Domestic Violence, Islamic Sharia, and the Liberal Legal Paradigm Shannon Dunn

Florida State University Libraries Electronic Theses, Treatises and Dissertations The Graduate School 2012 Gender Justice in a Post-Secular Age?: Domestic Violence, Islamic Sharia, and the Liberal Legal Paradigm Shannon Dunn Follow this and additional works at the FSU Digital Library. For more information, please contact [email protected] THE FLORIDA STATE UNIVERSITY COLLEGE OF ARTS AND SCIENCES GENDER JUSTICE IN A POST-SECULAR AGE? DOMESTIC VIOLENCE, ISLAMIC SHARIA, AND THE LIBERAL LEGAL PARADIGM By SHANNON DUNN A dissertation submitted to the Department of Religion in partial fulfillment of the requirements for the degree of Doctor of Philosophy Degree Awarded: Summer Semester, 2012 Shannon Dunn defended this dissertation on April 30, 2012. The members of the supervisory committee were: John Kelsay Professor Directing Dissertation Joseph Travis University Representative Sumner B. Twiss Committee Member Aline H. Kalbian Committee Member Martin Kavka Committee Member The Graduate School has verified and approved the above-named committee members, and certifies that the dissertation has been approved in accordance with university requirements. ii To Lily and Nathan iii ACKNOWLEDGEMENTS I owe a great deal of thanks to many people, only some of whom will be named here. For the last six years, I have had the good fortune of living among a community of scholars whose research is characterized by integrity and care. First, the faculty members on my dissertation committee have been extremely supportive of my academic endeavors over the last six years. I am indebted to Martin Kavka for his critical reading of drafts and his insistence that I take his course on pragmatism and theology; and to Sumner B. Twiss for numerous insights about the field of comparative religious ethics and human rights. Aline Kalbian challenged me to think about feminist theory and method in new ways. Aline’s mentorship and friendship has been invaluable, and she has been a continuous source of good humor and encouragement. Although not formally on my committee, Adam Gaiser shared wisdom in the area of Islamic and particularly Qur’anic studies. Special thanks go to John Kelsay, who diligently supervised my progress in the doctoral program and always expressed enthusiasm, in his own subdued way, for my research and unfailingly read and returned drafts in record time. Furthermore, John’s work in the study of Islamic ethics has provided a salient model for those of us in religious ethics; I am extremely lucky to have been his student. My peers in the program at FSU deserve recognition for their help in making me a better scholar and for their overall generosity of spirit. Rosemary Kellison, Richard Harry, Molly Reed, Nahed Artoul Zehr, and Betsy Barre stand out in particular. There are special thanks due to those who have facilitated the research and writing of this dissertation outside the boundaries of Florida State University. Salma Abugideiri of the Peaceful Families Project patiently answered many questions about contemporary anti-domestic violence advocacy in the D.C. area Muslim community. The Woodrow Wilson Foundation funded my final year of writing with a Charlotte Newcombe fellowship award, for which I am appreciative and humbled. I am incredibly grateful to Kevin Boercker, who offered support and kindness through many, many years of graduate school, and to our charming daughter Lily. The two of them have shown unconditional love. My parents, in-laws, aunts, uncles, grandparents, and siblings have in their own ways been supportive of my work over the years, and for that I also express my gratitude. iv TABLE OF CONTENTS 1. ABSTRACT………………………………………………………………………………VI 2. INTRODUCTION ..................................................................................................................1 3. CHAPTER ONE……………………………………………………………………………17 4. CHAPTER TWO…………………………………………………………………………...42 5. CHAPTER THREE………………………………………………………………………...80 6. CHAPTER FOUR…………………………………………………………………………112 7. CONCLUSION……………………………………………………………………………152 8. REFERENCES…………………………………………………………………………....167 9. BIOGRAPHICAL SKETCH……………………………………………………………...176 v ABSTRACT In liberal democracies, debates about the status of women and debates about the authority of religious legal-moral systems often converge in the area of family law. Focusing on domestic violence, I show a patriarchal bias pervades both Islamic and liberal moral discourse with regard to the institution of the family. In order to argue effectively for women's rights in domestic violence situations, scholars and advocates need to develop a collaborative model of gender justice. This necessitates that we view justice in terms of interlocking networks of accountability, such as those that extend between individuals, communities, and the state. vi INTRODUCTION In writing on the subject of law and ethics in the modern period, one should heed Seyla Benhabib’s warning, “One of the central problems of late capitalist societies lies in their viewing public life from a legalistic-juridical perspective alone, while the vision of a community of needs and solidarity is ignored and rendered irrelevant.”1 Benhabib cautions against focusing too much on the ways that law is expected to regulate human actions, and enforce justice and other moral virtues. Modern statist law, considered alone, does not and cannot suffice to sustain the commitments necessary in human communities. Multiculturalism, in its most basic form, refers to the idea that groups deserve state recognition of their ethnic, religious, or other difference. Although multiculturalist discourse has different strands, one central insight is that many Western democracies consist not of homogeneous but multiethnic populations, comprised of different groups of people with different ideas about family life and organization.2 Because human beings require forms of social solidarity that exceed a set of abstract and at times coercive rules provided and enforced by the modern state, other forms of ordering life are important. Religious and other normative ethical traditions may serve an important role in filling this void. The multiculturalist may argue that such traditions have particular importance for minority groups, who in turn should be given some legal discretion to decide on certain practices. Nowhere has the modern discourse of multiculturalism and state intervention been more palpable, and more contested, than in scholarship and in political action relating to the family 1 Seyla Benhabib, Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory (New York: Columbia University Press, 1986), 350. 2 Fo eaple, see Chales Talo, The Politis of ‘eogitio, i Multiculturalism, ed. by Amy Gutmann (Princeton: Princeton University Press, 1994), 25—75, or Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1996). 1 and gender during the last twenty to thirty years. Global socio-legal movements focused on the liberation of persons, including women and children, erupted in the twentieth century.3 In Western democratic discourse, questions about the rights of women have frequently intersected with questions about the role of culture and religion in forming individuals. Before her untimely death, Susan Moller Okin argued that patriarchal religious traditions, confining women to strict gender roles within the family, were responsible for what she understood to be the less-than- human treatment of women in many parts of the world.4 Okin was not the first, however, to criticize traditional religious beliefs and practices for keeping women from realizing their full potential as citizens. She followed the work of liberal theorists like John Stuart Mill, and later John Rawls, who in their ideal theories about social cooperation envisioned a restricted role for religion in the public sphere and to some degree, the private sphere. Law protects individuals from one another. While early theorists argued for protection from a tyrannical government, Okin and other feminist theorists argued to extend this protection to persons in the private sphere. While some theorists embrace the ideal of the protective secular state, others have questioned its neutrality. Among other things, the powerful modern state has a vested interest in promoting certain types of religious practice and belief over others. 5 Furthermore, the extension of the logic of rights means that the state is more involved in private life in the contemporary 3 Some examples include the discourses of liberation following the emancipation of former European colonies, such as Algeria, and the types of discourse that grew out of the recognition of the rights of the poor and disenfranchised, such as can be found in various types of liberation theology. From a legal perspective, we can see this trend in the development of human rights discourse, especially following the UDHR in 1948, and later international agreements about the importance of universal human rights extending to women such as the Beijing Platform of 1995. 4 “usa Molle Oki, Is Multiultualis Bad fo Woe? in Is Multiculturalism Bad for Women? ed. Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (Princeton: Princeton University Press, 1999), 7—26. 5 Talal Asad agues, The ode seula state is ot sipl the guadia of oes pesoal ight to eliee as oe hooses; it ofots patiula sesiilities ad attitudes, ad puts geate alue o soe tha othes, i Thikig aout ‘eligio, Belief, ad Politis, in The Cambridge Companion to Religious Studies,

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