Khalid-Chraibi-Ijtihad Is Alive and Well and Flourishing in The 21st Century PDF

Khalid Chraibi
Ijtihad is alive and well and flourishing in the 21st century
The author holds degrees in economics from the Universities of Paris and Pittsburgh and has worked with a consulting firm in Washington D.C. and with the World Bank, as well as with a number of banking and investment institutions in his country. He has written numerous articles for Economia and the websites Oumma.com, SaudiDebate.com, ArabLife.org, Tabsir.net, CyberOrient.com, Women Living Under Muslim Laws, Indignes de la Rpublique.com and Wikipedia. He is the author of several chapters in the book: The kingdom: Saudi Arabia and the challenge of the 21st century, Mark Huband and Joshua Craze (Editors), Columbia University Press/Hurst, New York (2009).
Khalid Chraibi - SaudiDebate.com

Muslim society issues - Islamic law
Pope and people must understand truth of Quranic teachings on jihad and religious freedom
Thursday, 07 June 2007
By Khalid Chraibi
In his Regensburg lecture of September 12, 2006 Pope Benedict XVI argued that Islam, contrary to Christianity, had resorted to violence and coercion to spread its faith (1). Quoting a longforgotten 14th century Byzantine emperor in support of his argument, the Pope commented: "The emperor must have known that surah 2 : 256 reads: "There is no compulsion in religion". It is one of the surahs of the early period, when Muhammad was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war." The Pope then quoted the emperor as saying: "Show me just what Muhammad brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached".
The Pope's derogatory remarks offended the Muslim community worldwide. Many media analysts saw in it the clear imprint of the Vatican's campaign to disparage Islam, in order to counter its progress in developing countries. The ulamas criticized the Pope for misrepresenting the facts concerning the Qur'anic verses he quoted, and for being clearly prejudiced in his discussion of Islamic thought and history. They reminded him that the principle of religious freedom was enunciated in numerous Qur'anic verses, none of which was ever abrogated. Moreover, the Qur'an only prescribed Jihad to the Muslims as a defensive war to protect themselves and their faith when under attack. The incident provided an opportunity for Muslims and non-Muslims alike to acquaint themselves with the Qur'an's real stand on the issue of religious freedom.
The Qur'an proclaims the principle of religious freedom not in one, but in a multiplicity of verses, interspersed in many surahs, usually in the context of the discussion of the Messenger's mission. The description of the latter sets out its scope, limits and contents, with indications as to how it is to be carried out, and how the Messenger is to deal with a variety of issues, including his nearest kinsmen, the People of the Book, the polytheists, etc. (2) According to this description, the Messenger's main function is to convey the Lord's Message, to expound openly what he has been commanded and to give a clear warning to the people. He is "to invite all to the Way of the Lord with wisdom and beautiful preaching; and argue with them in ways that are best and most gracious." But, he is not set over people to arrange their affairs, and is not to overawe them by force. He can
admonish them but, if they disobey him, he is to leave them alone, to their own choice. "Let him who will, believe, and let him who will, reject (it)." Or again: "Everyone acts according to his own disposition." "Those who receive Guidance, do so for the good of their own souls; those who stray, do so to their own loss." This point is so important in the Qur'anic message that it is reiterated on several occasions, using different wordings: "If people accept guidance, they do it for the good of their own souls, and if any stray, the Messenger is only a Warner." "If any will see, it will be for [the good of] his own soul; if any will be blind, it will be to his own [harm]: the Messenger is not [here] to watch over their doings." Thus, if he discusses the Lord's Message with People of the Book and they dispute with him, the Messenger is to say to them: "Allah is our Lord and your Lord: for us [is the responsibility for] our deeds, and for you for your
deeds, there is no contention between us and you." Similarly, "If people argue with him, dispute with him, charge him with falsehood, he is to say: My work to me, and yours to you! Ye are free from responsibility for what I do and I for what ye do!'" In such situations, the Messenger is "to turn away from them, have patience with what they say, and leave them with noble [dignity]." The Messenger is repeatedly reminded that: "If it were Allah's Will, He could gather people together unto true guidance." "If it had been Allah's Plan, they would not have taken false gods: but the Lord did not send the Messenger to watch over their doings, nor is he set over them to dispose of their affairs."
The reason for the existence of religious freedom is explained in the following way: "If Allah had so willed, He would have made mankind a single People, but [His plan is] to test them in what He hath given them; so they must strive as in a race in all virtues." On one occasion, the Messenger is admonished in the following terms: "If it had been the Lord's Will, they would all have believed, all who are on earth! Wilt thou then compel mankind, against their will, to believe!" The most-often quoted verse reads: "Let there be no compulsion in religion. Truth stands out clear from error [...]." Contrary to the Pope's assertion, this verse was not revealed in Makkah, in "the early period, when Muhammad was still powerless and under threat," but in a later period, in al-Madinah, when the Messenger was in a situation of relative power and security.
The occasion is narrated in all tafsir textbooks: in pre-Islamic times, some women gave their child to a Jewish family to raise, often in the Jewish faith, in the belief that this would give him a better chance to survive. When the parents of such children converted to Islam, the children were reluctant to follow suit, so the Messenger was asked by the parents whether they could coerce their children into changing their faith. The verse quoted by the Pope forbade the parents to exercise any such coercion, stating: "Let there be no compulsion in religion." The Messenger is repeatedly reminded that, no matter what happens, it is not his role to punish anyone who rejects the Lord's Message:"...thy duty is to make (the Message) reach them: it is Our part to call them to account." "It is not for the Messenger, but for the Lord to make the decision whether to turn in Mercy to the unbelievers or to punish them. It will be for the Lord to call them to account."
The Messenger is to "leave them alone until they encounter that Day of theirs, wherein they shall [perforce] swoon [with terror]." Although the principle of religious freedom is thus perfectly established in the Qur'an, and was never abrogated, the Muslim communities have at times had difficulties in applying it, for all kinds of reasons. As an illustration, Islamic jurists diverge to this day on how to deal with the issue of apostasy. Some consider that the Qur'anic principle of religious freedom covers the cases of apostasy, but most ulamas dispute that view, basing themselves on the Sunnah. Nevertheless, it remains as a fact that the Qur'an, while denouncing the people who commit apostasy, does not prescribe any sanction to be applied to them by any other person, as is clear from the following verses: "Those who believe, then reject Faith, then believe [again] and [again] reject Faith, and go on increasing in
unbelief, Allah will not forgive them nor guide them on the way." "Anyone who, after accepting Faith in Allah, utters Unbelief, - except under compulsion, his heart remaining firm in Faith - but such as open their breast to Unbelief, on them is Wrath from Allah, and theirs will be a dreadful Penalty." As to Jihad, the consensus of the ulamas today is that the Qur'an prescribes it to the Muslims only to defend themselves and their faith, when under attack. This appears explicitly in the following verses, which were the first revealed on the subject of Jihad: "To those against whom war is made, permission is given [to fight], because they are wronged; and verily, Allah is Most Powerful for their aid; [They are] those who have been expelled from their homes in defiance of right, [for no cause] except that they say, "Our Lord is Allah." Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of Allah is commemorated in abundant measure. Allah will certainly
aid those who aid His [cause]; for verily Allah is Full of Strength, Exalted in Might, [able to enforce His Will]." The Qur'an never prescribes Jihad as an offensive war, to extend Islamic rule to foreign lands and to convert their people "by the sword". Those who defend these views merely interpret Qur'anic verses in a manner which suits their own purposes. They are merely attributing to Islam their own views on the subject. Based on the numerous rebuttals of the Pope's assertions that were published by the ulamas in the media worldwide, one can draw the following conclusions: The Qur'an proclaims the principle of religious freedom, explicitly and unequivocally, throughout dozens of different verses interspersed in a variety of surahs. It prescribes the use of dialogue and
persuasion to transmit the Muslim message, and forbids the use of any form of coercion towards anyone to this end. This principle was upheld throughout the life of the Messenger and was applied to all, including the Muslim's own children raised in the Jewish faith. As to Jihad, the Qur'an prescribes it to the Muslims only to defend themselves and their faith, when under attack.
Notes:
(1) Pope's speech at University of Regensburg http://www.cwnews.com/news/viewstory.cfm? recnum=46474 (2) All Qur'anic quotations are from the Qur'an's English translation at www.al-islam.com (Kingdom of Saudi Arabia, Ministry of Islamic Affairs site) : http://quran.alislam.com/Targama/DispTargam.asp?nType=1&nSeg=0&l=eng&nSora=1&nAya=1&t=eng

Extremists cannot claim Koranic justification for violence despite proud boasts of jihadis
Saturday, 28 July 2007
By Khalid Chraibi
Watching TV news programmes these days, one gets the impression that the whole Middle East is in turmoil, with terrible acts of violence taking place routinely in a multiplicity of settings. The distress is at its peak in Iraq where, every single day, trucks and cars laden with explosives are rammed into crowded places, such as a central market or a mosque at the time of the midday prayer, and detonated, killing dozens of civilians and wounding hundreds of people. This wave of violence is only marginally directed at foreign troops of occupation. The overwhelming majority of the victims are civilians who are not even individually targeted, but simply belong to a group that their adversaries have decided to attack, such as the employees of some administration, or the members of a religious group (Sunni or Shi'a). Many of the victims are accounted for merely as "collateral damage", i.e. people who happened to be standing within the range of an explosive device, at the time of explosion.
The authors of these acts of violence proudly describe themselves as "jihadists", "salafi", etc. to underline their Islamic affiliations. Based on this, Western governments and media lump all these acts together under the generic label of "terrorism", attributing them to a resurgence of religious extremism in the Muslim world. They either present them as symbols of an ongoing "clash of civilizations" between Islamic countries and the West, or point at them as an indication of the struggle between conservatism and modernity in Muslim societies. Nevertheless, most Muslims find it hard to reconcile these acts of violence with the teachings of their religion. But, the political/religious leaders who mastermind such actions have developed their own "fatwas" about them, which they use to convince would-be suicide-bombers of the righteousness of their acts of violence.
They justified their actions as follows, in a recent interview published by a major American newspaper: "In the typical car bombing, God will identify those who deserve to die - for example, anyone helping the enemy - and send them to hell. The other victims will go to paradise. The innocent who is hurt, he won't suffer. He becomes a martyr himself'." (1) Nor, do they feel any distress about the random killing of children in such operations, because "Children receive special consideration in death. They are not held accountable for any sins until puberty, and if they are killed in a jihad operation they will go straight to heaven. There, they will instantly age to their late 20s, and enjoy the same access to virgins and other benefits as martyrs receive." (1) Many Saudi youth have been associated, in recent years, with this type of violence, in such diverse settings as Palestine, Afghanistan, Iraq, Lebanon, Yemen, North Africa, etc. The Saudi authorities
are worried about this situation, and try to develop new guidelines to provide the youth with the appropriate religious guidance, including within the environment of summer camps this summer, to enable them to distinguish between true Islamic teachings and "deviant ideology". Thus, at a meeting with more than 600 imams and khateebs in late June 2007, Saudi Interior Minister Prince Naif expressed his concern about Saudi youth involvement in acts of violence in Iraq and Lebanon. He was quoted by the Saudi Press Agency as asking the imams, and beyond them Saudi society more generally: "Do you know that your children who go to Iraq are used only for blowing themselves up, causing the deaths of innocents? Are you happy for your children to become instruments of murder?" He's reported to have added: "Do you want people in your society who call you, your state and your leaders infidels?" The Prince emphasized the positive role that imams and khateebs could play in the country's fight
against terrorism, "deviant ideology" and destructive thoughts and ideas, by regularly using the Friday sermon in over 14 000 mosques to expose the "deviants" and their ideology. In theory, the task of the imams and khateebs is quite straightforward and simple. They have to explain to Saudi youth that Islam is based on the respect of life and property, freedom, equality, solidarity and justice for all. It is the religion of "ummat al wassatt" (the community of the Just, or of the Middle position) as explained in the following verse: "Thus have We made of you an Ummat justly balanced, that ye might be witnesses over the nations, and the Messenger a witness over yourselves;..." (Al-Baqarah II:143) Islam opposes extremism in religion, as explained in the verse: "Say: O People of the Book! exceed not in your religion the bounds (of what is proper), trespassing beyond the truth, nor follow
the vain desires of people who went wrong in times gone by, who misled many, and strayed (themselves) from the even Way." (Al-Maidah, V:77) The Prophet also warned repeatedly and strongly against extremism in religion, emphasizing that it was the cause of the disasters which befell earlier nations. Thus, Islam abhors the indiscriminate killing of civilians and non-combatants. The high value that Islam places on human life is clearly expressed in a multiplicity of Kor'anic verses such as: "...take not life, which Allah hath made sacred, except by way of justice and law: thus doth He command you, that ye may learn wisdom." (Al-An'am, VI:151) Or: "if anyone slew a person - unless it be for murder or for spreading mischief in the land - it
would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people." (Al-Maidah V:32) The principle of sacredness of human life is also emphasized in the "Universal Islamic Declaration of Human Rights" of 19 September 1981 (21 Dhul Qaidah 1401) which states: "Human life is sacred and inviolable and every effort shall be made to protect it. In particular no one shall be exposed to injury or death, except under the authority of the Law." Islam also established very strict rules on how to deal with cases of murder. Capital punishment can be applied by a court of law, which respects due process. But, no individual is allowed to take the law into his own hands, to decide at his personal whim who is to live and who is to die, etc. Such a situation, if it were to take place, would be comparable to a state of "fitna", which is strongly denounced by Islam. The Muslim community is organized to handle and resolve all the
conflicts between its members through peaceful means, or using the alternative means which the shari'ah has established. The imams are also to remind the youth that, even in a situation of warfare, Islam has established very strict rules, which all parties to the conflict have to respect. These rules were observed during the life of the Prophet, with the objective of ensuring that damages were limited to what was necessary, without unnecessary destruction of life (women, civilians, old people, non-fighters) and property (trees, orchards, wells, cattle, etc.). The Caliph Abu Bakr reminded his troops of these rules, on the eve of their departure for battle, as follows: "Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit
treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone." It is clear from the preceding statements that Islam is definitely opposed to the indiscriminate killing of people, no matter what the circumstances may be. It also stands against takfeer, which is another aspect of extremism. Clearly, one cannot say on a whim that other Muslim people are "kouffar" (infidels) who can therefore be killed without any misgivings. This would be the most extreme case of "fitna". Resort to violence, even at the State level, is the exception and not the rule. It must take place within strict rules: no abuse of power, no excess, respect of non-combatants (civilians, women, children, elderly...), respect of private
property, which must not be destroyed except in extreme situations... One can't say, in this respect, that he wants to promote the values and principles of Islam, while he violates himself all its fundamental rules to achieve his own political objectives. In short, in a modern State, people cannot take the law into their own hands. Individuals can't declare war to foreign States. Nor can they declare war to their own established Government. Otherwise, the community enters into a situation of anarchy, of "fitna". The confusion between politics, religion and "fitna" is promoted by all the parties concerned in the conflicts raging in the Middle East, because it fits with each participant's agenda. Western Governments and media can point to the violence and explain it by religious extremism, so that they don't have to delve into the complex political conflicts taking place in Palestine, Iraq, Afghanistan, Iran, etc. The political authorities of a country can explain the violence as the product
of "religious extremism" or of a "deviant" ideology, rather than as a rebellion against their authority. The "jihadists" can claim that they are merely trying to achieve the objective of a unified "ummah" set by Islam, rather than the political objectives they truly have in mind, such as the conquest of power in a given country. The people at large may be left bewildered by all these conflicting claims. But, the unquestionable fact is that Islam is the religion of "ummat al wassatt" (the nation of the Just people, or the people of the Middle position) which abhors all acts of extremism in any aspect of life. In particular, Islam is based on the respect of life and property, freedom, equality, solidarity and justice for all. One can't do away with all the values it stands for, and everything it teaches, and still assert with any credibility that he's acting on its behalf.
Notes:
(1) Michael Moss and Souad Mekhennet: 'The Guidebook For Taking A Life', The New York Times, Week in Review, June 10, 2007)

Mixed message on 'riba' leaves Muslims trapped between usurers and lenders
Tuesday, 24 April 2007
By Khalid Chraibi
The question put to scholar Yusuf al-Qaradawi at a youth gathering in Morocco, in the summer of 2006, was innocuous enough: in the absence of Islamic banking in Morocco, is it licit for a Moroccan to take an interest-bearing loan from a conventional bank to buy a home? Al-Qaradawi referred his audience to a ruling by the European Council for Fatwa, which authorized Muslim minorities living in Europe, with no access to Islamic banking, to take such a loan, based on the rule that: Necessity allows the use of what is illicit (addarouratou toubihou al mahdhourat).
He added that, since the Moroccans had no possibility to buy a home except through the conventional banking system, their situation was comparable to that of Muslim minorities living in countries in which Islamic banking was not the norm. The ruling applicable to the latter was also applicable to them. Al-Qaradawis fatwa raises the issue of the compliance of modern banking with the shariah, a subject of continuing controversy between traditionalist and modernist religious thinkers. Between usury and interest Modern banking is inextricably linked with interest, which many contemporary Muslims associate with riba. Since the Quran prohibits riba, explicitly and unequivocally, they are convinced that modern banking activities are illicit. But the definition of riba is elusive. For centuries, the
ulema have been faced with the difficult challenge of sorting out, generation after generation, what the riba prohibition should apply to, and they have not reached any consensus on this matter to this day. Of course, the ulema agree that riba refers, in the first place, to usury, i.e. the lending of money with an exorbitant interest charge for its use. But a majority of ulema consider that riba also refers, in a second meaning, to interest under all its forms. This was the position of al-Azhars Research Council when it ruled, in 1965: Interest on all types of loans is forbidden Riba. There is no difference in this regard between so called consumption and production loans. Moreover, Riba is forbidden (haram) in small as well as large quantities, whether it is effected through time deposits, demand (or checking) deposits, or any interest-bearing loan contract. All such dealings are among the forbidden Riba.
This was also the position upheld, more recently, by the Islamic Fiqh Academy (IFA), an affiliate of the Organization of Islamic Conference, which was established by its 43 member States to try to develop an Islamic consensus about just such complex fiqh issues. In a 1985 resolution, IFA stated: Any increase or interest on a debt which has matured, in return for an extension of the maturity date, in case the borrower is unable to pay ; and the increase (or interest) on the loan at the inception of its agreement, are both forms of usury, which is prohibited under Shariah. Under this definition, conventional banking operations are all illicit, because they incorporate interest, i.e. a charge for borrowed money, generally a percentage of the amount borrowed. But, modern financial activities differ in kind from anything that existed at the time of Revelation. One may wonder, therefore, with Abdullah Yusuf Ali, about the legitimacy of extending to them the riba prohibition, based on qiyas and ijtihad. Says Ali, best known for his classic translation of the Quran into English: Our Ulema, ancient
and modern, have worked out a great body of literature on Usury, based mainly on economic conditions as they existed at the rise of Islam. I agree with them on the main principles, but respectfully differ from them on the definition of Usury My definition would include profiteering of all kinds, but exclude economic credit, the creature of modern banking and finance. Modern banking structures and financial instruments were introduced in Muslim countries at the time of their occupation by foreign Western powers, in the 19th and 20th Centuries. When Islamic jurists saw how these modern banking institutions and their assorted financial tools were used to develop the national economy, they understood the positive role that interest could play in modern society. They realized that its total prohibition in economic and financial dealings could conflict with societys economic and social needs and aims, and could hamper the countrys development.
The voices of al-Azhar For these reasons, from the 19th Century on, Egyptian Grand Muftis and Sheikhs of al-Azhar, as well as numerous religious leaders in various Muslim countries, have been earnestly looking for ways and means to convert the total prohibition of interest into a selective one, in order to reconcile the prevailing definition of riba with the economic and financial requirements of modern society. Muhammad Abduh, the mufti of Egypt and Sheikh of al-Azhar, was a pioneer in this field, when he wrote a fatwa to the effect that interest paid by the Egyptian Post Office on personal savings accounts was lawful. He also explained to the readers of al-Manar that the use of interest could be quite licit in some
financial dealings, and have nothing to do with a riba situation. He wrote: When one gives his money to another for investment, and payment of a known profit, this does not constitute the definitely forbidden Riba, regardless of the pre-specified profit rate This type of transaction is beneficial both to the investor and the entrepreneur. In contrast, Riba harms one for no fault other than being in need, and benefits another for no work except greed and hardness of heart. The two types of dealings cannot possibly have the same legal status (hokum). Another Sheikh of al-Azhar, Mahmud Shaltut, wrote a fatwa in which he declared that interest paid on State bonds was licit, when issued by the State to meet public needs, and to further the countrys economic development. He even asserted that any transaction which was offered by the State, with a fixed interest in advance, was licit, since there was no exploitation of either party in such cases.
Muhammad Sayyed Tantawi, the present Sheikh of al-Azhar, though a traditional, orthodox scholar, worked for decades along the same lines as his predecessors, to try to disentangle interest from riba. As Grand Mufti of Egypt (1986-96), he ruled that fixed interests on bank deposits were halal, even suggesting that the legal terminology used for bank interest and bank accounts be changed, to avoid their assimilation to riba. Furthermore, in 2002, the ulema of Al-Azhar, working under Tantawis direction, revised the 1965 stand of the institution on riba. They approved a fatwa which stated that investing funds with banks that pre-specify profits or returns is permissible, and there is no harm therein. For Tantawi: the bank investing the money for a pre-specified profit becomes a hired worker for the investors, who thus accept the amount the bank gives them as their profits, and all the excess profits (whatever they may be) are thus deemed the banks wages. Therefore, this dealing is devoid of riba. He adds : We do not find any Canonical Text, or convincing analogy, that forbids pre-
specification of profits, as long as there is mutual consent. Bankers and shariah One could quote many other efforts by distinguished Muslim jurists, aiming at separating interest from riba. For instance, Abd al Munim Al Nimr, a former Minister of Awqaf in Egypt, explained in a 1989 article that the prohibition of riba was essentially justified by the harm caused to the debtor. Therefore, since there was no harm caused to depositors in banks, the prohibition of riba did not apply to bank deposits. Explains Nasr Farid Wasil, Tantawis successor as Grand Mufti of Egypt: So long as banks invest the money in permissible venues (halal), then the transaction is permissible (halal)... The issue is an investment from money. Otherwise, it is forbidden (haram)... He adds: There is no such thing
as an Islamic or non Islamic bank. So let us stop this controversy about bank interest. The banking debate revolves, therefore, essentially, around the definition of riba. A conservative definition of riba equates it with banking interest. On that basis, modern banking systems in Muslim countries are described as illicit, because they use interest in their operations. But, according to a number of Grand Muftis of Egypt, and Sheikhs of Al-Azhar, this is an outdated view of the banking issue. In their opinion, riba should be equated with usury only. Since modern banking does not use usury in its operations, it is not concerned with the riba issue, and raises no problem of compliance with the shariah. Explains Moroccan law professor Ahmed Khamlichi, in this respect: The ulema dont have the monopoly of interpretation of the shariah. Of course, they must rank high in consultations on
shariah issues. [But] they dont make the religious law, in the same way that its not the law professors who make the law, but the parliaments. Sovereign States have promulgated their own national codes, whose contents take into account the specifics of the country, which may differ considerably from one country to another, and over time. One shouldnt be surprised, therefore, to discover that whats licit in one country may be considered as illicit in another, and that the items in these categories may also change over time. The important thing to remember is that, in each country, it is the law of the land which applies, as defined by its national institutions. Thats whats licit in that particular country, at that particular time.

Women cite Quranic rights as Muslim modernists use law to confront culture of oppression
Monday, 02 April 2007 By Khalid
Chraibi
The status of Arab women underwent a drastic change in the 7th Century, with the advent of Islam. The new faith liberated them from a situation of tutelage and granted them their full share of rights and responsibilities within Muslim society. The part they played in family life and in the community increased markedly, as they acquired the right to inherit property, conduct business, and have access to knowledge.
But these rights, to this day, arent properly implemented in many communities, and the issue of womens rights continues to be at the center of a controversy in many countries. Thus, associations handling the cases of women in difficult situations describe innumerable instances of oppression, exploitation or mistreatment, with many women living under the threat of repudiation, polygamy, domestic violence, honour killings, and the like. At work, women suffer from discriminatory practices with regard to employment status, pay scales, responsibilities, promotion, not to mention sexual harassment. In recent years, womens rights have further deteriorated in various areas of the world, as extremist groups have become increasingly influential in the political and legislative life of different African and Asian countries. The Taliban regime in Afghanistan illustrated this development, imposing strict segregation between the sexes, compelling women to wear a burqa covering them from head to toe, denying them the right to education and to adequate health care, and preventing them from
work. It also instituted lashings and amputations as forms of corporal punishment. But the experience of Afghanistans women under the Taliban was in no way unique, as Zainah Anwar wrote of Malaysia : New sharia criminal laws were passed [in the 1990s in Malaysia], designed to ensure that the Muslim lifestyle does not transgress Islamic teachings. New offences were created, and moral surveillance, strict enforcement and more severe punishment of Muslims were introduced. The Islamic Family Law, one of the most enlightened personal status laws in the Muslim world, was amended to make divorce and polygamy easier for men, and reduce mens financial responsibilities towards women.
Women reading the Shariah

Until these developments, women's associations throughout the Muslim world had given high
priority to putting pressure on Governments to implement the UN-sponsored international conventions these countries had signed, concerning human rights in general, and women's rights in particular. They also wanted them to withdraw the reservations they had expressed on signing these conventions concerning various provisions on the grounds that they conflict with religion since the reservations had the effect of diluting much of the conventions usefulness. The changed conditions in the Muslim world led these associations to redefine their priorities and to include a serious study of the Shariah, in order to determine for themselves what it really said, with the objective of developing new tools to oppose the repressive new laws, policies and amendments to existing laws that were being introduced by Islamic groups. Says Nora Murat, from Malaysias Sisters in Islam organisation: If, as believers, we want to live a life according to the tenets of our faith, a simplistic call to return to an idealised golden age of
Islam, that has little bearing on the realities of todays world, cannot be the answer. And yet the answers can be found within our faith - if only we have the intellectual vigour, the moral courage, and the political will to strive for a more enlightened and progressive interpretation of the Quran in our search for answers. For us in Sisters in Islam, this is not heretical; rather it is imperative, if religion is to be relevant to our lives today. Women's associations were further motivated in their study of the Quran and Sunnah by the realization, in the words of Pakistans Riffat Hassan, that there was a big gap in what the Quran was saying about womens rights and what was actually happening in Muslim culture. So, one has to distinguish between Quranic text and the Islamic tradition. The interpretation of the Quran from the earliest times till now has been done almost entirely by men. It was also done in a maledominated patriarchal culture. So the Quran was interpreted through a male-centric cultural lens which obviously has affected womens rights.
Womens study of the Shariah convinced many of them, in the words of Nigerias Ayesha Imam, of the need to distinguish between Islam the way of Allah on the one hand, and, what Muslims do those who believe in Islam and attempt to practice it on the other. In a paper entitled Women's rights in Muslim laws, she explains: Islam is not questioned. But, what Muslims (human fallible people) make of Islam can be. She observes that, though religious laws draw their inspiration from the divine, they are not the same as divine laws. They do rely on human agency to elaborate, implement and enforce them. She explains that, in many situations, even the experts do not agree on the definitive meaning of verses in the Quran. Moreover, it is admitted that many hadith (accounts of the life of the Prophet) are apocryphal, motivated by inter-sect and dynastic rivalries. Several hadiths of this type seem to have had as their principal aim to put restrictions on womens rights, although they
do not fit with surahs (chapters) in the Quran or with other hadith. Ms. Imam adds that many people believe the shariah to be the same everywhere, throughout the Muslim world. But the fact is that it varies significantly from one country to another, as well as over time. The existence of four main schools of Shariah in the Sunni tradition illustrates the diversity of interpretations. The founders of these schools themselves declared emphatically, and repeatedly, that their views should not be considered as final or binding on all Muslims. So, refusing further ijtihad (personal reflection) is not a religious or divinely sanctioned act. It is not required in the Quran or by the Sunnah. To the contrary, both the Quran and hadith refer approvingly to thinking, reasoning and diversity of opinion. Though Ms. Imams analysis may come as a surprise to readers who have been raised in the belief of the singularity of Shariah in Muslim countries, the facts suggest otherwise, as is easily verified
by a comparison of current Personal Muslim Law in various countries. Personal Muslim Law also undergoes important changes over time within the same country, as illustrated, for example, by the evolution of family law in Egypt in the 20th Century. The reform of Moroccos Family Law in 2004 illustrates, for its part, the considerable change in womens rights that can be achieved over time, through a progressive, but faithful and equitable implementation of the provisions of the Shariah.
Change within the religious framework

Moroccos Moudawana (Personal Status Law) of 1957, though relatively modern and equitable in many respects, showed a clear conservative bias in its interpretation of many provisions of the Shariah, putting several undue restrictions on womens rights. The network of Moroccan women
associations fought for a half-century to obtain its reform. In methodological terms, the revision was to be based on a very attentive reading of the Shariah, taking into account as faithfully, as fully and equitably as possible, all relevant surahs and hadiths applicable to every aspect of Muslim personal law. Nevertheless, a major controversy developed around the project, between modernist groups and conservative political forces, jeopardizing the whole operation, which was only saved through the personal intervention of King Mohamed VI. Acting as Amir al-Moumineen (Commander of the Faithful), and assisted with the advice of the Council of Ulama, the King of Morocco had the final say on how to resolve difficulties of a religious nature, and he provided detailed explanations to Parliament on the choices he made. The Parliament had the final say on non-religious issues.
The reformed Family Law came into effect in 2004. Among other things, it makes the family the joint responsibility of both spouses, rescinding the wifes duty of obedience to her husband. It allows women to be their own guardians, and raises the minimum age of marriage for women to eighteen years. It puts prohibitive restrictions on polygamy, by requiring the consent of the first wife, the notification of the second wife of the existence of the first one, and a judges consent to the second marriage which may be granted if he is satisfied that the husband will grant equal status to each wife, in every respect. The Law makes polygamy grounds for divorce by the first wife, and promotes the use of a marriage contract to exclude the possibility of a second marriage by the husband. It puts repudiation under strict judicial control, and requires an equitable distribution of the couples assets before a divorce can be final. The Moroccan Family Law of 2004 may have its shortcomings, but it is unquestionably rooted in the Shariah, in every respect. Nevertheless, thanks to a more modern interpretation of the
stipulations of the Shariah, it affords a considerable progress in the situation of women in Morocco.
Who decides what is Islamic?

Most womens associations working in the field of womens rights understand fully, today, the usefulness of the strategy of change within the religious framework. Having drawn the lessons of past experiences, they are better prepared to confront the real issues. This shows clearly in the following observations by women working in the field. Asks Zainah Anwar: If Islam is to be used as a source of law and public policy to govern the public and private lives of citizens, then the question of who decides what is Islamic and what is not, is of paramount importance. What are the implications for democratic governance when only
a small, exclusive group of people is accorded the right to interpret the Text and codify it? Particularly when they do so very often in a manner that isolates the Text from the socio-historical context in which it was revealed, isolates classical juristic opinion from the socio-historical context of the lives of the founding jurists of Islam, and isolates the Text from the context of contemporary society. Adds Nora Murat: Knowledge that the Quran supports the universal values of equality, justice and a life of dignity for women, gives us the courage and conviction to stand up and argue with those who support discrimination against women in the name of religion. It is this knowledge that gives us the confidence to tell them that there are alternative views on the subject and that their obscurantist view, which discriminates against women, is not the only view in Islam.
References:
Zainah Anwar: Islamisation and its impact on laws and law making process in Malaysia Nora Murat: Sisters in Islam: Advocacy for change from within the religious framework Riffat Hassan: Interview by Samina Ibrahim, Newsline, Karachi, April 2001 Ayesha Imam: Women's rights in Muslim laws Morocco: Family Law 2004

Saudi judge ignores Quranic rights in harsh decision over the Girl of Qatif
Tuesday, 22 January 2008
By Khalid Chraibi
In a memorable scene in Ingmar Bergmans movie Wild Strawberries, Isak, the central character, dreams that he is standing in court, waiting to be sentenced. But he has no clue as to the charges against him. When the judge declares him guilty, he asks, bewildered: Guilty of what? The judge replies flatly: You are guilty of guilt. Is that serious? asks Isak. Unfortunately, replies the judge.
The verdict in the case of the Girl of Qatif, as the incident has become known worldwide, is as bewildering to most people as the judges verdict was to Isak. How can a young bride of 18 who has been subjected to the harrowing experience of being blackmailed by a former telephone boyfriend, then gang-raped 14 times in a row by seven unknown assailants, be further brought to trial for the offence of khalwa and condemned to 90 lashes? How does one justify raising the punishment to 200 lashes and 6 months in jail when she appealed the first sentence? The case had all the necessary ingredients to become an instant cause clbre, when word of it reached the global news agencies. It received very large coverage in the media, with the verdict being criticized by commentators, politicians and citizens in all walks of life, within the region and in far away countries.
Amnesty International protested against the flogging verdict (which was also applicable to the men involved in the case), observing that the use of corporal punishment constitutes cruel, inhuman and degrading punishment. It added that the criminalisation of khalwa is inconsistent with international human rights standards, in particular, an individuals right to privacy. The sentence against the Girl of Qatif and the boy who sat with her in the car should therefore be declared null and void.
The Saudi authorities were perplexed and incensed by such criticisms. As far as they were concerned, the court sentence against the Girl of Qatif was made in application of the Shariah as it has traditionally been interpreted in the country, and raised no particular or unusual issues.
The Saudi Ministry of Justice observed, in a statement, that the girl went out to meet her male acquaintance without a mahram, a legal guardian, and exchanged with him forbidden affairs through the illegal khalwa. She knows that khalwa with an unrelated man is forbidden by Shariah and by doing this she has broken the sacred matrimonial contract. Her punishment is thus perfectly justified in Islamic law. But, the Girl of Qatif, her husband and her lawyer questioned several points in the Ministrys statement, as well as the legal grounds on which the sentence was based. According to them, the girl had not put herself in this situation of khalwa out of her own free will. She and the boy who was raped with her had been chatting regularly on the phone for two years, since they were both 16, but without meeting. Somehow, the boy obtained her picture. When she got married at age 18, she wanted her picture back, and the boy agreed to do that, if she met him in
his car, in a public mall. After returning her picture to her, the boy volunteered to drive her home but, on their way, they were overtaken by another car, which compelled them to stop. They were kidnapped and taken to a deserted place, where the boy and the girl were separately subjected to a gang-rape. The girls husband insisted that there was no adultery involved in this case, nor was there any sexually-oriented activity between the couple in the car. The meeting only took place to allow the girl to retrieve her picture which, moreover, was harmless and did not show her in any compromising position. In his opinion, it had been bad judgment on the part of the girl to go to this meeting, but there was nothing more to it. The lawyer of the Girl of Qatif, Abdul Rahman al-Lahem, argued, for his part, that there was no khalwa between the girl and the ex-boyfriend, in the legal sense, because they met in a public
place. Moreover, the boy was trying to blackmail the girl with the picture, and she wanted to retrieve it She was forced to meet him in a "khalwa", which invalidates the rule of "personal will" in Shariah. As Saudi jurists agree, the legal definition of khalwa doesnt apply to the situation when a person is in dire need to attend such a meeting, or does so under duress. The Saudi judiciary accepted to review the case, but before it began looking into it, Saudi Arabias King Abdullah decided, on December 17, to pardon the Girl of Qatif, bringing the dramatic story of this girl to a compassionate ending.
Despite this humane conclusion to the case, many Muslims would agree with Amnesty International, that the criminalisation of Khalwa is inconsistent with international human rights standards, in particular, an individuals right to privacy. Of course, if any human rights organization in the area were to present the political/religious authorities of the Gulf States with a proposal to suppress any sanctions for khalwa, they would reject it out of hand, on the grounds that it was inconsistent with Muslim law. But this only demonstrates the important differences which continue to exist between Muslim countries in their interpretation of the prescriptions of the Shariah.
Everybody agrees that there are no Quranic verses which forbid khalwa, or define any sanction applicable to it. The main text of reference on the subject is a hadith of the Messenger, which states: 'Whosoever believes in Allah and the Last Day, let him not be alone with a woman who has not a Mahram (male relative who she cannot marry) with her. Indeed, the third (person) is al-Shaytan! [Ahmad]. This hadith implies that, when a man and a woman are alone in a secluded place, there may be temptation lurking. But, at the same time, Islam teaches moral responsibility and individual accountability, underlining the fact that each person is individually responsible for their actions before God.
Therefore, in North African countries, for example, the hadith on khalwa is viewed as merely indicating ethics of conduct, in order to avoid committing sins of the flesh. Some people may frown on a situation of khalwa but, as long as no fault has been committed there is no reason to apply any sanction. Punishment is only called for when actions which are forbidden by law actually take place, such as adultery, prostitution, and the like. In other countries, such as the Gulf States, the hadith has been interpreted by the ulema as forbidding khalwa. But, even in that case, the Messenger did not define any punishment to be applied to those who put themselves in such a situation. It was the ulema, through their own ijtihad their personal reflection over the centuries, who studied the offence in its various aspects, defined its nature and decided on the applicable sanctions (under the taazir approach, in which the judge has latitude to decide on the applicable sanction).
When a case such as that of the Girl of Qatif gains worldwide publicity, most Muslim people find themselves at a loss to understand why different Muslim countries, applying the same Islamic law, implement it with such strikingly different results. How can the same action be a punishable offence that is severely sanctioned in one region, whereas in another region it is no offence at all, and carries no punishment?
The situation becomes even more perplexing when a Saudi judge explains, in an interview published by a major Saudi daily newspaper, that the Courts have shown compassion and pity for the girl (when she was condemned to 90 lashes, later raised to 200 lashes plus 6 months in jail). If that had not been the case, it was his opinion, as a judge with 30 years experience, that the judges should have condemned the girl of Qatif to death, together with the other people involved in the case.(1) One is reminded of Ali ibn Abu Talibs observation that it is human beings (with all their frailties) who interpret the Shariah. In the Gulf States, personal status law has not yet been codified into a mudawwana, and both the judges and the people have some difficulty at times, distinguishing between tribal law and customs and the prescriptions of Islamic law, especially in taazir situations.
One would think, in these conditions, that there is latitude for change in the judicial systems view of khalwa in the Gulf States, if the political authorities were inclined to do so. The only major obstacle to be confronted is the weight of traditions. Unfortunately, says Suhaila Hammad, a writer who supports womens rights, tradition and customs control many people here (in Saudi Arabia) and they confuse them with Islamic law. As for the argument that we should introduce womens rights gradually, I say Islam came 1,428 years ago. Are all these centuries not enough to understand it? (2)
Notes:
(1) Okaz newspaper, Nov 27, 2007 : an interview with judge Ibrahim al-Khodhairi (in Arabic) (2) Heba Saleh, Womens rights: Barrier of silence has been broken, Financial Times, December 4, 2007
Khalid Chraibi Tabsir.net

Sat 4 Apr 2009
Reforming Islamic family law within the religious framework: the best practices
strategy
Khalid Chraibi
Many people in the Muslim world believe, wrongly, that shariah is a compilation of legal rules which are uniformly applied in all Muslim countries. But, the facts are otherwise: these rules vary significantly from one country to another, as well as over time. As a result, the status of women in Muslim countries, which is ruled by shariah, differs in many ways from one country to another. On any given issue, some national personal status codes grant more rights to women or better protect their interests than other codes.
According to feminine NGOs working in the field of Muslim womens rights, if Governments accepted to apply the more favourable rules on any Islamic family law issue (designated as the best practices), this would contribute significantly to the reform of family law within the religious framework, bringing it closer to contemporary international standards. The unicity of shariah within the diversity of rites These differences between Muslim countries in the rules of applied shariah do not result from a drift by Muslim jurists operating in different national settings. The founders of the major legal schools of thought opted for this policy of diversity in the early days of Islam, and had it ratified by the first caliphs and their successors. Thus, when Malik ibn Anas prepared, at the request of the caliph Abu Jaafar Al Mansur, his major compilation of Muslim law known as Al-Muatta, the caliph wanted to use this work as the reference in Muslim law, in all the territories under Caliphate rule. But, Malik disagreed, on the
grounds that each major Muslim community in the Caliphate already had its own rules and methodology in the field of fiqh, and should be left free to develop its own jurisprudence in this domain. Similarly, the founders of the four main schools of Shariah in the Sunni tradition (Abu Hanifa, Malik ibn Anas, Shafii, Ibn Hanbal), insisted, in their teachings, that their views should not be considered as final or binding on all Muslims, in all regions of the world and for all times. If a different legal school of thought presented a better interpretation of a rule, it should be given due consideration. This broadmindedness was a characteristic of the juridical culture of the times, and resulted in a wealth of output by Muslim jurists, over a period of several centuries, until the political authorities decided to put an end to all activities of juridical ijtihad in the 10th century.
Muslim jurists pride themselves, today, on the diversity of rules developed by the various Islamic legal schools, describing it as a blessing from Heaven. According to them, all these rules comply with Quranic prescriptions and with the teachings of the Sunnah, despite their differences. But, this diversity of interpretations adds to the complexity of the tasks of the associations of defense of womens rights, when they must handle cases in Muslim legal environments as different as those of Saudi Arabia and Morocco, for example, even though both claim that they merely apply shariah. Two contrasted examples: Saudi Arabia and Morocco According to a report submitted in 2007 by the Saudi association Women for reform to the UN Committee for the elimination of discrimination against women (CEDAW), Saudi women are confronted in a routine way, in their daily life, with great difficulties, due to the following factors:
There is a total segregation between the sexes, with negative consequences for women, in all aspects of their life; During their entire life, Saudi women live under the tutelage of a male guardian, be it a father, a husband or a blood relative; Without the permission of her guardian, a woman can neither go to school, nor obtain medical care, nor marry, nor travel abroad, nor manage a business, nor do anything of significance. Saudi authorities explain, however, that Shariah has defined a different set of rules for males and females. Consequently, by applying to each of the two sexes the appropriate Shariah rules, they do not violate anyones rights, whether male or female. Shariah merely presents a conception of human rights which differs from that of Western countries.
In contrast, in Morocco, the Personal Status Code of 1957, adopted shortly after independence, was revised in-depth in 2004, following several decades of struggle by feminine associations, in order to reflect the evolution of Moroccan society over the past half-century. The new Family law completely redefined the legal status of women within the family and society, bringing it considerably closer to current international standards. Among other things, it makes the family the joint responsibility of both spouses, rescinding the wifes duty of obedience to her husband. It allows women to be their own guardians, and raises the minimum age of marriage for women to eighteen years. It puts prohibitive restrictions on polygamy, by requiring the consent of the first wife, the notification of the second wife of the existence of the first one, and a judges consent to the second marriage which may be granted if he is satisfied that the husband will grant equal status to each wife, in every respect.
The Law makes polygamy grounds for divorce by the first wife, and promotes the use of a marriage contract to exclude the possibility of a second marriage by the husband. It puts repudiation under strict judicial control, and requires an equitable distribution of the couples assets before a divorce can be final. The Moroccan ulamas and jurists associated with the revision of the Code explain that all its provisions were based on an attentive and meticulous reading of the Shariah, in all its complexity, taking into account the best practices in use in other Muslim countries. However, following this recasting of the Personal Status Code, the Moroccan authorities progressively withdrew, one after the other, the reservations they had previously expressed about the application in Morocco of some provisions of various international Conventions dealing with womens rights, which they had earlier considered as possibly incompatible with religious prescriptions.
The better practices strategy Confronted with such a range of interpretations in the rules applied to the status of women in various Muslim countries, feminine NGOs have understood the vanity of challenging any of these interpretations. Thus, although Saudi Arabia and Morocco differ in significant ways in their interpretation of Shariah, the authorities in both countries are fully convinced that they faithfully apply its prescriptions. Feminine NGOs such as Collectif 95 Maghreb-Egalit (which comprises the main feminine associations of Morocco, Algeria and Tunisia) or Sisters in Islam from Malaysia have studied these issues in-depth, and come up with a new strategy to achieve progress in the field of Muslim womens rights: If all these different rules are equally valid in the Shariah, and if some of them grant more rights to women or protect their interests better, isnt it these rules (designated as
the best practices in Islamic family law) which should be applied in Muslim countries, in the beginning of the 21st century, in preference to the rules which are less favourable to womens rights? Why should women pay the price for these differences in interpretation, which clearly are the acts of men? In support of this last point, NGOs observe that, although the Personal Status Codes of Muslim countries are based on Quranic prescriptions and Sunnah teachings, they are periodically revised (Egypt 2000, Mauritania 2001, Morocco 2004, Algeria 2005). Since the rules presented in these codes were periodically changed, isnt this conclusive evidence that many provisions contained in the codes of family law reflect man-made choices, which have nothing to do with religious prescriptions? Representative Best practices
In order to illustrate what the best practices entail, the Malaysian NGO Sisters in Islam (SIS) drew up the following listing of what it considers as representative best practices, regrouped by category, based on the provisions of current family laws in the Muslim world. Age of the marriage: 18 years for boys and girls (Morocco) Assent of the spouses: Each of the two spouses must explicitly and freely express his assent to the marriage (Tanzania, Tunisia, Morocco, etc) Wali (Tutor): In Tunisia, the would-be spouses can contract their marriage with no need for a wali. In Cameroon, Fiji, Gambia, Turkey, Uzbekistan, Kyrgyztan: no wali is necessary. In Sri Lanka, Bangladesh, Pakistan (under Hanafi rite): no wali is necessary for Hanafi women who reached puberty. Witnesses to the marriage: In Senegal, two adult witnesses are required, one for each spouse (with no sex specification for the witnesses).
Polygamy: In Tunisia, it is prohibited. In Morocco, the 2004 Code established severe conditions, including the wifes right to specify in the marriage contract, if she so wishes, a provision to prohibit a second marriage by the husband Nushuz (disobedience of the wife): In Turkey, Indonesia, Tunisia, there is equality between the two spouses in decisions concerning family life matters. Divorce: In Tunisia, divorce can only be pronounced by a judge. The two spouses can claim the same grounds for divorce. In Indonesia, the husband, married under Muslim law, must notify in writing the Shariah Court of his intention to divorce. The six grounds for divorce can be claimed equally by the spouses. A reconciliation procedure must be carried out. If it fails, the divorce is pronounced by the Court and is final. Alimony: In Tunisia, if the husband is at fault, the divorced wife receives alimony whose amount is determined based on the standard of living to which she was accustomed during marriage. In Turkey, the spouse which is least at fault can claim reasonable compensation, paid
either monthly or in a lump sum. Custody of the children: The Court can entrust the custody of children to either one of the parents, taking into account the childrens best interests (Tunisia, Cameroon, Republics of Central Asia). Impact of the application of the best practices: According to feminine associations operating in this field, the adoption by Muslim countries of the best practices in Islamic family law could have a considerable impact on the daily life of millions of women. It would eliminate some of the excesses to which the authorities go in their interpretation of the rules of shariah, at the expense of womens rights, such as the prohibition of women driving of a vehicle; the strict segregation between the sexes in public places, hospitals and schools; the obligation to wear clothing of a particular type such as hijab, niqab or burqua; or even, sometimes, the prohibition to work outside the home
The adoption of the best practices would also pave the way for a redefinition of the legal status of women in the Muslim world, giving them the juridical means to protect themselves from abuse in their daily life, whether under the form of ill-treatment, marital violence, repudiation, polygamy, discriminatory practices or sexual harassment in the workplace Bibliography Al_Qaradawi, Yusuf. Assahwa al_Islamiya, Cairo, 1991 An-Naim, Abdullahi A., ed. Islamic Family Law in a Changing world, London, Zed Books, 2002 Women for Reform (WFR). Shadow report from Saudi Arabias ad hoc group of women to CEDAW, 2007 Saudi Arabia. Official Government Report to CEDAW, 2007
Morocco. Family Law Code, 2004 Collectif 95 Maghreb-Egalit. Guide to equality in the family in the Maghreb, 2003 Collectif 95 Maghreb-Egalit. One hundred steps, one hundred provisions for an egalitarian codification of Family and Personal Status laws in the Maghreb, 1995 Freedom House: Womens Rights in the Middle East and North Africa, 2005 United Nations Development Programme (UNDP). The Arab Human Development Report 2005 Towards the Rise of women in the Arab world, 2006 Sisters In Islam (SIS). Best practices in family law Sisters In Islam (SIS). Guide to equality in the family in Malaysia Rand Corporation. Best practices Progressive family laws in Muslim countries, 2005 Women Learning Partnership (WLP). Best practices in family law
Wikipedia Encyclopedia (unsigned article)
"Misyar" marriage
Wednesday, August 02, 2006
Khalid Chraibi
(Lawful unto you in marriage) are (not only) chaste women who are Believers, but chaste women among the People of the Book, revealed before your time, when ye give them their due dowers, and desire chastity, not lewdness, nor secret intrigues. (Quran V,5) Summary of major findings :
Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage in Muslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia is a sine qua none condition for its validity. Muslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, within the framework of the marriage "misyar", that the woman will give up some of the rights the law confers to her as a wife, this is perfectly legal, if that is her will freely expressed. But, in the event of a change of circumstances, she can assert all the rights which the law confers to her in her capacity as a wife (like the "nafaqa" for example), because these are inalienable rights within the framework of the marriage.
The clause of renunciation constitutes only a promise not to assert certain rights. It has an undeniable standing as a moral commitment, but is of no value on the legal level. The wife can thus respect it as long as she wishes, and reclaim all her legal rights when she needs to do so. Such a clause does not affect in any way the rights of the children who could be born from this union, such as the recognition of paternity, the effects of filiation, the financial responsibility of the father for his children, or the lawful rights of the wife and children to their share of inheritance, etc. Despite the fact that the "misyar" marriage is perfectly legal, according to the theologians, and that the wife can reclaim at any time the rights which she gave up at the time of establishment of the marriage contract, many theologians like Muhammad Ibn Othaymin or Nassirouddine Al-Albany,
as well as many Al Azhar professors, are opposed to this type of marriage because it contradicts the spirit of the islamic law of marriage and has perverse effects on the woman, the family and the community in general.
Definition of a Misyar Marriage

"Nikah Misyar" or "travellers' marriage" (Arabic language|Arabic]]: {{Ar| )}} can be described as a legal framework of [[marriage]] in which a [[Islam|Muslim]] couple is united by the bonds of marriage, based on the usual Islamic marriage contract, but without the husband having to take the usual financial commitments with respect to his wife. The latter exempts him from some of them by a clause of the marriage contract through which she gives up some of her rights (such as cohabitation with the husband, the equal division of the nights between all the wives in the event of [[polygamy]], the residence, the subsidy of maintenance "nafaqa", etc...). (1)
The wife continues to carry out a separate life from that of her husband, living in her home and providing for her needs by her own means. But her husband has the right to go to her home (or to the residence of her parents, where she is often supposed to reside), at any hour of the day or the night, whenever he wants to. The couple can then appease in a licit way their "legitimate sexual needs" (to which the wife cannot refuse herself). The marriage misyar represents, according to some, a spontaneous adaptation of the mode of marriage to the concrete needs of people who are not able any more to marry in the traditional way in countries such as [[Saudi Arabia]], [[Kuwait]] or the [[United Arab Emirates]], because of the dearness of the rents ; the high cost-of-life in general; the high amounts of [[dowry]] required; and other similar economic and financial reasons. (2)
It fits the needs of a conservative society which punishes severely [[zina]] ([[fornication]]) and other sexual relationships which are established outside the bonds of marriage. The [[Theology| theologians]] explain that it is suitable for young people whose resources are too limited to found a home ; for the all too-numerous widows living in the area, who have their own residence and their own financial resources, and who cannot hope to marry again according to the usual formula (or do not wish to), because they have dependent children, for example ; for the numerous divorcees ; as well as for the "old maids" who see their youth fading in an involuntary celibacy, without having tasted the joys of marriage, for one reason or another. Thus, a million and half women are reduced to a situation of forced celibacy in Saudi Arabia alone. (3) The Sheikh of [[Al-Azhar]] [[Muhammad Sayid Tantawi]] and the well-known theologian [[Yusuf Al-Qaradawi]] note, however, in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the marriage "misyar" are already married men. (4)
Some traits of this marriage are reminiscent of the Nikah [[Mut'ah]] which was practised in Arabia before Islam, and is still practised by [[Shia]] Muslims as a legitimate form of marriage, although it is considered as an illicit one by [[Sunni]] Muslims. (5) But, whereas the Nikah Mut'ah is based on a contract with a fixed date of expiration, the Misyar marriage contract is concluded for an indeterminate period (even though the husband who enters into this union looks at it only as a temporary marriage, which ends up in divorce in 80 % of the cases). The popularity of misyar marriage today results, probably, from a misunderstanding about its real nature, and about its true legal implications for the husband, the wife and the children that may be born from this marriage.
Licitness of misyar marriage

From a legal standpoint, the marriage "misyar" raises several complex issues : is it licit ? Doesnt it violate the wifes legitimate rights ? What is the legal value of the wifes renunciation to some of her rights ? What effets does this situation have on the family and at the social level ? Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage in Muslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia is a sine qua none condition for its validity. Thus, when Muslim theologians say that the "misyar" marriage is perfectly licit, all they mean is that the contract on which it is based must fulfill all the requirements set out by the charia
(agreement of both parties ; presence of a tutor in certain rites ; payment by the husband to his wife (or to the "tutor") of a dowry of an amount agreed upon between them (which can be important or modest, according to their wishes) ; presence of witnesses ; publicity of the marriage...). (6) The Islamic Fiqh Academy (IFA), a specialized body of the Organization of the Islamic Conference (OIC), has conforted this point of view in a fatwa (7) of April 12, 2006. (8) and (9) The clause by which the woman gives up some of her rights (the cohabitation of the couple, the residence, the subsidy towards maintenance (nafaqa)...) raises, for its part, more subtle points of law. Does it belong with this category of well-known clauses in Muslim law which are against the essence of the marriage contract, and which vitiate the latter and make it null, as well as the legal union which is based upon it? Or, maybe, with this second category of clauses which are struck of nullity, whereas the marriage contract remains valid?
The Sheikh of Al-Azhar Muhammad Sayyed Tantawi reminds one, in this respect, that Muslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, within the framework of the marriage "misyar", that the woman will give up some of the rights the law confers to her as a wife, this is perfectly legal, if that is her will freely expressed. (10) The former mufti of Egypt Nasr Fareed Wassel adds, for his part, that the woman can legitimately give up some of her rights at the time of marriage, if she so wishes, owing to the fact that she has private means, for example, or that her father intends to continue to provide for her needs. But, in the event of a change of circumstances, she can assert all the rights which the law confers to her in her capacity as a wife (like the "nafaqa" for example), because these are inalienable rights within the framework of the marriage. (11)
Wassell notes that the clause of renunciation constitutes only a promise not to assert certain rights. It has an undeniable standing as a moral commitment, but is of no value on the legal level. The wife can thus respect it as long as she wishes, and reclaim all her legal rights when she needs to do so. He adds that such a clause does not affect in any way the rights of the children who could be born from this union, such as the recognition of paternity, the effects of filiation, the financial responsibility of the father for his children, or the lawful rights of the wife and children to their share of inheritance, etc. (12) The eminent Saudi theologian Abdullah bin Sulaiman bin Menie, a member of the Higher Council of Ulemas of Saudi Arabia, corroborates this point of view. In his opinion, the wife can denounce
at any time the renunciation she agreed to at the time of marriage, and require of her husband that he give her all her rights, including that he live with her and provide for her financial needs ("nafaqa"). The husband can then either give her satisfaction or grant her a divorce (a right that any husband can exercise at any time, anyway). (13) Professor Yusuf Al-Qaradawi , for his part, observes that he doesnt support this type of marriage, but has to recognize that it is licit (14). He then states straightforwardly his preference that the clause of renunciation be not included within the marriage contract, but be the subject of a simple verbal agreement between the parties (15). He underlines the fact that Muslims are held by their commitments, whether they are written or verbal. He thus conforts the point of view of Wassel and bin Menie on this question. He adds that the inclusion of this clause in the act would not invalidate the latter, which rejoins the point of view of
the other two lawyers when they say that the clause can be denounced by the woman, and be declared without legal value, without calling into question the validity of the marriage itself.
Negative effects of misyar marriage

Despite the fact that the "misyar" marriage is perfectly legal, according to the theologians, and that the wife can reclaim at any time the rights which she gave up at the time of establishment of the marriage contract, many theologians like Muhammad Ibn Othaymin or Nassirouddine Al-Albany (16), as well as many Al Azhar professors (17), are opposed to this type of marriage because it contradicts the spirit of the islamic law of marriage and has perverse effects on the woman, the family and the community in general.
It leads to a degradation of mens morals, resulting in an irresponsible behaviour towards their spouses. Based on the experience of the "misyar marriage agencies", the man who resorts to the "misyar" marriage is usually married to a first wife with whom he shares a residence, and to the financial needs of whom he provides. (18) It wouldnt come to this mans mind to marry a second wife within the regime of polygamy, if he had to obtain the agreement of his first wife and to assume important additional financial responsibilities towards his second wife. But, thanks to the "misyar" marriage, this man feels relieved of any financial or moral responsibility towards his second wife, as if she were only a licit sexual partner, a mistress halal. He thinks he can bring this relationship to an end by a mere act of repudiation, at any time, without any negative consequences for himself. (19)
Since he usually refrains from telling his first wife of his second marriage, the relationship within the couple is distorted, resulting at times in major complications which can even end in divorce, when the first wife finds out about the situation. As to the second wife, her status is devalued, because she does not have any right on her husband, be it over the time he gives her, his presence at her home, or his financial contribution to help her cover her own needs. Moreover, this type of marriage ends up sooner or later in divorce, (in 80 % of the cases, according to some), when the wife is no longer to the liking of the husband. She finds herself abandoned, to lead a solitary life as before the marriage, but traumatized by the experience. Her social status also suffers from her repudiation. For these reasons, Al-Albany considers that the "misyar" marriage is not licit, because it runs
counter to the objectives and the spirit of marriage in islam, as described in this verse from the Quran : And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts) (20) It also seems to run counter to the recommendations of this well-known verse from the Quran : (Lawful unto you in marriage) are (not only) chaste women who are Believers, but chaste women among the People of the Book, revealed before your time, when ye give them their due dowers, and desire chastity, not lewdness, nor secret intrigues. (21) Al-Albany and Wassel also underline the family and social problems which result from the
misyar marriage, particularly in the event that children are born from this union. The children raised by their mother in a home from which the father is always absent, without reason, may develop serious disturbances on the psychological level (16) and (22). The situation becomes even worse if the wife is abandoned or repudiated by her husband "misyar", with no means of subsistence, as usually happens. As for Ibn Othaymin, he recognizes the licity of misyar marriage from the legal standpoint, but considers that it should be opposed because it has been turned into a real merchandise that is being marketed on a large scale by marriage agencies, with no relation to the nature of Islamic marriage. (16) The authors who oppose this type of marriage also underline its harmful effects on the community at large, in that it allows the development of questionable sexual practices which put the
community's religious beliefs, values and practices in a dubious light. Thus, wealthy Muslim tourists from the Gulf region regularly go on vacation to exotic places where they marry" local call-girls according to Islamic rites, in order for their frolicking to be "halal" (licit in a religious sense). In some cases, the notary of the local marriage agency prepares simultaneously the papers of marriage and those of divorce, to save time. (23) Such parodies of islamic marriage carry a prejudice to the image of the whole community, and can also have a bad influence on the younger generation.
New family law codes

The proponents of the marriage "misyar", though they recognize that it can result in such drifts,
observe that it doesnt have a monopoly on them. They result, more generally, from the way in which men interpret and apply the rules of Muslim law : unslung polygamy, easy repudiation, associated with great wealth, are its basic factors. It would therefore be more accurate to explain this state of things as a heritage from medieval times, when marriage was defined by Muslim authors as "a contract posed in order to acquire the right to enjoy the woman". (24) Women organizations often observe, in this respect, that the Quranic verses and the Hadiths which deal with these issues have, more often than not, been interpreted, throughout Muslim history, in favour of men and at the expense of women's and children's rights. (25) They remind one that numerous feminine movements and reformist authors have been asking,
throughout the 20th c., for a different reading of Muslim family law, using a modern point of view, in order to adapt it to the needs of a modern society. In their view, one can scrupulously respect both the provisions of a religious nature and women's and childrens rights, as established by modern international law. (26) But this requires that the modern Muslim community recognize at its proper value the central role of the woman and the family within the community, instead of devaluing them. It wouldnt be possible, anymore, for men to resort to "hiyals" (legal gimmicks to go around the law) such as those on which the marriage "misyar" is based, to treat their spouses as second class citizens. Various Islamic countries have reinterpreted the provisions of the charia relative to family law, in the light of the needs of a modern society, through their own "ijtihad" (legal scholarship) efforts. Each one of them has set for itself new rules of application of these dispositions, based on its own
circumstances, needs and social objectives. The following definition of marriage, which one can read in a recently adopted Code of family law, illustrates how these countries are trying to establish a new equilibrium in the relationships within the family, between husband and wife : Marriage is a pact based on mutual assent in order to establish a legal and durable union, between a man and a woman. Its purpose is a life in reciprocal fidelity, purity and the foundation of a stable family under the direction of the two spouses, in accordance with the provisions of this Code. (27) In the countries which have promulgated such laws, "misyar" marriage cannot take place.
Notes and Rfrences

(1) Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite? pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503544160 ] (2) Al-Qaradawi, Yusuf : Misyar marriage [http://answering-islam.org.uk/Index/M/misyar.html] (3) Al-Qaradawi, Yusuf : Zawaj al misyar, (1999), (in arabic), p 10 (4) Jobarti, Somayya : Misyar marriage a marvel or misery ? [http://www.arabnews.com/? page=9&section=0&article=64891]
(5) Al-Qaradawi, Yusuf : Mutah marriage [http://www.islamonline.net/servlet/Satellite? cid=1119503544100&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE %2FFatwaEAskTheScholar ] (6) Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite? pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503544160 ] et Zawaj al misyar, p 11 (7) A fatwa, whether it originates with the Sheikh of Al-Azhar, with the Mufti of Egypt, or with the Islamic Fiqh Academy (IFA), for example, is not a text of law or a court order with which everybody must comply, whether he likes it or not. A fatwas objective is merely to present a qualified legal point of view, which makes it possible for all interested parties to better understand what the law has to say on a given topic, according to the author of the fatwa. The only person that
is committed to the fatwa is its author. Thus, none of the 43 member States of IFA is under any compulsion to apply the IFA fatwa, whose provisions may even be incompatible with the national codes of family law of some of them. * See for example an interview given by Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, to the arabic daily "Asharq al awsat" on July 9, 2006, in which he discusses the legal value of a fatwa by the Islamic Fiqh Academy (IFA) on the subject of misyar marriage, which had been rendered by IFA on April 12, 2006. Some relevant excerpts follow : (Asharq Al-Awsat) From time to time and through its regular meetings, the Islamic Fiqh Academy usually issues various fatwas dealing with the concerns Muslims. However, these fatwas are not considered binding for the Islamic states. What is your opinion of this? (Obeikan) Of course, they are not binding for the member Islamic states.
(Asharq Al-Awsat) But, what is the point of the Islamic Fiqh Academy's consensus on fatwas that are not binding for the member States? (Obeikan) There is a difference between a judge and a mufti. The judge issues a verdict and binds people to it. However, the mufti explains the legal judgment but he does not bind the people to his fatwa. The decisions of the Islamic Fiqh Academy are fatwa decisions that are not binding for others. They only explain the legal judgment, as the case is in fiqh books. (Asharq Al-Awsat) Well, what about the Ifta House [official Saudi fatwa organism] ? Are its fatwas not considered binding on others? (Obeikan) I do not agree with this. Even the decisions of the Ifta House are not considered binding, whether for the people or the State.[http://www.asharqalawsat.com/english/news.asp? section=3&id=5572] (8) Al-Marzuqi Saleh Secretary General IFA, interviewed by TV Alarabiya.net on 12/04/06
concerning the IFA decisions [http://metransparent.com/texts/ulemas_legalize_misyar_marriage.htm] (9) An-Najimi, Muhammad : member of IFA, interviewed by TV Alarabiya.net on 28/04/06 concerning the IFA decisions [http://www.alarabiya.net/Articlep.aspx?P=23324] (10) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 14 ; see also Al-Qaradawi, Yusuf : Zawaj al misyar, (1999), (in arabic), p. 12 (11) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 16 (12) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 16 ; see also Al-Qaradawi, Yusuf : Zawaj al misyar, p. 15 in which he recommends that the marriage contract
be registered to protect the rights of children in case of dispute. (13) quoted by Al-Hakeem, Mariam : Misyar marriage gaining prominence among Saudis [http://www.gulfnews.com/Articles/RegionNF.asp?ArticleID=165873] (14) Al-Qaradawi, Yusuf : Zawaj al misyar p. 8 (15) Al-Qaradawi, Yusuf : Zawaj al misyar , pp.13-14 (16) Bin Menie, Abdullah bin Sulaman : fatwa concerning the marriage misyar (and opinions by Ibn Othaymin, Muhammad Saleh et Alalbany, Nassirouddine on the same subject) (in arabic) [http://www.bab-albahrain.net/forum/showthread.php?p=329473#post329473]
(17) Yet another marriage with no strings [http://www.metimes.com/articles/normal.php? StoryID=20000407-042210-7478r] fatwa committee of al azhar against misyar (18) Al-Qaradawi, Yusuf : Zawaj al misyar, p. 24 - see also : Jobarti, Somayya : Misyar marriage a marvel or misery ? [http://www.arabnews.com/?page=9&section=0&article=64891] (19) Marriage of convenience is allowed, says Grand Imam Tantawi [http://www.dailyexpress.com.my/news.cfm?NewsID=42349] (20) (Quran, XXX : 21) (21) (Quran, V : 5)
(22) Wassel quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p 16) (23) Arabian Sex Tourism [http://www.danielpipes.org/article/3022] see also : Indonesia Deports Saudis for Running Marriage Racket [http://www.arabnews.com/? page=1&section=0&article=85970&d=3&m=8&y=2006] (24) Chehata, Chafik : droit musulman, Dalloz, Paris, 1970, p. 68 (25) See for example Ahmed, Leila : Women and gender in islam, Yale University Press, 1992 or Hassan, Rafat, Islam and womens rights (arabic translation, 2000) or Amin, Qassim : Tahrir al mara (26) See for example Zineddine, Nadhera : Assoufour wal hijab or Zineddine, Nadhera : Alfatat
wa chchouyoukh (27) Kingdom of Morocco, Code of family law, 3 February 2004, art. 4 [http://66.102.9.104/search?q=cache:Im_QZ2myMBsJ:www.a-er.org/fileadmin/user_upload/Commissions/EqualOportunities/EventsAndMeetings/2006/KirunaLe_nouveau_Code_de_la_famille_au_Maroc.ppt+Maroc+code+famille+2004&hl=fr&gl=ma&ct= clnk&cd=6&client=firefox-a]
External links English
* Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite? pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503544160 ] * Al-Qaradawi, Yusuf : Mutah marriage [http://www.islamonline.net/servlet/Satellite? cid=1119503544100&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE %2FFatwaEAskTheScholar ] * Al-Qaradawi, Yusuf : The philosophy of marriage in islam [http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-EnglishAsk_Scholar/FatwaE/FatwaE&cid=1119503543574] * Kutty : Conditions of valid marriage [http://www.islamonline.net/servlet/Satellite? cid=1119503546572&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE %2FFatwaEAskTheScholar ] * Siddiqi : Witnesses and mahr (dower) for marriage [http://www.islamonline.net/servlet/Satellite?
cid=1119503549066&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE %2FFatwaEAskTheScholar ] * Al-Qasim : Temporary marriage (mut'ah) [http://www.islamtoday.com/show_detail_section.cfm?q_id=367&main_cat_id=17] * Urfi marriage [http://marriage.about.com/od/islammarriage/g/urfi.htm?once=true&] * Yet another marriage without strings [http://www.metimes.com/articles/normal.php? StoryID=20000407-042210-7478r] fatwa committee of al azhar against misyar * Misyar marriage [http://answering-islam.org.uk/Index/M/misyar.html] * Misyar marriage [http://lexicorient.com/e.o/misyar.htm] * Misyar marriage [http://marriage.about.com/od/islammarriage/g/misyar.htm] * Misyar marriages [http://ziadrazak.net/?p=176] * Dahiru Atta, Aisha : Misyar marriages : a puzzle or a solution ? [http://www.islamonline.net/English/family/2005/07/article04.shtml]
* Misyar marriage a marvel or misery ? [http://www.arabnews.com/? page=9&section=0&article=64891] * Misyar offers marriage-lite in strict Saudi society [http://news.yahoo.com/s/nm/20060719/od_nm/saudi_marriage_dc_3] * Al-Hakeem, Mariam : Misyar marriage gaining prominence among Saudis [http://www.gulfnews.com/Articles/RegionNF.asp?ArticleID=165873] * Part time marriage the rage in Egypt [http://answeringislam.org.uk/Index/M/passerby_marriages.html] * No strings attached marriage enrages Gulf women [http://www.metimes.com/articles/normal.php?StoryID=20060425-070226-4676r] * Prostitution is now official and religiously condoned in Arab land [http://sabbah.biz/mt/archives/2006/04/27/prostitution-is-now-official-and-religiously-condonedin-arab-land/]
* Marriage or mockery ? [http://www.saudigazette.com.sa/index.php? option=com_content&task=view&id=10823&Itemid=116] * Al-Obeikan, Sheikh Abdul Mohsen, vice-ministre de la Justice d'Arabie Saoudite : interview de Asharq al-Awsat du 09/07/06 o il discute de la valeur lgale de la fatwa de l'AIF [http://www.asharqalawsat.com/english/news.asp?section=3&id=5572]
Arabic
* Al-Marzuqi Saleh Secretary General of IFA, interviewed by TV Alarabiya.net on the subject of the IFA decisions on 12/04/2006 [http://metransparent.com/texts/ulemas_legalize_misyar_marriage.htm] * An-Najimi, Muhammad : member of IFA, interviewed by TV AlArabiya.net on the subject of the IFA decisions on (28/04/06) [http://www.alarabiya.net/Articlep.aspx?P=23324]
* Bin Menie, Abdullah bin Sulaman : fatwa concerning marriage misyar (and opinions of Ibn Othaymin and Al-albany on the same subject) * [http://www.bab-albahrain.net/forum/showthread.php?p=329473#post329473]
The King, the Mufti & the Facebook Girl: A Power Play. Who Decides What is Licit in Islam?
Publication Date: April, 2012 Source: Khalid Chraibi
CyberOrient.net
Khalid Chraibi, The King, the Mufti & the Facebook Girl: A Power Play. Who Decides What is Licit in Islam?, CyberOrient, Vol. 5, Iss. 2, 2011
The king, the mufti & the Facebook girl: a power play Who decides what is licit in Islam?
Abstract Saudi Arabia enforces a ban on woman driving, on the grounds that it is prohibited by sharia. Women associations have actively denounced this ban for years, arguing that it was the only Muslim country which had such a peculiar interpretation of Islamic law. A power play is taking place on this subject between the ulema (who support the ban), the Saudi authorities and feminine associations. This situation raises the question: Who decides what is licit or illicit in Islam? But, Muslim women associations prefer to deal with this issue in a different way. They merely ask for the implementation in Muslim countries of the best practices in Islamic law which exist anywhere, in substitution to these laws which are unfavorable to womens rights or do not protect their interests adequately. Key words: Saudi Arabia, woman driving ban, Islamic law, best practices
The king, the mufti & the Facebook girl: a power play Who decides what is licit in Islam?
It is human beings (with all their frailties) who interpret the sharia Ali ibn Abu Talib Women in Saudi Arabia: to drive or not drive? That is not the question. The question is: When? Somayya Jabarti (1) Introduction
Although sharia was developed in the Muslim world based on the same sources (Koranic prescriptions, hadiths [sayings] of the Messenger Muhammad, etc.), its rulings on any point may vary significantly from one country to another, as well as over time. Thus, the rights of women in Muslim countries, which are ruled by sharia, differ on important points from one country to another. For instance, in Saudi Arabia, women arent allowed to drive a car, based on a fatwa by the countrys Grand mufti Abdel Aziz Bin Baz. But, no such ban exists anywhere else in the Muslim world. Saudi women associations have been contesting the fatwas reasoning and conclusions for years, all in vain. They seize every opportunity to bring the issue back into focus, resorting, among other things, to the webs social networks (Facebook, YouTube, Twitter) to communicate their
message, to mobilize support for their position, and to put pressure on the authorities to get them to act on this question. Thus, in May 2011, young feminist activist Manal al-Sharif put on Facebook and YouTube a provocative video of herself driving a car and talking with another passenger about the womens plight in Saudi Arabia resulting from the driving ban. (2) This gesture of defiance upset the Saudi authorities which had her arrested her and detained for 9 days on the charge of disturbing public order and inciting public opinion, before releasing her. (3) When another woman drove a car, in defiance of the same ban, a judge sentenced her in September 2011 to a flogging. It took the personal intervention of King Abdullah to cancel the harsh sentence. (4) The driving ban issue raises important questions concerning the interpretation and implementation of Islamic law in Muslim countries. How can sharia lend itself to such a wide variety of interpretations that things which are licit and banal in a Muslim State are, at the same
moment, considered as illicit and sanctioned harshly in another Muslim country? Who decides what is licit or illicit in Islam? Muslim women associations have learnt through experience that it is vain to question each States interpretation of sharia, on every controversial point. They have evolved a new strategy to deal with the issue. They call for the adoption and implementation in Muslim countries of the best practices in Islamic law which exist anywhere, in substitution to these laws which are unfavorable to womens rights or do not protect their interests adequately. Grand Mufti Bin Baz fatwa on women driving Shaikh Abdel Aziz Bin Baz fatwa is at the heart of the Saudi controversy. According to him, [driving of automobiles by women] is a source of undeniable vices, including the legally prohibited khalwa [meeting in private between a man and a woman] and abandonment of
hijab [womens veil]. This also entails women meeting with men without taking the necessary precautions. It could also lead to committing haraam [taboo] acts hence this was forbidden. He explains that: Pure sharia also prohibits the means that lead to committing taboo acts and considers these acts haraam in themselvesThus, the pure sharia prohibited all the ways leading to viceWomens driving is one of the means leading to that and this is self-evident. (5) The khalwa issue is clearly at the center of the Muftis preoccupations. Although the Koran does not address itself to this topic, a hadith of the Messenger states: Whosoever believes in Allah and the Last Day, let him not be alone with a woman who has not a Mahram (male relative who she cannot marry) with her. Indeed, the third (person) is alShaytan!
This hadith has been interpreted variously, in different parts of the Muslim world. In the countries of the Maghreb, it is viewed as a warning to avoid situations in which sexual temptation may arise. But, in the Gulf States, the ulema ruled that this hadith prohibited khalwa. Even though the Messenger didnt define any sanctions, the ulema studied the offence, defined its nature and decided on the applicable sanctions (under the taazir approach, in which the judge has latitude to decide on the applicable sanction, such as whip lashes, or a jail sentence). (6) According to Bin Baz, if a woman is allowed to drive a car, she will leave her home (where she is safe) to go to places where she will be subjected to a variety of temptations. She may thus find herself in a situation of khalwa, take off her hijab (head dress), or do things which are prohibited by sharia.
Bin Baz quotes at length Koranic verses and hadiths of the Messenger to the effect that women are a major cause of temptation for men, and that they shouldnt mingle with those men who dont belong to their immediate family. Therefore, in order to avoid this, he thinks that women shouldnt be allowed to drive. He finds legal support for this conclusion in the sharia principle which states that it is illicit to use means which help accomplish an illicit end. A critique of the fatwa Women associations do not openly criticize the fatwa, preferring to observe that there is no such interpretation of sharia in the rest of the Muslim world. But, the fatwa hardly withstands scrutiny: The premise of the fatwa is questionable
The Mufti states that [Saudi] women cannot be trusted to go out of their home without the risk of committing illicit acts. He takes no account of Saudi womens education and self-respect, their sense of honor, their sense of values, their loyalty to their husband (when they are married.). Although there exist many Koranic verses and hadiths of the Messenger celebrating the virtues of women, Bin Baz quotes only these verses and hadiths which throw a shadow of doubt on their behavior. But, the premise of Bin Baz is unsupported by any corroborating evidence from the real world, judging by womens behavior in the rest of the world (including in Muslim countries). Moreover, Bin Baz worries only about the sexual implications of the encounters that woman driving may lead to. He doesnt take into account the tremendous difficulties that the driving ban creates every day for women who have to go to work, to take their children to school, etc. Buses and cabs are insufficient in number to meet the demand at peak hours, when they are
most needed. The expenses associated with the daily use of cabs are also very high, compared to the cost of using ones car. Only wealthy women can afford to hire a full-time chauffeur. The rest of the female population is left to fend for itself, because of the fatwa. The juridical principle invoked in the fatwa is applied selectively Bin Baz notes that sharia prohibits the means that lead to committing taboo acts and considers these acts haraam in themselves. This is true, but the principle is applied very selectively. For example, smoking is harmful to ones health, and ulema throughout the Muslim world have been asking for decades for a tobacco ban in Muslim countries, based on this principle. (7) But, no Muslim State has ever entertained the idea of enacting a tobacco ban. People are free to smoke in Saudi Arabia, nowadays, as they do in the entire Muslim world. So, why isnt this
principle applied to deal with the smoking issue? Why arent men sanctioned for smoking, if this principle is of a general application? The juridical principle should also apply to men If woman driving can be banned, based on sharia, to avoid its leading to a situation of khalwa, with its possibly unlawful consequences, the same driving ban should also apply to men, in order for them to avoid finding themselves in haraam situations (prohibited by sharia.) The juridical principle underlying the driving ban applies indifferently to all people, regardless of sex. A unique interpretation of sharia in the Muslim world
This fatwa relies on an interpretation of sharia which is unique in the Muslim world. In dozens of other Muslim States and communities, woman driving is considered as a banal act, perfectly licit from the point of view of sharia. Are all these ulemas in error on this point? The Bin Baz fatwa draws its strength in Saudi Arabia from the fact that it is in line with the Saudi societys prevailing conservative culture, customs and traditions. The religious establishment, the leading groups in power in the country, and most Saudi men support the Grand Muftis fatwa because they fully agree with its conclusions, regardless of whether the latter are well-grounded in Muslim law or not. As for Saudi women, they were born and raised in a social and cultural environment in which females have the status of perpetual minors (8) which cannot do a thing without the authorization of a male tutor (be it a father, a husband, a brother or even a son), (9) and which cannot go out of their home without being accompanied by a mahram (male guardian) to avoid
falling into a situation of khalwa (being alone with a male non-family member.) In their majority, Saudi women accept the situation as a matter of fact and submit to the constraints it imposes, regardless of whether they consider them as God-given or as merely imposed by mens will. However, a growing number of women pursue their education to the university level, travel abroad on vacation, watch satellite TV networks and use modern technologies such as the internet and mobile phones. They are thus regularly made aware of the enormous gap which exists between the set of constraints and restrictions within which they live in Saudi Arabia, and the freedom of movement and of action that other women enjoy in other Muslim countries. As a result, though still a minority, many people in the country (both male and female), working essentially within the framework of human rights NGOs and womens rights associations,
increasingly dare to question the situation and to openly express their disagreement with the contents of Bin Baz fatwa. The fatwa and the national law However, the important point to keep in mind, in this debate, is that a fatwa is not binding in Islamic law. This is a point that Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, makes perfectly clear in an interview granted to the Arabic daily Asharq al awsat on July 9, 2006. (10) Asked whether a fatw by the Islamic Fiqh Academy (IFA) on the subject of misyar (temporary) marriage, which had been rendered by IFA on April 12, 2006, was binding on member States, al-Obeikan replied: Of course, [the fatwas issued by the Islamic Fiqh Academy] are not binding for the member Islamic states. He then explained: There is a difference between a judge and a mufti. The judge issues a verdict and binds people to it. However, the mufti explains
the legal judgment but he does not bind the people to his fatw. The decisions of the Islamic Fiqh Academy are fatw decisions that are not binding for others. They only explain the legal judgment, as the case is in fiqh books. (11) Asked to explain whether the fatwas issued by the Ifta House [official Saudi fatw organism] are binding on others, he said: I do not agree with this. Even the decisions of the Ifta House are not considered binding, whether for the people or the State. Consequently, no matter how one views Bin Baz arguments and conclusions, the fact is that his fatwa merely expresses his juridical point of view on the subject. It isnt binding on anyone else, neither on individuals nor on the State. It is necessary for the Saudi State to adopt a law (based on the fatwa), in order to give the fatwa the force of law. But, according to the Saudi authorities, there is no law prohibiting woman driving in the country. (12) However, Saudi nationals as well as foreign visitors need to obtain a Saudi-issued
license to drive in the country. The authorities refuse to issue such licenses to women (not even to foreign ones), making it effectively illegal for them to drive. (13) They do so based on an order issued by the Minister of Interior in 1411 H (1991-92) which considers driving a car by a woman, an offence. (14) Saudi women (as well as foreign ones) are thus subjected by the Saudi authorities to a discriminatory practice, based on gender. A Saudi power play So, today, a discrete power play can be said to be taking place within the country, on the subject of womens status and rights, between the three major players in the field, with the driving issue as a catalyzer. The ulema, relying on centuries of traditions, support the Bin Baz fatwa and its conclusions that sharia prohibits woman driving of automobiles to avoid falling into a situation of khalwa and its possible haraam (illicit) consequences. To make things perfectly clear, in September
2011, a Judge sentenced to 10 whip lashes a woman which had been arrested by the police driving a car. The harsh sentence caused a big uproar, both in the country and abroad, and it took the personal intervention of King Abdullah to cancel it. The feminist groups consider that the ulema defend an extremely conservative interpretation of sharia, which is unique in the Muslim world. They want the ulema and the State administration to admit that other interpretations are possible within the religious framework. They know they have a very strong hand, on this point, when they say: If the driving of automobiles by women is perfectly legal, natural, and banal in all Muslim countries and communities in the world, with the exception of Saudi Arabia, why should Saudi women be penalized, and banned from driving, simply because the Saudi authorities have chosen to apply to them their restrictive interpretation of Islamic law? Why not adopt a more liberal interpretation of
Islamic law on this subject, such as exists in other Muslim countries which apply sharia, and consider that woman driving is perfectly compatible with it? Saudi feminist activists do their best to maintain the issue into public focus. To this end, they regularly make use of the internet and its social networks (Facebook, YouTube, Twitter). The latter demonstrated their tremendous capabilities and efficacy as means of communication and mobilization in Arab countries, in the early months of 2011. They were among the principal tools of information of the national and international media and of mobilization of the people in the uprisings which took place in Tunisia, Libya, Egypt, Yemen, Bahrain, Syria Not surprisingly, young feminist protester Manal al-Sharif used the webs social networks as a means of protest against the driving ban, when she put a video of herself driving a car on Facebook and YouTube, in May 2011, in defiance of this ban.
Her subsequent arrest by the Saudi police on the charge of disturbing public order and inciting public opinion made the news worldwide, drawing much more attention to her protest than she could ever have imagined. The incident put the Saudi authorities under new pressure to take a fresh look at the driving issue. The feminine associations again made use of the social networks to call for a drive-in on June 17, 2011 in order to protest Manal al-Sharifs arrest and to renew the pressure on the authorities. Numerous women participated in the protest, which also made the news worldwide. Manal al-Sharif had written provocatively on the web: I will drive my car myself. A slogan of this campaign emphatically stated, along the same defiant line: I want to drive because theres no reason why I cant. Similarly, a group of Saudi women posted on different Saudi websites, and circulated through e-mails, a petition addressed to the government, asking that women be allowed to drive
cars. We demand that the right of women to drive is given back to us, says the petition. Its a right that was enjoyed by our mothers and grandmothers in complete freedom to (utilize) the means of transportation in those times. (15) The political authorities, for their part, are aware, at the countrys highest level, of the need for change in the domain of womens rights in general, and of the driving issue in particular. They tell their critics that all they do is implement sharia, which has defined a different set of rules for males and females. Consequently, by applying to each of the two sexes the appropriate sharia rules, they do not violate anyones rights, whether male or female. Sharia merely presents a conception of human rights which differs from that of Western countries. But, during a State visit to the United Kingdom in 2007, the king told the British media that the driving issue belonged not in politics, but within the social field, reflecting local customs and traditions (and, thus, one could say, not Koranic prescriptions). But the administration is divided
on this issue. So, even though the king wants to promote some reforms, he seems to have limited degrees of freedom, as he is confronted with a great deal of resistance from the religious establishment and the traditional segments of society, both within the population and the civil administration. In September 2011, the king took a highly symbolic and even revolutionary decision, given the Saudi context, announcing that women would be able to vote in elections and to serve on the Shura Council as full members in future. This was a considerable step forward in the Saudi womens struggle for freedom, equality and justice. But, can he convince the ulema establishment to turn the page on the Bin Baz fatwa and to endorse the best practice in the Muslim world, according to which the driving of automobiles by women is compatible with sharia? Women reading the sharia
The driving ban issue illustrates the enormous differences which exist in the interpretation of sharia in the Muslim world. Some Muslim women associations took it upon themselves, therefore, to proceed with a thorough study of the sharia, in order to determine for themselves what it really said on the subject of womens rights. (16) They became thus aware, in the words of Pakistans Riffat Hassan, that there was a big gap in what the Koran was saying about womens rights and what was actually happening in Muslim culture. So, one has to distinguish between Koranic text and the Islamic tradition. The interpretation of the Koran from the earliest times till now has been done almost entirely by men. It was also done in a male-dominated patriarchal culture. So the Koran was interpreted through a male-centric cultural lenswhich obviously has affected womens rights. (17) Nigerias Ayesha Imam notes, for her part, the need to distinguish between Islam the way of Allah on the one hand, and, what Muslims do those who believe in Islam and attempt to
practice it on the other. She explains: Islam is not questioned. But, what Muslims (human fallible people) make of Islam can be. She says emphatically: Though religious laws draw their inspiration from the divine, they are not the same as divine laws. They do rely on human agency to elaborate, implement and enforce them. (18) In many situations, even the experts do not agree on the definitive meaning of verses in the Koran. Similarly, many hadith (accounts of the life of the Prophet) are apocryphal, motivated by inter-sect and dynastic rivalries. Thus, some hadiths seem to have had as their principal aim to put restrictions on womens rights, although they are not compatible with the teachings of some suras in the Koran or with other hadiths. Ms. Imam notes the existence of four main schools of sharia in the Sunni tradition, illustrating the diversity of interpretations. None of the leaders of these schools considered their views as final or binding on all Muslims. So, refusing further ijtihad (personal reflection) is not a
religious or divinely sanctioned act. It is not required in the Koran or by the Sunna. To the contrary, both the Koran and hadith refer approvingly to thinking, reasoning and diversity of opinion. Therefore, observes Malaysias Zainah Anwar: If Islam is to be used as a source of law and public policy to govern the public and private lives of citizens, then the question of who decides what is Islamic and what is not, is of paramount importance. What are the implications for democratic governance when only a small, exclusive group of people is accorded the right to interpret the Text and codify it? Particularly when they do so very often in a manner that isolates the Text from the socio-historical context in which it was revealed, isolates classical juristic opinion from the socio-historical context of the lives of the founding jurists of Islam, and isolates the Text from the context of contemporary society. (19)
Adds Nora Murat: Knowledge that the Koran supports the universal values of equality, justice and a life of dignity for women, gives us the courage and conviction to stand up and argue with those who support discrimination against women in the name of religion. It is this knowledge that gives us the confidence to tell them that there are alternative views on the subject and that their obscurantist view, which discriminates against women, is not the only view in Islam. (20) Who decides what is licit in Islam? These women were aware that, in the absence of a religious hierarchy in Sunni Islam, there was no supreme theological authority they could turn to, to ask it to arbitrate between divergent rules which were applied in different areas of the Muslim world. Moreover, observes Ahmed Khamlichi, Director of Dar al Hadith al Hassaniya (Morocco):
The ulema do not have a monopoly on the interpretation of sharia. Of course, they must be consulted before anyone else on sharia issues. (But), they do not make the religious law, in the same way that it isnt the law professors who make the law, but the Parliaments. (21) Today, sharia is, in fact, interpreted and applied in the context of each State, as a result of its own choices. It is the political, religious and lawmaking authorities in each Muslim country, acting in a concerted way, either by consensus or by negotiation, which hold the power to decide what will be considered as lawful in the country (by drawing in the database of all the options that the sharia can offer on a given issue). The development of personal status codes (Islamic family law codes) provides a good illustration of the approach used. The rulers choose, in a range of solutions which are all considered as lawful in Islam, the one that best meets their objectives. The selected option is discussed with all concerned, and in particular with the religious authorities (such as the Mufti or
the Ulema Council). Then, it is drafted as a text of law which is presented to the Parliament for discussion and approval. Once the text is adopted by the Parliament, and then endorsed by all concerned administrative instances, it is published in the countrys official legal media to become effectively the law of the land on that subject. But, what is considered as lawful in a Muslim state, at a given moment, on a given question, may be considered as illicit in another Muslim State, at the same time. Such a situation is not unusual, and reflects the interplay of several factors: - Muslim countries belong to several schools of legal thought, or juridical rites (Abu Hanifa, Malik ibn Anas, Shafi'i, Ibn Hanbal, Shi'a), each of which has developed its own methodology to study the same questions, resulting in a number of variations in the answers provided.
- The ulema can interpret differently the same religious texts of reference (a Koranic verse or a hadith, for example) when their formulation lends itself to multiple interpretations, or they can draw different conclusions from them, depending on the context in which they place them, and the other suras, hadiths, etc. they bring to bear on them to substantiate their interpretation. - In most countries, some confusion prevails, at times, on some issues, even at the ulemas level, between what belongs to national customs and traditions on the one hand, and what belongs to Koranic prescriptions, on the other. How is one to determine, therefore, what Islamic law really says on each important issue (concerning womens rights for example) when one is confronted with a multiplicity of interpretations which are promoted by the different juridical schools? Is it possible to promote progress in the field of human rights within the religious framework? The strategy of the best practices in Muslim law
In their efforts to promote the respect of womens rights in the Muslim world, the national and international associations acting in this field gave, for a while, a high priority to putting pressure on Governments to implement the UN-sponsored international conventions these countries had signed, concerning human rights in general, and women's rights in particular. They also wanted their Governments to withdraw the reservations they had expressed on signing these conventions concerning various provisions on the grounds that they conflict with religion since the reservations had the effect of diluting much of the conventions usefulness. But, they rapidly became aware of the vanity of this strategy, which led to no tangible results, and was criticized by conservative movements in the Muslim world, on the grounds that these associations wanted to replace sharia with Western law. These associations also quickly saw the uselessness of contesting any States interpretation of any point in sharia, because they would always be confronted with excellent jurists which
would find unassailable arguments to justify the States rulings on any point, whatever it was, within any particular rite. But, having developed a great expertise in the analysis, interpretation and implementation of all major aspects of sharia throughout the Muslim world, women associations became aware of the opportunities offered by the diversity of interpretations of Muslim law which prevailed in different countries. (22) Sisters in Islam (23) from Malaysia and Collectif 95-Maghreb-Egalit (24) (which comprises the main women associations of Morocco, Algeria and Tunisia), working within a network of feminine associations, came up with a new strategy to achieve progress in the field of Muslim womens rights. Their position is as follows:
If all these different rules are equally valid in the sharia, and if some of them grant more rights to women or protect their interests better, isnt it these rules (designated as the best practices in Islamic family law) which should be applied in Muslim countries, in the beginning of the 21st century, in preference to the rules which are less favorable to womens rights? Why should women pay the price for these differences in interpretation, which clearly are the acts of men?(25) In support of this last point, NGOs observe that, although the Personal Status Codes of Muslim countries are based on Koranic prescriptions and Sunna teachings, everybody takes it for granted that they should be revised from time to time to take into account the evolution of society. This was the case of the codes of Egypt (2000), Mauritania (2001), Morocco (2004), Algeria (2005) Since the rules presented in such family law codes are periodically modified, isnt this conclusive evidence that many rulings contained in these codes of law do not represent immutable
Koranic prescriptions but merely man-made choices, which can and should be - modified as required by circumstances? A case study of the application of the best practices strategy: the reform of Moroccos Personal Status Code in 2004 The reform of Moroccos moudawana (Personal Status Code) provides a good illustration of how the best practices strategy was applied in a Muslim country, resulting in considerable progress in the field of womens rights within the religious framework. The first version of the Code was adopted in 1957, shortly after independence. Though relatively modern and equitable in many respects, it showed a clear conservative bias in its interpretation of many provisions of the sharia, putting several undue restrictions on womens rights. The network of Moroccan womens rights associations struggled for a half-century before obtaining that the code be revised in depth. The reform finally took place in 2004. (26)
The new Family law of 2004 completely redefined the legal status of women within the family and society, bringing it considerably closer to current international standards. Among other things, it made the family the joint responsibility of both spouses, rescinding the wifes duty of obedience to her husband. It allowed women to be their own guardians, and raised the minimum age of marriage for women to eighteen years. It put prohibitive restrictions on polygamy, by requiring the consent of the first wife, the notification of the second wife of the existence of the first one, and a judges consent to the second marriage which may be granted if he is satisfied that the husband will grant equal status to each wife, in every respect. The Law made polygamy grounds for divorce by the first wife, and promoted the use of a marriage contract to exclude the possibility of a second marriage by the husband. It put repudiation under strict judicial control, and required an equitable distribution of the couples assets before a divorce could be final.
The Moroccan ulema and jurists associated with the revision of this Code explained that all its provisions were based on a meticulous reading of the sharia, in all its complexity, taking into account the best practices in use in other Muslim countries. Thanks to a more modern interpretation of the sharia prescriptions, it afforded a considerable progress in the situation of women in Morocco. Following this recasting of the Personal Status Code in 2004, the Moroccan authorities progressively withdrew, one after the other, the reservations they had previously expressed about the implementation in Morocco of some provisions of various international Conventions dealing with womens rights, which they had earlier considered as possibly inconsistent with religious prescriptions. Conclusion
The woman driving ban and the khalwa issues in Saudi Arabia result from an extremely conservative interpretation of Islamic law, which declares as illicit actions which are considered as banal and licit in other Muslim countries. The power play taking place today on this subject between the ulema, the authorities and feminine associations will determine whether women will be allowed to drive or not. But, feminine associations have learnt through experience the vanity of questioning the interpretation of Islamic law which prevails in any Muslim country, because each countrys ulema are convinced that they interpret and apply sharia correctly, within the framework of their own juridical rite. The associations working in the domain of womens rights have therefore developed a strategy which circumvents these considerations, to address itself to the heart of the problem. Since all the different rules applied to determine womens rights in different Muslim States
applying sharia are equally valid, they suggest that the Muslim States apply to women the best practices in existence in the Muslim world, those sharia rules which grant them more rights or protect their interests better, in substitution to the rules which are less favorable to womens rights. They argue: Why should women pay the price for these differences in interpretation, which clearly are the acts of men? This strategy is, unquestionably, in tune with both the letter and the spirit of sharia. If adopted by Muslim States, it could drastically change for the better the life of dozens of millions of Muslim women throughout the Muslim world. It could thus pave the way for a brighter future for all women living under Muslim law. Using this approach, in Saudi Arabia, the authorities could legitimately allow women to drive, within the religious framework, if they decide to base their new ruling on the best practices in existence in other representative Muslim countries which apply sharia.
Acknowledgments I would like to thank Ms Rachida Benchemsi for her valuable comments on the early draft of this paper. References Al Qaradawi, Yusuf. 1999. The lawful and prohibited in Islam, http://www.witnesspioneer.org/vil/Books/Q_LP/ , accessed October 28, 2011. Al_Qaradawi, Yusuf. 1991. Assahwa al_Islamiya (Islamic awakening), Cairo An-Naim, Abdullahi A. (ed.). 2002. Islamic Family Law in a changing world, London, Zed Books.
Craze, Joshua and Mark Huband (editors). 2009. The kingdom: Saudi Arabia and the challenge of the 21st century, Columbia University Press, N.Y., http://cup.columbia.edu/book/9780-231-15434-5/the-kingdom , accessed October 28, 2011. Freedom House. 2010. Womens Rights in the Middle East and North Africa, http://www.freedomhouse.org/template.cfm?page=444 , accessed October 16, 2011. Kingdom of Saudi Arabia. 2007. Combined initial and second periodic reports of State Parties, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/296/67/PDF/N0729667.pdf? OpenElement , accessed October 16, 2011. Sisters In Islam (SIS). Best practices in family law, http://www.sistersinislam.org.my/news.php?item.477.8 , accessed October 16, 2011.
Sisters In Islam (SIS). Model Islamic family law, http://www.sistersinislam.org.my/news.php?item.658.8 , accessed October 26, 2011. United Nations Development Programme (UNDP). 2006. The Arab Human Development Report 2005 Towards the Rise of women in the Arab world, http://www.arabhdr.org/publications/other/ahdr/ahdr2005e.pdf , accessed October 16, 2011. Notes (1) Jabarti, Somayya. 2011. Women drive in Saudi Arabia?, Arab News, 10 October 2011, http://arabnews.com/opinion/columns/article513378.ece, accessed October 16, 2011. (2) al-Sharif, Manal. 2011. Woman driving in Saudi Arabia, May 22, YouTube, http://www.youtube.com/watch?v=sowNSH_W2r0 , accessed October 25, 2011.
(3) Sidiya, Fatima and Walaa Hawari. 2011. Adventure behind wheel lands Al-Sharif in custody again. Arab news.com, May 23, http://arabnews.com/saudiarabia/article422616.ece , accessed October 27, 2011. (4) Sheridan, Michael. 2011. Saudi Arabia woman spared 10 lashes for driving, NY Daily News.com, September 29, http://www.nydailynews.com/news/world/2011/09/29/2011-0929_saudi_arabia_woman_shaima_jastaina_spared_10_lashes_for_driving_princess_amira_a.html , accessed October 16, 2011. (5) Bin Baz, Abdel Aziz Bin Abdallah. 1990. Fatwa on Womens Driving of Automobiles, http://www.scribd.com/doc/68964378/Bin-Baz-Abdel-Aziz-fatwa-in-Arabic-on-woman-drivingof-automobiles , accessed October 16, 2011. Partial translation in: Humanitarian texts. 2011. Repeal Saudi Arabias fatwa on womens driving of automobiles, July 8, http://en.heidi-barathieubrun.ch/wp-archive/7146, accessed October 27, 2011.
(6) Chraibi, Khalid. 2008. The Girl of Qatif, ArabLife.org, January 22, Tabsir.net, http://tabsir.net/?p=434 , accessed October 16, 2011. (7) Smoking is haram in Islam, 2003, Islam for today, http://www.islamfortoday.com/syed08.htm , accessed October 24, 2011. (8) Human Rights Watch. 2008. Perpetual minors: Human rights abuses stemming from male guardianship and sex segregation in Saudi Arabia, April 19, http://www.hrw.org/reports/2008/04/19/perpetual-minors-0 , accessed October 16, 2011. (9) Saudi Women for Reform. 2007. The shadow report for CEDAW, November 2007, p.26, http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/womenreform40.pdf , accessed October 16, 2011:
[A woman] is not allowed to drive cars, to travel without consent, to stay in a hotel without consent, to name her children without consent, to get any document needed for her children without consent, to apply for schools for her children without consent, to get a passport without consent, to get out of the house without consent, to leave the work place (this concerns school teachers) without consent, to apply for a job without consent, to rent a house alone without consent, to change the colour of her Islamic garment (Abaya), to go to university or school without consent, to make use of the scholarships abroad without consent, to underwriting or open an account for her children without consent, to uncover her face in some cities in the kingdom, to send for a driver or a domestic helper without consent (10) al-Obeikan, Abdul Mohsen. 2006. Interview granted to the Arabic daily Asharq al Awsat , July 09, concerning the juridical value of a fatwa rendered by the Islamic Fiqh Academy (IFA).
(11) The same position is developed by Mehmood Madani, president of the Jamaat-eUlema-e-Hind, who explains: "In Sunni Islam, a fatw is nothing more than an opinion. It is just a view of a mufti and is not binding in India." (see: Naqvi, Saba. 2005. Ayatollahs All, OutlookIndia.com, December 12, http://www.outlookindia.com/article.aspx?229489 , accessed October 16, 2011. (12) Reuters. 2007. Saudi Foreign Minister says women should drive, November 02, http://xrdarabia.org/2007/11/02/saudi-foreign-minister-women-should-drive/ , accessed October 16, 2011. (13) al-Mokhtar, Rima and Siraj Wahab. 2011. Saudi women drive home a point, again, Arab News, 17 June, http://arabnews.com/saudiarabia/article456609.ece , accessed October 16, 2011.
(14) Okaz/Saudi Gazette. 2011. Manal to be held for 10 more days. May 25, http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=20110527101673 , accessed October 27, 2011: According to Prince Ahmad Bin Abdul Aziz Aal Saud, Deputy Minister of Interior Affairs, a statement has already been issued in the year 1411 (1991/92) on the woman driving issue [prohibiting woman driving]. This 1411 statement is still in force. The Ministry of Interior is still implementing it, Prince Ahmad said. It is not up to us to say whether it is right or wrong, we only implement the regulations. (15) Mubarak, Ebtihal. 2007. Saudi Women petitioning government for driving rights, Arab News, September 16, http://archive.arabnews.com/? page=1&section=0&article=101256&d=16&m=9&y=2007 , accessed October 16, 2011.
(16) Women Living Under Muslim Law (WLUML). 2004. For ourselves - Women reading the Koran, http://www.wluml.org/node/567 , accessed October 16, 2011. (17) Hassan, Riffat. 2001. Interview by Samina Ibrahim, Newsline, Karachi, April 2001, http://stderr.org/pipermail/tariqas/2001-May/000583.html , accessed October 25, 2011. (18) Imam, Ayesha. Women's rights in Muslim laws, http://www.scribd.com/doc/25362365/Womens-Rights-in-Muslim-Laws , accessed October 25, 2011. (19) Anwar, Zainah. 2004. Islamisation and its impact on laws and law making process in Malaysia, 09/12/2004, http://www.wluml.org/sites/wluml.org/files/import/english/pubs/pdf/wsf/08.pdf , accessed October 25, 2011.
(20) Murat, Norat. 2004. Sisters in Islam: Advocacy for change from within the religious framework, 09/12/2004, http://www.wluml.org/sites/wluml.org/files/import/english/pubs/pdf/wsf/17.pdf , accessed October 25, 2011. (21) Khamlichi, Ahmed. 2002. Wajhat nadhar n 4 (Point of view #4), Rabat, Morocco, p. 12. (22) Women Living Under Muslim Law (WLUML). 2006. Knowing our rights: Women, family, laws and customs in the Muslim world, 3rd edition, December 2006, http://www.wluml.org/node/588 , accessed October 16, 2011. (23) Sisters in Islam (SIS) Malaysia, http://www.sistersinislam.org.my/ , accessed October 16, 2011.
(24) Collectif 95 Maghreb-Egalit. 1995. Cent mesures et dispositions pour une codification galitaire des Codes de Statut Personnel (One hundred steps : codification of family and Personal Status Codes in the Maghreb, 2003), http://www.wluml.org/node/467 , accessed October 16, 2011. And Collectif 95-Maghreb Egalit. 2003. Guide to equality in the family in the Maghreb, May 2003, http://www.un.org.ma/IMG/pdf/unifem_21_en.pdf , accessed October 16, 2011. (25) Chraibi, Khalid. 2009. Reforming Islamic family law within the religious framework: the best practices strategy, Tabsir.net, April 04, 2009, http://tabsir.net/?p=844#more-844 , accessed October 16, 2011. And Sisters in Islam. Best practices on family law issues, http://www.sistersinislam.org.my/news.php?item.477.8 , accessed October 16, 2011.
(26) Kingdom of Morocco. 2004. Family Law Code 2004, http://www.globalrights.org/site/DocServer/Moudawana-English_Translation.pdf , accessed October 25, 2011.
The reform of the Islamic calendar: the terms of the debate*

Khalid Chraibi
Tabsir.net 24 September 2012
Shortcomings of the Islamic calendar

A calendar associates a specific date with each day of any given week, month or year, to enable people to manage all their activities over an extended period of time. They must be able to anticipate, plan and organize in advance, using the information provided by the calendar, everything that they need to do. But, in Muslim societies, people wait to see, each country for itself, the appearance of the new moon at the end of each lunar month, before they declare the beginning of a new lunar month. As a result: - the information in the Islamic calendar does not extend beyond the current month ; and - the data it shows each month differs from one Muslim country to another.
For instance, the first day of ramadan 1427 corresponded to Saturday, September 23, 2006 in 20 countries ; Sunday, September 24 in 46 countries ; and Monday, September 25 in 5 countries. (1) This situation is in no way unusual, but can be observed every month. Because of these shortcomings, after the major Muslim countries were occupied by foreign powers in the 19th and 20th centuries, Muslim people started using the Gregorian calendar to meet all their needs, and only care about determining Islamic dates on momentous Islamic religious occasions. But, to this day, they regularly get puzzled at the inability of the Islamic calendar to predict precisely, well in advance, the day on which major Islamic events such as the first day of ramadan, or eid al-fitr, or eid al-adha, or the first day of the new Islamic year are to take place. They may even get annoyed because they cannot arrange in advance such ordinary things as taking a few
days off from work on such occasions, making hotel bookings or flight reservations, or avoiding to take business or trip commitments on such dates. But, the Islamic calendar only lost its usefulness when it got disconnected from its astronomical, conceptual and methodological moorings, early in the 7th century, based on Muslim theologians' interpretation of a celebrated hadith of the Messenger on how to determine the first day of Ramadan. It could fulfill all the basic functions of a calendar, and meet all the needs of modern man, within the Muslim community, on a worldwide basis, if it were prepared using the applicable scientific concepts, methods and parameters developed in astronomy. Qadi Ahmad Shakir, President of the Egyptian Supreme Court of the Shariah, explained in an important 1939 study of the issues that there was absolutely no obstacle, on the theological level, to the establishment of such an Islamic calendar, using astronomical calculations. (2)
In 2004, jurist Yusuf al-Qaradawi announced his full support to Shakirs analysis and conclusions. (3) For its part, the Fiqh Council of North America (FCNA), acting independently, presented in 2006 an ingenious, well thought-out methodology which permits the adoption of a pre-calculated calendar, while meeting all the traditional requirements of the Shariah (4). Since then, a number of representative organizations of the Muslim communities in North America and Europe announced that they would henceforth use a calendar based on astronomical calculations to determine all the dates associated with the Islamic calendar, in substitution to the traditional method of observing the appearance of the new moon at the end of each lunar month to determine the first day of the following month.
Astronomical considerations
The lunar calendar is based on a year of 12 months adding up to 354.37 days. Each lunar month begins at the time of the monthly conjunction, when the Moon is located on a straight line between the Earth and the Sun. The month is defined as the average duration of a rotation of the Moon around the Earth (29.53 days). From an astronomical point of view, lunar months do not have a duration of 30 days and 29 days in sequence. There are at times short series of 29 days and short series of 30 days, as illustrated by the following sequence of the duration of 24 lunar months in the period 2007-2008 : 30, 29, 30, 29, 29, 30, 29, 29, 30, 30, 29, 30, 30, 30, 29, 30, 29, 29, 30, 29, 29, 30, 29, 30. The astronomers set the convention, over two thousands years ago, that months of 30 days and 29 days would succeed each other, adding up over two successive months to 59 full days. This left only a small monthly variation of 44 mn to account for, which added up to a total of 24 hours (i.e. the equivalent of one full day) in 2.73 years. To settle accounts, it was sufficient to add one
day every three years to the lunar calendar, in the same way that one adds one day to the Gregorian calendar, every four years. The lunar calendar based on calculations can thus be established very precisely, on an annual basis, long in advance, with identical monthly data for the whole Earth.
A calendar disconnected from its astronomical moorings

In pre-Islamic Arabia, the Bedouin were used to observe the position of the stars at night, to guide them in their travels through the desert, and to observe the appearance of the new moon to determine the beginning of months. When the Companions of the Messenger asked him about how they should determine the beginning and end of the month of fasting (Ramadan), he told them, in line with the wellestablished habits of the Arabs, to begin fasting with the appearance of the new moon ( the
evening of 29th day of the month of Sha'baan) and to stop fasting with the appearance of the new moon (of the month Shawal). If the crescent is not visible (due to clouds) count up to 30 days. However, the new moon typically becomes visible only some 17 hours after the "conjunction", and only subject to the existence of favorable conditions including such factors as the site where the observation is carried out ; the number of hours since the conjunction ; the relative positions of the sun, the moon and the observer ; the angle with the sun at sunset ; the altitude of the moon at sunset ; atmospheric conditions at the site of observation (pollution, humidity, air temperature, altitude) ; the detection limit of the human eye, etc ... If the "conjunction" occurs early in the day, the new moon may be visible on the same evening, after sunset, in specific regions of Earth where the appropriate favorable observation conditions are met. From one month to the next, these favorable conditions exist in different areas of the globe. Otherwise, beginning with the second night after the "conjunction," the new moon
will be observed easily enough in many regions of Earth. Thus, various States and communities in the Muslim world often begin the new lunar month on different days, with a delay of 24 hours from each other during the 48 h following the "conjunction". Clearly, a calendar which depends on the observation of the new moon, at the end of each lunar month, to determine the beginning of the new month, cannot be of any use to plan activities beyond the current month.
Rigorous rules to reduce uncertainties and drifts

Early astronomers converted to Islam (and in their wake Muslim jurists) knew that the length of the lunar month was between 29 days and 30 days, whether measured between two "conjunctions" or between two observations of the new moon, as the Messenger had emphasized in various hadiths. (5)
As far as they were concerned, the beginning and duration of lunar months were independent of the presence or absence of observers and of the visibility conditions of the new moon in various Earth regions. The first sighting of the new moon anywhere on Earth set the beginning date of each lunar month for the whole Earth (and the duration of each month between two new moons was the same for all regions of Earth). But, though these principles were conceptually easy to understand, they were difficult to put into practice. Indeed, once the new moon had been reliably observed somewhere, how was this information to be brought to the attention of populations living over extended geographic areas, or even in very remote areas (as illustrated by the distance between Spain and Arabia, for example)? To which communities did such an information apply, as a rule of law, and they had to draw from it all its implications (such as to start fasting, or to celebrate the end of Ramadan, etc.)?
Muslim theologians/jurists in the early days of Islam gave a wide range of practical answers to these difficult questions. One can draw from them a core of fundamental principles, which continue to be of great interest today: (1) The observation of the new moon can be taken into account only by the communities which receive the information. (2) The observation of the new moon in Eastern countries marks, from a theoretical standpoint, the beginning of the new month for all countries located to the west of the site of observation. This is so because, as the age of the new moon increases between the time of its birth (at the conjunction) and its first setting, the possibility of observing it improves. Thus, going from East to West, from Mecca to Casablanca, for example, the age of the new moon increases by 3 h between the times of sunset in Saudi Arabia and Morocco.
(3) An observation of the new moon must be considered void, when reported before the conjunction has occurred. (4) In general, given the difficulties of communication between Muslim communities over extended geographic settings, the population of each country must implement the decision of the national authorities concerning the beginning of lunar months. Today, only the latter principle is scrupulously respected in the Muslim world. As a result, because of the multiplication of States and Muslim communities around the world, the same beginning of month is sometimes shelled out like a rosary in successive days in different countries. Thus, "Eid al Fitr," corresponding to 1 Shawal 1429, was celebrated in 5 different days around the world: in 1 country on 29 September 2008, in 19 countries on September 30, in 25 countries on 1 October, in 5 countries on October 2, and 1 community on October 3.
Such a drift in the Muslim calendar is contrary to Reason. Nor, would it be possible if the first three principles outlined above were respected. This is the thesis developed in 1965 by Allal El Fassi, an 'alem (jurist) of the University Qarawiyine of Fez (Morocco) and Moroccan Minister of Islamic Affairs, in a report on "the beginning of lunar months" he prepared at the request of King Hassan II. (6) According to him, if a consensus could be reached on the application in Muslim countries of the first three principles above, such a "return to the sources of Islamic law" could provide a strong basis and impetus for the unification of the dates of religious celebrations across the Muslim world. Thus, the first sighting of the new moon anywhere on Earth should be confirmed by the appropriate Muslim authorities at the site of observation and, using modern communication technologies, should be quickly brought to the attention of the competent authorities of all States
and Muslim communities around the world. The latter would have the responsibility to spread the information in their respective territories.
Diversified sets of rules to determine the beginning of lunar months

But, contrary to el Fassi's recommendations, things became even more complicated as more independent States began specifying new rules and procedures to determine, each one for itself, the beginning of lunar months. Thus, Saudi Arabia bases itself on the monthly observation, by the naked eye, of the new moon to declare the beginning of months associated with religious celebrations (Ramadan, Eid al Fitr, Dhul Hijja, etc.). Specialized commissions have the responsibility, on such occasions, to search for the new moon in the sky. The High Judicial Council of Saudi Arabia bases itself on the result of their observations to determine the beginning of the new month.
In India, Pakistan, Bangladesh, Oman, Morocco, Nigeria, Trinidad, etc.., the observation of the new moon must be certified by a qadi (judge) or an official specialized commission. In Egypt, the new month begins after conjunction, when the new moon sets at least 5 minutes after sunset. In Indonesia, Malaysia and Brunei, the new month begins after the conjunction, when the age of the new moon is more than 8 h, the altitude <2 and elongation > 3 . It begins in Turkey, after the conjunction, when the new moon forms an angle of at least 8 with the sun, at an altitude of at least 5 . In Libya, under the Gaddafi regime, the new month began when the conjunction occured before dawn ("fajr"), local time.
The study of specific cases shows, however, that there is a significant gap between the rules that the various States say they apply and what they do in practice.
Is it licit for Muslims to use a calendar based on calculations?

The Qoran prohibits nowhere the use of astronomical calculations for the establishment of a pre-calculated calendar. The procedure is therefore perfectly and undisputably licit. Numerous theologians in the early years of Islam saw no contradiction between the Messengers teachings and the use of astronomical calculations to determine the beginnings of lunar months. (5) The dynasty of Fatimids in Egypt used a pre-calculated calendar over a period of two centuries, between the 10th and 12th centuries, before a change of political regime reactivated the procedure of observation of the new moon.
But the majority of Muslim theologians insist nowadays that, no matter what, one cant go against the Messengers teachings. They interpret his recommendation concerning the observation of ramadans new moon as if it were part of the fundamental Islamic dogma. It would be utterly wrong, in their view, to use a calendar based on the conjunction, because one would start fasting, end fasting, and celebrate all other important Islamic events about two days earlier than would be the case if the procedure of observation of the new moon were applied. The argument, however, is hardly convincing when confronted with the facts of the situation. Thus, a study of 42 reports of sightings of the Raman new moon, as announced by the Supreme Judicial Council of Saudi Arabia (Majlis al-Qad al-Al) between 1962 to 2001 (1381 AH to 1422 AH), confirms that more than half of these were too early and based on false sightings (Kordi, 2003). Most of these false sightings were probably caused by a bright star or planet (such as Venus) or an airplane contrail viewed near to the western horizon. (7)
The report of erroneous sightings is not peculiar to Saudi Arabia but is observed in most other Muslim countries studied. The authorities in these countries base themselves on such false sightings to announce the beginning or the end of the fast of Ramadan and other major religious celebrations, even when the reported sightings are in contradiction with the well-publicized astronomical facts of the situation. In any case, in the view of many Islamic thinkers, the Messengers recommendation to the faithful should not be confused with the acts of worship. It was merely adapted to the culture of the times. (6) One should also note that, during long periods of Islamic history, the hadith under discussion was not interpreted to mean the visual observation of a new moon, but only the acquisition of information, according to credible sources, that the month had begun. Thus, one doesn't have to see the new moon for himself in order to start the fast of Ramadan. He merely
needs to learn of the event from credible sources, such as the local authorities. This opens entirely different vistas in the discussion of this question. (6) As for the hadith of the Messenger according to which the Bedouins can neither write nor count, and must thus avoid using (astronomical) calculations, Ibn Taymiya observes that the argument may have been justified at the beginning of the 7th century, but he questions whether it could still apply to Muslims centuries later, after they had been at the vanguard of development of scientific knowledge, including in the field of astronomy. The Saudi authorities hold a dual position on this subject. They say they rely exclusively on the sighting of the new moon to determine the dates of all religious celebrations. But they use the Umm al Qura calendar (which is prepared based on calculations) to manage all year-long the administrative and budgetary affairs of the country. (7)
Sheikh Abdul Muhsen Al-Obaikan, a Councilor in the Ministry of Justice of Saudi Arabia, is clearly favourable to the use of modern technology to determine the beginning of months. He says : Using the naked eye to determine the beginning and end of Ramadan is primitive in an age of modern science and technology. There is no other way to put it. Its pure backwardness. (8)
The legal opinion of Qadi Shakir

Egyptian qadi Ahmad Muhammad Shakir (who was to become President of the Egyptian Supreme Court of the Shariah at the end of his career, and who remains to this day an author of reference in the field of hadith) (9), wrote a lengthy legal opinion in 1939 on the subject of the Islamic calendar, entitled : The beginning of arab months is it legal to determine it using astronomical calculations?. (2)
According to him, the Messenger took into account the fact that the Muslim community of his time was illiterate, not knowing how to write nor how to count . So, he recommended to its members to observe the new moon to carry out their religious duties at the time of fasting and hajj. But the community evolved considerably over time, and some of its members even became experts in astronomy. According to the principle of Muslim law which states that a rule is no longer applicable, when the factor which justified its existence has disappeared , the Messengers recommendation didnt apply anymore to the Muslims, after they had learned to read and count and had ceased being illiterate. Therefore, according to Shakir, contemporary ulamas commit an error of interpretation when they give to the Messengers hadith the same interpretation that applied at the time of
Revelation, as if the hadith prescribed immutable rules. But, it has stopped being applicable to the Muslim community long ago, based on the principles of the shariah themselves. Furthermore, Shakir refers to the principle of Muslim law according to which what is relative cannot refute what is absolute, nor can it be preferred to it, according to the consensus of the ulamas. The observation of the new moon with the naked eye is relative, and can be the subject of error, whereas the knowledge of the beginning of lunar months, based on astronomical calculations, is absolute, and belongs to the domain of certainty. Shakir reaches the conclusion that there is nothing in the shariah which opposes the use of calculations to determine the beginning of all lunar months, in all circumstances, and not only in special situations, as had been recommended by some ulamas. For him, there can exist only one lunar month applicable in all countries of the world, based on astronomical calculations. The use of the same pre-calculated calendar in all Muslim
countries will give them an opportunity to celebrate all major Islamic events on the same day, throughout the world, thereby increasing their feeling of solidarity and unity. In the 73 years since their publication, Shakirs conclusions have not been refuted by any Muslim jurist. As a man of law, and as an expert on hadith, he continues to be highly considered by his peers, long after his death. (9) Thus, Yusuf al-Qaradawi, the well-known theologian and jurist, has lavishly praised Shakir in a 2004 article entitled : Astronomical calculations and determination of the beginning of months in which he expressed his full support to qadi Shakirs conclusions. (3)
Paradoxes
In the process of analyzing this topic, one's attention is unavoidably drawn to the many paradoxes wich exist in the situation, and which have to be confronted if one is to make some progress in dealing with the issues. Thus : a) The Islamic calendar based on the observation of the new moon is only used in contemporary Muslim societies to determine the dates associated with religious celebrations. To meet all their other needs, Muslims around the world have used, for many centuries, the Gregorian calendar, based on astronomical calculations, without the slightest apprehension that they might thereby be violating religious prescriptions. Why would it be licit for Muslims (including ulamas) to use the Gregorian calendar based on astronomical calculations to meet all their needs, while the use of the Islamic calendar, based on the same calculations, would be illicit?
b) The same situation can be observed at the level of the Muslim States. For example, Saudi Arabia sees no problem in using the Umm al Qura calendar, based on calculations, for the management of all the administrative and budgetary affairs of the country, while insisting that it would be illicit to use it for the determination of the dates of religious celebrations. On which rules of Shari'ah does this paradoxical proposition base itself? c) The use by Saudi Arabia of the calendar based on calculations to manage its administrative affairs implies, beyond any doubt, that the lunar calendar based on the monthly observation of the new moon is unfit for such use. So, one must ask oneself: When the Messenger Muhammad referred to the observation of the new moon to determine the beginning of a new lunar month, was it his intention to disconnect the Arab calendar from its astronomical moorings, making it unfit for any practical use? Or did he merely give, at the time of Revelation, an
appropriate response to the question put to him, based on the current practices of the Arabs at that time ? In the latter case, shouldn't this response have been reviewed and adapted to the needs of Muslim societies as they progressed in their scientific, cultural and social environment? Isn't it time to proceed with this review and adaptation now? d) Why are the prayer times determined in a lawful Shari'ah manner on the basis of astronomical calculations, and yet it is stated that the beginnings of Islamic months cannot be dealt with using the same tools and methods? Based on all the above considerations, numerous Muslim thinkers and community organizations consider that it is perfectly licit for Muslims to use a calendar based on calculations, in substitution to the calendar based on the monthly observation of the new moon, to determine the beginnign of all months. But there remain major differences between them concerning the
specifics of the Muslim calendar which could be used as a global Islamic calendar , as is clear form the major proposals which were made in this domain in recent years.
The decision of the Fiqh Council of North America (FCNA)

The Fiqh Council of North America (FCNA) was regularly confronted with the responsibility of telling its Muslim American audience when to start fasting, when to celebrate eid al-fitr , etc. After several years of study of the legal issues involved, it reached a decision, which it announced in August 2006, to use henceforth a pre-calculated Islamic calendar, taking into consideration the sightability of the new moon anywhere on Earth. (4) The decision of the Fiqh Council of North America (FCNA) combines the theological requirements of the ulamas with the state of the art in the field of new moon observation. First, it retains the well-known principle of unicity of horizons (matalie) which states that it is sufficient
to observe the new moon anywhere on Earth, in order to declare the beginning of a new lunar month, applicable in all areas in which the information is received. (10) Second, it uses the International date line (IDL) or Greenwich Mean Time (GMT) as its conventional point of reference to conduct its analysis. Based on the maps of sightability of the new moon in the various regions of Earth, which are now regularly prepared by professional astronomers, (11) the FCNA reached the conclusion that when the conjunction took place before 12:00 noon (GMT), there was enough time left for the new moon to be seen in numerous areas on Earth where sunset took place long before sunset in North America. Since the criteria of sightability of the new moon were met in these areas, the new moon would be observed (or could have been observed if weather conditions had been adequate) long before sunset in North America.
Therefore, the requirements of sightability of the new moon as set by the shariah would be respected, and the new lunar month could begin in North America on sunset of the same day. On the other hand, if the conjunction took place after 12:00 noon GMT, the month would begin in North America on sunset of the following day. The FCNA decision aroused much interest in many Muslim countries, because it elegantly met the requirements of the traditional interpretation of the shariah, while making use of the stateof-the art know-how in the field of astronomy to respond to the needs of the modern age. It was thought that this solution could be applicable in other Muslim countries, and could give them a chance to adopt the same pre-calculated Islamic calendar (prepared on an annual basis, long in advance), in order to fulfill all the religious duties as well as to manage all other tasks. An international conference was thus held in Morocco, in November 2006, to study the issues involved, with the participation of astronomers from Saudi Arabia, Egypt, Jordan, UAE,
Iran, Guinea, Libya, Morocco, and the USA. The overwhelming majority of the participants, including Saudi, Egypt, and Iran astronomers agreed that the calendar adopted by Fiqh Council of North America could be used as a Global Islamic Calendar. (12)
A global Islamic calendar based on calculations, set to the coordinates of Makkah

But FCNA changed its position in 2007 to align itself on a new decision by the European Council for Fatwa and Research (ECFR), which used the same parameters as those of the Umm al Qura calendar (7) to determine the beginning of Islamic months. These parameters are as follows : the conjunction must take place before sunset at the coordinates of Makkah and moonset must take place after sunset at the same coordinates. FCNA and ECFR justified the adoption of the new parameters by their desire to help develop a consensus within the Muslim community throughout the world on issues of common interest, among which that of the calendar.
From a methodological point of view, the substitution of the parameters of Umm al Qura calendar to those initially set by FCNA in its August 2006 decision has the following consequences: The requirement that the conjunction take place before sunset at the coordinates of Makkah instead of 12:00 noon GMT, as previously specified by FCNA, adds 3 hours to the time period during which the conjunction will be taken into account. This improves the chances that the first day of the new month will immediately follow the day on which the conjunction takes place. But, the requirement that moonset take place after sunset at the Makkah coordinates sets an unduly restrictive condition, which didnt exist in FCNA parameters of 2006. It implies that the new moon will be potentially sightable at Makkah on the evening of the day of conjunction, whereas the FCNA based its reasoning on the fact that the new moon would be potentially sightable somewhere on Earth.
According to FCNA, the data of the calendar thus obtained differs only marginally from the data developed using its methodology of August 2006. Concretely, the decisions of FCNA and ECFR had the following results: The principle of use of a calendar based on calculations was officially sponsored by religious leaders who are well-known and respected within the Muslim community (2) (3) (13) This principle was officially adopted by Islamic organizations whose legitimacy and credibility are unquestionable; The Muslim communities in Europe and America were willing to use this calendar to determine the beginning of all months, including those associated with religious events.
1st Ramadan 1433 : a case study
Five years after the adoption by the FCNA and ECFR of their important decisions, it is possible to draw the point of the situation, based on the announcements made by the major Muslim States and organizations concerned, on the occasion of the 1st of Ramadan 1433 (July 2012). It shows that there remains major differences between them concerning the properties and technical specifications that a global Islamic calendar should have. Thus, in application of its stated policy, the Fiqh Council of North America (FCNA) announced early in July 2012, well in advance of the event, that "the first day of Ramadan 1433 will be Friday, July 20, 2012 and Eid al-Fitr on Sunday, August 19, 2012". The FCNA explained that: a) it recognized astronomical calculation as an acceptable Sharia method for determining the beginning of Lunar months including the months of Ramadan and Shawwal; b) it used Makkah al-Mukarrama as a conventional point for the calculations ; and
c) it took the position that the conjunction must take place before sunset in Makkah and moon must set after sunset in Makkah. "On the basis of this method the dates of Ramadan and Eidul Fitr for the year 1433 AH are established as follows: 1st of Ramadan will be on Friday, July 20, 2012 ; and 1st of Shawwal will be on Sunday, August 19, 2012." (14) But, the Dublin-based European Council for Fatwa and Research (ECFR) seemed to have changed position, at least momentarily, compared to its 2007 decision. It also announced, well in advance, that the 1st of Ramadan 1433 would be on Friday, July 20, 2012, but explained that this finding was based on calculation criteria that there must be the possibility of crescent sighting by naked eye or telescope on any place on Earth. To accept the possibility of crescent sighting in any place on Earth the following conditions must exist : a) The moon must set after sunset in the place where sighting is possible b) The elevation of the crescent must be at least 5 degrees
c) The elongation distance between the sun and moon must be at least 8 degrees. (15) In contrast, Saudi Arabia continued to claim its officially stated, but hard to verify policy of relying exclusively on sighting to determine the dates of religious observances. Thus, on the evening of Thursday, July 19, 2012 the Saudi authorities announced that the new moon had been observed and that the fast of Ramadan would start on Friday, July 20. The Saudi statement contradicted astronomers' announcement in moonsighting websites worldwide that it would be impossible to observe the new moon in the Middle East region on the evening of Thursday, July 19. (15) However, based on the Saudi announcement, some 69 countries and Muslim communities worldwide began the fast of Ramadan on Friday, July 20. This represented a historical record in the number of Muslim countries which began fasting on the same date. (15) For their part, the major Muslim associations of France also announced that the 1st of Ramadan 1433 would be on Friday, July 20, 2012 using a calendar based on astronomical
calculations, taking into account the criteria of the possibility of crescent sighting in any place on Earth. (16) Turkish Muslims in Asia Minor and several Muslim communities in Eastern Europe and elsewhere also began their fast of Ramadan 1433 on Friday, July 20, 2012, basing themselves on the Islamic calendar of Turkey, which is calculated several years in advance (currently up to 1437 AH/2015 CE) by the Turkish Presidency of Religious Affairs (Diyanet Isleri Baskanligi). (17) Since 1 Muharrem 1400 AH (21 November 1979) the computed Turkish lunar calendar is based on the following rule: The lunar month is assumed to begin on the evening when, within some region of the terrestrial globe, the computed centre of the lunar crescent at local sunset is more than 5 above the local horizon and (geocentrically) more than 8 from the Sun. (18) One can draw the following conclusions from the 1st Ramadan 1433 illustration:
a) the use of a Muslim lunar calendar based on calculations is steadily gaining grounds, particularly within the Muslim communities of North America and Western Europe. But there are still important differences as to which new lunar calendar to use, as witnessed by the different methodologies used by FCNA, ECFR, the Muslim associations of France and Turkish Muslims ; b) the number of States claiming to follow the leadership of Saudi Arabia in the matter of the date of religious observances is growing at a considerable rate ; c) Saudi Arabia's strategy and objectives in the matter of determination of the lunar months associated with religious observances continue to be puzzling for the observer. The Saudi authorities regularly announce the observation of a new moon on dates when professional astronomers state that such sighting was impossible. They use the Umm al Qura calendar (which is based on astronomical calculations) for civil and administrative purposes, but quite regularly advance or postpone the weekday on which falls the 1st of the month associated with religious
observances, for unexplained reasons. (7) These changes decrease the credibility and value of the Umm al Qura calendar as an astronomical calendar that the Muslim community could use, worldwide, leading Muslim communities in North America and Europe to draw their own Muslim astronomical calendar.
The ritual confrontation between tradition and modernity

On the basis of what has been said, it is clear that the Muslim calendar based on the monthly observation of the new moon with the naked eye cannot perform the functions expected of a calendar. It is of no use to manage long-term activities, to anticipate, plan and organize in advance everything that must be done. These weaknesses stand out even more clearly when each State and Muslim community around the world conducts its own individual monthly observation of the new moon, resulting in a range of calendars which present conflicting data for the same day from one country to another.
But, a lunar calendar based on calculations can meet all the needs of Muslims in the world, just as well as the Gregorian calendar they currently use. The only problem concerns the determination of the parameters that would be acceptable to all potential users of the calendar, to turn it into a global Islamic calendar. The FCNA and the ECFR presented, in this respect, two basic versions of such a calendar, both equally valid. They deserve to be studied with the greatest care. Following in the steps of qadi Shakir, Yusuf al-Qaradawi, and the leaders of the FCNA and the ECFR, a new generation of Muslim thinkers see no religious barrier to the adoption of such a calendar. At present, they represent only a minority of people, when compared to the entire Muslim population of the world, and are mostly located in North America, Europe and some North African countries. But, their views are gaining ground, with the support of some distinguished
thinkers, political and social leaders, jurists and theologians who are influential in the Muslim world. Will this Muslim minority be able to convert to its thinking the vast majority of those who, today, continue to uphold the practice of the monthly observation of the new moon? Or, will the latter remain faithfully on the side of the fundamentalist movements which, today more than ever, vigorously preach the respect of orthodoxy and tradition in religious matters? In these early years of the 21st century, the calendar based on calculations thus becomes, in its turn, a stake in the ritual, recurrent political confrontation between those who defend tradition and those who wish to promote modernity in Muslim societies.
Footnotes
* Parts of the essay appeared on SaudiDebate.com (5 September 2007) and Tabsir.net (23 July 2008). I wish to express my deep appreciation to Ms. Rachida Benchemsi and Messrs Said Branine, Mark Huband, Daniel Martin Varisco and Khalid Shaukat. Any errors of fact or interpretation are solely mine. (1) http://www.moonsighting.com/1427rmd.html (2) Ahmad Shakir: The beginning of arab months is it legal to determine it using astronomical calculations? . (published in arabic in 1939) reproduced in the arab daily al-madina , 13 october 2006 (n 15878): http://ahmadmuhammadshakir.blogspot.com/
(3) Yusuf al-Qaradawi: Astronomical calculations and determination of the beginning of months (in arabic) : http://www.scribd.com/doc/102861247/Qaradawi-AstronomicalCalculations-and-the-Islamic-Calendar-in-Arabic (4) Fiqh Council of North America: http://www.moonsighting.com/calendar.html (5) Abderrahman al-Haj: The faqih, the politician and the determination of lunar months (in arabic): http://www.scribd.com/doc/102861233/al-Haj-Le-theologien-le-politicien-et-le-debut-desmois-lunaires-10-10-2004 (6) Allal el Fassi: Aljawab assahih wannass-hi al-khaliss an nazilati fas wama yataallaqo bimabda-i acchouhouri al-islamiyati al-arabiyah (The true answer []
concerning the beginning of Islamic Arabic months), report prepared at the request of King Hassan II of Morocco, Rabat, 1965 (36 p.), with no indication of editor (7) Robert Harry Van Gent: The Umm-al-Qura calendar of Saudi Arabia http://www.staff.science.uu.nl/~gent0113/islam/ummalqura.htm (8) Anver Saad: The Untold Story of Ramadhan Moon Sighting Daily muslims, October 07, 2005 : http://www.scribd.com/doc/102861269/Saad-Untold-Story-ofRamadhan-Moon-Sighting-Oct-07-2005 (9) Ahmad Muhammad Shakir: http://fr.wikipedia.org/wiki/Ahmad_Muhammad_Shakir (10) Abi alfayd Ahmad al-Ghomari: Tawjih alandhar litaw-hidi almouslimin fi assawmi wal iftar (In order to unify the Muslims when they start and end the fast of Ramadan), 160p, 1960, Dar al bayareq, Beyrouth, 2nd ed. 1999
(11) http://www.moonsighting.com/ (12) http://www.moonsighting.com/1427zhj.html (13) Zulfikar Ali Shah: The astronomical calculations: a fiqhi discussion (14) Fiqh Council of North America: http://fiqhcouncil.org/ Announcements - Ramadan & Eid Mubarak 1433 (2012): Ramadan 1433 AH: The Astronomical New Moon is on July 19, 2012 (Thursday) at 4:24 Universal Time (7:24 a.m. Makkah time). Sunset at Makkah on July 19 is at 7:05 p.m., while moonset is at 7:11 p.m. Moon is born before sunset in Makkah and moonset is after sunset. Therefore first day of Ramadan is Friday, July 20.
Eid ul-Fitr 1433 AH: The Astronomical New Moon is on August 17, 2012 (Friday) at 15:54 Universal Time (6:54 p.m. Makkah time). On Friday, August 17, sunset at Makkah is 6:49 p.m. and moonset is 6:30 p.m. Moon is born after sunset in Makkah and moon sets before sunset. On Saturday, August 18 , sunset at Makkah is 6:49 p.m. and moonset is at 7:11 p.m. Moon is born 24 hours before sunset, while moonset is after sunset. Therefore, first day of Shawwal, i.e., Eid ul-Fitr is Sunday, August 19. (15) European Council for Fatwa and Research (ECFR) announcement: http://www.moonsighting.com/1433rmd.html (16) Conseil Franais du Culte Musulman (CFCM): Ramadan moubarak http://oumma.com/13434/ramadan-moubarak and Nidhal Guessoum: Quel sera le premier
jour du mois de Ramadan 2012 ? (On which date will Ramadan 2012 begin) ? http://oummatv.tv/13306/sera-premier-jour-mois-de-ramadan (17) http://www.diyanet.gov.tr/turkish/dy/default.aspx (18) Robert Harry van Gent: The Islamic calendar of Turkey http://www.staff.science.uu.nl/~gent0113/islam/diyanetcalendar.htm
References :
Helmer Aslaksen: The Islamic calendar Methods used by countries for determining the beginning of Islamic months : http://moonsighting.com/methods.html
Moonsighting.com: Selected articles on the Islamic calendar Islamic Crescents Observation Project (ICOP): http://www.icoproject.org/ Selected articles on the Islamic calendar in Arabic Mohamed Odeh: The actual Saudi dating system Karim Meziane et Nidhal Guessoum: La visibilit du croissant lunaire et le ramadan, La Recherche n 316, janvier 1999, pp. 66-71 Nidhal Guessoum, Mohamed el Atabi and Karim Meziane : Ithbat acchouhour alhilaliya wa mouchkilate attawqiti alislami (Establishing the lunar months and the problem of keeping time in Islam), 152 p., Dar attali'a, Beyrouth, 2nd ed., 1997 Different proposals for the reform of the Islamic calendar: http://moonsighting.com/calendar.html
A video by Dr.Muzammil Siddiqi on Fiqh Council of North America about using astronomical calculations to affirm the month of Ramadan: http://www.islamicity.com/islamitv/?ref=5919 An Article on Sighting and Calculations by Dr. Muneer Fareed A video by Dr. Jamal Badawi on To see or not to see: the Moon Sighting controversy in Islam: http://www.youtube.com/watch?v=EzLqHyQ8l9U A video by Javed Ghamidi: http://www.meezan.tv/videos/928/the-issues-regarding-moon-sighting A video by Dr. Tahirul Qadri: http://www.youtube.com/watch?v=qZ8ieVBlE6g
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Khalid Chraibi - Selected Writings Gli estremisti non possono cercare giustificazioni nel Corano
di Khalid
Chraibi
Pubblicato in Religione e fatwa, tra fede e politica il 14 Novembre 2007 Paese: Arabia Saudita Testata: SaudiDebate.com
Tag: Arabia Saudita, Corano, fatwa, Iraq, movimenti salafiti, religione, terrorismo Stampa questo articolo
28/07/2007
Guardando i notiziari televisivi in questi giorni, si ha limpressione che lintero Medio Oriente sia in agitazione, con terribili atti di violenza che hanno luogo ormai abitualmente in molteplici scenari. Langoscia raggiunge il suo culmine in Iraq, dove ogni singolo giorno auto e camion imbottiti di esplosivo vengono lanciati contro luoghi affollati, come un mercato o una moschea durante la preghiera di mezzogiorno, uccidendo decine di civili e ferendo centinaia di persone. Questa ondata di violenza solo marginalmente rivolta contro le truppe straniere di occupazione. La stragrande maggioranza delle vittime sono civili che non sono neanche presi di mira individualmente, ma semplicemente appartengono ad un gruppo che i loro avversari hanno deciso di attaccare, come ad esempio gli impiegati di qualche amministrazione, o i membri di un gruppo religioso (sunnita o sciita). Molte delle vittime vengono citate come semplici effetti collaterali, ovvero come persone che hanno avuto la sventura di trovarsi nel raggio dazione di un ordigno esplosivo al momento dellesplosione.
Gli autori di questi atti di violenza si definiscono orgogliosamente come jihadisti, salafiti, ecc., per sottolineare la loro appartenenza islamica. Sulla base di ci, i governi occidentali ed i media classificano tutti questi atti sotto la generica definizione di terrorismo, riconducendoli ad una recrudescenza dellestremismo religioso nel mondo islamico. Essi li presentano come simboli di uno scontro di civilt in corso fra i paesi islamici e lOccidente, o li considerano come un sintomo della lotta fra conservatorismo e modernit allinterno delle societ islamiche. Ci nondimeno, la maggior parte dei musulmani trova difficile conciliare questi atti di violenza con gli insegnamenti della propria religione. Ma i leader politico-religiosi che dirigono simili azioni hanno sviluppato le loro proprie fatwa in proposito, e le utilizzano per convincere i potenziali attentatori suicidi della giustezza dei loro atti di violenza.
Essi hanno giustificato le loro azioni nella maniera seguente, in una recente intervista pubblicata da un importante giornale americano: Nella tipica esplosione di unautobomba, Dio identificher coloro che meritano di morire ad esempio chiunque aiuti il nemico e li mander allinferno. Le altre vittime andranno in paradiso. Linnocente che viene ferito non soffrir. Diviene egli stesso un martire (The Guidebook For Taking A Life, The New York Times, Week in Review, June 10, 2007). [] Molti giovani sauditi sono stati associati, negli ultimi anni, a questo tipo di violenze, in scenari diversi come la Palestina, lAfghanistan, lIraq, il Libano, lo Yemen, il Nordafrica, ecc.. Le autorit saudite sono preoccupate per questa situazione, e cercano di sviluppare nuove linee guida per fornire ai giovani un appropriato orientamento religioso, in modo da metterli in grado di distinguere fra i veri insegnamenti islamici e lideologia deviante.
Cos, ad un incontro con pi di 600 imam e predicatori alla fine di giugno 2007, il ministro degli interni saudita, principe Naif, ha espresso la propria preoccupazione per il coinvolgimento della giovent saudita negli atti di violenza in Iraq ed in Libano. Lagenzia Saudi Press riferisce che egli ha domandato agli imam, e pi in generale alla societ saudita: Sapete che i vostri figli che vanno in Iraq vengono usati solo per farsi esplodere causando la morte di persone innocenti? Siete felici del fatto che i vostri figli diventino strumenti di morte?. Egli avrebbe poi aggiunto: volete nella vostra societ persone che chiamano voi, il vostro stato, ed i vostri leader infedeli? Il principe ha sottolineato il ruolo positivo che gli imam ed i predicatori potrebbero giocare nella lotta del paese contro il terrorismo, lideologia deviante, ed i pensieri e le idee distruttive, utilizzando regolarmente il sermone del venerd in pi di 14.000 moschee per smascherare i devianti e le loro ideologie.
Teoricamente, il compito degli imam e dei predicatori del tutto semplice e chiaro. Essi devono spiegare ai giovani sauditi che lIslam basato sul rispetto della vita e della propriet, sulla libert, luguaglianza, la solidariet, e la giustizia per tutti. E la religione della ummat al-wasat (la comunit del giusto mezzo), come spiegato dal seguente versetto: Abbiam fatto di voi una comunit equilibrata, cosicch possiate essere testimoni di fronte alle nazioni, ed il Messaggero sia testimone di fronte a voi (Sura della Vacca,II: 143) LIslam si oppone allestremismo nella religione, come spiegato nel versetto: D: Oh gente del Libro, non eccedete i limiti nella vostra religione, cercando al di l della verit, e non seguite i vani desideri di coloro che sbagliarono gi in tempi passati, e che traviarono altri, smarrendo la retta via (Sura della Mensa,V: 77)
Anche il Profeta mise ripetutamente in guardia dallestremismo nella religione, sottolineando che questa fu la causa dei disastri che accaddero alle altre nazioni. Dunque, lIslam aborre luccisione indiscriminata di civili e di non combattenti. Lalto valore che lIslam ripone nella vita umana chiaramente espresso in numerosi versetti coranici, come: Non uccidete il vostro prossimo, che Dio ha reso sacro, se non per via di giustizia: cos Egli vi ha prescritto, affinch impariate la saggezza (Sura del Bestiame,VI: 151) Oppure: Chiunque abbia ucciso una persona che non abbia ucciso a sua volta, o che non abbia disseminato la corruzione sulla terra, come se avesse ucciso lumanit intera. E chiunque abbia salvato una vita, come se avesse salvato lumanit intera (Sura della Mensa, V: 32)
Il principio della sacralit della vita umana anche sottolineato dalla Dichiarazione Islamica Universale dei Diritti dellUomo del 19 settembre 1981, che afferma: La vita umana sacra ed inviolabile, ed ogni sforzo deve essere fatto per proteggerla. In particolare, nessuno dovr essere ferito o ucciso, se non per autorit della Legge. LIslam ha anche stabilito regole molto rigorose su come trattare i casi di omicidio. La pena capitale pu essere applicata da un tribunale che rispetti un giusto processo. Ma, a nessun individuo permesso di utilizzare la legge a propri fini, di decidere secondo il proprio capriccio chi deve vivere e chi deve morire, ecc.. Una situazione del genere, se dovesse aver luogo, sarebbe comparabile ad uno stato di fitna (discordia, divisione, ribellione), che fortemente condannato dallIslam. La comunit musulmana organizzata in modo da gestire e risolvere tutti i conflitti fra i suoi membri attraverso mezzi pacifici, o utilizzando i mezzi alternativi che la sharia ha stabilito.
Gli imam devono ricordare ai giovani che, anche in una situazione di guerra, lIslam ha stabilito delle regole molto rigide, che le parti in conflitto devono rispettare. Queste regole erano osservate durante la vita del Profeta, con lobiettivo di assicurare che i danni fossero limitati al minimo, senza una inutile distruzione della vita (donne, civili, anziani, non combattenti) e della propriet (alberi, orti, pozzi, bestiame, ecc.). Il califfo Abu Bakr ricordava queste regole alle proprie truppe, alla vigilia della loro partenza per la battaglia, nella maniera seguente: Fermatevi, gente, affinch io possa darvi dieci regole che vi guidino sul campo di battaglia. Non commettete tradimento e non deviate dalla retta via. Non mutilate i cadaveri. Non uccidete bambini, n donne, n anziani. Non fate male agli alberi, non bruciateli col fuoco, soprattutto quelli che portano frutti. Non uccidete le greggi del nemico, ma salvatele per il vostro sostentamento. Potreste incontrare persone che hanno consacrato la propria vita al servizio monastico; lasciateli andare.
Dalle precedenti affermazioni risulta chiaro che lIslam si oppone senza dubbio alluccisione indiscriminata di persone, a prescindere da qualsiasi circostanza. LIslam si oppone, inoltre, al takfir (la pratica di accusare altri musulmani di miscredenza), che un altro aspetto dellestremismo. Chiaramente, nessuno pu dire a proprio piacimento che altri musulmani sono kuffar (infedeli) che possono essere uccisi senza timore. Questo sarebbe il caso pi estremo di fitna. Ricorrere alla violenza, anche a livello dello stato, uneccezione e non la regola. E qualcosa che deve aver luogo allinterno di rigide norme: nessun abuso di potere, nessun eccesso, rispetto per i non combattenti (civili, donne, bambini, anziani), rispetto della propriet privata, che non deve essere distrutta se non in situazioni estremeA questo proposito, uno non pu dire che intende promuovere i valori ed i principi dellIslam, se egli stesso viola tutte le sue norme fondamentali al fine di raggiungere i propri obiettivi politici.
Concludendo, in uno stato moderno nessuno pu utilizzare la legge per i propri fini. I singoli individui non possono dichiarare guerra ad uno stato straniero. N possono dichiarare guerra al proprio governo. Altrimenti, la comunit entra in una situazione di anarchia, di fitna. La confusione fra politica, religione, e fitna promossa da tutte quelle parti che sono interessate al divampare dei conflitti in Medio Oriente, perch ci si accorda alla loro agenda politica. I governi occidentali possono puntare il dito contro la violenza e spiegarla con lestremismo religioso, cos da non dover scavare pi a fondo nei complessi conflitti politici che hanno luogo in Palestina, Iraq, Afghanistan, Iran, ecc.. Le autorit politiche di un paese possono spiegare la violenza come il prodotto dell estremismo religioso o di una ideologia deviante, piuttosto che come una ribellione contro la propria autorit. I jihadisti possono sostenere di voler soltanto tentare di realizzare lobiettivo di una umma (comunit, nazione) unificata e regolata dallIslam,
piuttosto che gli obiettivi politici che essi hanno realmente in mente, come la conquista del potere in un dato paese. La gente potrebbe rimanere confusa da tutte queste rivendicazioni in conflitto fra loro. Ma il fatto innegabile che lIslam la religione della ummat al-wasat (la nazione del giusto mezzo) che aborre tutti gli atti di estremismo in ogni aspetto della vita. In particolare, lIslam basato sul rispetto della vita e della propriet, sulla libert, leguaglianza, la solidariet, e la giustizia per tutti. Non ci si pu sbarazzare di tutti i suoi valori, e di tutto ci che esso insegna, e continuare ad affermare con una qualche credibilit che si sta agendo nellinteresse dellIslam. Titolo originale:
Extremists cannot claim Koranic justification for violence despite proud boasts of jihadis
Shariah, Riba (Interessi) e Banca

Minareti.it - Il Portale del mondo arabo-islamico italiano
"Un economista musulmano entra nel dibattito sulla posizione dell'Islam nei confronti del sistema bancario e la proposta di fondare nuove banche "Islamically correct"." di Khalid
Chraibi *
Da diversi anni, una corrente religiosa conservatrice nata negli Stati del Golfo si sta diffondendo in altri paesi musulmani, influenzando molti aspetti della vita quotidiana. Per esempio, sotto linfluenza dei predicatori del Medio Oriente, i marocchini (come gran parte dei musulmani residenti in Europa e in Nord America) si chiedono oggi se le operazioni bancarie moderne siano conformi alla shariah, mentre altri non esitano ad affermare che solo le operazioni delle banche islamiche sono halal [lecite]. Questa influenza degli Stati del Golfo sulla cultura dei musulmani residenti in altri paesi emerge chiaramente nella domanda posta al predicatore del Qatar Yusuf al-Qaradawi durante l'estate 2006, allora in visita in Marocco: un marocchino pu usufruire lecitamente di un prestito concesso a interesse da una banca marocchina per pagare l'acquisto di una casa, visto che in Marocco non esistono banche che offrano prodotti conformi alla legge islamica ?
Il predicatore ha fatto riferimento ad una decisione del Consiglio Europeo della Fatwa che autorizza le minoranze islamiche residenti in Europa, che non hanno accesso alle banche operanti secondo le regole della shariah, ad usufruire di tali prestiti basandosi sulla regola: La necessit abolisce i divieti, (addarouratou toubihou al mahdhourat). Secondo lui, questa regola si applica perfettamente al caso marocchino. L'influenza dei predicatori del Medio Oriente sui Marocchini in materia di scelte bancarie aumenter sicuramente nei prossimi anni, poich recentemente Bank al-Maghrib ha autorizzato il sistema bancario nazionale a commercializzare, presso appositi sportelli, prodotti selezionati, conformi alla legge islamica. Il repentino cambio di atteggiamento da parte delle autorit marocchine, che negli ultimi due decenni si erano opposte a questo tipo di operazioni, si spiega, tra le altre cose, con limpegno degli operatori dei paesi del Golfo a investire parecchi miliardi di dollari nell'economia marocchina, purch venissero forniti loro dei canali adeguati.
Al centro del dibattito sui due tipi distituzioni bancarie si trova il concetto dinteresse. La banca moderna l'applica nelle sue operazioni, mentre la banca islamica ne nega luso. Ora, secondo molti musulmani, il concetto dinteresse indissolubilmente legato a quello di riba, che il Corano vieta in modo esplicito ed inequivocabile. Il termine riba riguarda in primo luogo lusura, sul cui divieto c' unanimit, ma, secondo la maggior parte degli ulema, questo termine ingloba anche il concetto dinteresse in tutte le sue forme. Tuttavia, secondo numerosi esperti, a partire dalla met del XIX secolo, l'estensione del termine riba agli interessi bancari, sulla base del qiyas [confronto] e delligtihad [sforzo dinterpretazione], ha fondamenti giuridici discutibili, in quanto le operazioni della banca moderna sono di natura totalmente differente da ci che esisteva in Arabia al tempo della Rivelazione.
Difatti, soltanto nel XIX e XX secolo, in seguito all'occupazione da parte degli Stati europei di vari paesi musulmani, che le strutture bancarie moderne sono apparse in questi paesi, utilizzando strumenti finanziari che fanno proprio il concetto di interesse. Gli ulema hanno compreso abbastanza velocemente il funzionamento del sistema, e capito che l'interesse costituiva una rimunerazione giustificata dellinvestimento e del risparmio del capitale finanziario. Per questo motivo, da un secolo e mezzo, i Grandi Mufti dEgitto e gli Sheikh dAl-Azhar, avendo fatta propria questa conclusione, si producono in notevoli sforzi teorici per stabilire la differenza tra gli interessi bancari (contraddistinti da aspetti economici positivi e dunque auspicabili) e il riba proibito. Non certo il momento di citare tutte le fatwa significative formulate nellultimo secolo in Egitto su questi aspetti. Muhammad Abduh, Mahmud Shaltut, Muhammad Sayyed Tantawi o Nasr Farid
Wasil (tutti Gran Muft dEgitto e Sheikh di Al-Azhar) sono tutti autori di testi importanti al riguardo, solo per menzionare qualche nome conosciuto a livello internazionale. Tutti questi eminenti esperti della shariah ritengono che paragonare il termine riba all'interesse bancario sia una discutibile ed impropria interpretazione delle regole del diritto musulmano. Abd al Munim Al Nimr, ex ministro degli Habous dEgitto, ci spiega meglio con queste parole: Il divieto del riba giustificato dal torto che si arreca al debitore. Ma, poich non si arreca nessun torto alle persone che depositano soldi in una banca, linterdizione del riba non si applica ai depositi bancari.. Ragionamenti simili sono utilizzati in diversi altri aspetti delle operazioni bancarie.
Limitando il concetto di riba allusura, come fanno questi eminenti giuristi islamici, la banca moderna non pi coinvolta dalla questione del riba, in quanto non pratica lusura. Ed proprio questa lopinione marocchina in materia. Quanto allaffermazione secondo cui le attivit delle banche islamiche non implicano alcun interesse, ci solleva una questione di fondo. Secondo alcuni, queste banche si limiterebbero, in certi casi, a rielaborazioni verbali, sostituendo una parola ad unaltra (utile invece di interesse, per esempio) o frazionando la stessa procedura in passaggi distinti (per esempio stesura di due contratti al posto di uno solo), per raggiungere i loro scopi lucrativi, pur rispettando, in apparenza, le prescrizioni della shariah. Ci farebbe parte delle hiyals [astuzie giuridiche] nelle quali i teologi musulmani sono divenuti maestri nel corso dei secoli. Ecco lesempio di un musulmano, residente negli Stati Uniti e che, cercando di comprare una casa
tramite prestito bancario, si rivolto simultaneamente sia ad una normale banca americana che ad una banca islamica operante negli Stati Uniti per avere un preventivo sul costo complessivo dell'operazione. Con sua gran sorpresa, ha scoperto che il preventivo della banca islamica era pi elevato di quello della normale banca americana. Cos si rivolto ad un sito internet islamico, per cercare di ottenere una spiegazione. Un teologo famoso gli ha risposto che c'erano ancora poche banche islamiche operanti negli Stati Uniti, per questo motivo i preventivi di queste ultime erano pi alti. Ha poi continuato assicurando che la situazione sarebbe sicuramente migliorata in futuro, quando ci sarebbero state abbastanza banche islamiche attive sul territorio americano da obbligare loro ad abbassare il prezzo delle prestazioni per via della concorrenza. Il problema, pur importante, che il teologo non ha affrontato nella sua risposta, il seguente: Se il preventivo della banca islamica, che non applica interesse, superiore a quello di una normale banca che ne applica uno, qual il vantaggio per il consumatore che si rivolge ad una banca che
non applica il tasso di interesse assimilato al riba, visto che questa stessa banca gli fa pagare commissioni e spese per un importo superiore a quello delle normali banche, che utilizzano invece il tasso di interesse? Alla fine, bisogna ben constatare che il prestito senza interesse della banca islamica risulta pi costoso (o nel migliore dei casi caro allo stesso modo), del prestito a interesse della banca convenzionale. Di sicuro questo non l'obiettivo perseguito dall'islam, quando denuncia la pratica del riba. * Economista (Universit di Parigi e Universit di Pittsburgh, USA), ha svolto prima la funzione di consulente economico a Washington D.C., poi di responsabile alla Banca Mondiale, prima di specializzarsi nella realizzazione di nuovi progetti nel suo paese.
Traduzione dal francese a cura di Rosa Penna (20/11/2007 - Redazione)

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Traduzione dal francese a cura di Rosa Penna (20/11/2007 - Redazione)

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