An Introduction to Muslim Feminist Law Reform Efforts, Part 1 of 3: Universalism vs. Cultural Relativism

This past fall I had a disagreement with a classmate, in which she maintained that universal human rights (in their current form) are distinctively Western. I felt it was arrogant to imagine that only Western culture could give rise to values like equality. (I guess our two positions weren’t necessarily exclusive. It felt like a disagreement!) I decided to use my essay for that class as an opportunity to research and support my position., and write about how women in non-Western cultures reconcile seeming conflicts between their religious and cultural identities, and their rights as women. I ended up focusing on Muslim women. The essay really is just a jumping off point towards gaining a better understanding of  Muslim women’s relationship with feminism. There are, of course, websites that are by actual Muslim Women (not me), such as Muslimah Media Watch. 

In light of recent events such as "Boobquake" and the governments of France, Belgium and Quebec banning the niqab in public, during which many non-Muslims made assumptions about Muslim women, I felt that it might be useful to share my essay.  I offer it to others who are in the same position I was, to third-wavers who want to be culturally sensitive but don’t know how to reconcile that position with their feminism, and to those who think that certain cultures or religions are inherently irreconcilable with feminism.

Note: I own the copyright to this! I worked hard on it! If you want to quote it, limit the quote to a couple of sentences and link back to me!

Sources that are available online are linked. Articles that are only available from paid sites are labled with [H] for Hein Online and [L] for Lexis Nexus

Introduction

The family is often seen as the fundamental building block of society. Hence, the character of “the family” makes up a significant part of a group's identity. Part of the character of the family is determined  by the place of women in the home and in the society as a whole. In this way, the status of women's rights also contributes to group identity.

This can be observed in societies around the world. In Canada, it was observable in the 2004 debate in Ontario about the use of Sharia law for family arbitration. The very public debate was framed as a conflict between the universal rights of women, and the rights of a minority community to practice its religion – a conflict between universalism and cultural relativism. When framed this way, the voices of the women whose rights are at stake – in this case, religious Muslim women – are often ignored.

Such clashes between the principles of universalism and cultural relativism can also be understood as conflicts over asserting and maintaining Western superiority in a post-colonial world, and local patriarchs attempting to sustain the conditions under which they were powerful, resisting the economic and technological change brought on by globalization. Women, as the embodiment of culture, tradition and the family – in all societies – are the battleground in this conflict.

While equality ought not be denied on any ground, and certainly not on cultural grounds, neither is it possible for equality to be imposed. Equality can only be claimed. In fact, Muslim women are claiming equality, and in doing so they are challenging the framework through which human rights, the law, culture and religion, and family are currently understood. This essay examines the ways in which they do so, and the implications of those strategies.

This essay focuses on women's rights in countries where Muslim law is applied to at least specific segments of legal disputes; this group of countries includes those which are theocratic, and those with mostly secular laws. In discussing the intersection between law, culture, and religion, this essay may refer to culture and religion interchangeably, since concepts about identity often apply to both; and cultural practices are often subsumed by religion, while religion is often considered to be at least partially determinative of a group's culture.

In the process of claiming their rights, many Muslim feminists have re-theorized human rights, equality, and freedom of religion. Canada, as a country whose Muslim population is growing, may well have to deal with legal questions about the supposed conflict between gender equality and religious freedom, as Ontario had to do. When the time comes, Canadian lawmakers would do well to consider the unique perspective of Muslim feminists, not least because it is their rights that are at stake, but also because their perspective has much to contribute to equality law and family law, in terms of nuance and complexity.

This essay will proceed in three parts. Part One will establish the relationship between cultural identity, the symbolic family, and women's rights, and discuss why the traditional rights paradigm provided by universalism and cultural relativism is inadequate. Part Two discusses five different approaches that Muslim women's rights activists have taken, the benefits and shortcomings of each, and their implications for the future. Part Three concludes with a brief discussion of what it would mean for lawmakers to take the perspectives of Muslim women into account.

Part One: The Human Rights Debate: Universalism vs. Cultural Relativism

The family plays an important role in the construction of  group identity. It is seen as the building  block of the nation; the site where culture and tradition are preserved and passed on to the next generation; and the embodiment and expression of a society's values (Kuo). Because of their association with the private sphere, women are often equated with their roles as mothers – those who sustain the family, and nurture the future of the community – and are given similar social significance as the family itself (Fishbayn, para 3 [H]).

Family law and the place of women in society are thereby very much tied up with the identity of the community. Kuo writes that in Taiwan, the decision to marry and start a family, “is not only the personal choice of individuals pursuing relationships and satisfaction... Family Law is a cultural declaration” (Kuo).This is in no way as unique to Taiwan. The symbolic family plays a role in establishing national identity in many – if not all – countries around the world (Higgins and Fink, 377 [H]).

When there is perceived threat to community identity – in the form of anything from a foreign military to rapid economic change – there is a tendency to circle the wagons with respect to the legal status of the family and women's rights. In the face of rapid change, an alternative, idealized past is often imagined and attempts are made to hold on to it. As a result it becomes difficult to advocate for change, without also calling one's loyalty into question.

The task of representing the traditional aspects of a culture falls disproportionately on women's shoulders, since,

Symbolically, the notion of sexual difference may allow a community to work out a challenging paradox of modern minority identity. Religious and cultural groups, and individual members of these groups, often have a sense of themselves as both authentically rooted in traditional cultural norms and as creatively adapting to modern social, political and economic challenges. A gendered division of epistemological labor allows both the cultural group and the individual to reconcile the notions of cultural continuity and cultural change over time (Fishbayn, para 4).

Shachar further explains,

Under such conditions, women's indispensable contribution in transmitting and manifesting a group's "culture" is coded as both an instrument and a symbol of group integrity. As a result, idealized and gendered images of women as mothers, caregivers, educators, and moral guardians of the home come to represent the ultimate and inviolable repository of "authentic" group identity. ... These images of "idealized womanhood" become cultural markers that help erase internal diversity and disagreement, while concurrently allowing both minority and majority leaders to politicize selective and often invented boundaries between the "self" and the "other" (Shachar).

This is well illustrated by conservative Muslim governments, who set themselves up as defenders against incursions of the West, decrying the sexualizing influence of Western culture. The special cultural  meaning of family law can also be seen in the fact that while the rest of a country's body of laws may be secularized, religious law will continue to govern the family – this is the case in Egypt, Indonesia and India, for example (Abu-Odeh, “Egyptian Feminism”). Conversely, Western societies often define themselves in part with reference to the treatment of women,  using it as a marker of progress and liberal constitutionalism (Malik). Hence, attachment to traditional identity becomes attachment to patriarchy (Abu-Odeh, “Modernizing Muslim Family Law”).

When there is rapid cultural change, or a perceived threat, women's rights become a battleground between reformers and traditionalists. This makes things particularly difficult for women who want to claim their rights, but still value their membership in religious and cultural communities. “Attempts by women to repudiate the task of embodying the traditional in this symbolic equation by seeking to transform their roles may... be perceived as a particularly worrisome threat to the identity and continuity of the group” (Fishbayn, para 4 [H]). When this happens in Muslim countries, such women are often accused of being anti-Islamic, or agents of the West.

The typical way of framing the issue is as a clash between universalism and cultural relativism. Briefly, universalism supports universal human rights as embodied in international law. Such rights are considered to be so basic as to apply to every person, regardless of their citizenship or any other status. Critics point to the Western, liberal foundation of universal rights, and recognize that those foundations potentially exclude non-Western values. It is typically argued that Western rights are individualistic, while non-western values are collective and communitarian (Feld [H]).

Those who challenge universalism usually adopt a perspective of cultural relativism. They argue that rights are based on claims to truth, claims which themselves are contingent and vary with cultural practices. Cultural relativism links morality with culture, and questions the assertion that any one culture is superior to another – an assertion implicit in universalist claims (Feld [H]).

The value in this perspective done a disservice, however, when cultural relativism is taken to an extreme, and used as a shield against charges of human rights abuses. Much in the way that states used to claim that sovereignty prevented the international community from intervening when they committed atrocities against their own people, so to do cultural relativists claim that their practices are immune from censure when those practices can be attributed to culture. (This analogy is made by Sunder, who sums up the concept with the phrase, “the New Sovereignty”). While holding some initial appeal for liberal thinkers, cultural relativism has come under much criticism. There have been calls for drawing a line in the sand between the limits of cultural rights, and human rights.

In fact, the conflict between universalism and cultural relativism is self-perpetuating. While religious fundamentalism in government appears to strengthen the case against cultural relativism; universal human rights law conceives of religion in fundamentalist terms, deferring to the claims of conservative patriarchs (Sunder). One the one hand,

Resistance to establishing such rights has been framed in terms of resistance to globalization and foreign influence and of prioritizing other values such as social stability and adherence to religion. Gendered hierarchies and male dominance are represented as symbols of a community structure that is "authentically Islamic." This authenticity has frequently, indeed successfully, been invoked to express myriad grievances as matters of cultural integrity and moral duty. In this way, the disadvantages that women experience as women are upheld as an aspect of Muslim tradition, insulating them from internal dissent (Behrouz [L]).

On the other hand, both universalists and cultural relativists accept the authority of the patriarchs' claims without question, failing to consider the perspectives of the very women whose rights are at stake.

Neither the universalist nor the cultural relativist perspectives serve women well. Both assume that culture is monolithic, failing to account for differences within the community (Feld 1216 [H]) . This assumption is far from accurate. Instead, “traditions are actively invented, negotiated, or  even re-imagined the same way social agents negotiate their political lives and relationships. Ultimately, the culture claimed by the group becomes the product of current needs and interpretations” (Duong [L]). Taking this into account, it becomes clear that the cultural claims that are taken to be authoritative may not in fact even reflect the beliefs of the majority of the community, but rather just the interests of a narrow male elite (Kelly, para 37). 

Universalism and cultural relativism both deny the agency of individuals from places unfamiliar to Westerners, by attributing their actions to blind cultural obedience, rather than free will (Feld 1217 [H]). They assume that there is an impassible gulf between respect for culture and religion, and the protection of gender equality – an assumption which, digging a little deeper, can only be founded on the notion that Western culture is unique in its capacity to give rise to and support to the idea of gender equality and other human rights (Kelly, para 37 [H]). The belief in Western superiority is embedded in cultural relativism just as much as in universalism. Both infatalize non-Western women, depicting them as either victims to be saved by benevolent Westerners, or entirely accepting of and satisfied with the submissive role that patriarchs claim is their cultural heritage (Kapur).

These ways of thinking about women, family, and cultural and religious identity put women in a difficult position, in which they have to choose between their community identity, and their rights as women – something which men are not asked to do (Sunder 1408; Siddiqui).

Women in Islam... are the symbols of cultural authenticity, the carriers of a religious tradition and a way of life. Thus, any form of dissent by women could be construed as a betrayal of their Muslim and/or Iranian identity, and protest could, by extension, be construed as treasonous and pro-Western. ... women in Iran have to choose between their Muslim identity and their new gender awareness. This is a hard and dangerous choice that is unfairly imposed on women alone. (Tiefenbrun).

Women's rights activists in Muslim countries have found different ways of negotiating between rights and identity. Some have chosen either the universalist or cultural relativist position. Increasingly, however, women are demanding access to rights, while remaining members of their religious and cultural communities. Such demands add another dimension to notions of gender equality, and challenge the way that religious freedom is conceptualized under international human rights law. 

Part 2

WORKS CITED

Abu-Odeh, Lama. “Egyptian Feminism: Trapped in the Identity Debate” (2004) 16 Yale J.L. & Feminism 145. Note: Link goes to a book containing the article, not the journal.

Abu-Odeh, Lama. “Modernizing Muslim Family Law: The Case of Egypt” (2004) 37 Vand. J. Transnat'l L. 1043.
Behrouz, Andra Nahal. “Women's Rebellion: Towards A New Understanding of Domestic Violence in Islamic Law” (2006) 5 UCLA J. Islamic & Near E.L. 153. [L]

Duong, Wendy N. “Gender Equality and Women's Issues in Vietnam: The Virtnamese Woman - Warrior and Poet" (2001) 10 Pac. Rim L. & Pol'y 191. [L]

Feld, Louise. “Along the Spectrum of Women's Rights Advocacy: A Cross-Cultural Comparison of Sexual Harassment Law in the United States and India” (2002) 25 Fordham Int'l L.J. 1205. [H]

Fishbayn, Lisa. “Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce” (2008) 21 Can. J.L. & Juris. 71. [H]
Higgins, Tracy E., and Rachel P. Fink. “Gender and Nation-Building: Family Law as Legal Architecture” (2008) 60 Me. L. Rev. 375. [H]

Kapur, Ratna. “The Tragedy of Victimization Rhetoric: Resurrecting the 'Native' Subject in International/Post-Colonial Feminist Legal Politics” (2002) 15 Harv. Hum. Rts. 1.

Kelly, Lisa M. “Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of Polygamy” (2007) 65 U.T. Fac. L. Rev 1. [H]

Kuo, Shu-Chin Grace. “A Cultural Legal Study on the Transformation of Family Law in Taiwan” (2007) 16 S. Cal. Interdis. L.J. 379.
Malik, Maleiha. “Feminism and Its 'Other': Female Autonomy in an Age of 'Difference'” (2009) 30 Cardozo L. Rev. 2613.

Shachar, Ayelet. “Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies” (2005) 50 R.D. McGill 49. 

Siddiqui, Haroon. “Modern times come to all religions; When a faith's dictates seem at odds with other important values it's time to revisit the scriptures” The Toronto Star (June 3, 2007) ID09.

Sunder, Madhavi. “Piercing the Veil” (2003) 112 Yale L.J. 1399.

Tiefenbrun, Susan W. “The Semiotics of Women's Human Rights in Iran” (2007) 23 Conn. J. Int'l L. 1.