THE POLITICISATION OF ONTOLOGICAL QUESTIONS:

Discourses, Subjectivities and Muslim Family Law in Nigeria

By

SANUSI LAMIDO SANUSI

The desire of Muslims living in various epochs in different parts of the world to base their social order on Islamic principles has been a major stimulant to the evolution of discourses on Islam and modernity. Noel Coulson believes that Law has at least two distinct traditions. In "the classical tradition", the "law…postulates the eternally valid standards to which the structure of state and society must conform". The second view is one that sees the law's function as one of answering social problems. Consequently, the second group sees the law as "shaped by the needs of society." He then follows up with a critical comment:

What follows in this section is an analysis of this insightful statement, with a view to clarifying my own conception of the modernist project in Islam and its relation with (on the one hand) the classical tradition and (on the other) the political economy of modern Muslim societies. I trace the root of the debate to varying conceptions of the epistemic subject and discuss the political dimension of this ontological debate. In subsequent parts of the article I examine the relation between Muslim Family Law and subjectivity and follow up with a discussion of the topic in the Nigerian context.

At the level of epistemology, the conception of all Islamic Law as a static body of knowledge revealed at a point in time and space and binding upon all Muslims to eternity in its revealed form was subjected to strong challenge. The study of the history of the evolution of Law by Orientalists in particular has led to a greater appreciation of the role played by individual lawyers or mujtahids in its formulation. The recognition of the mujtahid as Subject is only a first step towards applying general philosophical principles to Islamic knowledge. The attempt by traditional scholarship to arrest the evolution of Law by "closing the gates" of ijtihad or independent legal reasoning, for instance, effectively confers on the founders of Schools of Law the status of the "disembodied" subject. The implicit assumption that they have asked and answered all questions for all time conjures the image of the transcendental subject, immune from history. The entire discourse of Islamic modernism, from Afghani onward, has focussed on the need for new Ijtihad. In philosophical terms it is a demand that Muslim thought recognize at the minimum the Subject in its Hegelian construction, as a finite, concrete object of history, whose knowledge and capabilities are bounded by the realities of historical existence. The belief in an unworldly metaphysical subject, be it in the form of the Cartesian cogito or the Kantian moral subject, presupposes the tenability of Man standing above history, conquering all spatio-temporal limitations. The rejection of this humanism takes the form of arguing for an "embodied" subject, existing "concretely and materially in the midst of the world" and "influenced, affected and conditioned by history." Indeed long before Hegel, the importance of reading scripture and narratives in light of concrete history was stressed by the Muslim historiographer, Ibn Khaldun.

The nature of Islamist modernist discourse renders the term "modernity" problematic in terms of the images conjured with regard to what became known as "modern philosophy" in Europe. If Descartes marked the beginning of modernity in western philosophy, the principal epistemological revolution of the Meditations lay in his "dualism" which sees human beings as made out of the union of two incommensurable substances, res cogitans (thinking substance) and res extensa (extended corporeal substance). By claiming further that the rational soul cannot be derived from matter but is, rather specially created by God, Descartes sets the stage for his metaphysical view of human beings. From there it was a short step to the emergence of a new "Archimedean Point" for knowledge and ethics: Man (with a capital M). Man became a transcendental, narcissistic subject at once of this world and above it, at once capable of cognition of his circumstances and immune from them. Although Descartes himself took pains in the Meditations to "prove" the existence of God, modern philosophy after him simply took the birth of Man as marking the death of God.

No argument that discountenances God as the foundation of knowledge and of ethics can remain within the ambit of Islamic discourse. Modernism in Islam is therefore neither humanism nor secularism. The irony in Islamist discourse is that it is the classical tradition (or, more correctly, the neo-fundamentalist tradition) in the form it came to take as advocacy for the fixity and eternal validity of the totality of Islamic Law, which is comparable in a sense to European humanism. By pretending that the historical interpretations of jurists have eternal validity, this tradition treats the early lawyers in much the same way Man came to be seen in modern philosophy, even though in theory the concept of infallibility of any man other than the Prophet was denounced by mainstream Sunnism. The principal difference is that Muslim scholarship never abandoned God as the prime metaphysical source of existence, knowledge and values.

In challenging this conception of knowledge and ethics the modernist trend in Islam is closer to what is now referred to as post-modernism, with some pertinent qualifications. It shares with all of Islamic thought a retention of belief in God, and in the ultimate metaphysical source of revelation. However, by insisting that the early lawyers were embodied subjects and thus limited in their capacity to know by their spatio-temporal existence, modernism in Islam challenges the static totalisation of Muslim discourse and opens the door to change. The movement of man through space and time leads to a dialectical process of interrogation and counter-interrogation between Law and the social. The Law continues to demand that society conform to its core values while society demands of the Law relevance to its changed situation.

Thinking of the contact between Muslim Law and Modernity in these terms however is just the beginning of a very complicated process. It is one thing to insist on the Death of Man as co-foundationalist with God, and a different thing to replace him. It is not sufficient to assert that the early scholars were imprisoned by history. Modern scholarship must actually determine, ab initio, the nature of this constriction and produce evidence supporting its hypothesis. It seems to me that, at least in theory, there can be as many approaches to the study of Islam and Modernity as there are conceptions of the limits of subjectivity. This statement needs to be explained.

In developing a critique of traditional thought reform-minded thinkers have been conscious of a need to maintain an essential link with basic sources. To the extent that a writer considers himself bound by faith to the primary sources of the law, or (in the case of the non-Muslim) recognizes the role of the sacred texts in defining the possible limits of knowledge, the debate is not unbounded and the epistemic chain not disrupted. The modern attempt must found itself on some link, no matter how tenuous, with the original sources for it to have legitimacy. What this means in reality is that the engagement between the classical tradition and modernity has been on the first level one of defining the limits of that which is human, and that which is from God. This is the essence of Coulson's statement quoted above.

In certain cases, reform has involved attempts at changing the ground rules of jurisprudence, by redefining the extent to which a particular source is binding, or narrowing the scope of its application or even meaning. Modernist thinkers like Muhammad Abduh and Rashid Rida adopted a salafi approach of narrowing the scope of binding law to the Qur'an and authentic Sunnah (or traditions). Rida, in particular, was deeply involved in hadith criticism, contending that even where a tradition had a sound chain of transmitters (isnad) its content should be rejected if found to be rationally or theologically objectionable. Sudanese Republicans led by Muhammad Mahmud Taha further narrowed eternally binding sources to the revelation before the Hijra (migration) of the Prophet to Madina. Revelations after the Hijra were historicised and considered a specific application of law in a particular context. Taha's thesis is that the law in its Madinan stage represented God's response through the Prophet to the specific needs of the Muslim community in time and space, pointing as evidence to the differences in temper of the two revelations (pre and post-hijra). Daniel Madigan seems to endorse this position through his hermeneutic examination of the Qur'an's own references to itself as a kitab. He argues that contrary to the general belief that the Qur'an considers itself as a completed book, the term kitab in fact means it considers itself an on going process of Divine "writing" and "rewriting" as God's authoritative response to actual people and circumstances. Fazlur Rahman insists that the traditional view fails to take cognizance not only of the general conditions of Arabia at the time of the revelation of the Qur'an but the specific historical situation to which a particular revelation was addressed.

It is only by separating the historically specific from the general that we can understand the Qur'an's own weltanschauung and maintain its coherence and internal consistency. Bassam Tibi has suggested that the Islamic jurist of today can learn a lot from the European concept of "the legal norm", which "has an existence independent of social reality within its fundamental sphere of validity". He borrows the term "flexibilization" from German juridical debate to support his thesis that "recourse to the same laid-down law can have a different content in different times and different systems." Tibi's thesis, like Rahman's, revolves around historicisation of Islamic jurisprudence and reinterpretation over time and space.

By defining the limits of that which is from God, and therefore considered eternally binding, all of the interpretations, additions, commentaries, opinions and embellishments falling outside these limits are open to interrogation. The debates on the position of the Sunnah (PropheticTradition) and Ijma' (Consensus), as well as questions on the nature of Prophetic infallibility (or in Shiite discourses the infallibility of the Imams) all go to the heart of precisely what may or may not be subject to change. Khomeini's theory of the Guardianship of the Juris-Consult, for instance opened up this debate among Shiite scholars because it extended to the faqih the rights of the Imam and resulted in the revival of Man as a metaphysical source of Law. The absolute power of the Leader in Iranian politics is a direct result of this innovation, leading to a constitution in which one man is above the elected president, the legislature and the judiciary. In this sense, Khomeini is not an Islamic modernist thinker since his Faqih, like the Cartesian cogito or the infallible Pope of medieval Catholicism, is effectively a transcendental subject.

It is clear from the above that Islamic modernism can never be a completely different narrative from the classical tradition. Both traditions accept, implicitly, the existence of God as the Transcendental Source of being, knowledge and ethics. Most scholars in both traditions also accept the position of at least part of the Prophetic Tradition (or Sunnah) as Undictated Revelation (wahy ghayr matluww). To this extent, Islamic modernism therefore also differs from what is known in contemporary philosophy as post-modernism. It shares with post-modernism a belief in the death of the humanist subject in all those areas identified as human constructions. It is however not in any way anti-foundationalist, and it certainly does not degenerate into the fragmentationalist posture that cedes to man the right to define his own private morality. The tendency of certain strains of post-modernism to degenerate into moral relativism and fragmentation is antithetical to all Muslim thought. Similarly, the concept of a liberal state that is ethically neutral and whose task is to create an environment in which every citizen is free to pursue his/her moral preferences without hindrance is rejected by Islam. Islamic ethics is metaphysical and does not recognise multiple versions of the truth. However, in a number of cases there is a dispute on what precisely constitutes a correct apprehension of this truth hence the conflict between modernism and tradition.

The attempts to break away from historical formulations and reinterpret the law in time and space are reflective of a desire to escape Man as a transcendental subject. However, without a specific conception of subjectivity, a critique of humanism merely results in replacing one metaphysical discourse with another. This immediately raises a question, ever so central to the entire debate, but always in my view brushed aside or conveniently ignored. I begin from the premise that it is doubtful, as noted by Caroline Williams, if the question of the subject can be viewed in isolation of the structure of the political. The reality of discussions on subjectivity is that epistemological issues are folded into political ones leading to a politicisation of ontological questions. I will explain.

Even a cursory examination of the debate between modernity and "tradition" within Islam would show that ultimately the central questions that define the contested arena are socio-political in nature. Many of the questions deal with human rights (including the rights of religious minorities in a Muslim state), the position of women in the family and society including their economic and political Rights, the class character of the state and questions of social and economic justice, etc. But there is a second, equally important issue. The debate within the Muslim world (including within sub-Saharan Africa) is no longer one held between western educated, "modernist" Muslims and traditional ulama without western education. The implementation of sharia in mainly secular emergent states is a matter determined by political forces. A number of movements have emerged in the Muslim world with an overtly political religious agenda. Of recent, these movements have degenerated into what Olivier Roy refers to as "neo-fundamentalism". As argued by Roy, Islamist movements have not abandoned the populist theme of a "return to Islam". What has changed is that…

…the revolutionary project of ideologically transforming the society is being replaced by a plan to implement the sharia and purify mores, while the political, economic, and social realms are challenged only in words. Women are denied participation in political life. The right to individual interpretation (ijtihad) has been surrendered. Today's Islamism, from which both political reflection and ascetic elitism have disappeared, focuses all its actions on filling daily life with morality and establishing the sharia. It replaces discourse on the state with discourse on society…

This picture of neo-fundamentalism, so vividly painted by Roy, is found in places like Nigeria where the "Islamisation" project is limited to implementation of Shariah penal code, defining the place of woman in public space and denying individual Muslims the right to ijtihad. In an unprecedented act of comedy one of the state governors in Northern Nigeria has decided to spend part of his poor state's meagre resources on the purchase of turbans to be worn by secondary school boys as part of their uniform. Neo-fundamentalism has appropriated what Coulson called the "classical tradition" in discourse for its political instrumentality, and thereby seeks to create a totalised, self-enclosed world view in which dialogue is arrested and dissent anathematized as being at variance with the truth.

My thesis is that at its core, the debate on the question of the Subject is largely a contest for political space. Many "conservative" scholars in reality seek nothing but the restoration or entrenchment of social relations and political structures inherited from the past. Many modernists seek to challenge these structures. The conflict between Iranian ulama led by Khomeini and Mutahhari on the one hand, and radical and liberal scholars like Shariati and Bazargan on the other was just one example. In January 1985 the leader of the Sudanese Republicans Ustadh Mahmoud Taha was executed for "blasphemy" by a government in which the Islamic Front led by Dr Turabi was a major participant. Taha had declared, among other things, that the "Islamic" laws of September, 1983 "violated…Islam itself" and made it repugnant; that they were enacted to terrorize the people into submission and that they discriminated against non-Muslim citizens who represented one-third of the country's population.

This position also holds true for debates on Muslim Personal Law. In northern Nigeria, which is the area of interest in this paper, there has been over centuries an intermingling between cultural practices and Islam to the extent that in many cases Muslim men and women take as a religious duty that which is a product of Hausa or Fulani culture. This is true of Nigeria as it is of the rest of the Muslim World where often, as noted by Rosander, "the line between indigenous custom and Islam is often ambiguous." According to this, we note that "local history and culture contribute to the religious practices and beliefs of Muslims around the world", leading to the perception of "tradition" as an "essential part of the local Muslim heritage". Schacht goes so far as to assert that "the laws which rule the lives of the Muslim peoples have never been coextensive with pure Islamic law, although this last has always formed an important ingredient of them." Although, like Rosander, Schacht's focus is on custom as the overriding reason for this, in reality "custom" itself is but a pseudonym for the dominant ideology or world-view in society. As argued by Imam, "societies characterised by class, gender, racial or other forms of hierachy are supported and legitimated by ideology." Imam's analysis of subjectivity is important for our purposes not least because her research was conducted in a concrete setting in Muslim Northern Nigeria. Three of her principal arguments will be mentioned here.

First, Imam shows that Discursive Formations "produce 'knowledges' which are given by the terms of the Discourse itself…and which pre-empt the space for and possibility of other 'knowledges' to be produced." Second, she affirms that "analysis of subjectivity is not limited to ideology as systems of ideational representations", but includes what is implicit in modes of action "in specific and concrete social structures." Finally she argues in the specific case of Hausaland that "Muslim identity was already part of the constitution of subjectivity" but the possibility always exists for the articulation of a particulat law or practice as a constituent of "Muslimness" by the dominant Discourses. In what follows we will examine the interplay of the factors discussed in this section in constructing discourses in Muslim Family Law in general, and in sub-Saharan Africa in particular.

Muslim Family Law, static as it has been in sub-Saharan Africa, has witnessed many changes in the Arab World and the Indian sub-continent where the spread of modernity, the emergence of educated women and the strengthening of subaltern feminist discourses have led to alterations in the dominant paradigm. The lack of dynamism in countries like Nigeria is a reflection of a general state of intellectual stupor and the dominance of a quasi-feudal, patriarchal discourse particularly in the Muslim North. It is becoming increasingly evident that not only among politicians and ordinary Muslim men and women, but also among the scholars, there is complete ignorance of the possibilities which exist and the actual changes taking place in Family Law in other Muslim lands.

In this section of the paper I intend to discuss three key areas. The first is the nature of texts (nusus) in family law and how they are particularly susceptible to subjective interpretation and deployment. The second is a brief review if the examples of change in family law in the Muslim world and the basis for such change. Finally I will indicate that in Nigerian Muslim history there have been periods in which reform-minded scholars engaged dominant discourses. However, for much longer periods the traditional view has held sway and this view is not being challenged by the logic of contemporary neo-fundamentalism.

I will then conclude the paper by predicting the direction discourse is likely to take and proffering suggestions for strategy.

Many of the Qur'anic verses dealing with family law are stated in language that has made them susceptible to subjective interpretations. For example, the verse endorsing Polygamy has been read by most of traditional scholarship as endorsing polygamy subject only to the man not fearing that he will be unable to deal equitably among several wives. On the other hand some have insistent that the permission to marry "two, three or four" is explicitly "conditional on the fear of behaving inequitably with….the orphans or husbandless girls in their charge." Similarly the same verse enjoins justice between the wives. While in most of Muslim History this has been left to the conscience of Muslim men, legal reforms in certain countries as we will see have transformed it into positive law insisting that a man show proof to a court of his ability to maintain wives equitably before entering into a second marriage.

Another example is the verse "men are qawwamun over women for what God has made some of them excel others and for what they spend out of their wealth". The Arabic term qawwamun has been translated by many, including Ibn Kathir, to mean men are the "bosses" of women. Al-Tabari also discusses many interpretations and concludes that the most appropriate is that men are in charge of or responsible for women. In a famous ruling in the 1980s the Supreme Court of Pakistan examined various translations of the word including "rulers", "masters", "holders of sovereign power", "persons having authority" etc but held that many were inaccurate. The court ruled that Qawwam is a derivative of qawama and means provider, supporter or furnisher for another with a means of subsistence. Eissa has argued that sexual stereotyping played a role in many exegetes' rendering of this word and two others in the same verse, "Qanitat" (Obedient women) and nushuz (disobedience). Her principal argument is that the acceptance by jurists of the patriarchal social order of the Muslim umma in the seventh century influenced the interpretations of the law which invariably "classed men as leaders and protectors of women , who were classsed as infantile and sexually vagrant." The argument is that the notion of gender supremacy is a pre-Islamic ideology revived in early Islamic thought after the prophet's death. This was both as a return to Arab custom and as a result of the entry through conquest of highly stratified, patriarchal feudal peoples like the Persians, for instance. In the words of Riffat Hassan:

The point here is that the dominant discourses, coupled with the positioning of the subject, have been central to the interpretations of texts in Islamic jurisprudence. In the 1920s Nazira Zin al-Din conducted her own indepth study of the Qur'an, Hadith and exegesis. She pointed out that in many cases the traditional interpretations of the texts were different and even contradictory and insisted that women were in the best position to interpret their own rights from texts. Her two books, al-Sufur wa 'l-hijab and al-Fatat wa 'l-shuyukh have been described as "perhaps the best scholarly studies available of Islamic texts and their interpretations dealing with women."

As is to be expected, the debate on the exegesis of verses dealing with women in personal matters is only part of the general discourse on women in Muslim society. The same process of questioning the authenticity of texts or the objectivity of exegetes has been going on in the analysis of the rights of women in public space. Imam's work dealt primarily with women seclusion practices in northern Nigeria. There has been, to give another example, robust debate on the authenticity and exegesis of Abu Bakra's narration from the prophet to the effect that "a nation which places its affairs in the hands of a woman shall never prosper". I have elsewhere reviewed the various interpretations of the hadith and critiqued the traditional position on Woman and political leadership.

These examples are by no means exhaustive but they serve the purpose of showing how some commentators have analysed the role of male subjectivity and gender stereotyping in the construction of Muslim discourses. It only remains to restate that although a number of texts have been interpreted from a misogynist perspective, many of the injustices against women are the product of custom and have no relation to the law. Schacht makes the point that "we find that even in the field of marriage, divorce, and family relationships actual practice has been strong enough to prevail over the spirit, and in certain cases over the letter, of religious law, either depressing the position of women or raising it." Coulson also posits that there has been a "tendency….to exaggerate the picture of Muslim wives labouring under the heavy shackles of the traditional law." The fact, according to him, is that "this was often not so much the direct result of the terms of the law itself as the responsibility of society."

What follows is a brief review of some of the reforms that took place in Muslim family Law as a result of the emergence of modernist discourses, with a view to drawing lessons for sub-Saharan Africa.

Coulson's work provides comprehensive coverage of reforms undertaken in the Arab Middle East and the Indian sub-continent to Muslim Family Law. It would seem from a reading of this and other sources, including court rulings, that these have taken a variety of forms.

Some reforms have taken the form of converting texts previously treated as moral guides (compliance with which was left to the sense of piety of the Muslim) into positive law. Others have taken the form of selecting (takhayyur) from the array of rulings (or fatwas) of early jurists the one that is considered appropriate to the emergent discourse of modernity and egalitarianism. Still others have taken advantage of the "silence" of texts on a particular matter to introduce desired legislation. I will give examples of each.

As examples of the first type of reform, we may mention the conditions on polygamy instituted in the Syrian Law of Personal Status of 1953. In this law the ability to support more than one wife in accordance to shari'ah is made a legal condition for polygamy. "The qadi may withhold permission for a man who is already married to marry a second wife, where it is established that he is not in a position to support them both." In Tunisia, it was argued that a close reading of the Qur'anic verses on justice among wives leads to the conclusion that monogamy is the Islamic ideal with polygamy allowed only in exceptional circumstances. Polygamy was therefore prohibited in 1957. In 1995 the High Court Division in Bangladesh ruled that a Muslim man is bound, after divorcing his wife "to maintain her on a reasonable scale beyond the period of Iddah for an indefinite period. That is to say until she loses the status of "divorcee" by marrying another person. This was based on the literal and immediate sense rendered by the Qur'anic text ( Surah 2: 240-242) : "For Divorced women maintenance should be provided on a reasonable scale. This is a duty of the Righteous"Another example is the institution of the Arbitration Council in Pakistan, to deal with matters of polygamy and repudiation under the Muslim Family Laws Ordinance of 1961. The Qur'an says: "And if you fear a breach between them, appoint one arbiter (hakam) from the people of the man and one from the people of the woman. If they wish to have a settlement then God will reconcile them…" In many parts of the Muslim world this provision has not been observed leading to arbitrary repudiation of women by their husbands. The councils ensure that all the steps set out before a marriage may be dissolved are taken.

In the second class we would include the ruling of an Indian court in 1864 that a Shafii woman who claimed she had become a Hanafi had the right to marry without her father's consent based on the Hanafi School's permission to an adult girl to conclude her marriage without the intervention of a guardian. We would also include all the provisions in various dispensations which allow women to stipulate conditions in the marriage contract itself to protect their interests. This position is essentially inspired by rulings of the Hanbali School of Law. Rights of divorce granted in Egypt to women in laws enacted in 1920 and 1929 in the case of husbands who did not provide maintenance are based on Maliki Law.

The third class of reform has to do with situations in which the text is silent on a specific issue. An example is the stipulation of a minimum legal age for marriage. The Qur'an recognizes that there is a minimum age for marriage but does not specify it. Various Muslim countries including Tunisia, Pakistan, Malaysia, Senegal and Syria, have fixed the "marriageable" age for girls at 16 and above. In Morocco and Jordan it is 15. By contrast, in Iran the age is 9 while in Sudan it is 10. In Nigeria there are no strict laws against child marriage as we will see in the next section.

A second example was the decision of Egypt to peg the maximum gestation period for pregnancy at 365 days. Hanafi law places it at two years while Maliki, Shafii and Hanbali law hold that a pregnancy can last up to four years. The Hanafi position is based on an opinion expressed by Aisha while the other three schools base their ruling on the opinion of Malik based on a case he witnessed, as narrated by al-Darqutni. Indeed there is, according to Coulson, "considerable Maliki authority for a term of up to seven years." In view of the absence of text (nass) from the Qur'an and Hadith on maximum gestation Egyptian reformers took the opinion of doctors and fixed it at 365 days " to accommodate rare cases." It is however to be noted that when Syria adopted a maximum period of gestation of one year in 1953, the authorities adduced an isolated ruling from the Maliki scholar Muhammad ibn al-Hakam in support. I will defer my comment on this particular reform of the law to a later section.

The purpose of this discussion has not been to examine the arguments, from a legal perspective, for the reforms made. It is rather expected that the richness and variety of these reforms in Muslim Law serve to prove three things. First, that the limited texts on family law are amenable to various interpretations and thus received jurisprudence merely represents in most cases the historically-conditioned exegesis of early jurists. Second, that the emergence of subaltern discourses strong enough to challenge dominant paradigms has compelled Muslim nations to re-examine the traditional law and reform it. These discourses-feminist, egalitarian- emerge due to the spread of education, exposure and learning particularly among Muslim women, but also among the dominant male establishment. They also often constitute an integral part of progressive discourses in general which question oppression by class, race, creed and gender. Although the contact with western feminism has had its own undeniable influence, what seems clear is that modernist/feminist discourse within Islam has shown a remarkable willingness to engage tradition and neo-fundamentalism on their own terms, that is to say within the framework of Islam and the weltanschauung of the Qur'an itself.

The final point, following logically from the preceding ones, is that the failure of some Muslim nations and communities to undertake these reforms (or, in some cases the resistance to reforms) reflects the entrenchment and dominance of patriarchal discourses and socially constructed subjectivities among Muslim men and Muslim women that portray the gender stereotyping inherent in these discourses as integral to Muslim identity. Indeed we will see that even where the law in its letter and spirit provides some relief to women, practice has been informed by custom, not religion. The widespread illiteracy and poverty among Muslim people in sub-saharan Africa is the prime reason for the seeming immunity of the dominant discourse which, time and time again, repositions and reestablishes itself as a result of the appropriation of tradition by the political elite as the definitive element of "Islamisation".

It is to the task of illustrating this point in the Nigerian context that I turn to next.

In May, 1999 a Civilian administration came into place in Nigeria as a result of elections marking the end of two decades of military rule. Shortly thereafter, the governor of one of the predominantly Muslim northern states announced his intention to embark on full implementation of shariah. Hitherto, the shari'ah had been part and parcel of the life of northerners. The Personal Law in the area was based on the Muslim Law of Personal Status. Because northern Nigeria had been ruled by the British system known as "Indirect Rule", the integrity of Muslim Personal Law had been left intact throughout colonialism and since independence.

The introduction of shari'ah in 1999/2000 has since opened up debate on Islam and Society. The principal source of disagreement was that the policy was essentially a neo-fundamentalist project of the sort described by Olivier Roy, characterised by a commitment to fully implement the punitive aspects of Criminal Law (especially the hudud or fixed punishments like amputation for theft and lapidation for adultery). The second feature of the project is a focus on public morality for which the mode of dressing of women, their complete segregation from men and the restrictions placed on their participation in public space constitute the prime, if not sole, barometer. The project lacks a political theory and fails(or refuses to) to appreciate the complex socio-economic dimensions of crime.

A group of Muslim intellectuals at the Ahmadu Bello University, Zaria, was the first to publicly criticise the policy and expose its neo-fundamentalist character. Quoting the Federal Office of statistics, USAID and UNDP figures the academics painted a grim picture of the living conditions of the Muslim people of northern Nigeria. The UNDP's Human Development Index Profile for Nigeria in 1993 for instance ranked Nigeria at 137 out of 174 countries with an HDI of 0.400. But even this figure concealed regional disparities, which according to the UNDP are among the worst in the world. For example a ranking by states "puts Edo and Delta States (the former Bendel State in the south) on top with an HDI of 0.666 while Borno (in the Muslim far north) has an HDI of 0.156." The report noted that were Edo and Delta States a sovereign nation they would have ranked 90^th in the world while Borno on its own would have ranked lower than every other country in the world. What this says is that Northern Nigeria is perhaps the most undeveloped part of the globe based on these indices. Life expectancy at birth is 61.4 and 60 respectively, in the southern states of Lagos and Imo but 36.6, 36.7 and 37 years respectively in the Muslim northern states of Kaduna, Bauchi and Borno. Compared to a 76% adult literacy rate in Imo, the figure for the Muslim northern states of Sokoto, Borno, Kano and Niger were, respectively, 2.7%, 10%, 12.1% and 16%. It was a similar story on nutrition, industrialisation, basic health and utilities. At the outset therefore, the implementation of shari'ah was seen as a neo-fundamentalist project determined to portray "Islamisation" as a thoughtless process of applying punitive laws without regard to the socio-economic realities of Muslim societies.

In spite of the compelling logic of the arguments above the discourse on shari'ah in Nigeria has been framed mainly in terms of a "religious" conflict between Islam and Christianity, or a geo-political contest between a predominantly Muslim "North" and a predominantly Christian "South." The voices within the Muslim north itself that articulate the position of subaltern discourses are suppressed or intimated by the political class and its allies in the religious establishment. Paradoxically, the resilience of patriarchal, stratified discourses is assured by the stark statistics given above. 97.3% of adults in Sokoto were illiterates as at 1993. So were 90% of those in Borno, 87.9% of those in Kano and 84% of those in Niger. All of these states are implementing "shari'ah". When we consider the fact that women are generally secluded and female education discouraged, it becomes obvious that the figures for women are even more pathetic. As argued by Riffat Hassan in a different context (that of Pakistan), illiteracy among women means that they "are cut off from all the developments taking place in the world because they cannot read and write."

From time to time, northern Muslims respond with the claim that the literacy rates above are based on statistics for western education. The argument is that many Muslim northerners read and write the Arabic script. This argument is dangerous and misleading. Most Muslims in the north learn as part of their early education how to read the Arabic script and then the Qur'anic text. The vast majority never learn the Arabic language leading to the familiar and sadly true image of the gardi who has committed the whole Qur'an to memory and can write the script from memory without knowing the meaning of what he writes. This is a population that has memorized signs without knowing what they signify. Since the role of language is one of signification, the production of the sign of truth, a person who reads and writes the Qur'an without understanding a word of what he reads is effectively an illiterate, even in Arabo-Islamic terms. Every Qur'anic verse is referred to as an ayah, a sign. To read the sign is to comprehend what it signifies. Those who equate reading, listening and writing the Qur'an to mere visual or auditory perception completely miss the point in its revelation.

The result is a population that lacks knowledge of the discourse of modernity even as it has affected other parts of the Muslim world. Issues like minimum age of marriage, rights of fathers to compel daughters into marriage (Ijbar), conditions (shurut) protecting the wife's interest (say right to education or work) as part of the marriage contract, concession of the right of divorce (tafwidh al-talaq) or attachment of divorce to some circumstance (ta'leeq al-talaq), custody of children etc. which are the staple of discourse in other dispensations are for all practical purposes absent from Nigerian Muslim discourses. The strong, courageous and persistent protests of some organizations defending rights of women living under Muslim laws have been marginalised and suppressed by the dominant discourse. But protests against this discourse are not exactly new.

In the early nineteenth century, Shehu Usman Dan Fodio led an Islamic reform movement that waged a holy war against the Hausa kingdoms of northern Nigeria. One major aspect of his struggle was its concern for the condition of Muslim women. In several of his writings and poems, the Shehu condemned men for poor treatment of their wives, for confining them too closely, for not educating them or allowing others to do it, for forbidding wives from uttering the names of (and taking their meals with) their husbands. After the reforms of Shehu, the Fulani conquerors themselves acquired gradually the pre-jihad practices of the Hausa courts and effectively reinstated the feudal relations of the pre-jihad north. The process started not long after the Shehu's death as is evident from the protests of the Shehu's brother, Abdullahi. Perhaps it was inevitable, with political succession passing to the Shehu's son, Sultan Muhammad Bello (rather than Shehu Abdullahi ) that the patriarchal strucures would return. The authoritarian bent of Bello's conception of leadership when compared to Abdullahi's has been discussed by Tukur in his comparative study of the subject in the former's al-Ghayth al-Wabi and the latter's Dhiya' al-Hukkam.It is also worthy of note that Abdullahi considered abstinence and asceticism an essential part of political morality, values which are rarely to be found in the political leadership of the Muslim world.

In the heydays of the movement for independence of Nigeria the intellectual landscape was shaken once more by an eminent figure of the North's political firmament. Isa Wali, Arabist, intellectual, diplomat and son to the Wali of Kano published in 1956 a series of articles in which he challenged the entire conception of the position of women in Islam. He took up questions of equality of the sexes, polygamy, concubines, the seclusion of women and their freedoms among other aspects of Muslim family life and put up strong arguments for reform. His major arguments were similar to those of other modernist thinkers, requiring a historicisation and contextualisation of revelation, recognition of the influence of time and space on interpretations and separation of Arab or indigenous cultural practices and belief systems from bona fide Islamic teachings. In the post-independence era and, particularly since 1966 and up to his death in 1992, Sheikh Abubakar Gumi inspired a "Movement for the Elimination of Innovation and the establishment of Sunnah" (Jamaat Izalat al-Bid'ah wa Iqamat al-Sunnah) Imam has discussed at length the contributions and limitations of this movement, and others like FOMWAN (The Federation Of Muslim Women Associations of Nigeria) and WIN (Women In Nigeria) to the debate on women and their rights in the home and in politics.

The point here is to show that there has been attempts at engaging tradition on this matter with varying degrees of success. Progress has often been retarded by the fact the reformers did not have political power (except the case of the Shehu). This is to be expected as, more often than not, the reformers were ideologically opposed to the dominant discourses on a plurality of fronts, fighting against corruption, nepotism, injustice and the arrogance of power. Commenting on a related matter, Pittin wrote that "the mass scapegoating of independent women and its form are not new in Katsina; they represent a fusion of patriarchal ideology and state control evident from the earliest days of colonialism, and presumably predating it." In short the situation in northern Nigeria today is still another case of the mutation of the same paradigm and the articulation of the same discourse in a different form, but always involving this unholy alliance between those who control the state and those who define Islam and construct Muslim subjectivities.

Although the principal changes introduced by governments implementing shari'ah in the north have been in the field of criminal law, specifically the re-introduction of flagellation, lapidation and amputation into the penal code, two rulings by the shari'ah courts have stimulated discussion on matters of gender and the law. These discussions are likely to spill over into a discussion of Muslim Family Law and the condition of women in general in the Muslim North. The first was the conviction of a seventeen year-old pregnant girl, Bariya Magazu for the crime of fornication (zina). The girl was sentenced to 100 lashes for the crime and the sentence was carried out amid international uproar. The second was the conviction of a pregnant divorcee, Safiya Husseini for adultery (zina) and her sentencing to death by lapidation. The sentence is yet to be carried out as Safiya has appealed against the judgement. In her appeal, Safiya has claimed that the child she had belonged to her former husband, thus taking advantage of the long gestation period in Maliki family Law. The case is interesting because, although fornication is a criminal offence, it has bearing on family matters and actually reverberates on family law. Li'an, or the dissolution of a marriage based on allegation of fornication leveled under oath by a husband against his wife and her confession or sworn denial is one case that comes readily to mind. But this case is another.

The interesting element in this case is that the long gestation period in Maliki Law was at least in part designed to avoid convictions such as those of Safiya and the conviction in the first place reflected ignorance of shari'ah law and process on the part of the implementers. Let me quote Coulson at length on this point. Commenting on the long gestation period allowed by early jurists, he posits that this was…

The passage above covers issues of law that formed the basis for criticism of the verdict by some Muslims. First, only Maliki Law considers pregnancy outside wedlock as prima facie evidence of fornication. This position is rejected by the other schools of law, and there is no text from the Qur'an or hadith to support it. I have elsewhere discussed this point and articulated the reasons for rejecting the Maliki view on this matter, one of which is also stated by Coulson in the last sentence of the passage quoted above.

Second, in Muslim law any child born by a widow or divorcee within a term not exceeding the maximum allowed for gestation belongs to the deceased or former husband. Only that husband has the legal locus standi to repudiate the pregnancy before a court of law and level the allegation of fornication against his former wife. Thirdly, these provisions were made for the purpose of preventing convictions of divorcees particularly in the Maliki School which accepts pregnancy as proof of zina. It is not by accident that the gestation period is as long as seven years where some Maliki jurists are concerned.

In the uproar over the conviction of Safiya what has been missed is the level of ignorance of even the traditional law by the qadis who are responsible for its implementation and interpretation. The question of gender bias has also been raised often, especially as no effort was made to establish or disprove the paternity of the child after the women were compelled to "confess" to fornication and name the partners. The argument is simply that since the adoption of pregnancy as evidence of fornication is based on opinion and not text, there is no excuse for not taking advantage of developments in modern science in the criminal law of evidence. The possibilities for changing the law with scientific progress and the efforts of Muslim intellectuals in this direction are exemplified in Moosa's coverage of the discussion on brain stem death by the jurists of the academy of Islamic jurisprudence.

The positive side of the debate is that it brought to the fore the issue of the northern Muslim woman, particularly the poor and rural variety and her condition in society. Questions are being raised about the right of girls to education, about child marriage, about domestic violence, arbitrary divorce, child custody and justice among wives in polygamy. In some of these areas Muslim family Law does have provisions protecting women and all that is needed is a political will and a dominant discourse that rejects oppression, injustice and discrimination on account of gender. For example, although fathers generally assume the right to give their virgin daughters away in marriage without the latter's consent under the principle of Ijbar (compulsion), a court annulled a marriage in 1991 because the girl in question had not consented to it. Similarly although iniquity in polygamy is common, the courts in fact do uphold the principle of equal treatment as happened in Maiduguri in 1994 when the court upheld the right of a wife to equal material treatment between her and her co-wife from her husband.. the Maliki principle of darar

is wide enough to give a wife grounds for seeking divorce due to cruelty, lack of maintenance, affliction of husband with a serious ailment, etc. In fact a Sokoto court in 1988 annulled a marriage on account of lack of maintenance. Also a Maiduguri court dissolved a marriage on account of repeated wife battery in 1993.

Where a wife is divorced she is entitled to maintenance throughout the waiting period and if there are any children, custody belongs first to the wife then a series of women relatives on the mother's side followed by female relatives on the father's side etc. It is the duty of the father to pay for maintenance of his children up to the age of seven for boys and nine for girls. A father can be compelled to make these payments.

What these examples show is that Muslim Family Law even in its traditional form contains many elements for the protection of women which are not however complied with by society given the dominant patriarchal discourse. The solution lies in educating Muslims about the Law and giving them the political support and empowerment to seek enforcement of their rights.

There are still areas that need to be looked into urgently. One is the area of child marriage which traditional scholars continue to endorse. A leading scholar in northern Nigeria recently condemned the attempt to fix a minimum age for marriage as an American design to reduce the Muslim population. Apart from the damage of child marriage to a girl in the form of disrupted education, there are medical and health reasons that should compel the state to intervene. These include, according to doctors, abortions, infertility, cervical cancer and frigidity. This is in addition to well known complications like VVF.

Other areas of reform include the issues of marriage contract and the possibility of including clauses to protect women and their rights to say, education and earnings; the experience of Pakistani law reform with Arbitration Councils is also something that should be looked into as a safeguard against arbitrary and unjustified divorce; Finally a positive attitude aimed at ensuring capacity to maintain a polygamous home before contracting a second marriage would be a worthwhile project. These are the areas that governments interested in the restoration of shari'ah need to look at in the interest of Islamic justice and equity.

This paper started by reviewing the philosophical basis of the debate between traditional Islam and Modernity and relating the various positions to their roots in a particular conception of the subject and its relation to knowledge. We then showed how the claim of those who resist Ijtihad amounts to raising human knowledge to the realm of infallibility and how an understanding of the historical conditions in which knowledge is produced is critical to understanding that which is known. We also showed how subjectivities are socially constructed by dominant discourses and how reform of the law in reality is a political project that involves challenging the very power structures legitimated and nourished by the challenged discourse.

From there we moved on to show by way of concrete examples how exegesis has been influenced by subjectivity and also traced the historical factors that were influential in the constitution of the said subjectivities. (We examined for example the question of gender stereo typing, and through a similar process it is possible to deconstruct other intersecting discourses such as Arab/Non Arab, Quraysh /non-Quraysh, Slave owner/Slave etc.) Having established our point we now showed how the emergence of modernist discourse has led to reinterpretations and reforms in Muslim Personal Law in recognition of the growing influence of subaltern ( and especially feminist) discourses in parts of the Muslim World.

From here we moved to Nigeria and reviewed the current project of neo-fundamentalism and its engagement by modernity. We reviewed the historical discourses in Muslim Northern Nigeria and examined the process through which the fusion of state control and patriarchal ideology has maintained its hold on the people. We showed the extent of illiteracy, poverty and backwardness of the majority of the population and how that has made them unaware of changes all over the world including Muslim lands.

We then showed how custom has, in most cases, taken precedence over the letter of Islamic Law and where we feel the law needs reform, pointing out however that this will only come as the fruit of a determined political engagement with the highly stratified discourse entrenched in the Nigerian social formation.

Being text of a paper to be presented at the International Conference on Muslim Family Law in Sub-Saharan Africa Organised by the Centre for Contemporary Islam, University of Cape Town, South Africa.

March 2002