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That Obscure Object of Concern: Selective Feminism and the Rise of Anti-Sharia Laws

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  1. Indeed, this is (among other things) another variation on the well-worn trope of paranoia in American politics, and has its contemporary European counterpart the efforts to “ban veiling” among Muslim women. “Essentialist” discourse looms large here as well, as there is no one thing we might readily identify as Sharī‘ah, in fact, that aspect of Islamic law which is here the ostensible focus of concern for not a few pundits and politicians in this country, namely that said to govern mu‘āmalāt (civil transactions) rather than ‘ibādāt (devotional matters), varies considerably, both historically and geographically, and is thus more accurately or precisely identified as fiqh, which refers specifically to the corpus juris “developed by the legal schools (madhhabs), individual jurists and judges by recourse to legal reasoning (ijtihād) and issuing of legal verdict (fatwā),” and which evolves (or is capable of evolving) according to the exigencies of time and place (hence the considerable differences, say, between Saudi Arabia and Turkey, or between Libya and Indonesia, when assessed according to democratic desiderata).

    It is certainly true, as Mohammad Hashim Kamali has explained, that traditional fiqh in the areas of principles of government (al-ahkām al-sultāniyyah) and Sharī‘ah-oriented public policy (siyāsah shar‘iyyah) “has fallen short of reflecting the Qur’ān’s comprehensive conception of justice in the sphere of rights and liberties” (and about which Kamali has written extensively), but that would be beside the point were it not for some dim-witted legislators having some vague and inchoate knowledge of this historical shortcoming, a shortcoming that is not intrinsic to the Islamic worldview as such with regard to universal rights and liberties and democracy generally. Alas, the fact that the rhetoric of ideological paranoia is able to exploit one genre of Islamic discourse in this manner is in part a by-product of untoward and modern developments in the Islamic world as a result of the resistance to and reaction against European colonialism, especially in the Middle and Near East, developments which, perversely, led to a “legalization” Islamic religion and spirituality (as Kamali has emphasized, ‘Islam is a faith [īmān] and moral code first and foremost; it stands on its own five pillars, and following a legal code is relative and subsidiary to the original call and message of Islam’).

    Related to this is the fact that most Muslims around the globe do not share the avowed goal of some Islamists and self-described jihadists to institutionalize “Sharī‘ah” through constitutional law practices common to modern nation-states (in any case, by any adequate conceptual rendering of Sharī‘ah sensitive to its metaphysical origins as ‘God’s will’ and its corresponding ineluctably abstract character, will understand that divine law can never be sufficiently or wholly ‘institutionalized’ any more than the moral principles and precepts that traditionally fall within the ambit of Natural Law philosophy; it is this that makes for a logical, conceptual and practical difference between Sharī‘ah and fiqh, a difference often ignored or elided by both Orientalists and Muslims alike).

  2. AnthroAnon says:

    May I recommend legal anthropologist Laura Nader’s classic and still timely article on exactly this issue: “Orientalism, Occidentalism and the Control of Women.” Cultural Dynamics July 1989 (2): 323-355.