Where We Are Now: New Contexts and New Questions

Appearing at two different junctures in the twentieth-century, these pioneering texts by Tahir Haddad and Fazlur Rahman lay the ground for an egalitarian con­struction of family law within an Islamic framework.

The first was the ways in which the successes of political Islam and the ideo­logical use of Shari‘a transformed relations between religion, law and politics for Muslims. The slogan of ‘Return to Shari‘a’ in practice amounted to nothing more than attempts to translate into state policy classical fiqh rulings on gender rela­tions and family and some areas of penal law. In late colonial times and the im­mediately post-colonial middle decades of the century, activist women in Muslim contexts had increasingly come to identify Islam with patriarchy, and to fear that the removal of the latter could not be achieved under a polity and a legal regime dominated by Islam. Now, wherever Islamists gained power or influence — as in Iran, Sudan, Pakistan and Malaysia — their policies proved the validity of the activists’ fears. Arguing for patriarchal rulings as ‘God’s Law’, as the authentic ‘Islamic’ way of life, they tried to reverse some of the legal gains that women had acquired earlier in the century; they dismantled elements of earlier family law reforms and introduced morality laws, such as gender segregation and dress codes.

But these Islamist measures had some unintended consequences; the most important was that, in several countries, they brought classical fiqh texts out of the closet, and exposed them to unprecedented critical scrutiny and public de­bate; Muslim women now found ways to sustain a critique — from within — of patriarchal readings of the Shari‘a and of the gender biases of fiqh texts in ways that were previously impossible.

The second development was the expansion of transnational feminism and women’s groups, and the emergence of NGOs, which led to the opening of a new phase in the politics of gender and law reform in Muslim contexts. In the first part of the twentieth century women were largely absent from the process of re­form and codification family law and the debates that surrounded it. But by the end of the century, Muslim women were refusing to be merely objects of the law, but rather claiming the right to speak and to be active participants in the debates and in the process of law making. The changed status of women in Muslim so­cieties and other socio-economic imperatives meant that many more women than before were educated and in employment. Women’s rights were by now part of human rights discourse, and human rights treaties and documents, in particular CEDAW, gave women a new language in which to frame their de­mands.

The confluence of these two developments opened new space for activism and debate. Both recognised religious authorities (fuqaha) and those with other interpretations and agendas, not least women scholars and lay people, started engaging in debate and in criticism of the interpretations, old and new, of key concepts such as qiwama.

Contemporary Iran (Princeton: Princeton University Press, 1999), Chapter 7; for Shabestari, see Farzin Vahdat, ‘Post-Revolutionary Modernity in Iran: The Subjective Hermeneutics of Mohamad Mojtahed Shabestari', in Taji-Farouki, Modern Muslim Intellectuals and the Qur'an; and articles and interviews at Qantara.de (http://qantara.de/webcom/show_article.php/_c-575/Lhtml).

49 Their early works are: Aziza Al-Hibri, ‘A Study of Islamic Herstory: Or How Did We Ever Get Into This mess?’, Islam and Women 5, no. 2 (1982); Riffat Hassan, ‘Equal before Allah? Woman­Man Equality in the Islamic Tradition’, Harvard Divinity Bulletin 7, no. 2 (1987); Fatima Mernissi, Women and Islam: An Historical and Theological Enquiry, trans. Mary Jo Lakeland (Oxford: Black­well, 1991); Amina Wadud, Qur'an and Woman: Rereading the Sacred Textfrom a Woman's Per­spective (New York: Oxford University Press, 1999).

50 See, for instance, Kecia Ali, ‘Progressive Muslims and Islamic jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law’, in Progressive Muslims, ed. Omid Safi (Oxford: Oneworld, 2003); Asma Barlas, Believing Women in Islam: Unreading Patriarchal Inter­pretations of the Qur'an (Austin: University of Texas Press, 2002); Sheikh, ‘Exegetical violence’; Asghar Ali Engineer, The Rights of Women in Islam (London: Hurst, 1992); Haifaa Jawad, The A new consciousness emerged, a gender discourse that came to be labelled ‘Is­lamic feminism’.⁵¹ This discourse, energised by new feminist scholarship in Islam, was further facilitated by the rapid spread of new technologies, notably the internet; and these new technologies have regularly shown their potential for the mobilization of campaigns for change.

By engaging with the tradition from within, these new feminist voices and scholarship in Islam have begun to insert women’s concerns and voices into the processes of the production of religious knowledge and legal reform. In so doing, they can bridge two gaps in the Muslim family law debates and in the Muslim legal tradition. First, a majority of Muslim religious scholars are gender blind, being largely ignorant of feminist theories and unaware of the importance of gender as a category of thought. Secondly, in line with mainstream feminism, many women’s rights activists and campaigners in Muslim contexts have long considered working within a religious framework to be counter-productive; choosing to work only within a human rights framework, they have avoided any religion-based arguments. They have tended to ignore that there is also an epistemological side to feminism, in the sense of examining how we know what we know about women in all branches of knowledge and in religious tra­dition. This knowledge not only sheds light on laws and practices that take their legitimacy from religion but enables a challenge, from within, to the patriarchy that is institutionalised in Muslim legal tradition.

Before considering, finally, the implication of feminist scholarship for twen­ty-first century debates over Muslim family laws, let me bring together the two elements that run through my narrative and argument in this chapter. First, the idea of gender equality, which became inherent to global conceptions of jus­tice in the course of the twentieth century, has faced Muslim legal tradition with

Rights of Women in Islam: AnAuthenticApproach (London: MacMillan, 1998); Mir-Hosseini, ‘The Construction of Gender in Islamic Legal Thought and Strategies for Reform’; Amira El-Azhary Sonbol, ‘Rethinking women and Islam’, in Daughters of Abraham: Feminist Thought in Judaism, Christianity, and Islam, ed. Yvonne Haddad and John Esposito (Gainesville: University of Florida Press, 2000); Zainah Anwar, ed., Wanted: Equality and Justice in Muslim Family Law (Kuala Lum­pur: Sisters in Islam, 2009).

51 Although I was among the first to use the term ‘Islamic feminism’ to refer to the new gender consciousness emerging in Iran a decade after the 1979 revolution [ Ziba Mir-Hosseini, “Stretch­ing the Limits: A Feminist Reading of the SharFa in Post-Revolutionary Iran,” in Islam and Fem­inism: Legal and Literary Perspectives, ed. Mai Yamani (London: Ithaca, 1996)], more recently I have questioned its usefulness as an analytical or descriptive tool, given the heavy political and rhetorical baggage it has since acquired, Mir-Hosseini, ‘Beyond “Islam” vs “Feminism”’. an ‘epistemological crisis’^{[155] [156] [157]} that it has been trying to resolve with varying de­grees of success. Secondly, the breakthrough came in the last two decades of the century with the emergence of feminist voices and scholarship in Islam, which, as I have argued elsewhere, is the ‘unwanted child’ of political Islam. The Islamists’ attempt to turn patriarchal interpretations of the Shari‘a into pol­icy the made the intimate links between theology, law and politics more and more transparent. It led to new forms of activism among Muslims and the emer­gence of new discourses, which eventually opened the way for a constructive and meaningful dialogue between Muslim legal tradition and feminism.

By bringing the insights of feminist theory and gender studies into Islamic studies, feminist scholarship in Islam can enable us to ask new questions. For example, the Maqasidi approach5³ has captured the imagination of many Muslim reformist thinkers; what does it have to offer to those seeking gender equality? Does the concept of qiwama have positive elements that should be retained? Should the link affirmed by classical fiqh between maintenance (nafaqa) and obedience (tamkin) be redefined or severed? One of the basic necessities that the Shari‘a aims to protect is nasl: progeny, family; so far, this has been done in a patriarchal form. What kind of family do Shari‘a-based laws aim to protect? What do equality and justice mean for women and the family? Do they entail identical rights and duties in marriage? In other words, is legal equality good for women and the family?

These questions are at the centre of debates in feminist scholarship.

The search for answers to these questions takes us to realms outside Islamic legal tradition, to human rights law, feminist legal theory, and experiences of family law reform in other legal traditions. If, in the twentieth century, scholars like Tahir Haddad and Fazlur Rahman bridged the gap between classical fiqh and modern notions of justice by providing a framework for an egalitarian inter­pretation of Islamic sacred texts, in the twenty-first century the new feminist voi­ces and scholarship in Islam have opened a dialogue with Muslim legal tradi­tion. But a meaningful and constructive dialogue can only take place when the two parties can treat each other as equals and with respect, when they are ready to listen to each other’s arguments, and to change position if necessary. This takes us once again to the realm of power relations; the theological is also necessarily — and intensely — political, in ways similar to the feminist un­derstanding that the personal is political.

viding Equality: Substantive Equality and the Positive Duty to Provide’, South African Journal of Human Rights 21 (2005).

55 Catherine MacKinnon, Towards a Feminist Theory of the State (Boston: Harvard University Press, 1989).