[Reader-list] The Missing Personal law

[mahmood farooqui]

A piece I wrote on the sharia/personal law etc...

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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. 










		
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