Section 1. Gender (in)equality, women's rights and the problem of domestic violence
Inequalities between men and women are common the world over, albeit the forms and conditions vary and change. It is a nearly universal truism that gender matters in ways that make and keep women relatively less free, less independent, less empowered, less financially and physically secure than men.
The arena where gender inequalities are most entrenched, in the context of family relations, is also where they are most widely accepted and thus most difficult to alter. Sexual and other physical differences between men and women lend themselves to understandings of social inequalities as both derivative of and conforming to ‘nature’, especially in terms of family roles and relations. Such understandings prevail in many cultures. But the challenges of contesting and altering inequalities are compounded in societies where gender and family relations are governed by religious laws, because the resultant hierarchies can be defended as divinely sanctioned.
Debates over the legitimacy of gender equality have been especially vigorous in Muslim societies, and display some common patterns related to shari'a.5 The Qur'an, which believers accept as the literal word of God and thus eternally applicable, contains many verses that would seem inescapably discriminatory towards women. So, too, do many of the hadith (sayings by and reports about the Prophet Muhammad). Yet there are also many Qur'anic verses and hadith establishing the equality of men and women. These seeming contradictions lend themselves to multiple readings, claims and counter-claims about what Islam prescribes for women.6
The use of shari'a to administer family relations7 contributes to certain commonalities in gender relations across Muslim societies, notably the privileging and empowerment of men over women within the context of the family.
However, it is important to note significant variations as well. In engaging a comparative analysis, the state is the most important variable for understanding variations across societies, since, in the modern era, the state is the primary arbiter of law. State power is deployed to regulate gender and family relations, as well as the role of religion in society. Across the three regions that are the focus of this study, the history and politics of the state - that is, the specific experiences and legacies of colonial rule, and the trajectories of national independence, integration and development - have given rise to vastly different state projects and agendas in regard to gender relations, law and religion, and the relationships between them. ‘State formation affects the position of women in society in several ways. In particular, the state mediates gender relations through the law... in its attempts to foster or inhibit social change, to maintain existing arrangements or to promote greater equality for women in the family and the society at large’ (Charrad 1990: 20).The role of the state is particularly important to any discussion of domestic violence because of its capacity and responsibility" for regulating (i.e., prohibiting, punishing etc.) violence. For the purpose of this study, which focuses on (and is limited to) relations and practices governed by shari'a, the categories of domestic violence considered here include, mter alia, beatings, battery and murder; marital rape; and forced marriage.
Wlien violence occurs within the context of the family, it raises questions about the laws and legal administration of family relations. Are violent practices among family- members legally permitted or prohibited? In practice, is violence ignored, tolerated or penalized? Do perpetrators enjoy impunity (whether de jure or de facto) or do they stand to be punished? Are civil remedies available to victims (e.g. right to divorce, restraining orders)?
In the 1970s, women’s rights activists in many Western societies began pursuing an agenda (generally successfully) of bringing criminal law to bear on intra-family violence.8 One outcome was to open up the ‘private sphere’ of the family to increased state intervention, at least in principle, by establishing prohibitions and punishments for violence between family members.
Criminalization undermines the ability of perpetrators to claim that what they" do at home is a ‘private’ matter. The model of criminalizing domestic violence has become a popular goal in other parts of the world as well.9Advocates of the criminal justice approach point to the symbolic power of the law and argue that arrest, prosecution and conviction, with punishment, is a process that carries the clear condemnation of society for the conduct of the abuser and acknowledges his personal responsibility" for the activity’... It is, however, critical that those involved in policy" making in this area take into account the cultural, economic and political realities of their countries. (Coom- araswamy 2000: 11)
Γhe prospect of prohibiting and punishing domestic violence depends, foremost, on the state’s willingness and capacity to reform criminal and family laws. But the issue, and possibility, of state-sponsored reforms is strongly" affected by social beliefs and ideologies about gender and family relations. ‘Law reform strategies work best... when the social value base is in concordance with the desired new" norms. As long as the old regime of values is in effect, the tasks of making the new' norms operative, or activating the educative function of law to change values, will be difficult and require action on many fronts’ (Women, Law, and Development International 1996: 37).
When the administration of family relations is based upon or derived from religious texts and traditions, as is the case in Muslim societies where shαri'α constitutes the framework for family law, the possibility for reform is contingent on a serious and respectful engagement with religious beliefs and practices. The challenges to reform law in order to promote and protect the rights of women are daunting; in many contexts, shari'a is interpreted to allow or tolerate certain forms of violence against women by male family members. This raises questions, and stimulates debates, about what religion ‘says’ (or is believed to say) about the rights of women. It also raises questions about the willingness or ability of the state to prevent and punish violence within families, especially when prevailing views or powerful constituencies regard curbs on male authority as a contravention of shari'a.