Dear questioner,

Thank you for your question.

Answering your question, Dr. Jasser Auda, Professor and Al-Shatibi Chair of Maqasid Studies at the International Peace College South Africa, the Executive Director of the Maqasid Institute, states:

The Shariah laws clearly do not place men and women on level ground. Women issues are the real test for the current Islamic reform. The reason is that groundless and unfair differentiation between men and women is deeply embedded in many popular opinions that we inherited from the eras of decline of the Islamic civilization.

Regarding the schools of fiqh, the word fiqh is used in the Quran and hadith in various forms to refer to understanding, comprehension, and gaining knowledge of the religion in general (for example, Quran 4:78, 6:25, 9:122). However, in Islamic schools of law, the word fiqh has been typically defined as, 'the knowledge of practical rulings.'

It is crucial to know that Shariah is revealed but fiqh is not! Shariah is what God said in the Quran and what the Prophet (peace be upon him) instructed every Muslim to do, but fiqh is the understanding of scholars, in various eras and geographical locations, of the revealed knowledge and their opinions in their attempts to apply the Shariah to (their) real life. So, generally speaking, fiqh is subject to the society and circumstances that it was applied in, and do not (necessarily) represent God's commands, nor (necessarily) what we should apply in our current circumstances.

Of course, there are issues in Islam that are universal and every Muslim, regardless of where and how, should apply. We should consult the scholars of fiqh in these areas. But I am talking here about the issues that concern changing circumstances and, especially, issues related to women, who, in my view, had suffered a lot of discrimination from a number of scholars – in contrary to the Islamic Shariah or revealed way of life.

In this regard, it is necessary to understand how certain historical interpretations shaped Islam in the minds of many Muslims, without necessarily being the only true way of interpretation.

Let me mention one example here, which is verse 33:53. This verse has come to be named ''The Verse of the Barrier' (Ayat al-Hijab). It states: 'And when you ask of them (the wives of the Prophet) anything, ask it of them from behind a curtain/barrier. That is purer for your hearts and for their hearts.' The context of the verse (both in the Chapter and in a historical sense) refers to specific rulings that the companions should follow when they visit the Prophet's home. And the verse was revealed after Umar, the companion, had cautioned the Prophet that some of his visitors do not deal respectfully with his wives. Yet, this verse was claimed to have abrogated (i.e. cancelled and annulled) numerous narrations that allow Muslim women to lead normal lives. Based on this interpretation, which has no basis from the Quran or the hadith of the Prophet (peace be upon him), the following fatwas were given:

1. Based on this abrogation, Ibn Hajar banned Muslim women, in general, from leaving their homes. This is contrary to thousands of narrations and a large number of verses, which were all interpreted as 'legally abrogated.'
2. Al-Qadi Iyad banned Muslim women, in general, from talking with men. This is also contrary to thousands of narrations and a large number of verses, which were all interpreted as 'legally abrogated.'
3. Al-Mubarkafuri banned Muslim women from narrating the Hadith. This ban is obviously against tens of thousands of narrations that female companions related to the Prophet (peace be upon him), without which, our knowledge about Islam itself would have been quite incomplete.
4. Abadi banned women from visiting men or being visited by men, also contrary to many verses and authentic narrations.
5. Ibn Taymiyah, based on the same verse, banned Muslim women from showing their faces in public.  He also interpreted the narrations that imply otherwise as abrogated by the same verse.

 

Next, I will quote from your questions what I could answer and follow the quotes by my comments, insha' Allah.

1- A husband can instantly divorce his wife where witness is not a pre-requisite. On the contrary, the Quran in Surat Al-Baqarah in verses 228-229 and Surat al-Talaqh, verses 1-2, clearly states: "When you do divorce women, divorce them at their prescribed period and count (accurately) their prescribed period (that delays finality of divorce for at least two months) and take for witnesses two persons from among you."

Yes. This is a custom (`urf, in Arabic) that is contrary to the verses, but scholars allowed it for the sake of 'flexibility with customs,' which is an interesting feature of the theories of madhahib. So, this opinion could be valid in certain societies, but the opinion of many contemporary scholars is against it. In fact, the late Sheikh Muhammad al-Ghazali, for example, ruled that nowadays, a divorce has to be in front of witnesses and a judge as well.

2- "Women's witness is not acceptable in hudud (killing, robbery, adultery, etc) and qisas (an eye for an eye, etc.) cases." Is this not a direct violation of verse 283 of Surat al-Baqarah where it is affirmed: "conceal not evidences, for whoever conceals it, his heart is tainted"?

Yes, it is in violation of the Quran. The whole issue of putting women's legal status at a lower level from men requires revision. These 'laws' that you mentioned are, again, mere interpretations, rather than facts.

3- "If the head of state kills anyone or if anyone kills his son, daughter or grandchildren, then the killers must not be given the capital punishment." On the other hand, the Penal Law of Islam declares: "In an Islamic state, no Muslim should be given capital punishment for killing a non-Muslim."

It is true that these fatwas were issued by some scholars in traditional schools of law, but they are clearly contrary to the Quran, which states that, 'a soul is for a soul' (Al-Ma'idah 5:45). I, personally, do not understand why such opinions are so popular despite their clear contradiction of the Quran and the spirit of Islam in general.

4- Al-Bukhari in Hadith 283 of Volume 4 supports the above dictum when it says: "A Muslim must not be given capital punishment for killing a non-believer."

This narration is weak, whoever the narrator is, because it is at odds with the Quran. This is not the only narration that has to be rejected on this basis. I will give you one example, also according to al-Bukhari, in which Aishah herself rejected a narration on the basis of its content (al-matn) rather than its chain of narrators (al-sanad):

Abu Hurairah, the companion, narrated: 'Your bad omen is in your woman, your animal, and your house.' However, al-Bukhari, in the same chapter, narrated that Aishah, the Prophet's wife, refused Abu Hurairah's narration and said that the Prophet (peace be upon him) had said, instead: 'People during the Days of Ignorance (jahiliyya) used to say that bad omens are in women, animals, and houses.'

These are two narrations, honestly and accurately narrated by Al-Bukhari. However, they are clearly at odds and one of them should be rejected. It is quite telling that most commentators rejected Aishah's narration and accepted Abu Hurairah's, even though she supported the meaning of her narration with a verse from the Quran (Al-Hadeed 57:22). What's more is that another companion, Mikhmar, supported Aishah's narration with a similar narration that says: 'There is no such thing as bad omens.' But Ibn al-Jawzi, surprisingly, commented: 'How can Aishah reject an authentic narration?' And Ibn al-Arabi, shockingly, commented: 'Aishah's rejection of the narration should be dumped.'

5- In some countries, a few clerics very often declare a Muslim as murtadd (someone who has renounced his faith) citing the violation of specific Shariah law by the victim and promulgate a unilateral death sentence to him.

Killing of 'apostates' is another issue that requires deep revision.

6- One of the Shariah laws that have been criticized mostly is the law that states: when a girl/woman is raped, four male witnesses are required to prove the guilt of the rapist. Is it not ridiculous?

Yes. It is ridiculous. But this is not the opinion of the Quran, the Prophet (peace be upon him), or even any of the scholars known in the Islamic history. Rape is a crime, not a sexual act. In fact, many schools of thought include rape in the verse of Surat al-Ma'idah, verse 33: {It is but a just recompense for those who make war on God and His apostle, and endeavor to spread corruption on earth, that they are being slain, or crucified, or have, in result of their perverseness, their hands and feet cut off, or are being [entirely] banished from [the face of] the earth: such is their ignominy in this world. But in the life to come [yet more] awesome suffering awaits them.}

In other words, many scholars commended a capital punishment for the rapist, in addition to a compensation for the raped. But defining rape in terms of adultery is a new bid`ah (innovation in the religion) carried out by some current muftis, which is really unfortunate.

7. The major concern of people critical of Shariah law is that it is extremely anti-women and subject to uncontrolled interpretation and evolution. There is virtually no formal certification process to designate someone as being qualified to interpret Islamic law.

In my view, we, Muslims, have a duty to filter out these unfair interpretations BEFORE we implement the 'Shari`ah' or call for its implementation anywhere.

We hope this answers your question.

Keep in touch.