A little over a year ago, Iraq’s Cabinet approved a draft personal status law for the Shi’i population. Though never enacted, one never knows what the future holds, and besides, a careful, thorough scholarly analysis of the law was absent, and it deserved some consideration.
Suffice it to say, I didn’t like the law, and not just because it was atrociously drafted, a point I’ve made here. My position on the draft, and its relationship to the actual Ja’fari fiqh, has been posted in a draft article on SSRN, to be published with the Arizona Journal of International and Comparative Law. Abstract lies below. Happy reading!
There is a regrettable tendency to equate social conservatism with religious adherence. Nowhere does this occur more than in the Muslim world, where conservatives are closely associated with adherence to shari’a. The more unyielding the conservative, the “stricter” the supposed adherence to shari’a, or, alternatively, the more “literal” the version of shari’a adhered to.
While almost any social conservative movement in the Muslim world or otherwise professes adherence to religious doctrine as being the core of its ideological commitment, and while there are important ways in which Muslim social conservatives insist on adherence to religious rules in their most traditional forms, it is a mistake of category to equate the two. Religious doctrine does not always motivate Muslim social conservatives, and the commitments of those social conservatives often derogate from the demands of doctrine.
The divergence between the two becomes particularly obvious in the context of the drafting of Islamic legislation that is intended to reflect historic and traditional Islamic rules. A particularly important example of this lies in the subject of examination of this Article—the recently promulgated draft “Ja’fari Personal Status Code” in Iraq, designed to rewrite the rules of personal status (encompassing primarily family law, wills and inheritance) for Iraq’s Shi’i population. The goal was ostensibly to bring those rules into conformity with long established Shi’i juristic interpretations of Islam’s sacred texts, in a Sunni dominated state that had spent decades repressing Shi’i jurists and marginalizing the rules they promulgated.
Given the motivations of the project (to comply with a longstanding Shi’i demand to change the law to conform more closely to juristic rules), and given that within Shi’ism, the juristic rules are pronounced by modern authorities who continue to retain extremely high levels of legitimacy, one would expect that faithful and close adherence to religious rules would follow in this context if no other. Yet no such faithful adherence is found, and in fact the divergence from doctrine is so stark that the jurists themselves ultimately denounced the draft.
Using examples such as prostitution, child marriage, slavery and female genital mutilation, the Article demonstrates the manner in which the draft Code diverges in significant ways from historic Shi’i doctrine in order to defer to preferences and commitments of socially conservative traditionalists who would otherwise claim adherence to the doctrine. It also shows that this sort of deference is exercised not only by lawmakers who seek to curry favor with conservative constituents, but that even the jurists themselves often downplay or obfuscate their own rules when they are aware that such rules are unlikely to be received with very much enthusiasm by the devout who profess, but do not practice, absolute devotion to them.
The Article concludes with the observation that the perduring notion that conservatives seek “strict”, “pure” or “literalist” shari’a, while liberals wish to “reform” it is not only false, but also dangerous. This broad presumptive equivalence between close adherence to shari’a and Muslim social conservatism privileges the ideological preferences of the social conservative over those of the liberal in a manner that renders it all the more difficult to engage in meaningful religious reform within the Islamic tradition.