Clergy Forum: Fears of Shariah Are Misplaced
By Dr. Hamid Mavani
Posted: 02/02/2012 06:40:02 PM PST in the Whittier Daily News
MAVANI It has become an all-too-common practice to bash and stereotype Islam and Muslims for partisan gain, and the current GOP presidential election campaign is no exception.
Distorted information is designed to misinform and stoke the public's irrational fear that the set of Islamic laws known as Shariah is slowly creeping into the American landscape and may one day overshadow our Constitution.
This has prompted many states to introduce legislation banning the use of the Shariah in their courts. Despite this, however, the Oklahoma federal appeals court recently struck down a law that would have barred judges from considering either Islamic or international law in their decisions.
So what is the Shariah? Is it inherently incompatible with the American values enshrined in the Constitution? Etymologically, Shariah means "a well- trodden path that leads to a water supply and the subsequent quenching of one's thirst."
A major source of confusion arises, however, when Shariah and fiqh (substantive law) are conflated and used interchangeably, although they are in no way synonymous.
Shariah is the utopia, the unchanging, the normative, and the ideal Islam composed of a set of sacred and unchanging truths, such as upholding justice, human dignity and the sanctity of human life.
There is a lot of overlap between its values and the values cherished in the Constitution. In contrast, fiqh is derived from the Shariah and represents the changing and mutable domain of legislation. In other words, it is no more than an approximation of the Shariah.
This human endeavor and undertaking, which requires the weighing, balancing and prioritizing of different elements, is subject to error and inaccuracy. As such, if a law is unfair and unjust in a new context or environment, then it must be revised so that it is compatible with the Shariah's ideals. This inevitable change is an integral part of fiqh.
The Quran states that a woman's testimony is worth half that of a man. The relevant verse mentions only financial transactions; however, Muslim (mostly male) jurists have traditionally - and incorrectly - generalized it to cover almost all areas of human activity.
This ruling originated in a patriarchal seventh-century society where women did not actively participate in the social sphere and, as such, would have had limited knowledge about business and financial transactions.
Moreover, Quran 2:282 makes it categorically clear that the reason for this 2-to-1 ratio is women's lack of knowledge and experience, not their gender: "O you who believe, when you contract a debt for a stated term, put it down in writing ... Call in two men as witnesses. If two men are not there, then call one man and two women out of those you approve as witnesses, so that if one of the two women should forget the other can remind her."
The tension and disparity between Islamic and American law is in the deduction of fiqh, for instance, in the realm of women's rights and freedom of religion and conscience, not in the universal core values referred to as "the Shariah."
The inequity in some of the Islamic legal rulings pertaining to women in the 21st century is uncontestable and requires fundamental reform.
But until such reform actually occurs, women would be at a disadvantage if present-day Islamic laws, in areas such as divorce, child custody and inheritance, were implemented in an American court, albeit with the consent of both parties.
It is not far-fetched that Muslim women, fearing ostracism, may feel pressured to submit to the judgment rendered by an Islamic court instead of a secular one.
As such, I have serious reservations about incorporating some present-day Islamic laws in the American court system. But the politicians' use of demagoguery to create a phobia against the Shariah is inexcusable.
The issue of Islamic legal reform is both ongoing and requires a level-headed and nuanced discourse.
It may come as a surprise to many politicians and partisans of "creeping Shariah" that a number of Muslim jurists have revised many unfair legal rulings in the area of a woman's testimony, divorce, custody, inheritance, freedom of religion and the penal code.
Dr. Hamid Mavani is an assistant professor at the School of Religion, Claremont Graduate University.
Read more: Clergy Forum: Fears of Shariah are misplaced - Whittier Daily News http://www.whittierdailynews.com/ci_19881446?IADID=Search-www.whittierdailynews.com-www.whittierdailynews.com#ixzz1m7v7ysxz
Posted on Sat, February 11, 2012
by Dr. Hamid Mavani