Friday, November 21, 2008

Of Social Contracts

Back. I've been busy, travelling.

Remember that book from Poli-Sci 101 ? Jean-Jacques Rousseau ? I received the special issue of Al Ahram on Social Contract... Here's an article that I recommend, about Egypt and Sharia law, and below the comment I sent, titled "Yes, We Can".

On another forum I've had lots of reactions to this comment. A surprising number of people mistake secularism with the absence of religion, rather than a way to treat all religions equally. I'll follow up on that. Any lawyers ?


Yes, We Can !

I was interested by your article "The absent woman" on Sharia and civil law in Egypt. 

In the same article you talk about social contract and about Sharia. You make the point that the rank of women as second-class citizen in the civil law stems from a misinterpretation of the Sharia, and you make call for a new, more "modern" interpretation of Sharia. I am sure that none of your assumptions were commanded by political correctness rather than sincere beliefs, therefore I'd like to go further and ask a question.

Do you have a social contract with Sharia ? Should every citizen have one ? The concept of social contract involves, at least symbolically, that every citizen agrees to some form of contract, and that is clearly materialized in a democracy, where citizens make the law and therefore willingly submit to it. But citizens didn't write the Sharia, God did.

As you said, the current interpretation of Sharia may contradict the very constitution it's embedded in. In fact it does contradict even higher laws: the Universal Declaration of Human Rights, binding all member States of the United Nations, including Egypt. Which is why some members, including Egypt, decided to re-write it, or write their own Declaration of Human Rights, no more "universal", but suitably the "Cairo Declaration of Human Rights" according to Sharia, or Human rights in Islam. There is no universality any more for the member states of the Organization of the Islamic Conference who signed this text.

They were bothered by a certain number of universal rights, especially articles 16 and 18, for instance, so... they changed them:
Article 16 of the Universal Declaration of Human Rights (1948)
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Marriage shall be entered into only with the free and full consent of the intending spouses.
The Islamic conference's declaration, in turn, gives men and women the "right to marriage" regardless of their race, colour or nationality, but of course not religion. That is not subject to interpretation. Whichever way you turn that rule, marriage is strictly regulated by Sharia.

Same for Article 18: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief". Of course, no muslim country can accept that, because apostasy is a crime, according to Sharia, and freedom of conscience does not exist.

The preamble of the Cairo declaration states that "All men are equal in terms of basic human dignity", whereas the Universal Declaration said "rights", Article 6 of the Cairo declaration states that women are guaranteed equal dignity, in contrast to the Universal declaration which offers equal rights. These are just a few examples of the differences between the two Declarations.

As you can see, your observations on women being "less equal than others" could also apply to non-muslims. That is inevitable, since Sharia is stated as a source of the law: one religion above the others.

Therefore, the inevitable conclusion if one wants equal rights among all citizens is that civil law and Sharia cannot live in the same text, nor be enforced by the same entity, however liberal the interpretation. The State has to choose one or the other to be consistent. Sharia is an individual choice, guided by faith, not to be forced unto the people by means of a civil code.

There are moderate muslims who live perfectly happy in Western societies, they live according to their faith, and according to a law that grants rather more equal rights than in Egypt. Why is that possible in the West ? Because it happens in open societies where religion and State are separated clearly.

It appears that your assumption that "Religion is an ally to equal citizenhip" is a vastly overstated one, or wishful thinking. I appreciate your call on scholars to bring an interpretation more suitable to the times. But what if, in their vast majority, they think the current interpretation should not be changed ? And you still submit the fate of the people to those unelected scholars. Which ones have the authority ?

I liked your attack on a so-called "Eastern Identity", for I can hear the criticism of a secularist model in the Middle East: "our Eastern identity is not ready for this. We have to keep our Sharia as a law, because our people want it and it's part of our identity." Is it ? Surely, Christians could have said the same when the Church and the State were separated in the West, and they did. But change happened, enforced by political courage. What is and what is not "Eastern Identity" ? Is it really religion ? What about minorities then ? 

A telling reality all over the Middle East is the existence of a line "Religion" in all ID papers and passports. What is the necessity for the State to record that information, if not to sort citizens and treat them differently in various situations ?

You mention that the responsible of the inequality between men and women is the patriarchal set of customs, rather than religion. But what if patriarchal rules were an inherent part of many major religions, including Islam ? It is a possibility that should not be ignored.

Some rules are not to be "re-interpreted", but simply erased, like of course were erased the practice of stoning or chopping hands. But, is it still Sharia, if it was expurgated from the most embarrassing passages ? Can one pick and choose ? Justice and common sense always run the risk of being overrun if they contradict the religion of a majority. Can religion be separated from State in the Middle East ? A lot of local friends say "this is the way things are around here, and no one can change it with a magic wand". The question is: do you want to change it ? Are Middle Eastern people fundamentally different from the western ? I beg to differ.

Someone whose middle name is Hussein recently said something very inspirational to all of us about change. Wherever we live, whichever society, whichever social contract or environment. Can we change it ? Can we change ourselves ? That gentleman responded: "Yes, we can."