Sunday, April 27, 2008

Soft Islam in Egypt: Does the Testimony of Two Women Equal that of a Man and Other Questions

Al Ahram ran an interesting story recently on movement within Shari'a in Egypt. Reem Leila, In Her Favour, Al Ahram Weekly, May 1-7, 2008. The report provides a window not only on the way that even Shari'a modulates in the face of changes in popular thought, but also reveals the constraints of the language employed in the service of change. Just as the United States judiciary speaks a particular sort of interpretative language, whose use is meant to ensure the legitimacy of the decisions advanced, so must those who speak to Shari'a be careful to use that language that invokes legitimacy within that legal tradition.

And in this way very small and tentative steps are taken. "One more step in the direction of women's empowerment was made at a round-table discussion at Egypt's National Council for Human Rights (NCHR) on 23 April which urged that a panel be set up to "revise and rectify" reference books on Islamic jurisprudence to remove controversial literature which participants said fanned extremism, especially where women are concerned." Id. In this case there were two issues of concern, first the value of the testimony of women and second the rights of non-Muslim widows of Muslim men. The moving force behind these proposals was Zeinab Radwan, a well known authority on Islamic Jurisprudence. See Gamal Nkrumah, Zeinab Radwan: A Woman's World, Al Ahram Weekly, July 20-26, 2000. Ms. Radwan had "suggested that the testimony of just one woman be acknowledged in a business transaction. At present, two women are needed if they are to act as witnesses whereas one male witness will do. Radwan also advocated enabling non- Muslims to inherit Muslims and vice versa." In Her Favour, supra.

With respect to the issue of the testimony of women, Radwan sought to distinguish, and reduce the application of a key Qu'ranic passage on which is grounded the current disability of women's testimony. In a way reminiscent of American constitutional argument, "Radwan offered a different perception. "The text of the Quran is related to a specific situation in which women were illiterate at the time, and could also forget the details of the incident since what they were giving was verbal testimony, not written," Radwan, a professor of Islamic philosophy, told the round table." Id.

Interestingly, in accepting this view, some of the proponents conflated the traditional view with Islamic fundamentalism. In a sense, jurisprudence was grounded on politicalk assessment. "Ahmed El-Sayeh, a professor of Islamic philosophy at Al-Azhar University, strongly rebutted what he termed "the beliefs of some members of the centre which were inherited from extremist sects in pre-Islamic eras, underestimating the position of women." He stressed that Islam provides for full equality between men and women." Note the interesting way in which fundamentalist jurisprudence is sought to be discredited--by suggesting that those interpretations are not Islamic at all bit are somehow connected to the pagan practices of the pre-Islamic past. Thus stripped of their legitimacy, indeed stripped of their Islamic character, they are fair game. Even Western notions might provide more legitimate alternatives.

But there was great care to ensure that what was being discussed was error in understanding rather than a turn away from the holy word. "In her address, Radwan underlined the importance of correctly understanding the actual meanings of texts of the Quran and sayings of the Prophet Mohamed so as not to fall into error while implementing principles of Islamic Sharia. "The West criticises Islam because of incorrect practices that we claim as part of Islam. In reality, the error stems from our incorrect interpretation or implementation of principles of Islam," she added."

On the issue of the rights of non-Muslim widows of Muslim men, the Egyptian National Council for Human Rights compromised. They rejected the notion that non-Muslim widows could inherit, even if they lived in a Muslim household and reared Muslim children. However, they would be allowed something like charity. "Accordingly, after an extensive study of Radwan's suggestion, the IRC, while deciding not to allow non- Muslim wives to inherit Muslim husbands as there is no Quranic verse which stipulates such a situation, did agree on allocating a mandatory will to non-Muslim wives in order to enable them to lead an honourable life after their husband's death." Id.

But the National Council for Human Rights, of course, is not the last word on the matter. Shari'a, after all, is not a matter for consensus by committee, at least in the narrow sense. "Much of whether the new interpretation of women witnesses is accepted will depend on how the leaders of Al-Azhar and the Islamic Research Council (IRC) react. A majority of IRC members are backing Radwan." Id. The rationale is hardly flattering to women but effective all the same. "According to [Abdallah] El-Naggar, Islam accepted children's testimony as they have the ability to watch, observe and give information about a certain person or situation in order to preserve people's rights. "If Islam accepts children's testimony, then it would easily acknowledge that of a woman," argued El-Naggar." Id.

There are several insights worth considering bundled up in this reporting. These cut in a variety of directions. Together they continue to demonstrate both the power and flexibility of Islam as the basis of a system of jurisprudence complete in every way. But it also evidences the limits, sometimes severe of systems of political power grounded in religion and religious difference. To some extent, these efforts suggest affinity with the form of common law law making within a context the substance of which, and the manner in which substantive limits are fixed, are vastly different. For a useful discussion on related themes, see, Asifa Quraishi, Interpreting the Qur’an and the Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence, 28 Cardozo L. Rev. 67, 70 (2006).

First, it appears that in places like Egypt, women and other groups might make better strides in attaining their political and human rights agendas by working through religious rather than secular law. While secular law and institutions remain a critical element, they play a secondary role. In this case, perhaps, the strength and weakness of secular are evident in the National Council for Human rights, which both provides a forum for otherwise marginalized segments of society, but at the same time can act only to give voice to issues requiring change.

Second, it appears that at least among some Islamic law may be more receptive to interpretation. However, the language and ambit of such interpretive flexibility is substantially narrower than under Western secular law (and likely closer to Western religious law in scope). Divinely inspired pronouncements cannot change, but they might be contextualized and reapplied properly. Additional pronouncements might be brought to bear, and certainly holes in jurisprudence may be filled. But this requires a constant working around existing unmovable jurisprudential objects. In some sense there is at least a faint smell of common law practice in this, though without equity or ecclesiastical realms as fail-safes and escape routes.

Third, in the context in which there is no way around Divine command, the Egyptians have found a powerful tool for discrediting practices they wish to abandon--characterizing them as pagan in origin. While this interpretive approach has definite limits, it provides a means for overcoming a reluctance to change by separating custom from Divine command, and further separating post from pre-Islamic custom. Again, an interesting variant on a common law judicial technique of distinguishing, narrowing and reconceptualizing prior cases and their context to provide space for changing interpretation.

Fourth, the process for change is complex and ambiguous. Religious law is not subject to the same system of transparency, institutionalization and accountability of positive law making in secular states. In religio-legal systems, like those of Islam and its progenitor, Judaism, the lines of authority are not fixed. Reputation and power are critical components in this system. But again, there is a scent of the old common law in this as well--the opinions of Justice Holmes, for example, might be viewed as more authoritative, and more worthy of study, than those of his less well reputed colleagues on the Supreme Court. But the process and effect of reputation is hard to gauge and harder to control.

Fifth, and most difficult for outsiders, is that such jurisprudential turns, no matter how progressive it appears, will continue to draw a line and maintain the subordination, of non-believers--as a matter of religious law. Shari'a reminds us that subordination comes in all sorts of flavors. A Christian or Jewish person, like a woman or a child, will not have the same standing as a Muslim man. They cannot. This is not a deficiency of Islam and Shari'a, but rather its great strength as a religious foundation of law. But in a society that adheres to principles of equality before law, this necessary subordination does not serve all citizens equally. As the West, like the Middle East, moves closer to religiously based political organization, while purporting to remain true to a principle of equality, and as the West pushes a "soft Islam" on places like Turkey and Iraq, this very real tension may come to dominate political discourse, and this consequence may come to reshape the political organization of society.

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