Whose Sharia Is It? by Kecia Ali

By Kecia Ali, May 27 2014

It has been a lousy month for Islamic law.  

First, there was the kidnapping and sale of Nigerian girls by Boko Haram, which claimed religious acceptability for their acts. As Muslim theologian Jerusha Lamptey opined, this is not my sharia.

Then, the Sultan of Brunei’s horrific new penal code came into effect. Unlike the Nigerian girls, where a social media campaign garnered White House attention, the Brunei law gained visibility because the Sultan–who is dictating law that his track record suggests he does not observe–indirectly owns the famous Beverly Hills Hotel. Hollywood figures have objected to the rules, due to come into effect next year, which would punish proven male-male anal sex with death. (As far as I know, the code does not prescribe any particular punishment for lesbian acts, though the rhetoric has become that the new law prescribes “stoning gays and lesbians.”)

Claims like that of the Sultan or Boko Haram that “Islam” demands implementation of “sharia” ignores the complex reality in which there is not now nor has there ever been a uniform set of identifiable rules that Muslim scholars have agreed on much less that governments in Muslim majority countries have implemented over the centuries. As I wrote elsewhere, so-called sharia laws on the books in Brunei, Nigeria, Pakistan, Iran, Saudi Arabia, or Morocco are not directly revealed by God. They are human products with human histories negotiated in human contexts. The pretense that these laws are straightforward implementations of God’s will not only serves to justify these otherwise unjustifiable rules but also feeds the demonization and dehumanization of Muslims. Though happening on two continents and perpetrated by two quite distinct sorts of actors – a multibillionaire monarch enmeshed in global capitalism and a militant anti-Western, anti-government insurgency – the Nigerian kidnapping and the Brunei law became exhibits A and B for the vilification of sharia.

And then I heard an NPR story about Sudan’s intended flogging and execution of Meriam Ibrahim for apostasy and illicit sex. My first response, as someone who writes and teaches about Islamic law and is committed to understanding it in all its historical complexity: how barbaric.

That was followed by resignation. Why bother to advocate for more sophisticated understandings of Islamic law? What is the use in pointing out that the claims of timelessness authenticity are groundless? So what if these versions of Islamic law are selective, partial, implemented by dictators with populist pretensions and monarchs with captive constituencies? They still apply it. And yes, it’s true that Americans generally aren’t interested in threats to Muslim lives or well-being or African lives or well-being except when there is a sensational story to be made (drone attacks don’t cut it). Doesn’t matter; this is still happening, and it’s wrong.

My “what’s the use?” phase shifted into the simmering anger phase once I began to think about why exactly this version of Islamic law holds sway. It’s patriarchy straight down the line.

The charge of apostasy is based on the claim that Ibrahim was born Muslim: her religion follows that of her (Muslim) father, who left her (Christian) mother when Ibrahim was young. She was apparently raised Christian. Patriarchy allows interreligious marriage between a Muslim man and a Christian woman, but not the reverse, and supports the presumption that the child’s religion follows that of its father.

The charge of illicit sex for which Ibrahim has been sentenced to lashes results from the court deeming her marriage to a Christian man void. Since she is considered Muslim (because of her father’s religion), and since, unlike the situation in her parents’ marriage, marriage between a Muslim woman and a Christian man cannot be valid, the court determined that she had sex outside of marriage. Her toddler, and the child growing in her belly, prove her offense. Score another one for patriarchy.

According to reports, Ibrahim’s case was brought to the attention of the authorities by some relatives (presumably Muslim ones) who objected to her marriage to a Christian. As far as the charge of illicit sex goes, a premodern court would almost certainly have applied the doubt rule: essentially, if there are any grounds for exoneration – such as the fact that the woman thoughther marriage was valid – avert the punishment. Apostasy, too, seems to have been seldom punished in practice, however strongly the rule was upheld in theory. One can make a case that as with Brunei’s new penal code or the Boko Haram kidnapping, the Sudanese verdict represents a modern and profoundly problematic view of Islamic law.

At the moment, though, I am less interested in insisting on the nuance and variability of traditional Islamic law and more on critiquing its powerful patriarchal presuppositions. However tempered they were in past practice by judicial clemency, they lay the ground for the charges against Ibrahim. Of course we need to remember that context matters: we will not understand these developments in Nigeria or Brunei or the Sudan without reference to national and global politics, economics, and – in the last case – individual family dynamics; Islamic law is only part of the picture. And yet it is a key piece of the picture. Rethinking Islamic law without questioning its basic presumptions about male dominance will not take us nearly far enough.

Whose sharia is this? It is certainly not mine. I cannot believe that it is God’s.

Kecia Ali, Ph.D. is an Associate Professor of Religion at Boston University where she teaches a range of classes related to Islam. She writes on early Islamic law, women, ethics, and biography. Her books include Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence (2006), Marriage and Slavery in Early Islam (2010), and Imam Shafi’i: Scholar and Saint (2011) and The Lives of Muhammad (due out this fall). She lives in the Boston area with her family.