Shariah in Family Law?

 

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I was doing some thinking after reading this article. I was wondering if I’d utilize a family court system based on Shariah laws if the opportunity became available to me. After thinking about it for a while I came to a conclusion. This may not be the most politically correct thing to say as a Muslim but I’d have to say no. Why? Because I have concerns about whose version of Shariah I’d be adhering to. Would it be some old, out of touch “uncle” trying to force me to stay in a marriage even if I was unhappy? Would there be gender, racial, and economic biases in the ruling? Would the judge be able to relate to me, a Black woman, a convert, a college-educated working woman? Would they understand the challenges that I face? Would they think we’re are all Muslim therefore we interpret, view and comprehend things in the same manner?  More importantly, how would I feel if I did not want to be in a marriage any longer and a judge ruled that I did not have grounds for a divorce?

It’s not that I believe Shariah law is inherently unfair. My concern is more about interpretation. In order for me to feel comfortable I think a judge in Shariah law would need to have a serious commitment to justice accompanied by mercy and compassion. He’d need to evaluate his own cultural, personal, gender, socio-economic and other biases. I’m also be concerned about ijtihad. Would a judge believe that ijtihad is necessary (critical!) in the American context? Some of us have unique situations that do not fall into neat, definable categories. Some of us have situations that definitely fall into a grey area . Would this judge understand that? Would he evaluate conflicts on a case by case basis? 

These are some of my thoughts/questions/reservations…

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13 responses to “Shariah in Family Law?

  1. Hmmm. I just might do it but Dr. Azizah Al Hibri (of Karamah) & Dr. Asifa Qureishi (the University of Wisconsin Madison law professor who knows Islam& shariah) would have to be all up in there representing for me.

    The thing about the NY Times article is that it shows how much the sister’s voice and pleads were ignored. I’m sorry but this type of forcing somebody into a toxic (often violent) situation is disturbing.

    On the other hand there needs to be a bridge or a dialogue between the Islamic marriage contract and the Western understanding of marriage & divorce. For example, if a Western court interprets the mahr as simply “a man buying a woman” they might (and have been) quick to dismiss what many of us sisters consider a protection & right.

    At the same time, there has to be a way to better understand and speak to the complex negotiations that many of us make between our Islamic and Western world senses that goes beyond the type of “shariah in a vacuum” represented in this article.

  2. I feel you, lady. My thoughts exactly.

  3. Divorce is not an easy decision to be made by any woman, so why should any judge tell me that i do not have grounds for divorce? No one should be forced or encouraged to stay in a marriage they do not want to be in. I dont see people doing this with the men. I agree with you about different interpretations of the shariah, how you interpret shariah depends in my opinion on the person’s cultural background, education etc.

  4. Salaams:

    There are steps taken before a divorce is granted in Islam. Counseling is one of them. But the “counselor” said, “if he only slapped you once or twice and was sorry” or something to that effect … gheez.

    One time would be enough for me!

  5. Good post, just one question. All legal systems have to develop to become better and reduce the chance of oppressing the very people it is meant to serve. But if we don’t use it because there is a (not so small)statistical chance that we will get some bad rulings, isn’t that circular logic?

  6. Come on Philip, (I hate to say this to you) but that’s a stupid thing to say! No it’s not circular logic, it’s no logic! Why don’t you place yourself in a no win situation (lol), don’t ask us to sacrifice ourselves.

    Besides that’s not how legal systems develop, not like many people are willing to update or modify some of these laws.

    To me this article reminds me of that list you mentioned a while back, “The Muslim Male Privilege”, it feels so ingrained in some things.

    I too would not use Shariah family court— I hope this sends a LOUD CLEAR message that there is a problem, why do so many of us feel dissatisfied? But I doubt anyone is listening.

    There’s word that the first Shariah courts rulings are being investigated in the UK to see if they meet the basic requirements in particular for the most vulnerable party (women). Already there’s some mention of very nasty rulings made by some judges—Brace yourself for yet another humiliating FAILURE.

  7. laila, sorry thats not what i meant. I should of worded it differently. What i meant was that, ok so we don’t use Shariah family courts because they have (big) problems…. but what are we going to do make them better?

  8. Great and pretty week for Malazyan people!

  9. salaams,

    I think I totally agree with you. the difference between how great it would be in theory and what could happen in practice give reason for pause.

    IL (I guess like any form of law) isn’t a one size fits all thing. Even if they were only applicable to family courts Even before thinking about cultural biases

    I think my concern would be would it be ok to pick and choose based on taqlid from different Madhabs? or Even from Shia tradition and vice versa.

  10. AOA,

    Wata gwan. Interesting post, I was born muslim and my knowledge is still limited. But, I noticed that most women are against this. I learned something about Sharia at my uni, university of toronto, but all i learned was how the sharia is composed and that different school of thoughts would interpret certain things differently. But, what if one of the judges was african american, he would most likely understand his peoples situations and the culture. All I’m gonna say is pick the right man (husband) cuz Allah doesn’t even like divorces.

  11. Sallam Sis,

    I love the way you dare. You dare to challenge ideas and say how you feel. I admire you and your blog.. and on this subject I totally agree. It’s a shame when Shariah courts are that likely to be biased/sexist or not understand interpretation in modern/current situation at hand.
    The best judges in my opinion, in our US Democracy have been willing to look at the letter of the law in terms of today, and judge the constitutionality of current laws by our protected rights such as personal freedoms (equal rights by race, gender etc).

    I like the idea, instead to ensure that our Masjids have counseling for families, children, parents, couples, future couples… activities for teens and weekend school for youth.

    Couples counseling is something I really believe in, which seems to be encouraged in terms of bringing 3rd parties in to mediate. It’s nice to think of someone who would NOT condone violence or unhappy marriage.

    Good info and daring post.

  12. asa. for the most part, me neither. i would trust shaykh hamza or imam zaid in a mediation type setting though.

  13. As a Malaysian, should I be offended by David Santos’ comment above?

    Anyway.

    Implementing Shariah Law is tricky; besides some aspects of Islamic marriage laws, inheritance laws leaves women with the raw end of the deal. Recently when my grandparents passed away (inna-lillah), my mother had to contend with a third of their property whilst my three very successful uncles gets a lion’s share. It really isn’t fair especially when she’s recently retired and is now a housewife and has been a single parent for a very, very long time.

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