Islamic Law, Women's Rights, and Popular Legal Consciousness in Malaysia, Tamir Moustafa

Although legal consciousness research typically relies on ethnographic and interpretive methodologies, in this article, Tamir Moustafa adopts a different approach in his study of women’s rights consciousness in Malaysia.

Based on the results of this survey, Moustafa concludes that Muslims in Malaysia tend to misunderstand Islamic law and believe erroneously that it denies women their rights or narrowly circumscribes them. In fact, Islamic law consists of both shari'a and fiqh, the former referring to the immutable word of God and the latter to human interpretations. Since humans are fallible and far from omniscient, their efforts to interpret the law are never conclusive or free from errors. Thus, most of the Islamic legal canon is dynamic, ever-evolving, and open to debate. It is not binding as state law, nor should challenges to it be regarded as sinful. Nevertheless, as Moustafa’s survey reveals, most Malay Muslims believe their narrow view of women’s rights is a fixed and immutable aspect of Islamic law and therefore beyond debate, regardless of women’s status under state law or international law.

For a more detailed and grounded discussion of Islamic law in modern state regimes, readers are referred to readings by Arskal Salim and by Tamir Moustafa in Chapter 1 of this Reader.

In most Muslim-majority countries throughout the world, the laws governing marriage, divorce, and other aspects of Islamic family law have been codified in a manner that provides women with fewer rights than men. Yet despite this fact, the Islamic legal tradition is not inherently incompatible with contem­porary notions of liberal rights, including equal rights for women.

As a result, some of the most promising initiatives for expanding women's rights in the Muslim world today lie with the efforts of activists who explain that the Islamic legal tradition is not a uniform legal code, but a diverse body of jurisprudence that affords multiple guidelines for human relations, some of which are better suited to particular times and places than others. This approach represents a new mode of political engagement. While women's rights initiatives were almost invariably advanced through secular frameworks through most of the twentieth century, efforts to effect change in family law from within the framework of Islamic law have gained increasing traction in recent years. To varying degrees, women have pushed for family law reform within the framework of Islamic law in Egypt, Iran, Malaysia, Morocco, and many other Muslim-majority countries, opening up a new terrain for popular discourse and, in some cases, producing concrete and progressive legal reforms.

When women's rights organizations push for the reform of family law codes, however, they almost invariably encounter stiff resistance due to the widespread but mistaken understanding that Muslim family laws, as they are codified and applied in Muslim-majority countries, represent direct com­mandments from God that must be carried out by the state. As leading Muslim women's rights activist Zainah Anwar explains: “Very often Muslim women who demand justice and want to change discriminatory law and practices are told �this is God's law' and therefore not open to negotiation and change.”^[CXIII] For many lay Muslims, the state's selective codification of Islamic law is understood as the faithful implementation of divine command,

171 full stop.

This difficulty faced by women's rights activists is symptomatic of a larger problem with which scholars of Islamic law have been concerned for quite some time. Specialists in Islamic jurisprudence and Islamic legal history are often dismayed by the disjuncture between Islamic legal theory and popular understandings of Islamic law. In its classical form, Islamic legal theory (usul al-fiqh) was marked by its flexibility, its commitment to pluralism, and, most notably, the fact that Islamic law was not binding as state law. Yet in contem­porary political discourse, large segments of lay Muslim publics are swayed by the notion that Islamic law is uniform and static, that it should be enforced by the state, and that neglecting such a duty constitutes a rejection of God's will. These informal obstacles to family law reform underline the critical import­ance of “legal consciousness,” defined by Merry as “the way people conceive of the �natural' and normal... their commonsense understanding of the world.”^[114] [...]

The survey confirms that there is a significant disjuncture between funda­mental conceptual principles in Islamic legal theory and how those concepts are understood among lay Muslims in Malaysia. [... ]

Shari�a versus Fiqh: Conflating Divine Will with Human Agency

The first statement presented to respondents was, “Islamic law changes over time to address new circumstances in society.” As previously explained, this statement represents a core concept in Islamic legal theory.

table i. The Nature of Islamic Law in Popular Legal Consciousness

same issue in more grounded terms: “Each of the laws and procedures applied in the [Malaysian] shari�a courts is clearly stated in the Qur'an.” It is striking that 78.5 percent of respondents agreed with the statement, while only 15.3 percent disagreed. [...] [V]ery few of the laws and virtually none of the procedures applied in the Malaysian shari�a courts are found in the Qur'an; rather, the laws applied in the shari�a courts are at most a codified version of fiqh, which itself is not uniform on most principles of law and is the product of human reason, not direct divine command.

These misconceptions are not merely significant in a religious sense. Because Islamic law is used extensively as an instrument of public policy, popular misconceptions about basic features of Islamic jurisprudence have significant implications for democratic deliberation on a host of substantive issues, of which women's rights is just one important example. When the public understands the shari�a courts as applying God's law unmediated by human influence, people who question or debate those laws are likely to be viewed as working to undermine Islam. Indeed, it is the presumed divine nature of the laws applied in the shari�a courts that provides the rationale for criminalizing the expression of alternative views in the Shari�a Criminal Offenses Act. As a result, laws concerning marriage, divorce, child custody, and other issues critical to women's well-being are difficult to approach as matters of public policy. The Malaysian women's rights organization Sisters in Islam has identified public misunderstanding of core principles in Islamic law as the most formidable obstacle that it faces in its pursuit of progressive family law reform. For this reason, Sisters in Islam conducts a variety of public education programs with a central focus on reconstructing the critical distinc­tion between shari�a and fiqh in public legal consciousness.

Islamic Law As Legal Method or Legal Code?

A second and related set of survey questions probed whether Malaysian Muslims conceive of Islamic law as uniform in character, with a single “correct” answer to any given issue or, alternatively, whether Islamic law is understood as providing a framework through which Muslims can arrive at equally valid yet differing understandings of God's will. Perhaps the best way of approaching this issue is by assessing popular understandings of the con­vention of the fatwa.

To explore this issue, respondents were asked a series of questions focused on the convention of the fatwa. First, respondents were asked: “If two religious scholars issue conflicting fatwas on the same issue, must one of them be wrong?” The majority (54.2 percent) of respondents answered yes while 39.5 percent answered no. In one sense, this majority response is in harmony with Islamic legal theory: most fiqh scholars believe that there is a correct answer to any given question, but that humans can never know God's will with certainty in this lifetime. However, in another survey question the same respondents were asked: “Is it appropriate in Islam for the �ulama to issue differing fatwas on the same issue?” On this question, 40.5 percent answered yes while the majority, 54.2 percent answered no. Taken together, responses to the two questions suggest that most respondents believe that there is a single, “correct” answer for any given issue and that religious scholars can and should arrive at the same answer in the here and now. In other words, most lay Muslims in Malaysia tend to understand Islamic law as constituting a single, unified code rather than a body of equally plausible juristic opinions. (See Table 2.)

The finding that most lay Muslims understand Islamic law as a legal code that yields only one correct answer to any given religious question, rather than a legal method that is capable of producing equally plausible opinions from different scholars, is a testament to how comprehensively the modern state, with its codified and uniform body of laws and procedures, has left its imprint on public legal consciousness. Only about 40 percent of the population appears to conceive of the possibility that two or more opinions can be simultaneously legitimate on any matter in Islamic law, a remarkable table 2. Uniformity or Plurality of Islamic Law in Popular Legal Consciousness

Do Not

Question Yes No Know

If two religious scholars issue conflicting fatwas on the ⁰.542 0.595 0.062

same issue, must one of them be wrong?

IsitappropriateinIslamforthe �ulama to issue different 0.405 0.542 0.050

fatwas on the same issue?

divergence from core axioms in Islamic legal theory. As with the previous set of questions, this finding has deep implications beyond private religious belief. Because important matters of public policy are legitimized through the framework of Islamic law, the vision of Islamic law as code rather than Islamic law as method narrows the scope for public debate and deliberation.

This dynamic is again illustrated in concrete terms by the challenges faced by women's rights advocates in Malaysia. The nongovernmental organization Sisters in Islam works to advance women's rights within the framework of Islamic law by drawing on the rich jurisprudential tradition within Islam. Rather than accepting the specific codifications of fiqh that have been enacted as state law, Sisters in Islam examines the variety of positions in Islamic jurisprudence on any given issue, in the context of the core values of justice and equality that Islam affirms. For example, Sisters in Islam has lobbied the government to permit women to stipulate, in their marriage contract, the right to a divorce should their husband marry a second wife. While the Shafii madhhab does not afford women the opportunity to make such stipulations in the marriage contract, the Hanbali madhhab does. Why, Sisters in Islam asks, must Malaysian family law conform to the Shafii madhhab on this point of law when the Hanbali madhhab affords a more progressive opportunity to expand women's rights? These women's rights advocates highlight the fact that fiqh is not a uniform legal code. Rather, it is a diverse body of jurisprudence that affords multiple guidelines for human relations, some of which are better suited to particular times and places than others. In a state where Islamic law has been codified as an instrument of patriarchal public policy, Sisters in Islam thus engages conservatives on their own discursive terrain. The common response to women's rights activism that “this is God's law” is thus challenged by the powerful rejoinder that, on most questions of law, Islam simply does not provide a single legal opinion.

Unfortunately, this approach is again stymied by popular misconceptions of Islamic law. To the extent that Islamic law is understood as a fixed and uniform code, with only one correct answer for any particular issue, women's rights advocates face an uphill battle in convincing the public about the possibilities for legal reform, even within the framework of Islamic law. The fact that 78.5 percent of lay Muslims in Malaysia believe that each of the laws and procedures applied in the shari�a courts is clearly stated in the Qur'an, which Muslims consider the direct word of God, indicates the public's weak grasp of Islamic legal principles as well as their weak knowledge of the basis of Malaysian public law. The collapse of the distinction between shari�a and fiqh in popular legal consciousness makes it extremely difficult to propose alterna­tive interpretations, even when they are equally legitimate in Islamic law. [...]

Conclusions

[...] The data suggest that there is a significant gap between the epistemo­logical commitments of Islamic legal theory and how Islamic law is under­stood among lay Muslims in Malaysia. The findings indicate fundamental misunderstandings of basic principles in Islamic jurisprudence - misunder­standings that blur the distinction between shari�a and fiqh. Whereas Islamic jurisprudence is marked by diversity and fluidity, Islamic law is understood among most Muslims in Malaysia today as singular and fixed. Implementation of a codified version of Islamic law through the shari�a courts is understood as a religious duty of the state, and indeed it appears that most Malaysians believe that the shari�a courts apply God's law directly, unmediated by human agency. Likewise, unquestioned deference to religious authority is assumed to be a legal and religious duty among most Malaysians.

Given the nature of popular legal consciousness in Malaysia, it is no wonder that women's rights activists have encountered such difficulty in mobilizing broad-based public support in their efforts to reform Muslim family law codes. It is also not surprising that they often find themselves on the losing end of debates with conservatives, regardless of the strength of their arguments. Women's rights activists, even those operating within the frame­work of Islamic law, are easily depicted by their opponents as challenging core requirements of Islamic law, or even Islam itself. Conversely, the discursive position of conservative actors is strengthened by popular misunderstanding of epistemological commitments in Islamic law. Religious officials, political parties, and other groups wishing to preserve the status quo can easily position themselves as defenders of the faith, given popular understandings of Islamic law as singular and fixed. [...]

Despite the fact that a smaller share of the general public understands Islamic law as plural, flexible, and shot through with human agency, the survey data provided some reassurance that popular legal consciousness is not monolithic. More importantly, the survey data can provide valuable insights into how popular legal consciousness varies across levels of income, education, age, sex, region, and urban-rural divides. Armed with such data, women's groups can target their limited resources more effectively. Moreover, they can use this data as a public education opportunity by helping to highlight the myths and realities of Islamic law, women's rights, and public policy in contemporary Malaysia.