The Broader Path


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The “Broader” Path The Role of Shari’ah in Protecting Women’s Rights. See complete paper here:

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The Broader Path

  1. 1. The “Broader” Path The Role of Shari’ah in Protecting Women’s Rights 53 rd Commission on the Status of Women Church Centre for the United Nations Mar. 10, 2009
  2. 2. Overview <ul><li>Part 1 – What is Shari’ah </li></ul><ul><li>Part 2 – UDHR and CDHRI </li></ul><ul><li>Part 3 – CEDAW and the rules of Shari’ah </li></ul><ul><li>Limited scope given timeframes </li></ul><ul><ul><li>Papers will be available covering other issues </li></ul></ul>
  3. 3. Part 1 - What is Shari’ah? <ul><li>Literally means “path” </li></ul><ul><li>Is not a single, coherent legal system </li></ul><ul><ul><li>Better described as several overlapping legal systems </li></ul></ul><ul><li>Governed over a quarter of the Earth’s population for well over a thousand years </li></ul><ul><ul><li>Considerable variation due to geography, culture </li></ul></ul>
  4. 4. Basis of Shari’ah <ul><li>Two main sources </li></ul><ul><ul><li>Qur’an: divinely revealed scripture </li></ul></ul><ul><ul><li>Hadith: instructions and practice of Prophet </li></ul></ul><ul><li>Several schools of legal thought </li></ul><ul><ul><li>Mutually complementary </li></ul></ul><ul><ul><li>Resist claims of universality, dominance over others </li></ul></ul><ul><li>Significant amount of contextual interpretation </li></ul>
  5. 5. A Concept Thoroughly Confused <ul><li>The concept of shariah has been thoroughly confused in legal and common literature… Most encyclopedias define shariah as law derived from the Quran, the Sunna, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of shariah inappropriately lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Quran and the Sunna. This article is founded on a fundamental premise that the Quran and the Sunna constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). </li></ul><ul><li>L. Ali Khan, The Second Era of Islamic Creativity. University of St. Thomas Law Journal, Vol. 1, p. 341, 2003. Available at SSRN: </li></ul>
  6. 6. Ta’zir Laws <ul><li>Not really Shari’ah per se </li></ul><ul><li>Discretionary judicial based rulings enacted for public policy reasons </li></ul><ul><ul><li>Address social ills, but not binding </li></ul></ul><ul><li>Source of criticism regarding women’s rights </li></ul><ul><ul><li>Enforcement of covering, i.e. hijab </li></ul></ul>
  7. 7. What Else Isn’t Shari’ah <ul><li>Female Genital Mutilation (FGM) </li></ul><ul><li>Honour Killings </li></ul><ul><ul><li>Both cultural practices predating Islam, common among non-Muslim populations in the mid-East </li></ul></ul><ul><ul><li>Strongly discouraged unanimously by accredited religious establishment </li></ul></ul>
  8. 8. Historically Liberal Interpretation <ul><li>Immense distinction between criminal and civil elements of Shari’ah </li></ul><ul><ul><li>“… for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation” Noah Feldman, New York Times, March 18, 2008 </li></ul></ul>
  9. 9. How Can Shari’ah Advance Women’s Rights? <ul><li>Avoid a conflict of legal systems, cultures, civilizations </li></ul><ul><li>Work within existing conceptual frameworks </li></ul><ul><ul><li>More legitimacy </li></ul></ul><ul><ul><li>Less resistance </li></ul></ul><ul><ul><li>Greater endurance over time </li></ul></ul><ul><li>Requires re-evaluation of pre-existing concepts of what Shari’ah is </li></ul>
  10. 10. Part 2 – UDHR v. Shari’ah <ul><li>How “Universal” is the Universal Declaration? </li></ul><ul><li>Reaction by predominantly Muslim countries through the Cairo Declaration </li></ul><ul><li>Examples </li></ul><ul><ul><li>Domestic abuse </li></ul></ul><ul><ul><li>Inheritance </li></ul></ul><ul><ul><li>Right to Work </li></ul></ul>
  11. 11. Universal Declaration of Human Rights <ul><li>Dec. 10, 1948, direct response from WWII </li></ul><ul><li>Most translated document in the world (Guiness Book of World Records) </li></ul><ul><li>Foundation for many treaties </li></ul><ul><li>defines &quot;fundamental freedoms&quot; and &quot;human rights&quot; in the UN Charter </li></ul><ul><ul><li>binding on all member states </li></ul></ul>
  12. 12. Cairo Declaration on Human Rights in Islam <ul><li>August 5, 1990 - 45 foreign ministers of the Organisation of the Islamic Conference </li></ul><ul><ul><li>Followed the Universal Islamic Declaration of Human Rights,&quot; at UNESCO in 1981 </li></ul></ul><ul><li>Although it followed critiques of UDHR, was not necessarily a response to it </li></ul><ul><li>November 9-10, 1998 OHCHR seminar UN in Geneva, &quot;Enriching the Universality of Human Rights: Islamic Perspectives on the Universal Declaration of Human Rights.&quot; </li></ul><ul><li>March 14-15, 2002, the OIC organized a &quot;Symposium of Human Rights in Islam&quot; </li></ul><ul><ul><li>Debate over interpretation continues </li></ul></ul>
  13. 13. A Reference Without a Clear Source <ul><li>ARTICLE 24: </li></ul><ul><ul><li>All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah. </li></ul></ul><ul><li>ARTICLE 25: </li></ul><ul><ul><li>The Islamic Shari'ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration. </li></ul></ul><ul><li>  But “Shari’ah” is not defined </li></ul>
  14. 14. Obligations of Member States <ul><li>&quot;The Member States which have acceded to and ratified United Nations Human Rights Conventions remain bound, under all circumstances by the provisions of those texts, as well as by the erge omnes [in relation to everyone] obligations under customary international law.“ </li></ul><ul><ul><li>Reply to Association for World Education by Office of the High Commissioner for Human Rights (OHCHR), September 14, 2000 </li></ul></ul><ul><li>Whose customs? </li></ul>
  15. 15. Surah An-Nisa <ul><li>4:34. …As to those women on whose part you see ill­conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly, if it is useful), but if they return to obedience, seek not against them means… [emphasis added] </li></ul>
  16. 16. Hadith on Domestic Abuse <ul><li>Narrated Mu'awiyah al-Qushayri: &quot;I went to the Apostle of Allah (peace_be_upon_him) and asked him: What do you say (command) about our wives? He replied: Give them food what you have for yourself, and clothe them by which you clothe yourself, and do not beat them , and do not revile them. </li></ul><ul><li>Narrated Mu'awiyah ibn Haydah: &quot;I said: Apostle of Allah, how should we approach our wives and how should we leave them? He replied: Approach your tilth when or how you will, give her (your wife) food when you take food, clothe when you clothe yourself, do not revile her face, and do not beat her.   </li></ul><ul><li>[emphasis added] </li></ul>
  17. 17. Inheritance <ul><li>4:11. Allâh commands you as regards your children's (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit, (these fixed shares) are ordained by Allâh. And Allâh is Ever All­-Knower, All-­Wise. </li></ul>
  18. 18. Limits to Modifiers <ul><li>4:13. These are the limits (set by) Allâh (or ordainments as regards laws of inheritance), and whosoever obeys Allâh and His Messenger (Muhammad SAW) will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success. </li></ul>
  19. 19. UDHR Right to Work <ul><li>Article 23  </li></ul><ul><ul><li>Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. </li></ul></ul><ul><ul><li>Everyone, without any discrimination, has the right to equal pay for equal work. </li></ul></ul><ul><ul><li>Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. </li></ul></ul><ul><ul><li>Everyone has the right to form and to join trade unions for the protection of his interests. </li></ul></ul>
  20. 20. Cairo Declaration On Work <ul><li>ARTICLE 13: </li></ul><ul><ul><li>Work is a right guaranteed by the State and the Society for each person with capability to work. Everyone shall be free to choose the work that suits him best and which serves his interests as well as those of the society. The employee shall have the right to enjoy safety and security as well as all other social guarantees. He may not be assigned work beyond his capacity nor shall he be subjected to compulsion or exploited or harmed in any way. He shall be entitled - without any discrimination between males and females - to fair wages for his work without delay, as well as to the holidays allowances and promotions which he deserves. On his part, he shall be required to be dedicated and meticulous in his work. Should workers and employers disagree on any matter, the State shall intervene to settle the dispute and have the grievances redressed, the rights confirmed and justice enforced without bias. </li></ul></ul>
  21. 21. CDHR on Financial Rights <ul><li>ARTICLE 6: </li></ul><ul><li>(a) Woman is equal to man in human dignity, and has her own rights to enjoy as well as duties to perform, and has her own civil entity and financial independence, and the right to retain her name and lineage. </li></ul><ul><li>(b) The husband is responsible for the maintenance and welfare of the family. </li></ul>
  22. 22. The Real Challenge? <ul><li>The need to continue codifying international law is apparent ... But an even greater challenge for us now - and, in many respects an even greater opportunity - is enforcement. </li></ul><ul><li>Although international law is often caricatured as elusive and abstract, there is nothing abstract about its enforcement - Madeleine K. Albright </li></ul><ul><ul><ul><ul><li>(1995). Albright International Law Approaches the Twenty-First Century: A U.S. Perspective on Enforcement. 18 Fordham Int'l L.J. 1595 at 1596. </li></ul></ul></ul></ul>
  23. 23. Part 3 CEDAW and the Rules of Shari’ah The Rights of Women in Marriage and Family Matters Asma Bala
  24. 24. Reservations <ul><li>Saudi Arabia </li></ul><ul><li>&quot; In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention.” </li></ul>
  25. 25. Reservations <ul><li>Egypt </li></ul><ul><li>“ Reservation to the text of article 16 concerning the equality of men and </li></ul><ul><li>women in all matters relating to marriage and family relations during the </li></ul><ul><li>marriage and upon its dissolution, without prejudice to the Islamic Sharia's </li></ul><ul><li>provisions whereby women are accorded rights equivalent to those of their </li></ul><ul><li>spouses so as to ensure a just balance between them . This is out of respect for </li></ul><ul><li>the sacrosanct nature of the firm religious beliefs which govern marital </li></ul><ul><li>relations in Egypt and which may not be called in question and in view of the </li></ul><ul><li>fact that one of the most important bases of these relations is an equivalency of </li></ul><ul><li>rights and duties so as to ensure complementary which guarantees true </li></ul><ul><li>equality between the spouses. The provisions of the Sharia lay down that the </li></ul><ul><li>husband shall pay bridal money to the wife and maintain her fully and shall </li></ul><ul><li>also make a payment to her upon divorce, whereas the wife retains full rights </li></ul><ul><li>over her property and is not obliged to spend anything on her keep. The Sharia </li></ul><ul><li>therefore restricts the wife's rights to divorce by making it contingent on a judge's </li></ul><ul><li>ruling, whereas no such restriction is laid down in the case of the husband.” </li></ul>
  26. 26. Questions to Consider <ul><li>1. Are the principles found in Article 16 of the CEDAW document compatible with the Islamic Shariah as derived from the Hannbali and Shafi schools of Islamic legal thought? </li></ul><ul><li>2. Can the points of contention be reconciled through reinterpretation or ijtihad ? </li></ul><ul><li>3. Is Article 16 compatible with the constitutions of Saudi Arabia and Egypt? </li></ul>
  27. 27. Definition of Terms <ul><li>Ijtihad: the process by which individuals (scholars and practitioners) make legal decision by independent reasoning. </li></ul><ul><li>Shariah: Islamic law derived from the Qur’an, the examples and teachings of the Prophet Muhammad and carrying the weight of tradition. </li></ul><ul><li>Equity: distribution of rights in accordance to merit or need. </li></ul><ul><li>Equality: equal rights distribution to all parties. </li></ul><ul><li>Complementarity: equitable distribution of rights to complement </li></ul>
  28. 28. The Practices of Saudi Arabia: An examination of the Constitutional Rights of Women in Marriage and Family in a Theocratic Country <ul><li>Article 9 The family is the kernel of Saudi society, and its members shall be brought up on the basis of the Islamic faith, and loyalty and obedience to God, His Messenger, and to guardians; respect for and implementation of the law, and love of and pride in the homeland and its glorious history as the Islamic faith stipulates. </li></ul><ul><li>Article 10 The state will aspire to strengthen family ties, maintain its Arab and Islamic values and care for all its members, and to provide the right conditions for the growth of their resources and capabilities. </li></ul><ul><li>Article 11 Saudi society will be based on the principle of adherence to God's command, on mutual cooperation in good deeds and piety and mutual support and inseparability. </li></ul><ul><li>Article 12 The consolidation of national unity is a duty, and the state will prevent anything that may lead to disunity, sedition and separation. </li></ul><ul><li>Article 13 education will aim at instilling the Islamic faith in the younger generation, providing its members with knowledge and skills and preparing them to become useful members in the building of their society, members who love their homeland and are proud of its history. </li></ul>
  29. 29. The Practices of Egypt: An examination of the Constitutional Rights of Women in Marriage and Family in a Muslim Majority Country <ul><li>Article 8 The State shall guarantee equality of opportunity to all Egyptians. </li></ul><ul><li>Article 9 The family is the basis of the society founded on religion, morality and patriotism. The State is keen to preserve the genuine character of the Egyptian family- with all values and traditions represented by it- while affirming and promoting this character in the interplay of relations within the Egyptian society. </li></ul><ul><li>Article 11 The State shall guarantee coordination between woman ’ s duties towards her family and her work in the society, considering her equal to man in the political, social, cultural and economic spheres without detriment to the rules of Islamic jurisprudence (Shar’ia). </li></ul><ul><li>Article 12 Society shall be committed to safeguarding and protecting morals, promoting the genuine Egyptian traditions and abiding by the high standards of religious education, moral and national values, the historical heritage of the people, scientific facts, socialist conduct and public manners within the limits of the law. The State is committed to abiding by these principles and promoting them. </li></ul>
  30. 30. CEDAW Article 16: The Rights of Women in Marriage and Family Matters <ul><li>Article 16 </li></ul><ul><li>1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: </li></ul><ul><li>(a) The same right to enter into marriage; </li></ul><ul><li>(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; </li></ul><ul><li>(c) The same rights and responsibilities during marriage and at its dissolution; </li></ul><ul><li>(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; </li></ul>
  31. 31. CEDAW <ul><li>(e ) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; </li></ul><ul><li>(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; </li></ul><ul><li>(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; </li></ul><ul><li>(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. </li></ul>
  32. 32. Complexities of the Shariah <ul><li>1. Main sources of shariah are Qur’an and Sunnah </li></ul><ul><li>2. The methodology for utilizing these and other sources is usul al-fiqh (principles of Islamic jurisprudence) </li></ul><ul><li>3. How these sources are put into practices is through fiqh (jurisprudence) </li></ul><ul><li>Differences of opinion exist among schools of thought and among scholars within particular schools of thought </li></ul><ul><li>Legal rulings change over time </li></ul><ul><li>Islamic law is not static. It is based on the higher objectives of the shariah, understanding the social conditions of a people in a given place and time, and, trying to apply derived rulings in a way that is consistent with the spirit and letter of the law. </li></ul><ul><li>Focus on equity between the sexes, not equality </li></ul>
  33. 33. Compatibility with Islamic Family Law and Article 16—Can there be Reconciliation through Ijtihad ? <ul><li>Yes and No </li></ul><ul><ul><li>Depending on the School of Islamic Legal Though, Ijtihad can be limited and unaccepted by the masses </li></ul></ul><ul><ul><li>An-Na’im -reexamination of sources” </li></ul></ul><ul><ul><li>Tariq Ramadan - “flourishing traditions” leading to “multiple truths” </li></ul></ul><ul><li>Can there be a full reconciliation between Article 16 and Sharia ? No, CEDAW’s emphasis on equality posses a challenge to Shariah </li></ul><ul><li>Can Muslim states better embrace Article 16? Yes </li></ul><ul><ul><li>Reorganization of Shura councils that are government appointed </li></ul></ul><ul><li>Popular interpretation and practice verses strict religious doctrine </li></ul>