Ali Eteraz
Why I Am No Longer A Muslim by Ali Eteraz
I promised earlier that I’d discuss why I oppose Sharia arbitration courts in the UK. Here are some reasons in no particular order. I hope Asim Siddiqui and Yahya Birt, who are both supporting the courts (in theory), are listening.
1 - Its not fair to other citizens to have their taxes be used to fund the religious practice of a few select people.
What about the Jewish Beth-Din courts — where three men (and never women) pass judgments — you reply? I didn’t know they existed. Now that I know, they should go too.
When in 2004 Canada refused to allow Islamic family law, it realized that it needed to repeal the Arbitration Act of 1991 that had allowed Jewish and other religious family law to be applied. Canada did so. Same thing should happen in the UK. (For more on the Sharia courts in Ontario go here).
Separation of church and state should be absolute.
2 - Islamic family and inheritance law has issues that have not been resolved.
- Men get a presumption when it comes to custody (it should be an issue of best interest of child).
- Child support ends after three months (it should be as in US law where children “share in the good fortunes” of their divorced parents).
- Boys get more in inheritance than girls (should be equal).
- Men get bulk of marital assets (should be equitable distribution).
- Apostasy automatically ends the marriage (yeah, I’m sure this one won’t be abused by evil in-laws). Think of how easily Muslims accuse one another of kufr.
- In a divorce, a parent revealed to be (or more likely accused to be) a homosexual has no claim over the child (”your dad’s a fag, kid, you are fatherless!”). I mean, jilted women have never been known to demonize their exes like this.
- A man can divorce in one sitting but a woman needs the permission of a religious authority.
- This list is endless, please feel free to add to it.
The purpose of the law is to reflect and respond to social realities. Many parts of Islamic family law — as it stands today — don’t do that.
It is a maxim of fiqh: “Changes of al-ahkam (judgments) are permissible with the change in times.” I don’t see changes.
3 - Whose Sharia? (Rather, whose Fiqh).
I’m thinking that Shias are automatically out of the Sharia arbitration option since the normative version that will be approved will be Sunni.
Then you’ve got the issue of the fights between Sunni schools of law. Correct me if I’m wrong but under Hanafi law a girl doesn’t need a wali to get married but she does under Maliki law. Under Hanafi law a divorcing woman doesn’t need to show cause to get a khul‘ but under Maliki law she does. People don’t really check what fiqh their prospective spouse is. All this is going to create a huge headache for the arbitrator who, poor guy, is not likely going to be schooled in various kinds of Islamic law. This is going to increase the expense and delay for all parties.
4 - Coercion
I hear a lot that the arbitration courts don’t apply unless both parties consent.
I guess people forget that for Muslims, marriage is an all-family business. Heck, its in the Quran that in cases of marital-conflict you appoint two negotiators. You think these negotiators — whose primary motivation, due to social stigma, is going to be to keep the couple from divorcing — is not going to try and talk them towards the Sharia court?
Coercion won’t be by people putting a gun to the heads of women. Instead, women will be gently “reminded” (with a nice hard grasp on their arm) that if they don’t go to Sharia judge they will be seen as impious and not-devout. You have no idea of the power of social death.
We have enough issues of piety-pressure in our communities already. Half the girls I know that wear hijab do it because of piety-pressure. This pressure gets out of hand in cases of marriage, divorce and custody. Think about it. These days, even the most liberal and secular Muslims, when they get married, go through the entire nikah procedure/ceremony. This isn’t because they are religious (there is a nice open bar at the wedding hall). Its because of piety-pressure. It is an impeccably strong force. Muslims in the US are polled to be more socially conservative than Evangelical Christians (and Muslims in the UK are more conservative than American ones).
Then, there is the beating issue. Let’s say that a woman consents to going to the arbitration court, but once there, she wants to bring up domestic violence. What’s the Sharia judge going to say? “Was it with a stick the width of my thumb?” Give me a break. Also, the question arises, is the judge, in such a situation, going to be able to kick the matter up to a secular court in the form of an interlocutory appeal (an appeal that takes place during the case)? I suspect most people will say that the answer is yes. If the answer is yes, and we have to call a bunch of expert witnesses to the secular court, then why are we in the Sharia court in the first place? What about women beating men? It happens about 15% of the time. I don’t think Islamic family law even recognizes this.
5 - There is no standardized version of Islamic law
Sharia is not codified. It can be anything based on the whim of the arbitrator. For law to be law, it needs standardization. Who is going to do this? Muhammad Fadel and Khaled Abu el Fadl? Abdullahi an-Naim? Irshad and Reza Aslan? Faraz Rabbani? Taqi Usmani and Nameless Arab Guy? Suhaib Webb and Yasir Qazi? Yale University? Harvard’s Islamic Law Symposium? Remember, we’re a community that still haven’t been able to standardize what day to start Ramadan or celebrate our biggest festivals so let’s not get too carried away with pipe dreams about standardizing Islamic family law. If codification has not even been accomplished in numerous Muslim countries then how can you even think about getting a Sharia court going in the West?
And, I assure you that if you get the standardization issue going, its quickly going to devolve into an Islamic civil war — Sufi v. Salafi v. Liberals v. Right-Wing-Islamophobes (what, you don’t think they are going to show up at the public meetings?)
6 - Misogyny in Muftis
Will there be female arbitrators? Conservatives are going to scream that the arbitrator plays the role of a Mufti and under Islamic law a woman cannot be a Mufti (just a jurist or muhaddith). Do we wait for the male arbitrator? What if only a female one is available and the party that refuses to be adjudged by a woman, after previously consenting to the Sharia court, now wants to go to the secular court. Is this allowable?
7 - Muslims are already engaged in Islamic courts so why not just have the government regulate it?
See number one.
Also, having government recognized courts makes them authoritative, and with social pressure it becomes hard to resist them.
8 - This is not going to lead to Islamic reform
Some reformers are arguing that if you initiate this program, as the kinks get worked out, it’ll essentially be a form of Islamic reform.
Uh, no. If you really want to be reformist, the thing to do is to convince Muslims that when they participate in the secular system, simply make a niyah (intention) in your head that you are trying to fulfill your Islamic protocols as well. For example, I have never understood why we do a wedding at city hall and a wedding at the hotel. The city hall wedding fulfills all the formal requirements of a nikah — contract, consent and witnesses. If the couple would just think “Ya Allah I do this to satisfy you!” then that’s a wedding recognized by Islam. I don’t see why this is so difficult. Same thing with divorce. When you file with the court, use intention to render it Islamic. We do this kind of mental Islam a lot. Think about it.
9 - Ghettoization
Muslims talk a lot about parts of the world where there is one law for Muslims and one law for Jews — ahem, Israel-Palestine — but when they themselves initiate distinctions between themselves and other people, its all gravy.
Fact is, I’d think its a perfectly Islamic idea that when your neighbors would get quite antagonized with you if you behaved a certain way, you should relent. Try gentle persuasion. If it doesn’t work, move (like Muhammad to Medina).
10 - Millet system is dead
Yes, I know, the Ottoman Empire recognized everyone according to their religion and gave each religious community the power to tax and adjudicate their matters.
First of all, we don’t live in a millet world. In fact, with the Tanzimat reforms, even the Ottomans did away with it. Do you know what was happening? Foreign powers were coming into the Ottoman Empire and saying that they were “protecting” the various religious enclaves. Let’s think about this. Let’s say the UK allows a Sharia arbitration system and doesn’t provide enough money in the budget to pay enough staff. Are Muslims going to ask Dubai for a check? Right, that won’t make your neighbors think you’re a fifth column.
Also, please show some historicist sophistication about the Ottoman Empire. They organized people according to religion because the clerics of various Christian groups were less prone to upsetting the status-quo and leading rebellions.
11 - Don’t stoke the hate
The roots of Christian anti-semitism lie in the Christian view that “spirit” trumps “law.” Christian fathers long considered law — specifically Jewish law — to be shifty and conniving. Then the Christians slaughtered six million Jews. {being a bit facetious}.
12 - This is not like halal meat
Getting halal meat standardization is not the same thing as Sharia arbitration because the issue here is of equality before the law and duties of citizenship, not digestion.
13 - Witness issues
You better believe that when it comes to resolution of these cases there is going to be witnesses that are going to have to be brought in. But under classical fiqh, the testimony of women is half that of men. Are we going to change that rule before the Sharia-arbitration goes into effect? If so, see number five above. Even if you try a reformist argument and say that the Quranic verses only apply the half the witness of a man rule to financial situations (and not personal ones), the fact is that there are plenty of financial issues in divorce, custody and inheritance.
14 - Liberal democracy, as is, is perfectly compatible with Islam
You aren’t making your country more Islamic or even earning more reward by going to Sharia arbitration courts. The Mufti of Egypt thinks liberal democracy is compatible with Islam. A traditionalist jurist, quoting a lot Ghazali, thinks that there is no incompatibility between being an orthodox Muslim and living in a liberal democracy.
Conclusion
There is absolutely no reason for a Muslim to support Sharia arbitration. If you’d like to live in a state where you can resolve your marital, custodial, and divorce disputes under the aegis of classical Islamic law, might I recommend the Gulf? It looks like America and tastes like the 7th century, perfect for a retrogressive Muslim. Cheaper gas for your very Islamic gas guzzler, too.
