Yemeni-Swiss Liberal: The Shari’a Is Unjust

Dr. Elham Mane’a, a reformist of Yemeni origin living in Switzerland, recently posted a series of articles on the liberal website Metransparent.com in which she called for the secularization of the Muslim state. She called the shari’a, which is implemented by various Muslim states, unjust and outdated, and said that it impinges on the rights of the individual, of women, and of non-Muslims.

Following are excerpts from three articles in the series:

“The Shari’a is Incompatible with the Reality of the 21st Century”
“…The shari’a, as it is viewed and implemented by all the theocratic Islamic regimes of our times, is unjust. Let me reiterate: The shari’a is unjust. I say this unequivocally, in the conviction that speaking directly [is the best way]to convey an idea. I say this unequivocally because it is the roundabout way in which we inclined to speak, and [our tendency to]beat around the bush, that have gotten us into our current predicament – a religious frenzy that is not about faith in Allah, but about [the rigid enactment of]rituals. I say this unequivocally because the time has come to call things by their proper names: a theocracy that applies the precepts of the shari’a to [its]society today [is one that]violates individual rights, discriminates between its citizens, and oppresses its women and its religious minorities.

“[Such] a state is unjust, and its practices are unjust. The shari’a is unjust because it proposes a religious approach to law, an approach that reflects the social reality in which it grew – [the reality that prevailed during]the first 300 years of the history of the Islamic state, at the very most. The shari’a is incompatible with the reality of the 21st century.”

Chopping Off a Thief’s Hand is a Heinous Penalty

“It is unjust to chop off the hand of a thief and cripple him for life. Such a punishment [may]have befitted the society of the seventh century. Nowadays, without question, it is a heinous penalty.

“Just as we stopped using camels to travel between world capitals and we switched to planes and modern transportation, without seeing this as a drawback, we should be convinced that prison is the [just]penalty for a thief – and that it is even more just to prepare him for life among society, so that he will be able to rejoin it as a productive [citizen].

“Chopping off a [thief’s] hand renders him disabled for life and a burden on society, as he is unable to work. Therefore, [let me]say explicitly that it is illogical to preach the implementation of such physical punishments. Punishments of this sort are outdated, and to abolish them does not mean to stop believing in Allah. There is no connection between the two.

“Haven’t we stopped speaking of acquiring concubines [and buying]slaves, even though this is mentioned in the Koran? Today, no one would dare to advocate slavery, except for lunatic Salafis who live in the Middle Ages. I cannot find anything to prevent us from adopting civic laws and principles that would regulate our lives in a manner reflecting contemporary approaches to rights and liberties… I ask you not to hasten to accuse me of heresy.”[1]

“The law must be just, and if it is not just, it must be changed. That is all I am asking… We have replaced our faith [in Allah]with faith in gods of our own making… The name of the god made by political Islam is shari’a…”

Fear of Mentioning the Injustice in the Shari’a

“Since the legitimacy of the Arab states is being challenged, they ride the wave of political Islam and the popular Islamist [trend], bowing their heads and then turning their backs and keeping silent. We, the sons and daughters of these societies, are afraid to open our mouths. We are afraid to point out the contradictions we see, the injustice, [the lack]of respect for standards of human rights and equality in the shari’a, and the need to replace them with civil, secular, just, and humane laws. We are afraid to open our mouths, because whoever utters a word of truth is discredited and accused of heresy. Therefore, we have decided that it is safer to keep silent, and on this political Islam relies…”

The Shari’a Impinges on the Legitimate Rights of Women

“The best example of [the injustice in the shari’a]are its laws regarding women… I am convinced that the issue of women’s rights is a question of human [rights], and that there is violation of these rights in all cultures, religions, and societies. The problem in Islamic Arab culture is our insistence upon clinging to principles that violate human rights and our use of religion to justify it…

“What I am saying is that the laws of shari’a laws violate women’s rights. I know that these words are shocking to many, and some of you will even scream that I am a criminal and an agent of foreign interests, part of the plot to destroy the Islamic Arab societies. All this has [already]been said to me in the electronic messages I have been receiving constantly, ever since I began publishing this series of articles about humane Islam. I read them without getting angry, despite my pain…

“The Koranic passages relating to women regard them on two [different]levels: according to one, man and woman are equal before Allah… According to the second, a woman’s legal rights and obligations are not equal to those of a man. This inequality is manifest in [laws of]divorce, in a man’s [entitlement]to the sexual enjoyment of a woman whenever he likes [and regardless of her will], in [laws of]polygamy – [allowing a man]up to four wives, in addition to concubines… in [laws of]inheritance, in testimony, in the beating of a ‘shrewish’ woman in order to discipline her, and others. This reflects the reality in the Arabian Peninsula of the seventh century CE, especially that of the regions where these Koranic verses [originated]… [Islamic law] raised the status of the man, and lowered the woman to an inferior social degree.

“The general tendency of scholars of Islamic law over the last 1,400 years, with the exception of a few unusual [cases], has been to strengthen the second level, [that of]inequality between man and woman. They ignored the existence of the first level, even widening the rift between it and the second level. As is well known, Islamic jurisprudents speak the language of the society in which they live, a tribal society where patriarchal traditions and customs reign supreme, and where the woman has almost no role, other than being [considered first]a vessel of pleasure, and only afterwards a woman. The result is [a system of]principles and laws that treat the woman like a juvenile in need of protection, from her birth until her dying day…”

The Institution of Marriage According to the Shari’a Is a Buyer-Seller Agreement

“Islamic law regards marriage as an agreement between a man and a woman’s custodian… which entitles the man to have sexual relations with the woman. This approach turns marriage, which is a relationship of love, compassion, and partnership, into a buyer-seller agreement, by means of which the man [is entitled]to enjoy the woman [sexually]. I have never heard of a definition of the marriage contract in which the woman [is entitled]to enjoy the man [sexually]. Raising such a demand would likely generate many cries of alarm, anger, and condemnation, as it is the opposite [of the Islamic teachings]and of the prevalent view…

“Islamic law stipulates that the consent of a [woman’s] custodian is a necessary condition to the woman’s marriage. [According to] this approach, a woman is not [considered]an adult who can choose her life partner without custodianship… Is this justice?

“According to the shari’a, a girl or woman’s silence constitutes consent to the marriage… except for widows and divorcées, whose consent must be [voiced].[2] But in practice, the consent of a girl or woman is meaningless if [her]custodian does not consent to her marriage. If the custodian wishes to marry off the girl against her will, he is entitled to do so. In reality this is a tragedy. When most of the schools of Islamic law, with the exception of the Hanafi, translated these principles into practice, especially in the Arabian Peninsula, they left the field clear for custodians to marry off a girl without even her knowledge. Thus, for example, the Kuwaiti Family Law does not necessitate the girl’s presence during the drafting of the marriage contract. All that is necessary is the presence of groom and custodian. It is as if the girl has nothing to do with it, and is tantamount to merchandise whose ownership is transferred from the father to the groom. Does this not constitute oppression?

“Because of this we so often hear of tragic cases where young girls are married off in Yemen, Saudi Arabia, and Kuwait without their knowledge, and after a few years they discover that they are married… I will not expound on the matter of the stipulation according to which a Muslim woman is obligated to marry a Muslim man and is forbidden to marry a man from among the ‘People of the Book’ [i.e., Christians or Jews]. [I will merely say] that this stipulation, which does not appear in the Koran, was unanimously agreed upon by all Islamic scholars, because this consensus reflects their aspiration to do away with the religious minorities among them…

“Likewise, I will not discuss the principle of ‘compatibility’ used by religious scholars against us [women], in order to have a say in a woman’s right to choose her life partner. If this partner is [deemed]incompatible on sectarian, tribal, or social grounds, a custodian can demand the annulment of the marriage contract. Nor am I talking about a woman’s obligation to obey her husband. The Muslim religious scholars stipulated that this obedience be conditional [upon the woman receiving]alimony from her husband, as if the woman were a worker receiving wages and, as such, must fulfill her duties and, among other things, obey, including in matters of sex… I have never heard of a woman demanding that her unemployed husband obey her sexually…

“I will also not discuss the age [of marriage], which the religious scholars deemed to be linked [solely]to sexual maturity, ignoring the tyranny [it entails]. Even if the poor girl reaches sexual maturity by the age of [only]nine, she will be married. How can we marry off babies without seeing the flaw in this? Most of us are opposed to it, yet hold our tongues.
“[All this goes to show] that the approach of the shari’a does not consider the woman to be a sensible, mature, adult, independent, decisive, and responsible human being…”

Sexism against Women in Matters of Divorce

“And what about divorce? Once again, we see the shari’a’s prejudice in favor of men and its blatant oppression of women. A man can divorce his wife with three words: ‘Divorced, divorced, divorced.’ Three words the utterance of which destroys the family cell. A man is entitled to divorce his wife without providing an explanation. If he feels like getting divorced, he gets divorced… The shari’a says to him, ‘It is your right.’ When this right is absolute, it turns into oppression and tyranny…

“A woman, on the other hand, has three options in terms of getting a divorce: if [her husband]is a [decent]human being – he [may]agree to divorce her… [If not,] she must prove before a qadi [i.e., a judge in a Muslim court] that her husband is doing her harm, and the qadi either shows her sympathy or does not, as fate may have it… The third option is khula’, [which is to say]the woman has the right to demand divorce without providing a reason, but she must return the mahr [i.e. the bride price], relinquish her financial rights, namely her right to second mahr [and to three months’ alimony]. In general, a woman exercises this right after she has [already]attempted the two other options. When she does so, she must cede the single financial guarantee the shari’a grants her. Is this justice?…

“A woman’s financial rights following divorce are alimony [payments]for three months… and a late mahr agreed upon in the marriage contract. There is no distinction between a marriage that lasted three months and one that lasted 30 years. The amount is the same – three months [worth]of alimony… Is this justice?

“If the woman has children she is in luck, because the man must pay child support if his children live with her. But even if they live with her, the man is granted their permanent custodianship… as if the mother did not exist…”

The Exploitation of Women in Inheritance Rights

“A woman’s right to inheritance, according to the shari’a, once more reflects the tribal approach to [women]. [Even] the Koranic verses regarding inheritance reflect the tribal approach to women, one which holds a man responsible for the women of his household. This was an approach that was in keeping with its times, since in some regions of the Arabian Peninsula women did not receive an inheritance from their husbands or fathers. Today, [this approach]is not considered just, and it discriminates in favor of the man. [According to the shari’a] a son inherits twice as much as his sister, and a woman inherits an eighth of what her husband does. The assumption that the brother or son will provide for [the women of the family]is no longer convincing, since this ultimately becomes of matter of charity. Is this justice?

“…[The shari’a] always assumes that the woman is the man’s equal in terms of honor, but not in terms of rights… despite the fact that both – honor and rights – are interconnected… Human beings, whether men or women, are equal in terms of honor and rights. Because the shari’a does not accept this principle, it is unjust. Law must be just, and when it is unjust it must changed. That is all I demand…”[3]

The Shari’a Discriminates against Other Religions

“In a heated debate between Dr. Su’ad Saleh[4]… and Salah Suleiman,[5]… aired live on the Egyptian NTV network, Dr. Saleh said, in response to a question… about the right of a Christian Egyptian to serve as the country’s president, that it was forbidden, from both a religious and a political standpoint, for a Christian ever to serve as president. In this she relied upon the Koranic verse, ‘Allah will by no means give the unbelievers a way against the believers’ [Koran 4:141]… This was not enough for her, and she [added]: ‘There is no escaping [the fact]that the Muslim will rule over the infidel, and not the other way around. That is why Allah permitted marriage between a Muslim man and a non-Muslim woman, and not vice versa, because in marriage it is the man who is in charge, just as custodianship/guardianship? [over the children]is awarded to [the parent]with the superior religion and not [that of]the inferior’…

“Dr. Saleh’s response was clear and point blank – she described the Christians as infidels and Islam as a religion superior to Christianity, wherefore the superior Muslims were more entitled to rule over the inferior Christians. The resulting argument illustrated the gulf between a religious outlook that categorically classifies people according to their religious affiliation… and that does not, in fact, recognize citizenship, and a secular outlook that affirms [the notion]that citizenship is the criterion which must [inform]a country’s dealings with its citizens, regardless of their religious affiliation…

“Two days later, [Dr. Saleh] was compelled to take back what she had said… [Either way,] her opinion demonstrates a religious point of view, which clearly reflects the position of all the Muslim religious scholars and all the forces of political Islam, with the Muslim Brotherhood party at their head, after the Salafist and Shi’ite streams, of course…”

Secular Law Preferable to the Koran

“Dr. Su’ad spoke as though she lived in Saudi Arabia rather than in Egypt, where the constitution speaks of equality among its citizens, regardless of their religion… [True,] the Egyptian constitution speaks of equality, but at the same time it determines Islam as the state religion and the shari’a as the primary source of legislation. [Such declarations] are [yet another]nail in the coffin of [Egypt as a civil state]…

“[This is] a crisis of religious ideology, which refuses to leave the circle of the Middle Ages, and which is used by the groups of political Islam to gain power. [This is] a crisis of the state, which even now is incapable of treating its citizens equally in terms of the law, regardless of their religion…

“It is noteworthy [that]there are unwritten laws in Egypt, upheld by custom, that prevent Christian Egyptians from attaining sensitive security and military positions. [In Saudi Arabia] there are oral laws, supported by Salafi religious law, that bar Saudi citizens affiliated with the Shi’ite school from joining the national guard… or from working in the Foreign Ministry, not to mention the military and the intelligence… This crisis will continue so long as we insist on [allowing]this religious outlook to infiltrate our public life, and so long as the government refuses to represent [all of]its citizens…

“But the homeland does not belong to a specific group of citizens. The homeland belongs to all. We are all citizens – whether Christian, Jewish, infidel, Buddhist, Bahai, Sunni, Shi’ite, or ‘Alawi Muslim, Druze, and whether male or female. We are all citizens. As long as we belong to the homeland, we are equal citizens. Secular law and the constitution, which respects civil and human rights, are the standard, not the Koran… Religion is not the standard. I repeat: People are the solution… – not Islam.”[6]

Endnotes:

[1] www.metransparent.com, April 14, 2010.

[2] According to the shari’a, marriage must receive the consent of the woman, and in the case of a single woman not previously married, silence is considered consent.

[3] www.metransparent.com, June 4, 2010.

[4] Dr. Su’ad Saleh is a professor of comparative religious law and a member of both the International Union of Muslim Scholars and the Egyptian Al-Wafd party.

[5] Salah Suleiman is a leading member of the Egyptian Al-Wafd party.

[6] www.metransparent.com, July 1, 2010.

MEMRI