[Reader-list] The Missing Personal law

[Rahul Asthana]

Quoting from Mahmoods splendidly written article-
quote
-----------------------------
"Demanding an immediate reform of the process through
 which Qazis make the kinds of decisions that we have
 been lately witnessing, (and this still begs the
 question of what gives them the sanction to do so)
 is  not the same as demanding a Uniform Civil Code.
The  latter involves streamlining a much greater
variety  of  customary, ritualistic, caste-based and
 inheritance-related practices by an entire gamut of
 communities-regional, caste, fraternity,
brotherhoods. I am not sure this homogenizing sweep is
entirely necessary either. The gleeful
Shariah-bashers, however, should remember that gender
oppression is a  universal phenomenon although it
seems more  conspicuous and repugnant in the other"
---------------------------------------------------
unquote
I think this paragraph says it all. This is where the
movement should be directed at. Peeps sitting in the
MPLB and panchayats are not as much concerned in the
divinity or immutability of the laws, but their power
to have the final say on it.If that power can be
vested in judiciary and magistrates who are scholars
of Islamic law decide on their interpretations,it will
be a great step ahead. There are examples how in a
misogynistic society Islamic laws which protect female
rights have been twisted. Meher is an example. There
is a general trend in which "good" muslim women are
expected to forego meher,though it is against the
islamic law. 
It will be a great if we can channelize our energies
in either abolition of PLB, make it just a consulting
body or allow appeals against its decision.All the
ethical debates of the necessity of a personal law can
go on later.

regards
Rahul

--- mahmood farooqui <mahmoodfarooqui at yahoo.com>
wrote:

> A piece I wrote on the sharia/personal law etc...
> 
> _____________________
> 
> The Case of the Missing Personal Law
> 
> Undoubtedly the Imrana case is more about the
> oppressive caste-Panchayat system than about the
> putative Sharia or Muslim Personal Law. For several
> years now Panchayats in the Western regions of North
> India have produced a series of criminal judgements
> curbing individual choices. That it has been turned
> into another indictment of the Personal Law/Sharia
> reflects more the biases, for and against, prevalent
> in this society about that code.
> 
> Muslim Personal Law and the Sharia are not quite the
> same things but it is one of the abiding successes
> of
> colonial legal order that the differences between
> them
> have been greatly elided. As Bernard Cohn has
> established elsewhere, in their search to discover
> authentic Hindu and Muslim laws in the eighteenth
> and
> nineteenth century, the colonial rulers perforce
> constructed them anew. This does not mean that they
> had no connection with prior legal practice and
> understanding but that their enactment reflected
> British concerns with property relations more than
> the
> existing customary and legal reality. 
> 
> The Muslim Personal Law as it stands today is not a
> comprehensive body of statute. It is a collective
> term
> of reference for a variety of distinct enactments
> that
> were passed by Parliaments and other State
> Legislatures in the course of the last century,
> including the infamous 1986 amendment and the 1937
> Application of Muslim Law (Sharia) Act. When we talk
> of reforming the Personal Law, therefore, we must
> remember that we are not talking of reforming a
> comprehensive and extant code. For it to be
> reformed,
> it needs first to be properly codified. Only the
> Parliament can do that. 
> 
> The Sharia on the other hand is an even more
> amorphous
> term. It is supposedly derived from injunctions in
> the
> Quran and the traditions from the Prophet’s life
> (the
> Hadith) but in actual fact is a compilation of
> rulings/opinions (that is, the fatwa) given by
> theologians and religious scholars down the
> centuries.
> Sometime in the ninth century four different schools
> of jurisprudence, based on the above principles,
> precedents and rational analogy, came to be
> instituted. These are highly complex and
> sophisticated
> systems of legal thought, and since they are based
> on
> precedent they can be pushed both into a
> conservative
> or an evolutionary direction. These four different
> schools of Jurisprudence, also called the Fiqah, the
> Hanafi, the Shafai, the Malilki and the Hambali
> supposedly govern Muslim civil practice in most
> countries. However, even these apply only to Sunni
> Muslims. 
> 
> The Sharia therefore is not the same thing for all
> Muslims. Apart from Shia and Sunni differences,
> there
> are divisions within Sunnis along the lines of these
> four schools and further along the line of
> observances
> and practices, witness the bloody battles between
> Barelvis and Deobandis in Pakistan. Then there are
> also the Ahl-e Hadis, the Ismailis, the Khojas, the
> Bohras and several other groupings who form a part
> of
> the 72 sects of traditional Islam. Then there are
> also
> several biradaris and caste groupings whose Personal
> Laws vary with custom and local usage even within
> singular sects. 
> 
> The implications of these disputatious details in
> practice is that on any possible issue, say the
> Imrana
> case or the similar Guria-Arif case, different
> schools
> of thought can come up with different
> rulings/opinions
> and can all claim to emanate from the Sharia. For
> instance, in both the Guria and the Imrana case the
> Shafai School has more liberal provisions than the
> Hanafi ones and depending on which scholar you talk
> to, even the Hanafi school is said to contain other
> precedents that could have been drawn upon in these
> two cases. 
> 
> Part of the reason why Sharia remains so intractable
> and so amenable to misinterpretation, by
> practitioners
> and critics alike, is because it does not exist as a
> code or a text, it inheres in these millions of
> fatwas
> including what one understands of their context and
> their spirit. As one wit has commented the ‘Sharia
> is
> less Shara and more Shar’, meaning it is less a
> system
> of rules and more a cause of evil, for the simple
> reason that in a patriarchal and diverse society,
> the
> men, as the Mullahs are, can resort to the most
> arcane
> and obscure traditions to continue their sway.
> 
> Undoubtedly, in its time Islam was one of the first
> organized religions to institute and codify rights
> for
> women. A properly codified Muslim Personal Law can
> take the best of the interpretations from these
> different schools of opinions, thoughts and practice
> and come up with a modern and equitable code.
> However,
> even if one takes the best of all systems of Islamic
> thought to compile a comprehensive code there would
> still be areas like inheritance and status of
> witnesses where the principles will fall far short
> of
> current ideals.
> 
> Time and again, in the modern era, Muslim thinkers
> and
> clerics have come unstuck on the issue of gender
> equality. It is not enough to argue, as many liberal
> Muslims do, that Islam ‘gives’ women a lot of
> rights.
> In the modern world it is not for anyone to ‘give’
> any
> rights to women, they should have it as a natural
> right. What we need is a codified Personal Law for
> the
> Muslims which is in consonance with modern notions
> of
> gender equality. It may be derivative from what is
> understood as Islam/Sharia, it may be not, but that
> is
> beside the point.
> 
> Demanding an immediate reform of the process through
> which Qazis make the kinds of decisions that we have
> been lately witnessing, (and this still begs the
> question of what gives them the sanction to do so)
> is
> not the same as demanding a Uniform Civil Code. The
> latter involves streamlining a much greater variety
> of
> customary, ritualistic, caste-based and
> inheritance-related practices by an entire gamut of
> communities-regional, caste, fraternity,
> brotherhoods.
> I am not sure this homogenizing sweep is entirely
> necessary either. The gleeful Shariah-bashers,
> however, should remember that gender oppression is a
> universal phenomenon although it seems more
> conspicuous and repugnant in the other. 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 		
> ____________________________________________________
> Start your day with Yahoo! - make it your home page 
> http://www.yahoo.com/r/hs 
>  
> _________________________________________
> reader-list: an open discussion list on media and
> the city.
> Critiques & Collaborations
> To subscribe: send an email to
> reader-list-request at sarai.net with subscribe in the
> subject header.
> List archive:
> <https://mail.sarai.net/pipermail/reader-list/>
> 



		
____________________________________________________
Start your day with Yahoo! - make it your home page 
http://www.yahoo.com/r/hs