Is Islamic Family Law today really based on Shari'a?
Why it is important to know.
By Professor Abdullahi Ahmed An-Nai'm | Adapted for MPV by Tynan Power
Page: Preface | 1 | 2 | 3 | Notes
Understanding how Islamic Family Law is used today
Can Islamic Law systems today claim to be Shari’a?
No. Islamic countries today apply laws that are based on human interpretation and judgment, even when they are called Islamic Law. Islamic Law is not Shari'a for several reasons:
•Shari'a is a moral religious system, not a legal system.
•Whenever countries claim to apply Islamic Law, as in IFL, they can only apply the laws rulers select from different interpretations of Shari'a. Some laws are chosen over others because of the ruler's personal preferences or because those rules serve the ruler's political goals. The result would not be considered Shari'a by any madhab (school of Islamic thought).
•Law requires people to do specific things, while the Qur'an says there is no compulsion in matters of faith. Islam gives Muslims the freedom to choose among different views—a choice only the individual believer can make, because in Islam, only the individual is responsible for his or her choices before God.
Is there a problem with applying Islamic Law in only a few areas, such as family law?
Yes. Shari'a, whether called Islamic Law or not, contains religious obligations for Muslims—but they must be observed voluntarily. When the government enforces Shari'a rules as law, Muslims lose their freedom to choose from different views—and since they can't choose, they also lose the chance to be rewarded by God for making good choices. Enforcement by the government encourages hypocrisy (saying or doing one thing, while believing another) and takes away freedom of belief.
Another problem is that Shari'a is a system of principles that covers all areas of life. Shari'a takes into account the fact that different areas of life—from work to worship, from community to family life—are connected. Trying to apply Shari'a as Islamic Law in only some areas of life makes those areas distorted. For example, Shari'a guidelines about support of a divorced woman are based on the legal and social relationships between people at a particular time in history. Laws governing legal and social relationships changed over the centuries, though. Trying to apply Shari'a guidelines about support when the relationships have actually changed can lead to serious problems that harm women and families. The result is often also far from showing the fairness and justice that the Prophet Muhammad taught.
For example, Shari'a assumes that men are responsible for supporting the women in their families, including their unmarried and divorced sisters. Today's laws, however, don't make brothers legally responsible for supporting their sisters. If divorced women are not supported by their ex-husbands—and, in some places, are not able to work—and at the same time, male family members are not required to support them, the result is unjust and contrary to Islam.
Is there a reason people resist changing family law in Islamic countries?
Yes. Family law has been used as a "token" that rulers could offer to religious leaders, so the religious leaders wouldn't object to other secular laws, such as those concerning business or usury (interest-based banking and loans). Colonial powers often controlled everything except family law. Even Muslim rulers often have left this area of law to religious scholars as a way to keep peace and gain political support. For that reason, IFL has become a symbol of Muslim religious identity. Even when IFL is unjust toward women, some Muslims feel that giving it up will mean the end of Islam. The battle over IFL has become a battle for Muslim identity, rather than a battle for what is right in principle—or what is truly Islamic.
Is the status of women particularly affected by politics in Islamic countries?
Yes. Because family law has become symbolic, it is often used to show the differences between different groups. People have used the status of women as an example of what they believe in—for example: forcing women to wear headscarves, forcing them not to, or allowing them to choose; giving women the right to vote or giving only men the right to vote; providing schools for girls, allowing girls to attend mixed-gender schools, or forbidding girls from attending school. Some have argued that it is necessary to stop—and reverse—any movement towards equality for women. They feel Islamic Law should not be abandoned in the one area where, often, it is still used. Others have argued that abandoning Islamic Family Law is necessary to make Islamic societies more fair for all. Yet both these arguments make the mistake of assuming that today's Islamic Family Law is the same thing as Shari'a and the religion of Islam. In fact, it is all human interpretation.
Could Islamic countries today apply Shari’a across the board as law?
No—and they shouldn't. There are several reasons for this.
1.Shari'a is a set of guidelines for living a responsible moral life. It covers how a person can relate to God and to others ethically. It is open-ended and flexible, while law is not. Making Shari'a law changes it.
2.The principles of Shari'a do not provide everything needed for a complete legal system.
3.Islamic countries today are part of a world system, which is based on a European model of nation-state. This affects political, economic and social relationships within and among Islamic nations. By using this model, Islamic countries take on national and international obligations, such as participation in human rights treaties, the World Bank and World Trade Organization, to name a few. Some international treaties, such as those concerning human rights, reflect the teachings of the Qur'an and the Prophet Muhammad(PBUH). However, they are applied under the authority of international law, not under the authority of Islam. What's more, these agreements are binding on nations—even if some of their provisions violate Shari'a. If Islamic societies were to reject this world system and the European model of nation-state in order to try to live completely in accordance with Shari'a, it would require changing everything from government systems to political boundaries. It would isolate these societies from the rest of the world, economically and politically.
If governments don’t apply Islamic Law, won’t people fall away from Islam?
No. Current Islamic Law systems are not Shari'a, so they are not truly Islamic in the first place. What's more, whether or not their governments use Islamic Law, individuals should practice Islam and follow their understanding of Shari'a, by choice and conviction—not out of fear of the government. In that case, their choices are not forced by law. Instead, they are guided by faith. The earliest Muslims did not live under Shari'a law, yet they are considered by most Muslims to be more devout than all the generations that came after them. Their choices were guided by faith—not fear of legal action. Even today, Islam is growing in nations that are not historically Muslim and which do not have governments that claim to be Islamic.
Is there a place for human will in Islam?
Yes. There is a Hadith of the Prophet PBUH that says “All actions are judged according to intention, and each person receives credit or blame according to her or his intention.” Human will and freedom of choice are the foundation of all religious responsibility. That is why children and people with severe mental illness are not considered religiously responsible in Islam. Human will is the very thing that sets people apart from other living things, according to Islamic sources. Human will allows people to make choices and to interpret how they should live their lives. Human will can guide people to moral choices, whether or not there are laws that demand those choices—or forbid them.
In Islam, when people choose to do the morally right thing, it is more highly rewarded than when they have no choice. The Qur'an teaches that there is no compulsion in religion—people should not be forced (by law, coercion or physical force) to follow any part of Islam. Forcing people takes away their choice and prevents them from being able to get closer to Allah through their own choices based on their faith.
Does human will play a role in law?
Yes. Without free will, there can be no responsibility—no one can be blamed or rewarded for their actions. Human will is a fundamental part of law on all levels.
•Laws exist to limit human will
•Human rulers exercise their wills when they create laws
•Human rulers exercise their wills when they choose how to enforce laws
•Human judges exercise their wills when they interpret laws
•Human beings in all walks of life exercise their wills when they decide whether or not to follow laws
The role of human will is the reason why Shari'a differs so much among Islamic countries.
Is there a need to transform family law in Islamic countries?
Yes. Some people fiercely hold on to family law as symbolic of their faith, with the mistaken idea that Islamic Family Law is Shari'a. This is not true, however. Current Islamic Law can not be called Shari'a. Applying Shari'a as law changes it, and applying only certain parts of Shari'a causes social problems, such as human rights issues. Family law in Islamic countries today should be guided by fair social policies, as well as Islamic principles that do not distort the Qur'an.
For more information about these and related topics:
•Islamic Family Law in a Changing World: A Global Resource Book, ed. Abdullahi Ahmed An-Na'im. Zed Books. 2002.
•Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law. Abdullahi Ahmed An-Na'im. Syracuse University Press. 1990.
•Islam and the Secular State: Negotiating the Future of Sharia. Abdullahi Ahmed An-Na'im. Harvard University Press. 2008.
More about Shari’a and modern law can be found in Chapter 2 of Toward an Islamic Reformation and Chapter 1 of Islam and the Secular State. Many sources, in Arabic and English, are given in those chapters.
Read the Notes page for definitions of terms and more about different Islamic schools of thought.
Dr. Abdullahi Ahmed An-Na’im is Charles Howard Candler Professor of Law at Emory University. He studied law and Sharia at the University of Khartoum, in his native Sudan, and Cambridge, England and earned his Ph.D. from the University of Edinburgh, Scotland. He has taught law since 1976, first in Sudan, and then in the USA, Canada, and Sweden. He is the author of Islam and the Secular State (2008); African Constitutionalism and the Role of Islam (2006); and Toward an Islamic Reformation: Civil liberties, human rights and international law (1990). He is also the editor of Human Rights under African Constitutions (2003); Islamic Family Law in a Changing World: A Global Resource Book (2002); Cultural Transformation and Human Rights in Africa (2002); The Cultural Dimensions of Human Rights in the Arab World (in Arabic, 1994); Human Rights in Cross-Cultural Perspectives: Quest for Consensus (1992). Websites of his research projects (Women and Land in Africa, Islamic Family Law and Islam and Human Rights) are all linked to his homepage at www.law.emory.edu/aannaim. His current project on the Future of Shari`a (Islamic Law) can be viewed at http://sharia.law.emory.edu.
In his publications in English, Professor An-Na’im uses simplified transliteration (spelling of Arabic terms in English letters).
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