What’s wrong with Maryam Namazie’s view of Sharia law ?

Maryam Namazie, member of the Extremist organization, Council of ex-Muslims, takes another opportunity to strike at Islam with her recent article in the Guardian, “What isn’t wrong with Sharia law ?”.

She claims that the current Muslim arbitration tribunals which operate under the arbitration act and Sharia councils are a demand of ‘Islamism’ to restrict citizens rights, in particular those of women, and that Sharia law is functioning as a parallel legal system here in the UK.

Sharia courts do not in anyway work as parallel systems, but work in conjunction with British Law, so that tribunals can only result in rulings that comply with UK law. Maryam mentions child custody as an example of alleged dissonance between the systems of law, claiming that custody reverts to the father at a preset age regardless of circumstance, whereas in British law, the child’s best interests are the court’s paramount consideration. This is a false comparison, since she compares the detail (al Hukm) of the Sharia law, which is the prefixed age, with British law’s purpose of the law (legal theory), which is the child’s best interest. Her false comparison ignores the fact that in Sharia law, the child reverts to the father after the age if seven, in the view that it is in the child’s best interest. The child’s best interest remain the primary consideration and were the father not considered the best carer, custody would not revert to him, just as it wouldn’t to a mother in British law in the opposite scenario. This simplistic assessment, which claims that, unlike other legal systems, Sharia law is fixed regardless of the circumstances, is an erroneous conflation of Sharia law (the ideal) with the application of the law (fatwa). A fatwa is a Juristic verdict or the general Sharia ruling applied to a specific situation. If the situation is such that the child’s best interest are compromised, then a fatwa would be ruled for the child to reside with the mother instead of the father even if the prefixed age of the child were met.

Further she also claims that only men have unilateral divorce and that women will lose their dowry, (the sum of money agreed to at the time of marriage), if they obtain a divorce without the man’s agreement. Maryam criticizes this by comparing it to British law where assets are divided based on the needs and intentions of both parties. Both men and women can divorce in the Sharia and both can request a divorce for exactly the same reasons. Maryam takes issue with the woman’s loss of her dowry if she requests a divorce. It is worth noting that like all systems of law, a specific Sharia ruling cannot be analysed in a vacuum or in isolation, and can only function within its intended contingent framework or backdrop. Maryam fails to mention that according to the Sharia, in origin the husband by obligation must provide for all his wife’s financial needs, to the extent that she is under no obligation to contribute to any financial matters in the marriage, even if she is a millionaire! Given this backdrop the dowry being returned may not sound so bad. Nevertheless, as I have mentioned before, specific situations can result in specific rulings (fatwa). If for example the women has to divorce due to the husband abusing or mistreating her or the man is impotent, then this situation would be considered by the Sharia courts as a forced divorce or default divorce on the man’s part, and in this case, she would not have to return the dowry. Just as in British law, if she had contributed to the marriage financially as much as her husband, then this also would also affect the matter of dowry and any other assets involved.

Maryam’s third bone of contention relates to women’s testimony which she claims equates to half that of a man. The verse in the Quran, which states the need for two women or one man relates to financial transactions which women were not actively involved in at the time of the Prophet. Many scholars no longer regard this as applicable since women are nowadays just as well versed as men in these areas, rendering their testimony equal to that of men, as it already was stated in all other areas of the law, whether civil or criminal. Not to mention that a great portion of Islamic traditions are reported by one women namely the Prophet’s wife Aisha!

Once we dissect this simplistic view of the Sharia law, it becomes clear that the real criticism ought to be directed at the misuse of the law, not the law itself. Sadly, Sharia law tends to be applied in countries where the rule of law, transparency and accountability are rare if not completely absent. Any legal system left to corrupt judges and despotic rulers who fail to up hold the rule of law is bound to fail to stand up to scrutiny. Criticism should rightly be directed at the mis-use of the Sharia, but let those addressing this topic get the facts right and not throw out the baby with the bath water.

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