The term ‘general’ is usually
used to describe family laws, introduced by colonial rulers that were neither
wholly based on local custom (urf) nor, on the whole, on conceptualization of
Muslim Family. Family law, a civil law, was also referred to as ‘secular’ law.
In fact, these laws were mainly raised on Christian conceptualisation of the
family.
In other Muslim political, geographical or societal entities, even out-side the
total colonial clasp, the spirit of the Muslim Family had been obscured, with
time, by ignorance and gender biased arrogance.
Therefore, prevailing legal systems and realities of family relationships, in
Muslim world, are very contextual.
Family law is the most, politically and socially contested issue, in Muslim
contexts. It holds the key to realisation of women rights across all aspects of
their lives.
Family Law reform has to be examined in totality of its impact on Muslim Family,
-as a unit, and
-all members of society,
but not just on a spouse (e.g., only the first or the subsequent) or just on one
class for whom the reform is pressed.
There is distinction between reform efforts based on re-conceptualisation of
Muslim Family relationships and those merely trifling with incoherent pieces.
A comprehensive approach is required for proper
-re-conceptualisation, and
-re-capitulation of the Muslim Family
that calls for an end to outmoded and unsuccessful relationships between
-the dominant, and
-the subordinate,
and their replacement by:
-spousal bonding (zawaj: Quran 2:35, 4:1),
based on
.. mawadah (love: Quran 30:21), and
..sakanah (harmony: Quran 30:21),
..protected (hassan: muhsin: Quran 4:24, 5:5)
in one seamless sheaf (labas: intimacy),
.. mutually consented, and
contracted (aqad),
in order to ensure relationship based on:
-equality and justice (masawaat), as equal human partners (human rights,
fundamental rights),
-adl (appropriate place to each, gender constants (regularities or specifics) in
socio-economic equations,
-recognising extent or measure (darajaat) of physical, biological and
physiological differences, in assigning responsibilities, accordingly, to each
(women human rights).
The system and the society, in order to work in harmony, have also to provide
for compatible space for inter-community options, confirming to human rights and
international norms.
The state and its central superior structures of sovereignty, i.e., the
sovereign, and the legislature, have to contain themselves to legislation in
accordance with the Quran and the Sunnah, and not side-lean with details of fiqh.
The other organs of state, particularly judiciary (judge) and other leading
stake-holders, particularly jurist (faqeeh), have to fill and cover the entire
operational space of the legal system and the administration of justice by
-research and evidence-based interpretation (ijtihad):
Ijma-Qiyas-Ijma…
-formulation (fiqh: jurisprudence), and
-application of the positive law (codified law), both
..substantive law, and
..procedural law,
based on
…masdar (source: the Quran and the Sunnah),
Jurisprudence (fiqh), covering both,
-the main body, and
-the branches (furu),
has to be traced on usul-ul fiqh, by appropriately applying tools of
-istihsan,
-istislah,
-istis-han,
-takhayyur,
-urf,
-talfiq, and
so on, in conformance with
-principles of Shariah, and
-maqasid-al Shariah.
(Also see Cassandra Balchin, Family Law in Contemporary Muslim Contexts:
Triggers
and Strategies for Change.)