An Introduction to Muslim Feminist Law Reform Efforts, Part 2 of 3: Strategies of Muslim Women

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

Part One

Part Two:  The Strategies of Muslim Women

I have identified five ways in which women in Muslim countries have dealt with conflicts between religion and rights. These are outlined below, along with the ways that they have been successful; and what can be learned from them.

A. Liberal Feminism

Feminists in Muslim countries have created a movement that is far more than the Western Liberal feminism fan club that some make it out to be. However, liberal feminism did play an important role, and still does in many feminist communities in the Muslim world  (Abu-Odeh, “Egyptian Feminism.” Abu-Odeh identifies Egyptian feminists' focus on “legal concepts like equality, autonomy and consent” as indicators of the influence of liberal feminism). An example of its influence is that in some countries the mainstream feminist movement deliberately rejects associations with religious or traditional identity.

For example, “Iranian woman's current demand, ... 'to change her lifestyle,' is in complete contradiction with her historical 'self' and the traditional society expectations from her. The Iranian women's movement has emerged precisely out of this contradiction” (Sadr). Or, as Abu-Odeh describes Egyptian feminism,

Secular feminists firmly believe in grounding their discourse outside the realm of any religion, whether Muslim or Christian, and placing it, instead, within the international human rights discourse. They do not 'waste their time' attempting to harmonize religious discourses with the concept and declarations pertinent to human rights. To them, religion is respected as a private matter for each individual, but it is totally rejected as a basis from which to formulate any agenda on women's emancipation (Abu-Odeh, “Egyptian Feminism.”).

Following the example of Western feminism, liberal feminists in Egypt see a clear distinction between religion, as part of the private realm, and international human rights.

Hence, liberal feminists often align themselves with other groups of secular reformers. This pattern plays out in many contexts: women who oppose the entrenched patriarchy become allies with other opposition groups – for example, nationalists or communists – hoping to amplify their voice and gain broader legitimacy (Duong [L]). There are examples from around the world of women's movements supporting reformers and opposition groups who treat their aspirations as secondary, expendable, something that can be bargained away for a chance at success.

Abu-Odeh discusses how this pattern has appeared in Egypt. Time and again, liberal feminists have been co-opted for the sake of secularization in all  areas of law except for the law governing the family. Even if some progress is made in family law, it is always in half-measures, as judges and reformers attempt to pacify traditionalists.

... mainstream Egyptian feminists' attempts to reform family law... were to a large degree undercut by the constraints created by the debate on the identity of the Egyptian legal system. Liberal feminism was consistently compromised so that the relative autonomy of religious law manifest in family law could be maintained, allowing the secular nature of the rest of the legal system to be preserved (Abu-Odeh, “Egyptian Feminism.”).

Palestine provides another example. For decades the women's rights movement had struggled with persecution. However, the first intifada in the late 1980s and early 90s gave the movement the opportunity to align with the secular liberation movement and thereby achieve legitimacy. The death and capture of many of the men involved meant that the secular leadership had to seek support from women activists. As a result, women took on roles that had traditionally been filled by men. The intifada was portrayed, “as a struggle for female liberation as well as national liberation” (Jacobson 147-148).

Though liberal feminists reject attempts to justify their position in terms of religion, they are still required to prove their cultural authenticity in terms of the secular religion of nationalism. Often this does not work out to their advantage.

An additional issue is that liberal feminists simply do not speak for those women for whom religion is an important part of their lives. Liberal feminists are more likely to be educated, and living in urban centres. The issues which are important to them will not resonate with poorer rural women who see liberal feminists as Westernized elites (Gray and Tarvainen). Class divisions can prevent liberal feminists from obtaining broad support.

B. Cultural Relativism/Islamist Feminism

There are Muslim women who have themselves adopted cultural relativist position. They accept that women have different rights than men under Muslim law. They identify the real problem being that Muslim men do not fulfill the obligations that they owe Muslim women (This does not seem to be a commonly held view among activists). They, “denounce ... inequality and defend the Shari'a by attesting that women are given a 'special rank' in the Islamic order. They argue that the Shari'a makes special provisions for women to provide them with the financial security and stability that they were historically unable to achieve on their own”(Khan, para 16 [H]).

This is a highly problematic position, because it endorses unequal gender relations, places the responsibility for enforcing women's rights at the feet of individual men instead of the state, and perpetuates the notion that there are rigid gender roles which must not be transgressed (Abu-Odeh, “Egyptian Feminism.”). While an individual may choose to order her own life according to this perspective, its blindness to social realities – such as the fact that  gender roles are adopted due to economic necessity as much as due to individual choice – alone makes it an unsuitable basis for social change.

Abu-Odeh writes about Islamist feminism in Egypt being called upon as a tactic, rather than reflecting many feminists' actual beliefs about gender equality. “Due to the struggle with their religious adversaries, much of the attention of Egyptian feminists was focused upon the abuse by Muslim men of what is recognized, according to the traditional interpretations of Islam... as their lawful rights and responsibilities” (Abu-Odeh, “Egyptian Feminism.”).

This is a distinctly traditional perspective. Other strands of feminism use Islam in support of women's rights, but without wholeheartedly buying into formal inequality.

C. Material Conditions

The third approach taken by Muslim feminists is one that avoids assuming a position on the religious implications of laws, and instead focuses strictly on improving the material conditions of women's lives – doing anti-poverty work and campaigning against domestic violence.

It has been successful, for example, in Indonesia, where,

The push by women's organizations for the recognition of domestic violence as a crime provides a positive example of change on multiple levels in the international fight for gender equality. These organizations have raised the visibility of violence against women, which in turn has led to the creation of government- and community-run crisis centers, women's desks in some police stations, and proposed domestic violence legislation before the House of Representatives (Riggins 438).

However, only a limited number of issues can be addressed without having to speak to cultural or religious norms. In the case of Indonesia, the reform was in criminal law, not the more ideologically charged area of family law. Even then, cultural attitudes caused roadblocks, “... the State Ministry includes in its list of obstacles to reform, the 'community sociocultural environment that insufficiently support[s] [women's] progress'” (Riggins 438).

Focusing on material conditions while ignoring cultural attitudes and religious beliefs is an expedient strategy, but unsustainable if one seeks to change the situation of women, rather than just mitigate it.

D. Liberal Interpretation

The liberal interpretive approach begins to resolve the tension between religious and cultural tradition, human rights, and the needs of women. It involves interpreting the Koran in light of modern values; keeping in mind the context in which it was written, so as to distinguish between what was the common cultural practice of the day, and what was a religious imperative (Behrouz [L]). Those who take this position often note that, in terms of women's rights and equality, the Koran was radical at the time it was introduced, but has since been interpreted by privileged men invested in the patriarchy (Khan, para 22 [H]). They argue that religious law should be in the original spirit of the Koran.

With this approach, Islamic feminists reject both universalism and cultural relativism, while actively confronting the religious/cultural claims of traditionalist leaders.

By working from within and engaging the texts of Islam, these scholars work strategically to reconcile faith and freedom. For Muslims, the reconciliation of religion and rights cannot be achieved by a secular approach imposed from outside or above. Islamic feminist-scholars themselves are best equipped to show the international community, and agents within their own communities that are opposed to change, that Islam can maintain its integrity and be understood as wholly compatible with gender equality (Behrouz 165 [L]).

This is the first approach that speaks unashamedly to the interests of Muslim women. At the same time, it relies heavily on legal scholarship and analysis. So while they do not discard one aspect of Muslim women's identity in favour of the other, those who use this approach have no applicable use for the input of average women – the movement is in the hands of the elite.

This same approach was successfully used to justify banning polygamy in Morocco; and while that ban was undertaken on the initiative of the king the move still helped to affirm the legitimacy of the liberal interpretive line of reasoning.

Another examples of liberal interpretation at work is providing the theoretical framework for Indonesia's Centre for Women's Studies, which interprets and recontextualizes the Koran and Hadith to emphasize women's and children's rights and to promote the modernization of marriage law (Prazic).

Meanwhile, the approach has also been embraced by feminists in Iran who are arguing that men's rights to unilateral divorce and to practice polygamy are not derived from the Koran, but were granted by jurists (Tiefenbrun 80-81). The liberal interpretive school is still establishing itself, so while there are as yet few reforms to its name, it shows much future promise.

The degree to which the discussion about women's rights in Islam is shaped by the universalist/cultural relativist dichotomy is well illustrated by some of the critics of liberal interpretation, who seem to have trouble acknowledging the existence of approaches outside that dichotomy. For example, Khan indicates that the liberal interpretive approach is based on a moderate cultural relativist perspective, but this is an inaccurate depiction.

Khan discusses liberal interpretation as a means by which Islamic reformers “attempt to legitimize contentious Shari'a principles.” In her account, the major question on reformers' minds is how they can manage to justify continuing to base a legal system on Shari'a law. From this perspective, appeals to history serve the purpose of warding off outside critics, apparently by claiming that since Islamic law was progressive long before European law was, outsiders are in no position to hold up Westrn models of justice for Muslim countries to emulate (Khan, para 23 [H]).

If this were the reasoning behind the liberal interpretive approach, then Khan's criticism that references to the historically revolutionary character of Muslim law do nothing to reconcile the current disparity between Muslim law and human rights, would have made sense (Khan, para 25 [H]). However, Khan seems to have misconstrued the entire thrust of the liberal interpretive argument.

The purpose of liberal interpretation is not to justify refraining from a total overhaul of Islamic justice systems. Rather, it aims at illustrating that incorporating international rights norms into law will not threaten the Islamic character of a nation's legal system. Reformers taking this approach do not look to history to prove that Islamic law is just as progressive as Western law, but to show that their religious leaders do not have a monopoly on determining what is and is not Islamic, and as such laws may be changed without betraying the principles of Islam.

Indeed, it is difficult to determine how Khan arrived at her analysis of the liberal interpretive approach, but to assume that she had so uncritically taken the universalist/cultural-relativist framework for granted that she assumed that any approach to rights and culture had to be classified as one or the other; and that the characteristic assumption that culture and religion are monolithic led her to conclude that a group Muslims proposing that Islamic law be used to enforce human rights, could not be doing so as a critique of other Muslims; therefore their argument had to have been directed outwards as a defence of Islamic law.

This illustrates that attempts to understand the world in terms of the universalist/cultural-relativist binary (or indeed, any binary) only serve to simplify matters to the point of distortion, rather than to illuminate them. Liberal interpretation should be understood not as an attempt to defend problematic aspect of Shari'a, but to reform them.

           

The major benefit of this approach is that by basing claims to rights on religious texts, feminists are not required to prove their religious or cultural authenticity as a pre-requisite to being heard. In the case of Egypt, as Abu-Odeh writes, this means that there is, “no need for splitting the difference, the price that the secular centrist male allies extracted from the feminists” (Abu-Odeh, “Egyptian Feminism.”). Instead of having to defend against accusations of being “anti-Islamic,” feminists have a stronger discursive position, as they can now assert a superior claim to religious truth.

Of course, the act of asserting a claim to religious truth does not mean that that claim will automatically be taken seriously.

The theories and methodologies of Islamic feminism have not yet been widely or unreservedly embraced. Certain constituencies - namely, women, youth, and the highly educated - tend to be the most supportive. Some Muslims might not agree on all aspects of the Islamic feminist projects, but may still acknowledge the potentially valuable contribution of Islamic feminist-scholars to the development of Muslim culture and society. On the other hand, many Muslims dismiss these feminist-scholars outright, deeming them unqualified to contribute to the debates in which they engage. ... These opponents view Islamic feminist-scholars with suspicion, accusing them of serving 'Western' interests and working to destroy 'Islam' from within (Behrouz 176-177 [L]).  

There are other issues which will have to be dealt with by activists adopting the liberal interpretive approach as well. Abu-Odeh expresses concern that teaming up with religious reformers will prove to be a double-edged sword. She reasons that even if feminist reforms are passed into law, the need may arise to critique them later. If reforms are, “pitched as God-ordained” it will be near impossible for laws to be re-evaluated (Abu-Odeh, “Egyptian Feminism.”).

This worry sells short the new wave of religious reformers. Those utilizing liberal interpretation are not trying to replace current religious elites as the last word on the meaning of scripture; they do not merely claim to present a more loyal interpretation of the Koran. While they argue that the Koran has been improperly interpreted, they also argue that the correct interpretation can change over time – which is why historical context must be considered. This is why the practice of liberal interpretation involves first determining underlying principles, and then the how those principles might be expressed in law, given the current context (Behrouz [L]). The great advantage of the liberal interpretive approach is that it admits that there is much more flexibility allowable in religious law than there is currently.

A second possible problem is the new opportunities that are opened up to derail reform. Such opportunities may be created first by the expanded use of ijtihad, which might allow debate to be drawn out indefinitely (Tiefenbrun). A more significant problem is that, according to Abu-Odeh, by trying to find religious justification for their claims, feminists have already allowed their opponents to set the term of the public discussion, making it about Islam instead of about challenging the patriarchy (Abu-Odeh, “Egyptian Feminism.”).

The most relevant concern about the use of liberal interpretation is that it does not give feminists the capacity to question the underlying assumptions on which Islamic family law is based. The consequences of this fact have played out in Tunisia with respect to transactional reciprocity.

Transactional reciprocity is the conceptual basis of the Muslim marriage contact, under which a wife promises obedience to her husband in exchange for his promise to provide maintenance.  Using liberal interpretation, feminists in Tunisia successfully argued that one can conclude that if a wife works outside of the home, freeing her husband from his maintenance obligations, then she no longer owes him obedience. In one way a step forward, the argument also ended up, “exposing women's purses to family demands in exchange for equality” (Abu-Odeh, “Egyptian Feminism.”).

Liberal interpretation requires reforms to be based upon some continuous principle, which itself is left unchallenged. This becomes highly problematic when the principle in question is the gendered division of labour, itself a major pillar in sustaining gender inequality around the world.

Nonetheless, the liberal interpretive approach represents an important step forwards for Muslim feminists, as it allows them to claim their rights in a way that is culturally meaningful to them. It represents a claim for true substantive equality, as women refuse to cede their rights as women, and at the same time refuse to give up on institutionalized religion as an irredeemably patriarchal institution. That is, it represents a new way of conceptualizing equality and the law (Paulson).

E. Critical Engagement

The final approach bears many similarities to liberal interpretation, and in facts incorporates it. The approach that I have called “critical engagement” (or what Sunder has termed, the “New Enlightenment”) goes even further in the direction of the post-modern, and in doing so, manages to answer some of the criticism leveled at liberal interpretation. While liberal interpretation claimed a right for women to participate in the construction of religious meaning at a scholarly level, the critical engagement approach argues that all women have the right to make and negotiate their own religious identity. Instead of operating through scholarship, activists who adopt this approach give it effect largely through education, giving women on the grassroots level the tools to challenge and re-imagine religious law for themselves.

Conceptually, this approach challenges the division between public and private spheres that provides the structural support for gender inequality. Specifically, “Feminists in Muslim communities argue that the same democratic principles that guide the public sphere should apply within the family, culture, and religion - that is, in spheres traditionally defined by Western law as private and virtually unregulated” (Sunder 1459-60). Instead of, “accepting law or imposed identities,” this approach, “posits an individual's right to construct identity and conceptions of rights on one's own terms,” imposed neither by religion, nor by international law.

The aim is to empower individuals, “to construct their own version of the truth - be it in a cultural, religious, or public context.” Says one activist, “You let people discuss it for themselves and come to conclusions for themselves. It's striving for a new way of learning that emphasizes the individual as an empowered being who can decide for herself. ...” (Sunder 1460).

While critical engagement incorporates liberal interpretation, it also goes farther. Instead of simply looking for support for women's rights in religious texts, the approach also encourages women to think about religion and religious law as socially constructed, and to uncover the ways in which it is historically contingent and biased. When considered in these terms, even the texts that seem clearly opposed to women's rights may be deconstructed, analyzed, rejected and replaced by principles which women feel better ensure their equality, reflect the needs and aspirations of women, as well as what they consider to be true about their faith.

Under this approach, the texts of international human rights instruments are also open to challenge (Sunder gives a more detailed analysis of the strategies used by activists under this method, labeling them translation, textualism, constructiveism and reconstructivism). “The cultural basis for human rights in Muslim communities... then, is not just proverbs and quotations from religious texts, but the workshop participants themselves” (Sunder). Rights are not understood as imposed by international law, or even by one's religion. They are instead derived from the needs of the community.

The critically engaged approach also understands religion in very different terms from previous approaches. More than simply being open to interpretation,

religion and community [are viewed] as historical - hence, changing with cultural changes - and based on individual autonomy - that is, as emerging from the definitions that individual members themselves forge. [The approach] empowers individual women to take part in the process of defining their religious community and identity based on historically evolving needs and aspirations, reason, and exchange of information with people inside and outside the Muslim world (Sunder 1441).

This radical understanding of religion helps to overcome some of the limits faced by liberal interpretation. For example, while pure liberal interpretation is forced to accept transactional reciprocity as a fundamental principle underlying Muslim marriage, it would be open to challenge by one taking a critical engagement approach.

Notions of human rights as presented by the West are also challenged – but not for the purpose of limiting their applicability. Instead, “it takes human rights claims and makes them applicable in more aspects of women's lives - that is, in private as well as public contexts” (Sunder1453).

 Freedom of religion does not simply mean the right to practice a religion, and the right to enter and leave religious communities, as it  does under the the human rights model. Instead it is interpreted as a right to do what elite men have always done; that is, “as an individual right to participate in the group and to shape one's own religion - not just as an individual right to belong or to leave” (Sunder 1453).

The tension between freedom of religion and gender equality is resolved, since the Western human rights notion of freedom of religion, being a collective right to do what religious leaders say, is dispensed with. One no longer trumps the other. The problem of religious norms frustrating gender equality will be addressed when the power to determine the meaning of religion is shared equally.

Applied in practice, this approach involves grassroots-level engagement and education. The organization Women Living Under Muslim Law (WLUML), for example, facilitates exchanges between ordinary Muslim women from different countries, and disseminates information about the various forms that Islamic law has taken from country to country and over the course of history, including some laws which are progressive on women's rights. They prove that there is no monolithic Muslim law, and build international support networks (Sunder 1437, 1441). Hence, they ensure that women are able to refute the claim that feminism and human rights are “Western” and “un-Islamic”. They give information about alternative frameworks of Muslim law to reformers in countries where changes are being considered to “personal, customary and religious laws.”

Other organizations hold workshops to educate Muslim women about their rights under international law, using various methods, “to enable women to construct a dialogue and negotiate, rather than avoid, the tensions between Muslim traditions, international human rights concepts, and evolving notions of gender equality.” Rights are, “derived from the process of women negotiating conflicts within the community” (Sunder 1444).

The efforts of these activists effectively debunk both the universalist idea that only secular human rights law can save women from the oppression of their cultures, and the belief among cultural relativists that rights are incompatible with Islam.

Critical engagement, basically, takes the element of liberal interpretation which recognizes contingency, and runs with it. This gives the approach the ability to answer the criticisms of liberal interpretation. As noted above, by recognizing all aspects of religion as socially constructed, critical engagement is able to bring a more thorough critique to foundational principles of muslim law.

Critical engagement also provides a stronger response to Abu-Odeh's concern about the contestability of religious law, starting with the fact that merely because religion is being engaged with does not mean that the approach is antisecular, as secular rights are not being rejected (Sunder 1453). The understanding of religion that the approach promotes is one that is always contestable, because religion is always subject to human bias. Moreover, critical engagement, “emphasizes not only the contestability of religious laws and interpretations, but also their multiplicity and flexibility” (Sunder 1453). Accepting the critical engagement argument would not only mean recognizing women's rights, it would also mean recognizing a new relationship between religion and law.

Critical engagement, like liberal interpretation, is gaining in popularity, and has been put to productive use in Algeria, among other countries.

Part Three

WORKS CITED

Abu-Odeh, Lama. “Egyptian Feminism: Trapped in the Identity Debate” (2004) 16 Yale J.L. & Feminism 145.

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.

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.

Gray, Doris, and Sinikka Tarvainen. “Moroccan women seek emancipation between Islam and the West” Deutsche Presse-Agentur (July 12, 2004).
 
Jacobson, Heather. “The Marriage Dower: Essential Guarantor of Women's Rights in the West Bank and Gaza Strip” (2003) 10 Mich. J. Gender & L. 143.

Khan, Isha. “Islamic Human Rights: Islamic Law and International Human Rights Standards” (1999) 5 Appeal 74-85.

Paulson, Michael. “Studying gender in Islam” The Boston Globe (November 24, 2001) B2.
 
Prazic, Ivana. “Islamic feminists work for just, fair marriage laws” The Jakarta Post (October 31, 2008).

Riggins, Leah. Book review of Criminalizing Marital Rape in Indonesia: Violence Against Women in Asian Societies by Lenore Manderson & Linda Rae Bennett, eds., (2004) 24 B.C. Third World L.J. 421.

Sadr, Shadi. “Iran-rights: Shadi Sadr describes Iranian women's movement” WomensENews (May 26, 2004). 

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.