Reply #19: theory and practice, parts and wholes [View All]

I'm having trouble figuring out what you're saying. I mean, looking at actual practice makes sense. But I think the question for me at least is whether all of Sharia is inherently sexist, as evidenced by its practice, or whether there are sexist applications of Sharia in which the sexism does not primarily originate in or belong to Sharia.

Here's what I'm finding.

An Amnesty Interntaional press release criticized the practice of Sharia in Nigeria because, for one reason:

Discrimination on grounds of gender: Under the Maliki school of thought, which dominates the interpretation of Sharia in northern Nigeria, pregnancy is considered sufficient evidence to condemn a woman for Zina, an offence which is to be read as adultery or as voluntary premarital sexual intercourse. The oath of the man denying having had sexual intercourse with the woman is often considered sufficient proof of innocence unless four independent and reputable eye-witnesses declare his involvement in the act of voluntary sexual intercourse. Safiya Hussaini was sentenced to death in her first trial for adultery on the basis of her pregnancy.

Based on the cases of Bariya Ibrahim Magazu and Safiya Hussaini, Baobab for Women's human rights and Amnesty International emphasise that Sharia Law as practised in the norther states of Nigeria, does not protect women from possible sexual assault and coercion, instead it is willing to punish the victims of such assault. In both cases the Court has not pursued the allegations of coercion. The clear implication of this decision is that men violate and rape girls and women with impunity as long as they make sure that there are no witnesses of their crime. On the other hand, women and girls who are victims of rape or coercion have their situation further compounded. They will be subjected to charges of Zina and false accusation. This clearly violates women's rights, justice and security while protecting those men who harrass, molest and rape women and girls.

.

So, are they criticizing Sharia, or a particular way that it's being put into practice? I'd say they pretty clearly point to the latter.

What's the Maliki school and how does that relate to Sharia and the treatment of women? I found commentary touching on the Bariya Magazu case and BAOBAB's position against Maliki Sharia:

Muslims in general are aware that the punishment for fornication in Islamic law is 100 lashes for each party to the act. They also know that in the Qur’an the evidence for convicting suspects is the testimony of four up – standing male eye witnesses to the act of fornication. The Sunnah also accepts the voluntary confessions of an individual to the crime, a confession which he/she is free to retract at any point before or even during the execution of the sentence. These two sorts of evidence are therefore admissible as proof of fornication by unanimous consent. Beyond this there is much that Muslims do not know, which is why organisations like BAOBAB are easily dismissed in Islamist circles as NGOs acting in the interest of America or the West. In fact the arguments put up by BAOBAB against the caning of Bariya were based on sound and established principles of Islamic jurisprudence.

The first point is whether the fact of pregnancy is evidence of fornication making a single girl liable to the hadd punishment on account of pregnancy. On this, one says, on the first count, that there is no evidence to support it in the Qur’an and Sunnah. Secondly, of the four schools of law in Sunni Islam only the Maliki school accepts this position (see Ibn Qudamah’s Al – Mughni, 10:192, also Al-Jaza’iri, Kitabul Fiqh ala’l Mazahib al – Arba’ah 5:94; and M. Abu Hassaan, Ahkam al Jareemah wa’l ‘Uqubah fil shari’atil Islamiyya, pp 257–8).

The reason for rejecting pregnancy as evidence of fornication by the majority of jurists, among them Abu Hanifa, Al – Shafiee and Ahmad is simple; pregnancy is evidence of intercourse but not of consent. The woman may have been raped. Also, she may have erroneously consented to a relationship she believed was legitimate as in one who contracted a temporary marriage since this was considered lawful by Ibn Abbas, or one who gave herself in marriage without a guardian since this is in certain circumstances permissible according to Abn Hanifa. In sum, the act of intercourse, which may be established by pregnancy, is not in law identical in meaning to fornication. Because of this doubt (shubuha) a pregnant woman without a husband can only be convicted of fornication based on her voluntary confession to the act. Any uncertainties in her testimony set her free. In fact Ibn Qudamah in al – Mughni (10:193) actually says pregnancy is not evidence of intercourse, if this is defined as coitus. In his own words "a woman can be pregnant without coitus if a man’s sperm goes through her vagina either by her own design or those of another party...." And this is true. Indeed an interesting discussion on NTA’s Newsline of Sunday 18th March 2001 involved a ten year old virgin girl who was pregnant.

Although the Maliki position is based on rulings or statements from Umar, Uthman and Ali, there have been other rulings and statements from these same companions and others which contradict this position (see al – Mughni 10: 193 – 194). Also, it is a matter of consensus among jurists that if four eye witnesses testify to coitus but two of them, for instance, have doubts about consent of the woman she is not convicted (Al Mughni 10:184 – 186, Kitabul Fiqh 5:73) and in fact, according to some jurists, the two who testified to fornication are given 80 lashes for slander! So the first point of criticism of the law is that it is based on the fact of pregnancy which does not prove fornication. It places the burden of proof on the woman that she was not a consenting party which violates a fundamental law in Islam that all persons are presumed innocent until guilt is proven. This is the precise basis for BAOBAB’s criticism.

Read the whole essay here

Here is yet another article pointing to Maliki as bad jurisprudence, citing scholar Khaled Abou El Fadl.

I think these sources make it clear that the sexism of Maliki Sharia cannot fairly be ascribed to the Sharia itself. However, here's a beeb article which quotes Ziba Mir Hosseini:

Ziba Mir Hosseini, author of Islam and Gender, says: "We do not have in modern times any state which has introduced Sharia and has been able to respect women's rights."

She says nowhere does the punishment of stoning appear in the Koran. She adds that pre-modern interpretations of the Sharia, which often have a heavy overlay of cultural prejudices, are not in keeping with the spirit of Islam, which is about justice and equality.

So what is the answer? For some it is to get rid of patriarchal structures and allow women to act as jurists.

So, it's not just Maliki that's the problem in this view, it's the sexism of the courts, the sexism in the societies where Islam has been the dominant religion, and a tradition of sexist interpretation. But that's arguably not the same as Sharia itself, and it seems to back what BAOBAB and others are saying in regards to Maliki Sharia--that it's sexist and unjust and not good and proper Sharia according to Islam.

Needless to say, I haven't been following the case. If you, Magistrate, think I'm missing something or being miled, would it truly be so onerous for you to recommend a couple of sources?

Please.