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“Islam, Democracy, and Development,” a Political Science seminar I took in the fall of 2011, helped me to articulate something I had felt for a long time – that important social justice reforms can be made within the contexts of Islamic law in democratizing countries.  This was especially relevant at the time I took the course, which was in the immediate aftermath of the Arab Spring.  It was important for me to realize that in countries like Tunisia, Egypt, and Libya, the rights of women and other vulnerable groups could still be protected if Islamist parties took control.  This continues to be especially important to keep in mind in the case of  Egypt where President Morsy, of the Islamic Brotherhood has created a series of barriers to true democratic reform and good governance.  But, this is not necessarily because he allows Islamism to dictate his policy, it is because he is following in the footsteps of past dictatorial leaders and assuming full control of the government and enacting martial law.  Below is an essay I wrote for the class in November, 2011, looking at women’s rights in the context of sharia-based law.

            Last Wednesday, November 2nd, the US Senate Foreign Relations Committee held a joint subcommittee hearing on Women and the Arab Spring.  During the hearing, Melanne Verveer, the U.S. ambassador for global women's issues, stressed the importance of making reforms within the contexts of Muslim law, and argued that the rights of women could still be protected if Islamist parties take control in Arab Spring countries such as Tunisia, Egypt, and Libya. (Verveer 2011) Verveer gave the example of Morocco, where women’s activists “steeped their reform effort in the very values of their religion” and have been using Muslim teachings to fight for human rights for years. (Verveer 2011)  Manal Omar, from the United States Institute of Peace, talked at length about Libya, and assured U.S. lawmakers that concerns about the National Transitional Council’s promise to impose Sharia law is not – in and of itself – concerning to women’s rights activists.  He explained that many women do not oppose Sharia, and “in fact many feel Islamic law is the best framework for protecting their rights. Their concern, however, is with the trend towards imposing a monolithic interpretation of Islamic law.” (Omar 2011)  In many ways, these statements, as well as the press they have been receiving, are groundbreaking. For years, the trend in U.S. discourse on women and Islam has been to hold the religion itself culpable for all inequalities that exist in Muslim countries, without making an effort to address other root causes of patriarchy and inequality.  In fact, just last March, Congress put Islam on “trial” when the Committee on Homeland Security held a hearing titled “The Extent of Radicalization in the American Muslim Community and that Community's Response” this past March. (Committee on Homeland Security 2011)

            Ziba Mir-Hosseini’s paper, “Towards Gender Equality: Muslim Family Laws and the Shari‘ah,” provides a well-thought, convincing argument as to why Islamic feminists have the religious legal standing to invoke change towards the direction of greater gender equality.  Many of the people testifying in front of the US Senate Foreign Relations Committee on Tuesday emphasized that women can and should use the energy of the Arab Spring to promote women’s rights – and Mir-Hosseini explains how Muslim feminists organizing en masse is a relatively new phenomenon.  It is important to understand that Muslim women are capable of fighting for their own rights, and “one crucial element of this phase has been that it places women themselves—rather than the abstract notion of ‘woman in Islam’—at the heart of the battle between forces of traditionalism and modernism.” (Mir Hosseini, 41)  Mir-Hosseini’s paper can be used as a toolkit to help promote more positive discussions about women and also highlights how academic understandings can help to shape productive political action.  She shows, for instance, that the fight for gender equitable fiqh can be greatly advanced by harnessing the strengths of global human rights frameworks, such as the Convention on the Elimination of All Forms of Discrimination against Women. 

I think that one of the most important and provocative arguments that Mir-Hosseini makes in her paper is that some elements of Islamic law “are not defensible on Islamic grounds.” (Mir-Hosseini, 25)  If Fiqh is temporal and local, it makes sense for women’s rights activists to develop teams of Islamic legal scholars and adjudicate their own rulings and interpretations.  I think that Mir-Hosseini’s argument is very strong, but fighting against patriarchal understandings of sharia by making new fiqh rulings can only be effective if it is widely adopted as an activist strategy.  Fatima Sadiqi and Moha Ennaji’s chapters in Women in the Middle East and North Africa provide good examples of how Muslim women can harness the tenets of their religion to push for democratization, modernization, and equality – Islam can become a tool, rather than a barrier.  Sadiqi writes that feminists “never targeted Islam as a religion; on the contrary, attacks on patriarchy were supported by Islam’s ethical ideals where men and women enjoyed the same rights.” (Sadiqi 2011, 37)  Moroccan activists understood the ways in which the state used Islam to maintain a “traditional and patriarchal society” and effectively copied the strategy to push for equality.

            The problem, of course, is that what is really being challenged is not Islamic law, which unequivocally supports justice and equality, but rather outside cultural forces equating justice with patriarchy.  Mir-Hosseini explains that mu‘amalat, the fiqh which regulate relations among humans, such as family law, is subject to extra-religious notions of justice. (Mir-Hosseini, 27) M. Steven Fish claims that “in the minds of many Muslims and non-Muslims, inequality between the genders is a salient characteristic of Muslim societies” (Fish 2011, 174) – but the forces that create structural gender inequality are not necessarily the product of Islam, even if the law itself is wrapped up in the guise of Islamic legal mandates.  If, in fact, family law is a series of “man-made” juristic constructs, shaped by the social, cultural and political conditions within which Islam’s sacred texts are understood,” (Mir-Hosseini, 24) then it is social and cultural norms that need to be examined. 

            Unfortunately, seemingly very little scholarship tries to disentangle religion from cultural norms.  In fact, the problem with the premise of Fish’s comparisons is that by contrasting gender equality markers between Muslim and Christian countries, he is making the tacit assumption that religion is the only factor in promoting or preventing gender equality.  Pointing out the limitations of his statistics is not to say that they are irrelevant or uninteresting. Quite the opposite, in fact; I find them fascinating.  What they don’t do, however, is say anything about whether or not Islam is an egalitarian religion at its core.  Interestingly, Fish seems to readily admit this, and looks at other factors, such as the ways that tribalism, whose culture often dictates the need to know paternity of all children, can foster gender inequality, and explores other cultural, societal, historical and post-colonial causes.  He gives an additional nod to feminist arguments that explain how classic fiqh was hugely influenced by patriarchal norms at the time they were written, even though Sharia itself is much more egalitarian.  As Mir-Hosseini posits throughout her piece, changing social norms have led to different fiqh schools.  Most Islamic scholars would agree that Sharia promotes justice, so the question then becomes, what is justice?  And who decides?

            Classic fiqh clearly did not place a lot of importance on women’s bodily autonomy, something that seems hugely unjust to many contemporary women. And why did medieval Islamic scholars conclude that if women’s sexuality is not controlled by men it poses a threat to social order? (Mir-Hosseini, 35)  It was for the exact same reason that women were subjugated in Hindu medieval India, and Roman Catholic medieval England, and Jewish societies in many different countries.  Legal theorists in all these places were “constrained by a set of gender assumptions and legal theories that reflected the social and political realities of their age.” (Mir-Hosseini, 36)  The idea that “patriarchy and slavery were part of the fabric of society, seen as the natural order of things, the way to regulate social relations” were not just part of Muslim medieval thinking – but marked a world that, broadly, did not have widespread concepts of human rights in the same way that they exist now.  This is not to say that in the Middle Ages there were no individual cultures, religions, and societies with laws mirroring the modern sense of human rights, but rather that they were not globally understood as inalienable rights. 

International bodies and conventions can play an important role in changing global culture and norms, which in turn provide a framework to reinterpret fiqh in Muslim societies.  This should not be done in a neocolonial manner, with the Global North dictating human rights laws to the Global South, but rather it is the onus of gender equality activists from around the world to push for human rights to permeate their respective countries.  In some ways, this is a lofty, idealistic goal, but at the same time this strategy has already been proven effective.  The successes of Moroccan feminists, including the highly publicized new family law, passed in 2003, were all gained through activism inside the constructs of Islamic jurisprudence. Fadiqi explains that reinterpretation of Sharia has become so widespread in Morocco because “women are more and more conscious that they have been deliberately excluded from the sacred not because Islam prescribed so but because Islam was revealed in a heavily patriarchal society.” (Sadiqi 2011, 40)  In many ways, the tactics of Muslim feminists mirror those of Christian, Hindu, Jewish, and other religious feminist activists who base their organizing around the civil and human rights teachings of their respective religions.

Mir-Hosseini explains that international human rights instruments, including CEDAW, can create an international culture that values women and allows for this type of activism.  Yes, some Islamists are trying to “resist the advance of what they see as alien ‘Western’ values and lifestyles,” (Mir-Hosseini, 40) but Mir-Hosseini explains that gender equality is not a Western concept, but rather has become “inherent to global conceptions of justice” (Mir-Hosseini, 44).   Even reformist Muslims have allowed that Islam is a dynamic religion whose tenets “can be interpreted to encourage both pluralism and democracy,” (Mir-Hosseini, 42) which provides Muslim feminists with the precedent to connect human rights and fiqh within the framework of reformist Islam.  More importantly, international organizations do not necessarily need to set objectives, but can rather help local NGOs increase their capital.  Ennaji writes that because of funding from international organizations like UNIFEM and UNESCO, local Morrocan women’s NGOs “have organized many seminars and workshops about strategic themes like violence against women, the new family code … the goal of which is to empower women.” (Ennaji 2011, 80)  And when these NGOs were successful at updating family law they did not do it by discrediting Islamic legal tradition, but rather by going through the existing council of Ulamas who ultimately approved the law.  (Ennaji 2011, 83)

             The conversations stops when leaders from the Global North – people who think of themselves as both conservative and liberal – try to dictate the course of action by completely discrediting all Islamic legal frameworks as being harmful to women.  A much more constructive way to frame the debate is to recognize the legitimacy of Islamic law, and arguing that it should be interpreted to promote gender equality.  Mir-Hosseini asks at the beginning of her piece, “If justice and equality are intrinsic values in Islam, why are women treated as second-class citizens in Islamic jurisprudential texts?” (Mir-Hosseini, 24)  Her answer is far from saying that Islam and Sharia itself is inherently flawed, but rather that “the provisions of CEDAW – which stand for justice and equality for women in the family and society – are more in line with Shari‘ah than are the provisions of family laws in many contemporary Muslim countries.”  (Mir-Hosseini, 47)  Perhaps this is because CEDAW was championed by Muslim activists themselves, such as by the NGOs in Morocco who pushed for CEDAW’s ratification.

            The successes of Moroccan women’s rights activists paint a rosy picture of the state of gender equality in the Muslim world, but of course the situation in Morocco has not been reproduced in all Muslim countries, and the Moroccan reforms themselves have arguably been less than ideally implemented.  Fish does a good job of showing big gaps in the status of women in public life, popular attitudes towards gender equality, and thinking that men have a greater right to employment, between Muslim and Christian countries.  It is important to once again emphasize, however, that this says little about Islam itself.  Mir-Hosseini explains that Islam itself does not pose a barrier to gender equality, but its legal history does. Fish also writes that “Muslims have long accepted patriarchal interpretations of the sacred texts that were formulated in the earliest centuries of Islam.” (Fish 2011, 210)  The fact that classical  fiqh continues to hold so much weight in so many countries shows that old interpretations still hold huge amounts of weight, and many people are resistant to change.  Nonetheless, because many Islamists have tried to use classical fiqh as the basis for family law, and as somehow “authentically” Islam, has “brought the classical fiqh books out of the closet and exposed them to critical scrutiny and public debate.” (Mir-Hosseini, 41)  A much more constructive comparison than Fish’s statistics would be to ask why many Christians stopped turning to medieval (or reformation-era) understandings of text a few generations before Muslims did.  Why are some Muslims more reluctant to give authority to new interpretations than Christians?  Why does classical fiqh and hadith hold supremacy over contemporary commentaries? 

Admittedly, this is a discussion that might be best held within Muslim communities themselves, but outsiders have already showed that they have no qualms about inserting themselves into the dialogue.  And if that is something we insist on doing, it should be on the terms of the religion itself, not our own legal philosophies.  Sadiqi explains that “the painful experience of colonization” (Sadiqi 2011, 41) hindered attempts to egalitarianize Islam, because many Muslims felt like the best way to regain identity was to espouse orthodox Islam.  Nonetheless, Mir-Hosseini provides convincing evidence that “patriarchal dogmas and constructs that informed the premodern notions of marriage in Islamic legal theory lost their theological validity and their power to convince.” (Mir-Hosseini, 44)  Even in the light of more progressive attempts at understanding modern Islam, misinformation remains abundant.  A November 3rd US News and World Report article on Tuesday’s Senate hearing on women and the Arab Spring titled “Women Could Promote Rights Through Islam” explained that Sharia is “the brand of Islam most associated with radical movements” (Rettig 2011) – missing the fact that women are actually utilizing Sharia to push liberal human rights agendas.  This kind of article is more in line with last March’s House hearing than the spirit of Tuesday’s Senate hearing.  By reframing fiqh in favor of gender equality, women of increasing numbers are showing that Sharia can in fact be used to prop up egalitarianism. 

Tuesday’s Senate hearing also brought attention to the fact that the U.S. is one of very few countries that have not yet ratified CEDAW – and in that regard is actually lagging behind many Muslim countries in officially recognizing the importance of gender equality.  Many of the activists testifying stressed the important role that CEDAW can play in supporting the movements for democracy taking place in Tunisia, Egypt, Libya, and throughout the Arab and Muslim world.  Mahnaz Afkhami, president of Women’s Leading Partnership, said in her testimony that “U.S. ratification would strengthen the efforts of activists for democracy and women’s equality … U.S. ratification of CEDAW would reinforce their own efforts to fully institutionalize and implement the treaty provisions for gender equality within their national legislation and constitutional reforms.” (Afkhami 2011, 3)  Mir-Hosseini’s paper provides convincing evidence that U.S. rhetoric about Islam and women needs to stop looking for faults inherent in the religion, and start examining the ways we can support Muslim women who are already pushing for reforms within the confines of Islam.

Works Cited

 "Hearing on The Extent of Radicalization in the American Muslim Community and that Community's Response." The House Committee on Homeland Security. N.p., 10 Mar. 2011. Web. 7 Nov. 2011. <http://homeland.house.gov/hearing/hearing-%E2%80%9C-extent-radicalization-american-muslim-community-and-communitys-response%E2%80%9D>.

 Afkhami, Mahnaz. "Mahnaz Afkhami, Founder and President of Women’s Learning Partnership." U.S. Senate Committee on Foreign Relations. http://foreign.senate.gov/imo/media/doc/Mahnaz_Afkhami_Testimony.pdf (accessed November 8, 2011).

 Ennaji, Moha. "Women's NGOs and social change in Morocco." In Women in the Middle East and North Africa: Agents of Change. New York: Routledge, 2011. 79-88.

 Mir-Hosseini, Ziba. "Towards Gender Equality: Muslim Family Laws and the Shari‘ah." Musawah. musawah.org/docs/pubs/wanted/Wanted-ZMH-EN.pdf (accessed November 7, 2011).

 Omar, Manal. "Manal Omar, United States Institute of Peace." U.S. Senate Committee on Foreign Relations. http://foreign.senate.gov/imo/media/doc/Manal_Omar_Testimony.pdf (accessed November 8, 2011).

 Rettig, Jessica. "Women Could Promote Rights Through Islam." US News & World Report. http://www.usnews.com/news/articles/2011/11/03/women-could-promote-rights-through-islam (accessed November 10, 2011).

 Sadiqi, Fatima. "Women, Islam, and political agency in Morocco." In Women in the Middle East and North Africa: Agents of Change. New York: Routledge, 2011. 36-47.

Verveer, Melanie. "Statement of Melanne Verveer, Ambassador-at-Large for Global Women’s Issues U.S. Department of State" U.S. Senate Committee on Foreign Relations. http://foreign.senate.gov/imo/media/doc/Melanne_Verveer_Testimony.pdf (accessed November 7, 2011).