Reclaiming Shari’ah: (Part I) the Process

While nearly all Muslims believe with their own understanding the Islamic scholars who claim that justice and equity are intrinsically incorporated into Islamic principles and thus the shari’ah (the laws derived from those principles), most countries that claim to be guided by the shari’ah do not reflect these laws of justice and equity, especially not–despite the claim of violent patriarchs whose version of justice and equality is anything but just or equal–when it comes to legislating gender relations and restoring and protecting the rights of women that men are inclined to attempt to revoke in a struggle for power. And men are paranoid and fearful that they will lose power. Women, after all, are capable of creating fitnah—social chaos. Which is awesome.

Employing redefined versions of impartiality—oppression in “romantic” disguise—Islamic jurisprudential texts fail to define the shari’ah in the true terms of the Qur’an and instead operate on instructions that redirect jurists’ own debauchery into legislation, relegating women to second class citizens and blasphemously placing them under the authority of men.

Subsequently the prevailing interpretations of shari’ah reflect neither the values nor the principles that are harbored in the core of Islam, and as long as patriarchy is vindicated and sustained in its name, there will be no justice for Muslim women.

Because shari’ah law as practiced by self-proclaimed “Islamic” governments is terrifying, most Americans don’t know what shari’ah law is. Most Americans, were they to hear a Muslim mention participating in shari’ah law in this country, would be completely alarmed. But we are. And I am. I am participating in it when I don’t drink, when I don’t gamble, when I don’t engage in other Islamically illegal activities, when I fast, when I give the designated charity, and when I behave appropriately. It was never meant to be a political system, only a very personal and religious one. It is meant for things like governing marriages through contracts, and these contracts have in fact saved women’s lives when Western law would have failed them.

And when people rage sightlessly against shari’ah law it is frightening for more than just the presence of Islamophobia. It is frightening because they have no idea what they’re talking about, they have no idea they could be taking something away that may help save lives because they have never seen it that way, and how would they react if they knew a contract drafted under it had been enforced at some point in the US? (Their greatest fears confirmed!) Would they even care to know how it happened, or why, or what exactly took place, or the whole story at all? They know “foreign” words, and they think they know what these words mean, but they don’t.

What is essential and urgent, and what I am hoping has begun to ensue, is a dialogue between Islamic law and the feminist interpretations under which it was originally forged when first drafted by the Prophet’s wife before stolen for the conveniences of men. The terms of references must be altered, restoring women as the rightful drafters of regulating women’s rights, and they must be altered from within, by Muslim feminists—the revivalist voices to act as a catalyst for renewal. Islam’s legal vision has been unlawfully monopolized, and until it is returned to women through democratization and through incorporation and examination of the Qur’an before ahadith and of the Qur’an as it is meant to be read with the preoccupation of restoring women’s rights and protecting justice and equity as was its purpose, Muslim women’s pursuit for equal rights will be held captive in the midst of both the external and internal conflicts of men.

The distinction between shari’ah and fiqh then, is that shari’ah is the entirety of God’s will as revealed to the Prophet, and it is the law that is The Way; fiqh is the science of jurisprudence and understanding and retrieving that law from religious texts—this extraction is subjective, a process of human endeavor, and therefore methodologically questionable and imperfect. While shari’ah law is comprehensive and sanctified and eternal, fiqh—like all things human—is subject to variation and adjustment and is entirely fallible. Unfortunately, and deliberately, the two are often conflated and collapsed, both in academic discourses and by politicians and legal specialists; this is because Islam has been weaponized to appeal to patriarchal ideologies and validate male desires. What many patriarchal interpreters render shari’ah (divine) is really the consequence of faulty fiqh (human) and these fiqh texts, which are always patriarchal in both word and spirit, are habitually implored as God’s law and frustrate Muslim women’s investigation for legal justice and equality, opportunely silencing us.

Thus this distinction is essential to emphasize and remember; when women are the scholars engaging in the science of fiqh we are in positions of incredible power which we can then employ to restore to ourselves our God-given rights. And this distinction between shari’ah and fiqh, similar to the distinction between organized religion and faith, is crucial to drawing attention to the epistemological and political ramifications of interpreting shari’ah law correctly or incorrectly because patriarchal interpretations must be disputed and contested at the level of fiqh—human fallibility. By conflating the two, men have successfully fashioned an illusion materialized through a structure of rhetorical deceits. Organized religion and religious faith are interconnected, but they are not the same. It is only in modern times that this has been distorted, and to question it is truly traditional, the tradition of the greatest scholars in the past. Shari’ah is the transcendental ideal that exemplifies the integrity of Islam and the essence of the Qur’an and its laws and revelations, and it is an ideal that condemns all injustices including that of mistreatment and supremacy, and thus it underpins Muslim women’s expedition and evaluation of patriarchal gender constructions.

11 thoughts on “Reclaiming Shari’ah: (Part I) the Process

  1. Michele

    this may seem like a bait question but I am truly interested in your view on the fact that the Prophet married a 9 year old girl. What is your take on the taking of child brides and the very old tradition of genital mutilation?


    1. Why would I know anything about the FGM issue? It isn’t Islam-related and not part of my area, so I am not sure what your implied question is. A simple search can help you.


      1. Nahida, I agree that this issue isn’t exactly yours. The authors question suggests that fgm is a “Muslim” practice and her question about Aisha, -God rest and bless her soul!- and child brides ofcourse is somewhat………….old.

        The questions also suggest that child brides and fgm are a specifically “Muslim” practices. Yes, some Muslims -a small minority!- do it, but Christians, Jews, and Animists also do it. In the countries & communities where these practices occurr, it happens within all faiths.

        Something which I really detest, by the way, is that opressive patriarchal practices are framed as soemthing which only happens amongst “the other”. Black and brown people, non-Christians, etc.

        (On a side note, fgm is more widespread then previously thought. It happens all the way from West-Africa throughout the Sahel to East Africa, and ofcourse in Egypt.

        But it also happens in parts of the Arabian peninsula, among Kurds/in Kurdistan, in parts of Pakistan, in Indonesia and Malaysia, and in parts of Latin-America. So it might also happen in the area of Pakistan where your family came from, but I presume that if it did, you as a woman would ofcourse know.)

        By the way, Michele, another important fact is that fgm also used to happen amongst some white folks in Europe and the U.S. Some, mostly working class girls were cut to prevent them from masturbating or “hysteria”. It especially happened among the many, many white christian girls who worked as domestic servants in the home of wealthy families, lest they seduce the men of the household.

        The opposite, ofcourse, was true: Many domestic servants were routinely sexually harrassed, raped and impregnated by their rich masters, and kicked out on the streets or sent to some nunnery. where they had to work as slaves, as the excellent movie the Magdalene Sisters portrays. The last of these laundry/nunnery facilities was closed down in Ireland as late as in 1995 (!) Marital rape was also only acknowledged in Europe in 1992.

        I would also strongly recommend you to read Kecia Alis Sexual Ethics And Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence. In that book, she deals with the fgm-issue, Aishas age, child marriage and so on.

        Back on topic: I have been thinking about Muslim women & Shari3ah and I fully agree with you and our great Islamic feminist “mothers” that we really need reform. T

        he whole patriarchal, androcentric view which created Shari3ah needs to be brought down, and we need to create a shari3ah which is egalitarian in world view and rules.

        Scott Kugle does a very good and legally sound proposition of reform in marital law in Homosexuality in Islam.

        Especially personal, marital and family law needs to be reformed. (Musawah is working on that one) Men and women should be equal in marriage with equal duties and responsibilities and equal rights regarding getting married in the first place, child custody, divorce and so on. We should also implement Amina Waduds tawhidic paradigm in this one.

        And, as always, death to patriachy in sha’ Allah!


  2. Oh, and to be more specific: Fgm amongst white, mostly working class christian girls was often prescribed by doctors, who claimed that it was a “cure” against masturbation, “hysteria” and all kinds of “ailments”, including a healthy sex drive in women.

    Even though fgm probably originally was an African rite of passage, it became a tool to control women’s sexuality.


  3. Michele

    @ rosalindawijks
    I am well aware of the history (interesting word that) of fgm and child brides in all other cultures………My comments were, as stated, not baited but rather interested in the bloggers view/perspective on that aspect of Islam. I have been reading her writings here for a while and like what I am reading and was curious on her perspective is all. It is this perspective on Islam that might help remove the stigma attached to it.


  4. Well, since you’re interested and I’m explaining things to you, it would do you good to listen & learn. If you want to learn about Islam and Muslim women, you should listen to Muslim women, since it is our conversation.

    There is no “stigma” attached to Islam. There IS Islamophobia, and that should be fought. Full stop. You are more then welcome to be an ally to fight Islamophobia together with us, but it’s our fight and we determine the agenda.


  5. Pingback: the liberating difference between sharia and fiqh | Freedom from the Forbidden


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