Sonbol’s “Women in Shari’ah Courts: A Historical and Methodological Discussion” look at the Shari’ah courts and qadis before modern legal transformation. In addition, the article looks at the laws and the Islamic legal system that govern the role and lives of women. Many critics of the Shari’ah’s customs justify the laws relating to women with the teachings of the Qu’ran. Sonbol attempts to show the system before the culture transformed to the modern days and ways of reasoning. Even though the standard of the society dictated the importance of women, and the qadis rules to follow, the system of the courts played an important role. The qadis guided the traditions of the people and individuals were judged based on the schools of law in each society and personal judgment.
One could say that the structure showed flexibility as it created a way for the public to gain justice and take legal action for disputes instead of enforcing a specific belief of the social norms and laws created by the State. Women reserved the right to sue in court, and the flexibility of the structure gave women the opportunity to settle on specific marriage contracts along with the conditions of their way of life. In addition, women had clear access to divorce their husband if they are uncomfortable with the husbands.
However, modern laws of the Muslim society act contrarily to the laws before transformation. Sonbol looks at the ways in which the new laws “disparage women {and treat them as] “evil temptress, the greatest fitna [temptation] for men” (Barlas, 2009). Sonbol justifies the act as women are under full control of men. In contrast, men dominate the lives of women under the new Shari’ah laws to the point where they control the process of divorce and marriage contracts and the right to work. Sonbol and other critics look at the foundations of the principles of the Shari’ah laws and question the sanctity of the State in regards to personal laws. In Sonbol’s article, Islamic laws are similar to concept of “tribal law” which dictates that only Western society truly experienced “legal order”. This rationalization stems from the perspective that historical evolution forms the foundations of the Western society and its rational approach to the law. However, Islamic laws are similar to the “tribal system” as it differed greatly from the legal system of equality “to all classes and sectors of society” (Sonbol, 2003).
Many scholars have differing views on the universal understanding of the laws that govern human history. Nevertheless, it is important for one to understand the histories of the different groups in the society based on fact before making assumptions on these cultures. While analyzing the Islamic laws on women, Sonbol (2003) points to the historical aspect of the laws and the legal practice as being a long way “from being written in accordance with such perspective”, and the heightened interest in the laws of this society.
In addition, she notes the rules of the Islamic world stem from the “unchanging principles of the Qur'an, and Islamic medieval practices continue to be seen as lingering under structures defined as sultanism where the ruler has absolute power over all those he rules” (Sonbol (2003). Reda (n.d) reiterates this view and lend credence to the control that Islamic laws place on women in the society. Reda (n.d) points to the fact that “the Qu’ran is used as a primary source for the first period [and] the Hadith literature is used as a primary source for the second period” to determine the “trends and directions in the Muslim community after the demise of the Prophet, rather than as a source of information on the Prophet” (Reda, n.d).
Modern Islamic laws for women are barbaric to say the least. Afshar (2008) points to the current climatic conditions facing Muslim women. Afshar primary beliefs in the paper seek to highlight the “context of violence and Islamophobia in the post 9/11 and 7/7 eras” where Muslim women contest their identities, nationalities, commitment and faith to global feminist movements (Afshar, 2008). However, not all critics of the fate of women in the Islamic societies argue for the rights of women. Gerber (as cited by Sonbol, 2003) explains that the principles of Shari’ah laws stem from the predetermined scholars' paradigms of researchers rather than serious researches. Sonbol notes that Gerber’s foundation his attack focuses largely on “the applicability of the paradigm to Islamic societies as a whole” (Sonbol, 2003). One may say that Gerber is correct in his views that disputes Weber’s claim that the laws of Islam as being undeveloped and archaic.
Sonbol’s, like many other critics, look at the practice of law in Shari’ah courts before the transformation of the courts and the laws of the Islamic world. The laws in Egypt for example, fall between the extremist views of Geber, Rosen, and Weber. Jabbra (2006) voice the same opinions of the treatment of women who have not (fared any better in Western Literature” and Afshar (2008) “early and fierce opposition to hijab dating from the previous century and continuing through an equally fierce defense of the hijab in the twenty first century”. The pre-modern Islamic laws reflect a system defined by its own terms and conditions and loses rationality because of the efforts and the comparisons placed contained by boundaries that similar to the other systems in the wider society.
According to Sonbol (2003), the respect of contracts is one of the key objectives of the legal system in the Islamic society. However, the respect for contracts goes back to the period before Islam, and is one of the most imperative guideline of the Islamic faith. The Qur'an and in the Prophetic Sunnah repeats the importance of contracts. The lives and protection of women is a part of the contract of the Islamic society, and justifies the physical protection of the veil in Muslim women. Siraj (2011) contradicts this contract and supports Sonbol’s reference to Weber’s views that Islamic modern traditions form the foundations of a tribal society. In addition, Siraj (2011) notes that some Muslim women believe that the hijab (veil) is unnecessary, because contrary to popular beliefs. In addition, the Qu’ran does not make specific reference to protection the modesty of women’s clothing and hijab, but instead speaks to the morals of behavior and demeanor.
Conversely, Siraj (2011) notes the need for changes to the current system existing in the Muslim society, and points to the fact that similar to Western ideology, many Muslim women criticize their way of life under the hijab. This criticism is similar to popular Western and even Islamic beliefs that women the laws discriminate against women, as women face the uncharacteristic and harsh criticism of being a “seductress who absolve men of their responsibilities to “lower their gaze” in the presence of a women. But, is willpower and self- control not a virtue of men? The truth is that men should be able to control their physical attractions so that their prowess as leaders becomes unquestionable. Women should not be the ones to suffer the undue criticisms of wearing a hijab.
In addition, these contracts cover the legal system where the States require “that a woman receives her husband's permission before she takes a job” (Sonbol, 2003). This contract is absurd as critics in the Western world may say that the movements toward the liberation of women are more realistic, and that the Islamic culture seeks to stifle the importance and worth of women. Nevertheless, each society is entitled to its own laws and principles. Nonetheless, some countries, for example, make amendments to their laws and permit women to work despite their husband’s reluctance if she gives up her rights to financial support from her husband wishes only. Again, this clause to the women’s rights in the society is ridiculous. Of course one cannot dictate to any society what is right or what is wrong, as every society has the right to choose and implement their laws. But, realistically the man’s role is to support the woman and the choices she makes.
The choices and rights of the individual to make sound decision becomes restricted when the laws of a country dictates that in order to be independent one must give up on other needed rights for moral, psychological, and physical support. This modern law goes against the traditional laws of the Shari’ah which taught that women could work and make business investments that added to the economic development of the society. One can conclude that the principles of these new laws stem from the insecurity of men in a male dominated world that seeks to make women submissive. In addition, it forms the foundation that men feel the need to suppress women in order to feel as if they are in control of the society. Similar to other religious practices in the Western world, women are encouraged to stay at home and remain as caregivers, but the reality is that in the changing economic crisis, this cannot be a reality. Fundamentalist around the world call for a change in the Shari’ah laws and an extension to the conservative form of the new Shari'ah laws.
Sonbol points to another important aspect of the Islamic laws in her article when she notes “the very basis of the Islamic marriage contract, [that is] that [the woman] withholds herself sexually for [her husband] alone and in return he is responsible for her financial support”. Similarly, Mernissi (1987) points to “the perception of female aggression is directly [influenced] the theory of women’s sexuality”. In addition, “the absence of active sexuality moulds the woman into a masochistic passive being”. The idea that women relinquish sexual desires in order to become financially independent shows that women in the Muslim faith are “victims of a backward religion and backward men”.
The religious characteristics of the Qur'an points to the unambiguous verification that women in the Muslim society are completely equal to men in terms of rights and responsibilities. For a society that forms its principles and laws on religion, Sonbol (2003) adequately looks at the role of the courts before modernization of their religious beliefs. More importantly, Sonbol seeks to address the issues of the legal system as it relates to gender. She notes that the court records provide vital source of information on the Muslim culture. The article does justice to imparting the knowledge of the division of wealth when a husband dies. In addition, “young and old, men and women, wealthy and poor, came to these courts, making court records a rich source for social history”
However, Sonbol (2003) does not emphasize the real need for the court of law in the Muslim society. Nevertheless, Quraishi (2008) points to the most important issue of the court and women based on Shari’ah laws or “God’s Law”. The principles of the laws of Islam stems from the belief that their way of life arose from the principles of “the way God is asking people to behave and to live”. To carry out this work, both Sondol (2003) and Quraishi (2008) point to the judiciary system that makes reference to laws that are similar to the common laws of the Western world, public welfare, and consensus. Conversely, Reda (n.d) indicate that the importance of the Qu’ran rests in the power that the Muslim allows as well as the historical content of the law. The most debatable punishment of the Muslim culture is the stoning of women. Quraishi (2008) points to zina or extramarital sex.
Barlas (2009) adds further clarity to the issues raised in Sonbol’s (2003) article as the speech explores the political and sexual ramifications of “mapping morality and immorality onto Muslim bodies”. While Sonbol (2003) points to the court of law in inheritance, family and property, Barlas (2009) adds the most important exemption from the Muslim laws. Barlas (2009) points to the reality that the jilbab cannot operate in the same way as the West or the pre-Islamic Arabian society. This statement comes in support of the premise that the women’s arguments against Muslim men are more than wearing veils to restrain the man’s sexuality. It is in fact, the omission of laws that guards against “sexual abuse and harassment” that many Muslim suffer from at the hands of Muslim males.
In concluding, Sonbol (2003) speaks to the issues of the court system in the Muslim society, but fails to do justice to the real issue of law in the society. Reference to the other scholarly arguments point to the issue of the mistreatment of the women under the Shari’a laws and seek to justify the rights of the women and the unheard voices of the silent victims of Shari’a laws. In addition, the Muslim justify the modernization of the laws as the way that their God wants them to live, but in order to move forward into the twenty-first century, Muslim women cannot continue to live in oppression. The harsh reality is that the heavy veils that women wear to hide their sexuality, the laws on extramarital affairs, and restrictions on work policy are laws in the Muslim society that must be changed to support the true rights of the Muslim women.
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