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Excerpted From: Margaret R. Austen, The Protection and Empowerment of People with Disabilities in Islamic Law, 19 UCLA Journal of Islamic and Near Eastern Law 103 (2021) (80 Footnotes) (Full Document)

Margaret Rose AustenReligions, societies, and governments frequently fall short of the ideals outlined in their founding creeds and doctrines. In 1776, the United States Declaration of Independence stated that “all men are created equal;” nevertheless, it was not until 1870, with the passage of the 15 Amendment, that the first black man voted in an American election. Furthermore, individuals with disabilities were not acknowledged as equal members of American society until the passage of Section 504 of the Rehabilitation Act in 1973. While it is tempting to contrast the everyday experiences of people with disabilities against the principles declared in laws or religious creeds, this type of analysis requires a sophisticated blend of sociology, theology, psychology, and even anthropology. While acknowledging this tension, this Comment seeks to focus on surveying the protections and power granted to people with disabilities within Islamic law.

Many Muslim-majority nations have been faced with some form of conflict over the past several decades which has created a population of disabled veterans and civilians that were injured during wartime or through postwar accidents. In many instances, the high burden of war-based disability has forced Islamic nations to create services for people with disabilities. In addition, poverty has left many families with disabilities, such as visual or hearing impairment from otherwise preventable causes. These realities can seem at odds with the empowering examples of disability jurisprudence in some of Islamic laws earliest sources.

Islamic nations are not alone. Around the world, the experiences of people with disabilities, like many marginalized classes, do not align with the promises codified in statutes and case law, or with the scholarship of the jurists and the fatwahs of the muftis. With the overlap of theology, morality, and scholarship in Islamic law, sifting out the solely legal principles affecting people with disabilities is nearly impossible. As such, while this analysis does not seek to compare the realities of people with disabilities under Islamic law, it does include theological and sociological themes represented within the broad scope of Islamic Law--seeking to provide a legal overview, not a sociological or anthropological analysis. This Comment includes classical sources and early works of the jurists, demonstrating the inclusive ideals embedded within the etymology (Part I), storytelling (Part II), duty of almsgiving (Part III), and the influence of physiognomy on Islamic law (Part IV). This Comment further examines the treatment of people with disabilities in Islamic penal law (Part V) and family law (Part VI).

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Most of this evidence of the empowerment and protection of people with disabilities in Islamic law emerges from classical text and historical scholarship with some contemporary Islamic jurisprudence that ostensibly expands these inclusive principles. For example, policymakers in various Muslim countries have made modern accommodations for disabled people such as ramps, curb cuts, and designated parking in mosques in Mecca, important mosques around the world, and at newer mosques. In a recent fatwa issued by the Sheikh al-Azhar, Dr. Muhammad Sayyid Tantawi, he declared that an interpreter in sign language should sign the content of Friday sermons for the benefit of the deaf and hard of hearing. This ruling replaced an earlier prohibition of signing during Friday sermons because the interpreter's presence beside was considered distracting to the healthy praying people. Finally, the Universal Islamic Declaration of Human Rights (UIDHR) was drafted in 1980, including provisions applicable to people with disabilities. The UIDHR was seen as a watershed moment for those advocating for human rights in the Islamic world. Like various contemporary Islamic policies, the UIDHR is a tangible articulation of policymakers' intention to empower and protect people with disabilities.

While the realities facing people with disabilities around the world improve with each enactment and enforcement of empowering disability laws, the disparities within society are challenging to reconcile with many of the inclusive principles found within Islamic laws earliest sources. These realities, though not examined in parallel with the above evidence in this paper, cannot entirely erase the inclusive principles embedded in classical Islamic Law. While the influence of physiognomy and contemporary Islamic penal and family laws frequently fail to protect--let alone empower--people with disabilities, classical Islamic jurisprudence does include tangible empowerment and protections for people with disabilities. The United States and secular legal systems around the world struggle with similar tensions, and in Islamic law we can look to etymology, representational storytelling, inclusive almsgiving, and the mystical practice of firasa as empowering foundations for people with disabilities within Islamic law.

Margaret R. Austen has a bachelor's degree from Gordon College in History and Secondary Education.

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