In response to Zahirani Nor's letter entitled Orientalists confused over Islamic Law , it is important to point out that she has totally misunderstood my point regarding medieval legal culture. When talking about Islamic law, it is important to understand and distinguish between the sources and guiding principles of law (syariah), and the detailed laws and rules which were largely the result of human juristic interpretations (fiqh) of several hundred years ago.

For instance, the four great Imam who founded the scholarly traditions of legal culture in Sunni Islam (the Hanafi, Malik, Shafi'i and Hanbali schools) did not claim finality or infallibility for their legal interpretations. (re: Iqbal, The Reconstruction of Religious Thought in Islam ). Different opinions have arisen not from a disagreement of the underlying principles of law but, rather, on the interpretation of certain texts and the application of certain principles.

The sources of law (from the Quran and authentic practice of the Prophet (s.a.w)) are held by all parties as binding, but the interpretation or the application of the principles is another matter which is largely determined by the jurist's personal discretion. (re: Hammudah Abd al Ati, The Family Structure in Islam , 1977)

Although Malaysia had embarked on a programme for the reformulation of Islamic family law in the 1970s and 1980s, a conservative reaction has unfortunately surfaced since the 1990s. This conservative reaction can be seen in the recognition on the validity of the husband's divorce pronouncement of talaq outside the court on the one hand, and the re-emphasis on the issue of the wife's obedience or disobedience when she applies for divorce on the other hand. The view on the Muslim husband's absolute and arbitrary power of dissolution is based on the classical interpretation of Islamic law.

It may be argued that this view of the marriage contract is actually not in harmony with the Quranic injunctions, since the injunction in Surah an-Nisa' 4:34 grant both spouses equal rights as to the appointment of arbiters in the event of a breach between them, and what is generally known about the life and practice of the Prophet (s.a.w.). Or, since according to the Quran, in Surah al-Baqarah 2:241, divorced women should be provided with reasonable compensation (mut'ah) from their former husbands, it should at least be accepted that in cases of such arbitrary divorce, the wives should immediately be entitled to substantial mut'ah .

This emphasis on the wife's obedience is due to the notion of nusyuz as "disobedience of the wife to the husband" rather than as "disruption of marital harmony by either spouse". But the Quran refers to both nusyuz by the wife (Surah an-Nisa' 4:34), and nusyuz by the husband (Surah an-Nisa' 4:128).

Therefore there need to be a general re-understanding on the basic premise that the Islamic marriage contract is a contract of partnership between the two parties. A marriage contract should not be viewed as a contract of submission of the female party to the male party, nor as a contract of dominance of the male party over the female party. If this was so in the past, it was due more to customary norms that were then almost universally prevalent in various medieval societies throughout the world, rather than to any peculiar characteristics attributable to the principles of Islam.

Codifications of Islamic laws as modern statutory enactments were a relatively new phenomenon which generally emerged in the 20th century. Unfortunately, in these codified provisions, unrealistic stereotypes often persist regarding the concept of marriage. Too often, when referring to Islamic law or legal culture, the terms syariah and fiqh are used interchangeably. However, fiqh refers to the human interpretations of the Divine Sources of syariah .

Muslims believe that the values and principles contained in the Divine Sources (syariah) are eternal and universal, but human juristic interpretations, opinions and understandings (fiqh) are not infallible and are, therefore, open to reinterpretation and reform in order to reflect the principles of justice and equity enshrined in the syariah .

Lack of historical understanding and misconceptions regarding such issues including divorce, polygamy and men's double shares of inheritance, for instance, have led members of our society to look upon such provisions as divinely ordained rights conferred upon Muslim men, instead of as divinely ordained limitations upon male rights that had been previously conferred by the patriarchal pre-Islamic society.

In a 2005 speech at the Women's Institute of Management (WIM), the prime minister said:

'In the past, and most regrettably some instances in present day, syariah , for example, has been subjected to socio-political influences resulting in laws bearing the name of Islam, but in fact run wholly counter against the spirit and principles of the faith. I have stated on many occasions that the renewal of Islamic thought must be an ongoing process ensuring the universality of the message, its pluralism and, and not be ossified and fossilised by blind imitation of traditional thought and opinion.'

It might be added that it is even more unfortunate when such blind imitation of traditional thought and opinion is made without even understanding the reasoning or rationale justifying the existence or toleration of certain traditional rules due to the socio-cultural-economic circumstances of the societies in the past, which differed greatly from the realities in present-day societies.