NEW ORLEANS, Louisiana, 28 February 2004 — The Shariah, the laws that govern Muslims, is divinely ordained. Iraq’s 25-member Governing Council wants to do nothing less, but also nothing more, than have Shariah be the law of the land in Iraq.
But US President George Bush and his man in Iraq, Paul Bremer, say no. “Our position is clear,” Bremer announced. The Shariah “can’t be law” in Iraq “until I sign it.”
And chances of that happening appear slim.
The West believes that victors not only get the spoils of war, but get to author new laws of the land as well. However, Iraq’s powerful Shiite clergy has other ideas. They want the interim constitution to be determined not by Bush and Bremer, but by an elected legislature. And all popular indications are that under such a constitution, Shariah will be the fundamental law of Iraq.
Meanwhile, the Bush administration seeks to defeat the Shariah’s reception into Iraqi law by manipulating the very heart of Muslim society — its family life, and its women.
Supposedly at issue is Iraq’s 1959 Law of Personal Status granting uniform divorce rights to husband and wife. This past December, Iraq’s council passed a decision abolishing the 1959 law and permitting each of Iraq’s main religious groups to apply its own traditions, including the Islamic law. Forty-five members of the US House of Representatives immediately dashed off a letter to Bush, urging him to “preserve” women’s rights in Iraq, rejecting the Shariah.
How odd that the US House of Representatives seeks to discredit the Shariah. For one thing, historically the Shariah liberalized the traditional divorce laws for Middle East women, which in many cases were far more oppressive. And while it may be easier for a woman to get a divorce in Reno, Nevada, divorce laws across the United States are far from uniform. In fact, while Shariah-based divorce is over a thousand years old, divorce is a rather recent Western social innovation generally.
Especially in Catholic Europe.
So why did the US House of Representatives never champion oppressed European women?
Ireland’s 1937 Constitution banned divorce outright. A national referendum lifted Ireland’s divorce ban only in 1995, passing by as few as 9,000 votes out of more than 1.6 million votes cast — less than half a percent. And in Ireland, which is more than 90 percent Roman Catholic, the measure passed only following a media blitz ordered by then Prime Minister John Burton, who proclaimed: “The government is asking you to vote ‘Yes!’” When Irish anti-divorce groups responded with the haunting slogan, “Hello Divorce, Goodbye Daddy,” and Ireland’s own Supreme Court ruled that the government’s pro-divorce ads constituted an unauthorized interference with the democratic process, the prime minister changed his ads to simple “Be sure to vote!” messages.
Ireland’s pro-divorce campaign was victorious only by the narrowest margin in Irish history. Divorce was eventually fully legalized in 1997, but is only granted when the couple has lived separate and apart for four out of the previous five years before the application to divorce was originally made.
Such obstructionism makes Shariah divorce provisions look positively progressive. But did the US House of Representatives seek to involve itself in Ireland’s internal social affairs? No.
Until1978, Roman Catholicism was the national religion of Spain, which finally legalized divorce in 1981. Far from targeting Spanish women as a group in need of protection, the United States took no position on the ability of Spanish women to divorce. But the effects of legalized divorce in Spain have alarmed nationalists of all factions. Divorce made women’s employment soar and their fertility correspondingly decline as never before. Spain now has one of the lowest fertility rates in Europe. Population growth in 1999 was a miniscule 0.1 percent.
But again, the US House of Representatives did not venture an opinion on what this might mean for US policy in Spain and its interests in promoting the legal rights of Spanish women. Why not?
Italy legalized divorce only in 1970, confirmed by a popular referendum in 1974. The typical waiting period was five years until 1987, when laws reduced it to three years. The Roman Catholic Church directly intervenes in diminishing divorce for Catholics generally but especially for Italian Catholics. The Pope recently demanded Catholic lawyers should refuse to handle divorce cases.
The Pope also averred that Catholic judges should avoid hearing divorce cases, and where they had no choice, should always rule in favor of reconciliation.
Italy’s newspapers accused the Pope of being a closeted Islamic terrorist: “With all due respect to a great Pope...his appeal for conscientious objection against divorce...can be compared to the Taleban’s extreme resistance in Afghanistan,” screamed an editorial.
But the Pope’s view was supported by Italy’s Northern League, part of Prime Minister Silvio Berlusconi’s coalition, which called “divorce a move which is being abused.”
Where was the US House of Representatives when Irish, Spanish, and Italian women needed it? Clearly, US policy left foreign divorce laws and matrimonial regimes in the hands of the people who had to obey them. Why not afford Iraqis the same autonomy? Could it be the difference between being Catholic, and being Muslim?
— Sarah Whalen is an expert in Islamic Law, and taught law at Temple University School of Law in Philadelphia and Loyola Law School in New Orleans, Louisiana. She is now writing her first book, and guest-lecturing on Islamic Law at universities and on radio shows throughout the southern United States.
