Abstract
Although controversies about the “Shari’a” are among of the most acute topics of law and politics today, there is little agreement about what the word means. A divine law formulated by men, a religious law but implemented by the state. These paradoxes have been solved in various ways, where the interplay between the scholarly consensus and state power as guarantor of the law has shifted more and more towards the latter. The legitimacy of the law has however been found in concepts of the “divine intention”, which for many is maslaha, human and social welfare. Reformists have used this term as a way to open the Shari’a to new interpretations, based on the needs of modern society, but in line with the perceived divine intention of a good society. The article presents two divergent views from contemporary Syrian Muslim scholars, Muhammad Said Ramadan al-Buti and Muhammad al-Habash, on how far it is possible, and desirable, to reinterpret the Shari’a on the issue of women’s rights and position in society.
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Notes
- 1.
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- 2.
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- 3.
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- 14.
Vikør Between God and Sultan, op. cit., pp. 36–37.
- 15.
Vikør Between God and the Sultan, op. cit., pp. 2–3.
- 16.
These are the Shari’a punishments that are most famous among non-Muslims, for theft (amputation), highway robbery (death), drinking alcohol (whipping) fornication (whipping or death), and false accusation of fornication (whipping). In fact, these five stand alone in the law and were in classical times surrounded by rules meant to limit their application; Peters , Rudolph (2005) Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge: Cambridge University Press.
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Opwis , Felicitas (2007) “Islamic Law and Legal Change: The Concept of maslaha in Classical and Contemporary Islamic Legal Theory,” in Amanat & Griffel , Shari’a, op. cit., p. 66. Other formulations use ird, honour, in place of aql and soul (nafs) for life; Krämer , Gudrun (2007) “Justice in Modern Islamic Thought,” in Amanat & Griffel , Shari’a, op. cit., p. 23.
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- 20.
Qur’an 2:185, similar in several other verses.
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- 28.
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- 31.
Vikør Between God and Sultan, op. cit., pp. 299–325.
- 32.
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- 33.
An-Na’im , Islamic Family Law, op. cit.
- 34.
Bøe , Marianne (2012) “Debating Family Law in Contemporary Iran: Continuity and Change in Women’s Rights Activists’ Conception of Shari’a and Women’s Rights,” Ph.D. University of Bergen.
- 35.
Although he came under strong criticism by Kuftaro for the book we discuss here, and later broke with his followers after the mufti’s death, allegedly over Habash ’s statement that the “people of the Book”, Christians and Jews, might also aspire to a place in Heaven; Warda , Muhammad Anwar (2003) Hiwâr … lâ shijâr, n.p. [Dimashq], pp. 13–14.
- 36.
Heck , Paul L. (n.d.) Religious Renewal in Syria: The Case of Muhammad Al-Habash. Damascus: Dar al-tajdeed, pp. 34 & 74.
- 37.
Summed up in his work, al-Salafiyya: Marhala zamaniyya mubaraka, la-madhhab islami: “The Time of the Prophet: A Blessed Period of Time, but not an Islamic School of Thought”. Damascus: Dar al-fikr, 1988.
- 38.
That is, the period before the current civil war; all publications here predate this conflict.
- 39.
Depending, of course, on the political and religious climate of each country, the scope of debate in for example conservative Saudi Arabia and liberal Tunisia is certainly very different!
- 40.
Damascus: Dar al-tajdid 2005.
- 41.
Translated into English by Nancy Roberts , 2nd ed., Damascus: Dar al-fikr 2006. Habash is clearly aware of the work of the older and respected scholar, and go out of his way to cite, with apparent approval, ten pages from Buti ’s book. Buti had no such qualms, and immediately attacked Habash ’s book for “permitting the forbidden and forbidding the allowed”; Warda , Hiwâr, 15.
- 42.
Buti Women, op. cit., pp. 323–324; and Habash , al-Mar’a, op. cit., p. 182.
- 43.
Habash al-Mar’a, op. cit., pp. 107–108; and Buti Women, op. cit., pp. 129–132.
- 44.
Buti Women, op. cit., pp. 89–91; and Habash , al-Mar’a, op. cit., p. 172.
- 45.
Buti Women, op. cit., pp. 98–101.
- 46.
Habash al-Mar’a, op. cit., pp. 46–49.
- 47.
Habash al-Mar’a, op. cit., pp. 162–165.
- 48.
Habash al-Mar’a, op. cit., pp. 62–104.
- 49.
Habash al-Mar’a, op. cit., pp. 85–86. There is a widely accepted hadith that the Prophet was asked about how much a woman should cover, and pointed to the forehead and wrists and said, “here and here is enough”, which is thought to indicate that women should not cover more. Reformists consider this a ban on further covering, supporters of the niqab only that it is not compulsory to cover more than this.
- 50.
Habash al-Mar’a, op. cit., p. 172.
- 51.
Habash al-Mar’a, op. cit., pp. 97–98.
- 52.
Habash al-Mar’a, op. cit., pp. 94–95.
- 53.
Buti Women, op. cit., pp. 228–229; playing in Arabic on the words shi’r (poetry, her topic) and sha’r (hair).
- 54.
Buti Women, op. cit., pp. 172–193.
- 55.
Habash al-Mar’a, op. cit., pp. 123–127.
- 56.
Such as demanding that a polygamous marriage has to be registered by court and is only allowed under certain conditions, or that the first wife is allowed a divorce (with compensation) if she does not agree to the second marriage; Vikør Between God and Sultan, op. cit., p. 323.
- 57.
That is implied to be due the special needs for political alliances at the inception of the Muslim state, the most generally cited reason why the Prophet alone of all Muslims was allowed to have nine wives rather than four; Habash , al-Mar’a, op. cit., p. 150.
- 58.
Habash al-Mar’a, op. cit., pp. 147–150.
- 59.
Habash al-Mar’a, op. cit., pp. 151–155.
- 60.
Habash al-Mar’a, op. cit., pp. 88–89. The conservatives claim that men and women must sit in separate sections of the mosque, Habash says, but when God created the Ka’ba in Mecca, he made no separation between the genders! However, when I visited Habash ’s “Zahra” mosque in Damascus in 2005, women were referred to a gallery with a separate entrance, in a quite normal fashion.
- 61.
It must be added that many Salafists actually do use similar argumentation to open room for a greater participation of women in for example education, even more so than orthodox like Buti , precisely because they use text-based ijtihad, although their general line of interpretation most often is opposite. Thus, the dominant Salafi theorist Nasir al-Din al-Albani came into conflict with his Saudi hosts when he claimed that wearing the niqab was not compulsory; Lacroix , Stéphane (2009) “Between Revolution and Apoliticism: Nasir al-Din al-Albani and his Impact on the Shaping of Contemporary Salafism,” in Meijer , R. (ed.) Global Salafism: Islam’s New Religious Movement. New York: Columbia University Press, p. 66.
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Vikør, K.S. (2015). Inscrutable Divinity or Social Welfare? The Basis of Islamic Law. In: Fløistad, G. (eds) Philosophy of Justice. Contemporary Philosophy: A New Survey, vol 12. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9175-5_9
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