The NO Sharia Campaign,6 led by an Iranian Canadian woman, Homa Arjomand, argued that any move to introduce Islamic laws should be opposed by everyone who believed in women’s civil and individual rights. The movement is now focused on Britain where, buoyed by the Archbishop’s endorsement, their unofficial Sharia courts are seeking formal state recognition. From healthcare to gun control to immigration, law reform is one of the ways we address shortcomings in our legal system and make our society better.
A 2011 UNICEF report concludes that Sharia law provisions are discriminatory against women from a human rights perspective. In many countries, in legal proceedings relating to Sharia-based personal status law, a woman’s testimony is worth half of a man’s before a court. Aside from the radical reforms of Islamic family law carried out in Tunisia and Iran , governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares.
So it is not surprising that when something in Islamic law appears problematic, there is an interest in reforming it. This interest often comes from Muslims experiencing the effects of rules that seem unfair, such as women having to go through more hurdles for an Islamic divorce than do men. Non-Muslims, too, have displayed an interest in Islamic law reform, as seen, for example, when established Islamic legal rules are cited as obstacles to consensus-building in international human rights work. The answer is “yes,” but the details are not easy to understand if one is not a specialist in Islamic law.
Recognising a separate system of law and institutions for one religious group could be seen as isolating, differentiating and separating Muslims from the wider community, thus intensifying a “ghetto-isation” for Muslims. Allowing Muslims to regulate family and inheritance law disputes through a legally recognised entity could also intensify divisions within Australian Muslim communities as well as between Muslim and non-Muslims. The role of the Sharia Court5 in Ontario fractured the province’s Muslim community, with the strongest opposition to it coming from within, not from outside. The Muslim Canadian Congress rejected the notion of differential treatment, arguing that the principle of equality in the Canadian Charter of Rights demanded Muslims be treated equally, not differently. Muslim women’s groups, including the National Council of Women in Canada, advocated repeal of the law.
This document provides non-specialists with a brief summary of how Islamic legal reform is possible, and why many popular calls for Islamic law reform lack sophistication and credibility. This is a very advanced topic of Islamic legal theory, and readers will find it helpful to first review introductory materials on Islamic law generally. Shari’a is the basis for personal status laws in most Islamic-majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody.
Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts, where (unlike in secular courts) testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases or at all. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation.
For example, the 1979 reform of Egyptian family law, promulgated by Anwar Sadat through presidential decree, provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version. The 2003 reform of Moroccan family law, which sought to reconcile universal human rights norms and the country’s Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of progressive legislation achieved within an Islamic framework. Non-Muslims residing under Islamic rule had the legal status of dhimmi, which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the jizya tax. Dhimmi communities had legal autonomy to adjudicate their internal affairs.