Engaging Feminist Ideas: Islamic Family Law

The relationship between western feminism and Muslim women’s human rights is complicated by the history of colonialism, as well as the so-called “war on terror,” but these factors do not ultimately limit the ways that Muslim women use feminist critique to argue for women’s human rights within Islamic contexts. These women (p. 835) have rejected the idea that women’s human rights are a strictly secular construct تفسير الاحلام. While some Muslim women have embraced apologetic strategies—such as claiming that in the Qur’an and hadith, Islam granted human rights to women33—others have taken a more nuanced approach by examining the historical contexts and norms that influence ideas about gender and religion.

For example, Lynn Welchman examined women’s rights and family law in Arab states, noting shifts in the codification of Muslim personal status law (family law).34 The focus on such laws and debates surrounding them sheds light on the particular regional issues at stake. Ethnographic studies that take into account the lived experience of Muslim women and their interaction with Islamic law, cultural customs, and secular law, are important contributions to scholarship in the area of women’s studies and Islam. Samia Bano’s study of shari‘a councils in Britain examined Muslim women’s agency in their use of such councils in obtaining a divorce.35 Bano’s study dealt with Muslim women in a minority context, showing how Pakistani British Muslim women conceptualize rights within marriage, and how they understand “Islam” to grant them human rights, such as the right to divorce an abusive husband (based on some rudimentary knowledge of Islamic personal law). Bano concluded that the British shari‘a courts had little effect on the promotion of rights of Muslim women within family law. However, her study reveals the significance of situating the analysis contextually. As Bano pointed out, Islamic jurisprudence is not the guiding framework for these shari‘a councils. Rather the framework reflects a complex intersection of Islamic “law” as interpreted by council members (who are sometimes, but not always, religious scholars), agentive pious Muslim women, and members of ethnic/kin groups.

While this contextualized scholarship offers considerable insights into the operation of Islamic law in highly contested spaces of life, it nonetheless raises a moral general question about the relation between civil law and Muslim communities in countries where Muslims live as religious minorities. The state, while still the formal guarantor of rights, is not always in the position to enforce them (particularly when it gives latitude to religious groups to determine the content and enforcement of family law through alternative dispute resolution mechanisms). This can lead to problems when religious teachings—and in particular the practical effects of such teachings—conflict with civil law.

(p. 836) C. Muslim Feminist Interaction with Human Rights Discourses
One way to approach these interrelated questions and bring the conversation back to universal human rights discourse is to inquire about the effect of international human rights treaties on women’s rights. The United Nations ratified the Convention for the Elimination of Discrimination against Women (CEDAW), in 1979. The signatories to CEDAW committed to eradicating discrimination against women in both public and private spheres, although some of the countries that agreed to the convention continued to discriminate against women. Several Muslim majority countries issued reservations to CEDAW based on a perceived conflict with the shari‘a. Egypt’s representative issued a reservation to CEDAW, for example, arguing that Islamic law had “already liberated women.”36 This argument is consonant with the Cairo Declaration’s understanding of shari‘a law as providing the ultimate reference point for human rights.

In terms of bridging the gap between statements of international human rights for women and the failure to guarantee such rights in practice, non-governmental organizations have played an important role. Musawah (Arabic for “equality”) was founded in 2009 by Muslim women. An international organization, Musawah has drawn on the work of activists—both male and female—to reinterpret Islamic scriptures and reform legal practices so that they support the rights of women. Women’s organizations like Musawah have worked to encourage Muslim majority countries to adopt international women’s rights conventions like CEDAW. Welchman has observed the impact of Musawah’s advocacy work in promoting gender justice in the area of family law reform. Musawah has notably influenced legal discussions of gender roles in marriage in several Arab states; one observable trend is the move from gender-complementary roles (stressing a husband’s fairness and wifely obedience) to roles that involve more equality and mutuality.37

Musawah provides an example of how Muslim feminists have appropriated feminist ideas and adapted them specifically to fit the needs of their various contexts, in the forms of critical scholarship and activist bodies. Their work has demonstrated that “feminist” is not a monolithic term, but rather a fluid category that can encompass considerable variance in its cultural meanings and applications.

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