It is really hard to believe that the recent media uproar over the video by two female members of Hizb ut-Tahrir Australia was purely driven by moral and ethical concerns. If the media and politicians were really concerned about domestic violence, then we would have seen the same level of furore that we witnessed surrounding the video every week, because on average at least one woman a week is killed by a partner or former partner in Australia. And the Australian police deal with a domestic violence related matter every two minutes. Yet there is relative silence by the media over incidents of domestic violence. In fact, if domestic violence had been given the attention that it deserved, then it would have been treated as a more serious issue than terrorism, with necessary funds and resources being directed to tackle the issue with the utmost urgency.

Yet, it is tragic to see sensationalist reporting and opportunistic politics turning an issue as serious as domestic violence into a means of further stereotyping and marginalising an entire community. The two Muslim women were simply the more recent victims of a recurrent media/political ritual of demonising the entire Muslim community and dividing it into artificially created camps of “good” Vs. “bad” Muslims. Before the dust had even settled on the issue, the media was soon to move on to its next target – a shaykh from the community who had just signed a statement condemning domestic violence!

This recent media fiasco is a very good example of what racism does to us as a minority community. As Stuart Hall, a prominent cultural theorist, points out, racism does not just split us externally but also internally. We are split externally by the social boundaries that keep us on the margins. And we are also split internally through, in Hall’s words, “the internalization of the self-as-other”. We internalise ourselves as the “other” that the dominant culture portrays us to be. We start imagining our history, tradition, culture and even ourselves through the eyes that see us as backward, barbaric, violent, misogynistic etc. Hence, the un-abating need to condemn, apologise and reassure. Hence, the constant urge to reinterpret sacred texts and reinvent the tradition. Hence, in the aftermath of such media hoo-ha, we are always left with a community split along artificial lines: “good” Vs. “bad”, “moderate” Vs. “radical”, “modernist” Vs. “fundamentalist”.

Therefore, every time the media puts the community on trial for a certain Qur’anic verse or a shari’ah ruling, we need to be cautious of what position we take and on what basis. For example, with the recent issue, it was easy for some in the community to distance themselves from the explanation of the relevant verse provided in the video and label Hizb ut-Tahrir as being a “minority opinion within Islam”. Whereas, many of the points made in the video can actually be found not only in classical works of fiqh and tafseer but also to be held by prominent contemporary scholars.

Then why such a convenient statement to appease the media?

I can understand the genuine concern of some to portray a positive image of Islam to society. But we should not be as naïve to believe that merely presenting a more palatable interpretation of Islam is going to assuage social anxieties that are fuelled and perpetuated by a systemic racism rather than the actions or words of any single Muslim individual or organisation.

Also, I think, the readiness with which some widely held scholarly views within Islam are renounced under pressure is symptomatic of the internal “split” that Hall talks about. In the case of the current debate on domestic violence and treatment of women in Islam, we should really ask ourselves if some of us have come to deem some aspects of the Islamic fiqh to be the products of a male-dominated, misogynistic scholarly tradition that need to be revised. If so, is such a negative view towards our fiqh the result of buying too much into the liberal mantra of progress to the extent that we start imagining our own tradition to be steeped in backwardness and misogyny until Europe brought us to our “modern” senses?

I am not saying that our scholars are beyond critique and that traditional fiqh positions cannot be reviewed in light of present circumstances. But such critique and review should be done as part of a rigorous scholarly endeavour to provide practical guidance to contemporary issues, not as knee-jerk reactions to social pressures thereby reaffirming dominant narratives of a progressive West and a regressive Islam (in need of reform). Unfortunately, attempts to “reinterpret” Islam are often the result of the latter.

For example, let us consider the verse in Surah Nisa that has become the subject of such controversy. In explaining the verse, the sisters in the video referred to some classical scholars who mention the use of a miswak or a handkerchief. Such references were wrongly taken by some as a way of condoning domestic violence, and the need to reinterpret some traditional positions was also emphasised.

But why were the sisters (mis)understood in this manner? We need to realise that texts do not speak for themselves but are interpreted within socio-political contexts. Perhaps the primary reason why the references to classical interpretations of this verse have been taken to condone domestic violence is because of the structurally created social attitudes and perceptions towards Islam that deem the shari’ah as backward and oppressive towards women.

The reason why I say this is because, in stark contrast to how the explanation of this verse has been misconstrued, all the caveats that the scholars use in explaining the three stages mentioned in the verse have actually historically been taken to mean, within the discipline of fiqh and its practical application in society, to be the very opposite of justifying violence against women. The purpose of mentioning miswaks, handkerchiefs and the like was not to justify spousal abuse but rather to clarify that the verse does not allow any form of harm against women, not emotional, nor psychological, let alone physical. If Islam does not allow even the kind of verbal abuse that we so commonly find in relationships today, then how can it allow physical abuse?

Speaking to a Muslim audience to whom traditional Islamic positions matter, the sisters merely seemed to be making the same point which, for not altogether innocent reasons, was portrayed by the media to be condoning domestic violence.

In case it is still hard to imagine how classical interpretations of the said verse do not justify domestic violence, let us move beyond fiqh and tafseer texts and look at how these rulings were practically applied in domestic violence related court cases in the Ottomon caliphate.

In a very interesting article, Elyse Semerdjian states how women were able to seek retribution in Ottoman courts for domestic violence:

…Sharī’a court cases from Aleppo, Syria reflect the ability of women to seek retribution when subjected to abuse. The courts of Aleppo ruled against abusive husbands in several cases of domestic violence. In one court case from May 1687 Fātima bt. Hajj ‘Alī filed a lawsuit against her husband testifying that he was abusing her; he had hit her with a stick on her body and on her mouth causing her to bleed. She claimed that he was constantly abusive. In her defense she brought along five witnesses. The court reprimanded the abusive husband, ordering that he be given ta‘zīr (discretionary punishment) (SMH 36:78:214 16 Rajab 1098 A.H./May 1687).

In the Sharī’a courts women had several strategies for defense. First, a woman could bring witnesses to testify on her behalf and strengthen her case. Second, she could include a clause against domestic abuse in her marriage contract that would offer her further protection if her husband ever abused her. Including these conditions in a marriage contract was an option in any Muslim marriage and offered the bride an opportunity to protect herself legally.

Semerdjian also cites a fatwa by the Ottoman Shaykh al-Islam Abū al-Sa‘ūd where he stipulates for judges to take a proactive approach to protect women from abuse. He says that if a qādī finds out about a woman being abused by her husband (and not necessarily a complaint brought to him) “He [the qādī] is able to prevent his hurting her by whatever means possible” (emphasis added).

Yet, as Semerdjian points out, it is during the late Ottoman period when the state initiated modernising projects – one of which involved legal reforms – that the rights that women earlier had in the caliphate started to erode. Citing a couple of studies, she says, “These pioneering studies question the notion that modernization is a springboard for progress as several areas of the law drastically limit the legal options afforded women in earlier periods.”

Therefore, it was not necessarily traditional Islam, rather the Muslims world’s attempts to “modernise” (emulating Western models of statecraft and bureaucracy) that proved detrimental to women. And that trend extends from the late Ottoman period to this day in many Muslim countries where domestic violence is prevalent.

It is in circumstances like this – in the absence of a society that lives the shari’ah in its comprehensiveness and serves as a practical embodiment of the justice and values of Islam – that the fuqaha often need to make exceptions to general Islamic rules. Therefore, any internal discussion within the Muslim community on how the relevant verse relates to our times today should be had (if at all) in this context, rather than as public repudiation of well established scholarly positions as products of misogyny based on a misplaced hope of countering Islamophobia.

Just as an example of how a scholar may approach the verse in Surah Nisa given our current context when there is prevailing ignorance about the rules of the shari’ah, let me cite the renowned 20th century scholar Ibn ‘Ashur. In his tafsir of this verse he mentions that in a society where men are not well versed with the limits of the shari’ah, and there is potential harm that can arise in marital relations, they can be prohibited from and even punished for any physical striking of women.

Therefore, the Islamic fiqh can never be (mis-)used to justify any form of oppression. The role of fiqh is to solve human problems, not create them. And we, as Muslims, should treat it as such, as practical guidance for our day-to-day affairs, rather than as an inconvenient legacy of a problematic past.

We really need to realise that by calling for reform and reinterpretation under pressure from the media and politicians, we do not solve actual problems we face as a community and as an Ummah. Rather we exacerbate the effects of the racialising discourses that pigeonhole us into stereotypes.

To conclude, this article is not an apology for the video. As the sisters themselves have acknowledged, there has been some constructive feedback from the community that they have taken on board. Rather, I raise these issues because they seem to be a recurring theme of our experiences as a minority community in Australia, and as Muslims in the West generally.