Roger writing the LAWmag

Muslim Law in the Doldrums

Delving into Muslim law (aka Sharia or Islamic law) is not a pleasant experience for fans of human rights, a scary time machine trip to medieval times.

The classic law of Islam is chock full of jaw-dropping, medieval and theocratic stipulations as if the Old Testament of the Bible were applied in our modern world as law. For a student of modern common law or civil law, to delve into Muslim law is to occasionally pause and rub one's eyes to remind oneself that this is not fiction: this is the law that governs millions of Muslims worldwide.

Now You See It, Now You Don't

Not surprisingly, many modern Muslims take great pains to distance themselves from their historical, core law, or they state it and then quickly follow with an apologetic but polite criticism or a generic statement that it is "misunderstood" or that "myths" are harboured.

niqabMany, if not most, Muslim jurisdictions have simply repealed the edge off their historic legal code, the Koran, by gradually introducing modern law by statute. Turkey, for example.

But not all.

Some, such as Saudi Arabia, Sudan, Nigeria, Iran and Mauritania, proudly trumpet a full or almost complete adherence to Muhummad’s 652 A.D. Koran. Parts of Nigeria, Sudan, Mauritania, Libya, Tajikistan, Afghanistan ..... millions of Muslims fall under the rule of classic Muslim law.

Some Muslim states adopt international or domestic laws to appease Western friendlies but which are not worth the paper they are written on. No steps are taken to promote or enforce those laws in the rural communities, which continue their traditional Sharia ways unabated. When a Muslim father interdicts his daughter from attending school in some rural Iraqi village claiming the Divine Way, there are no truant officers intervening citing the Universal Declaration of Human Rights.

One of the most astonishing features of Muslim law is that Sharia courts, where they exist, claim personal jurisdiction over Muslims everywhere. Thus, a Muslim transgressing Muslim law in Canada is exposed to Muslim law punishment if he makes himself available to Saudi Arabia authorities.

Secondly, Muslim law requires Muslims to obey its authority in preference to national authorities, no matter where they live. Every law that is incompatible with the word or spirit of Islam is unlawful for Muslims. So much for a citizenship oath.

Women, Second Class

The ancient legal text Fatawa-i-Alamgiri uses chilling words to describe the legal impact of marriage in Muslim law:

"[M]arriage ... subjects the wife to the power of restraint (by the husband) and on her it imposes submission to him when summoned to the couch and confers upon him the power of correction when she is disobedient or rebellious...."

That is not just an extract from Muslim legal history.

That is still the law of Islam circa 2010.

In 2007, a female Muslim lawyer, Nadjma Yassari wrote of present-day family law in Iran, that the husband within a Muslim marriage can control his wife's employment and:

".. has the last word in all affairs concerning the outside world and in internal family disputes....

"The wife (has) to submit to his will."

In his An Introduction to Islam Law, Oxford and Columbia University professor Joseph Schacht wrote, quite seriously:

"The legal position of women is not unfavorable. The woman is, it is true, considered inferior to the man.... As regards inheritance ... she is counted as half a man. On certain grounds, the husband has the right of correction."

These are not the words of a sheik; these are the 1964 words of an English law professor.

Nothing has changed. In his 2007 book, Professor Francois-Paul Blanc of Perpignan University (France), wrote that in Muslim law:

"The wife must obey all reasonable requests from the husband and ... must not refuse him.

"The wife must ... follow her husband to be family home and she must not leave it without the authorization of her husband or of a judge."

According to the Koran (IV-34), the obligation of marital faithfulness is applicable only upon the wife.Muhammad

Fyzee articulates this legal effect of a valid marriage to a Muslim man in a Muslim jurisdiction:

"The husband is entitled to restrain the wife’s movements in a reasonable manner and to exercise marital authority."

Verma writes:

"It is unlawful for a Mohammedan to have more wives than four at one and the same time. It is unlawful for a Mohammedan woman to have more husbands than one at one and the same time."

Verma also points out that among the rights belonging to a Muslim husband is:

"Corporal punishment of the wife (and) control her movements. The husband is ... entitled to exercise a reasonable control on the movements of the wife."

The witness requirements for a nikah (marriage): 2 male witnesses or 1 male and 2 females!

There is no minimum age for Muslim girls to enter marriage, as long as they have attained puberty.

Of Bondage and Crime

In Muslim criminal law where it remains untouched by statute, if a woman is the victim of a murder or any other type of physical harm (quesas), she, or her surviving family, is not allowed to invoke the eye for an eye, tooth for a tooth retaliatory punishment upon the aggressor. She can only obtain financial compensation (diyya).

A Muslim father has considerable rights in regards to his children including that of djabr, or a forcing the child into an arranged marriage. He also has the right to rent out the services of his male children.

Muslim children, on the other hand, are not allowed to dine at the same table as their parents.

Slavery and human trafficking is not illegal in classic Sharia law although most Muslim law jurisdictions have moved to prohibit slavery by way of statute. Indeed, as recently as 1964, Schacht nonchalantly writes of the:

"... legal position of slaves ... the slave is considered a person, but being subject to his master he is not fully responsible.... Slavery can originate only through birth or through captivity...."

In an 1860 law book, MacNaughten wrote:

"There are only two descriptions of persons recognized as slaves under Moohummudan law. First, the infidels made captive during war; and secondly, their descendants."

In 2003, Saudi Arabia Muslim law professor Sheikh Saleh Al-Fawzan wrote that:

"Slavery is a part of Islam. Slavery is part of jihad, and jihad will remain as long there is Islam."

One of the worst crimes is renouncing the Muslim faith. Once a Muslim, always a Muslim .... or else.

Apostacy is not just a quaint historic legal term in Muslim law. It is a capital offence and one which makes a mockery of freedom of religion.

The deadly consequences of apostasy is effective in discouraging any criticism of Muslim law among Muslims.

Some courageous Muslims are defying death threats and are speaking out, such as Muslims Against Sharia and the anonymous Stop Sharia Now website.

Muslim criminal law favours the rich. For intermediary crimes, known as quesas, the aggressor may be able to pay-off the victim (diyya) and thus avoid conviction and sentencing. Of course, the option is the victim's or the victim's survivors in the event of a fatal crime. However, this often becomes a simple matter of "how much", an option not available any but the rich, male Muslim defendant.

Quesas is simply the Muslim variant of an eye for an eye, a tooth for a tooth. If, in a criminal act, a victim loses an arm, the aggressor stands to be sentenced to the surgical amputation of his arm, quite the job description for a sheriff.

But the real barbarity of Muslim criminal law can be found in the news reports that from time to time seep out from Muslim jurisdictions: stonings, beheadings, public flogging and amputations. Indeed, Muslim law still provides for a biblical punishment of highway robbery (hiraba): death by crucifixion.

Reform! Reform!

Clearly, Muslim law is in dire need of global reform. Muhammad was a great man and the Koran continues to espouse timeless legal ideas and concepts; a veritable gift to mankind. One could argue that five minutes of Muslim law in Las Vegas, for example, might do more good than harm.

However, the Koran was written in 652 AD as a guide to conduct at the time, much like the 17 Article Constitution of Japan (604 AD).

As a statute, it does not fit amidst URLs, space travel, satellite radio, the iPad and the United Nations.

The responsive but piecemeal statutory band-aid solution of some well-intentioned Muslim jurisdictions, combined with the well-intentioned desire among free and democratic states to not interfere with the internal laws of other independent states, especially those rich in oil, has artificially sustained classic Muslim law past its Best Before date.

As the international game of money and politics plays itself out, oil reserves slowly deplete and enrich the male-dominated Muslim societies.

A religion enforced by theocracy which governs by intimidation and encourages the faithful to suffer in life and expect reward after death, serves the rich perfectly well. That is no coincidence and one that was outed as soon as the populace could read and write in all present free and democratic societies of the world.

At the bottom of the legal totem pole blinks the young Muslim girl who, in those jurisdictions that boast of pure or classic Sharia law, can only look forward to a controlled life where her very features are hidden behind a Niqab to be forever hidden but to her owner, caught in the doldrums of Muslim law.

REFERENCES:

  • Bassiouni, C., "Quesas Crimes", published in The Islamic Criminal Justice System (Rome: Oceana Publications Inc., 1982), page 209
  • Blanc, F.-P., Le Droit Musulman, 2e ed. (Paris: Dalloz, 2007), page 60
  • Blanc, F.-P. and Milliot, L., Introduction à l’Étude du Droit Musulman (Paris : Dalloz, 2001), page 420
  • Duhaime, Lloyd, Muslim Law Dictionary
  • Fyzee, A., Outlines of Muhammadan Law, 4th Ed. (Delhi, Oxford University Press, 1974), page 116
  • Pearl, D., A Textbook on Muslim Law (London: Croom Helm Ltd., 1979
  • Schacht, J., An Introduction to Islamic Law (Oxford: Clarendon Press, 1964)
  • Re "Slavery is a part of Islam. Slavery is part of jihad", JiharWatch.org, Nov. 4, 2003
  • Verma, B.R., Islamic Law-Personal Being Commentaries on Mohammedan Law in India, Pakistan and Bangladesh, 6th Edition (Allahabad, India: Law Publishers, 1986), page 87
  • Women Living Under Muslim Law website (www.wluml.org)
  • Yassari, N., "Family Law in Iran", published in the International Encyclopedia of Laws, Vol. 3 (Netherlands: Kluwer Law International, 2009).

Image of an armed Muhammad holding the Koran is an engraving adorning the walls of the United States Supreme Court building in Washington, D.C.

Posted in Human Rights, International Law
on
by