference to Shariah in personal law codifications. Nine countries have abolished all reference to the Shariah. These include Eritrea, Senegal, Turkey, and the former Soviet republics with a Muslim majority including Kazakhstan, Uzbekistan, Kyrgyzstan, Turkmenistan, Tajikistan and Azerbaijan.
It must be remembered that current human rights were won by deprived and disenfranchised people through long drawn mass struggles. Poor men, religious and ethnic minorities and women were extended full human rights much later. The western European states have shown understanding and sympathy to demands for permission to build mosques and maintain special graveyards. Such matters are truly of a personal nature. However, marriage, divorce and inheritance are matters which require justice and equity for everyone on a universal basis. If, now, Muslims were to take a separatist direction and deviate from the standards established by the European states, the forces of xenophobia and racism in general and Islamophobia in particular would be the main gainers. That possibility should be opposed by all democrats and human rights champions.
The author is an associate professor of Political Science at Stockholm University. He is the author of two books