MUSLIM MEDIATION - Sharia: practice of faith, politics of modernity (Part 2)

The logic and application of sharia law needs to be understood in its theological and historical context if intense
controversy is to be succeeded by calm and constructive debate, says Sami Zubaida.

The national project

In modern Arab states such as Egypt, Iraq, Syria, and Tunisia, the legislative process, while retaining elements of the sharia in their family law, have constantly attempted to liberalise the provisions which disabled women and children. The most advanced was Tunisia where polygamy was prohibited, and many liberal measures instituted.

Iraq both under Abd-al Karim Qasim (1958-63) and in the earlier period of the Ba'ath regime (1970s-80s) also instituted reforms and inhibitions on polygamy. In pious Egypt, reforms have been extensive but always controversial.

The latest, in 2000, were proposals to give a wife rights of unilateral divorce, khul' (under an obscure provision in a supposed, but disputed, hadith), while renouncing any financial rights. This was passed against fierce opposition from many sectors of the political class, the media and public opinion. Another proposal made at the same time, to allow a wife to pursue work and travel without the husband's permission, was defeated.

The call for the full application of the sharia, however conceived, is a constant element of Islamist advocacy in recent decades. The radical call for the caliphate also has as one of its reasons the enforcement of the shari'a. One part of the rationale of the sharia, as already mentioned, is the pious requirement to live and to rule in accordance with God's revelations.

Another powerful motive under modern conditions is a kind of cultural nationalism, a quest for authenticity. Colonial rule, and western invasion, it is argued, have imposed alien cultures, including legal codes, on Muslim peoples. The task for national projects at present is to restore authenticity by instituting the sharia as the original, native law.

This quest is also characteristic of many modernist nationalists and reformers who espouse diluted and reformed notions of the sharia, but hold it as essential for anti-imperialist national revival. This is part of the convergence of nationalism with Islamism, discernable in many parts of the middle east, with anti-imperialism as its motor.

The interest question

An important feature of this quest is the rise of Islamic banking and finance, also featured in Fred Halliday's article. This is an entirely modern and mostly recent phenomenon. The dealing in interest was a common feature of most Muslim societies, and widely accepted as legitimate, sometimes disguised under flimsy formulae. Sharia courts in many Ottoman settings enforced contracts stipulating interest payment. Most notably, Ebussu'ud, the court mufti of Suleyman the Magnificent in the 16th century (known in Arabic and Turkish as Suleyman Qanuni, law-giver) issued a ruling allowing cash waqf (pious endowment).

Typically, these endowments are in the form of income from property, but Ebussu'ud ruled the legitimacy of cash endowments, the income from which must be a form of interest. Moreover, many of the Muslim reformers in the 19th century and later - including the leading cleric and mufti of Egypt, Muhammad Abduh (1849-1905) - proclaimed the legitimacy of dealing in interest.

The question of the prohibition on interest comes to the fore in the modern period, primarily as a question of identity politics (as well as of opportunity for gain in certain contexts), of asserting difference from the west in a world in which all aspects of financial life are the west.

This may be seen as an "alternative modernity" of finance, but one that springs not from some historical and cultural essence (as usually supposed by advocates of the concept) but from current ideological preoccupations.

The need to know

Rowan Williams, the archbishop, rightly pointed out that informal sharia tribunals were in any case in operation among certain Muslim communities in the United Kingdom, and asked whether these should not be recognised and formalised in some way. Orthodox Jews already enjoyed such recognition, so why not Muslims? And if so, what kind of "recognition"? Surely not extending to enforcing their judgments on unwilling or weak parties and against the law of the land?

The problem in resolving these questions is partly that not enough is known about the forms and procedures of these bodies, nor about the scope of their operation. Do these bodies mix sharia provisions with customary law of the ethnic communities? Resort to these tribunals, legally a form of arbitration, can only occur if all parties to a transaction or dispute agree to be bound by its outcome.

What happens, however, when the parties are not equal - as in the hypothetical case, say, of a wife from a village in Kashmir against more powerful and informed husband and in-laws? May there not be a case for formalising these tribunals in some way in order to monitor the fairness of procedure and the truth of consent? Or would recognition initiate a process of institutionalisation which may spur further demands for alternative legal provisions? The Archbishop of Canterbury, in my opinion, has raised important questions, swept away in the furore engendered by the symbolic potency that the mention of "sharia" seems to engender.

Sami Zubaida is emeritus professor of politics and sociology at Birkbeck College, London. Among his books are Islam, the People and the State: Political Ideas and Movements in the Middle East (IB Tauris, 1993) and Law and Power in the Islamic World (IB Tauris, 2003).

Sami Zubaida is emeritus professor of politics and sociology at Birkbeck College, London. Among his books are Islam, the
People and the State: Political Ideas and Movements in the Middle East (IB Tauris, 1993) and Law and Power in the Islamic
World (IB Tauris, 2003).