In yesterday’s New York Times magazine there was a fantastic article by Noah Feldman titled ‘Why Shariah?’ in which he examines the history and current rise in popular support for the Islamic legal tradition, Shariah. As a future lawyer I have become increasingly interested in learning more about Shariah. I will openly admit I know very little, but that seems to be the problem cited by both Feldman as well as the Archbishop of Canterbury, and Feldman’s piece does a good job of synthesizing it for the public.
I first became interested in learning about Shariah courts while attending a law reform conference that included lawyers from Zanzibar (an island off the coast of Tanganyika – when the two former colonies were united they were re-named the Republic of Tanzania). While the mainland is heavily Christian, Zanzibar is over 90% Muslim. While discussing gender law with two lawyers from Zanzibar I learned that the island has Shariah courts that rule over family law issues, including divorce. According to these lawyers, Shariah courts gave women more power because a woman could initiate divorce without her husband’s consent.
With my limited knowledge I am in no position to comment on how Shariah courts actually operate in terms of women’s rights, but Noah Feldman’s article does posit some arguments that it may not be all bad. According to him it does make it “hard for women to initiate divorce without forfeiting alimony” but that it does protect property for all citizens, a quality that was ignored by British colonizers who, when applying British law to the colonies “stripped married women of the property Islamic Law had always granted them.” While I do not fully support his comparison of the history of harsh British laws as a reason to look past current harsh punishment, I agree that Westerners often turn a blind eye to our own harsh use of punishment. With that said, I believe it is paramount to understand the position that Islamic law takes when advocating for gender and GLBT rights (“The prohibition on sodomy, though historically often unenforced, makes recognition of same-sex relationships difficult to contemplate.”). Yet he makes a strong argument, concluding that “the call for Shariah 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.”
What makes this debate particularly interesting is the recent uproar over a talk that the Archbishop of Canterbury (Rowan Williams) gave regarding Shariah law. According to news sources Williams suggested that Britain should allow Shariah courts to rule over certain issues, such as family law. According to the Archbishop’s website he “did not call for its introduction as some kind of parallel jurisdiction to the civil law”. What he did call for is to examine “some of the broader issues around the rights of religious groups within a secular state”. While I am a strong proponent of keeping religion out of courts/gov. as I find you invariably end up governing a group of people with differing religious views – I highly suggest checking out the website if you are interested in legal questions because he does pose some very interesting ones, two of which are below:
- “How such a unitary system might be able to accommodate religious claims. Behind this is the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds (for instance in situations where Christian doctors might not be compelled to perform abortions), if they are not willing to consider how a unitary system can accommodate other religious consciences.” This is flushed out in further debate regarding the existence of a Jewish court in Britain that is allowed to rule on certain matters, including divorce, and that it would be unjust for Britain to not afford Shariah courts this same jurisdiction.
- “How to deal with the possibility that a ‘supplementary jurisdiction ‘could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women.’”
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