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2012 Gender 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 in partial fulfillment of the requirements for the degree of 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.

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To Lily and Nathan

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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 ; and to Sumner B. Twiss for numerous insights about the field of comparative religious ethics and . 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 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-, 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.

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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

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ABSTRACT

In liberal , debates about the of women and debates about the authority of religious legal-moral systems often converge in the area of family . 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.

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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: , 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, ed. Robert A. Orsi (New York: Cambridge University Press, 2012), 53. Asads itiue petais to politial liealis oe geeall. 2 world than previous times in history. Such an extension may address inequalities in the home, and yet it may signal the state’s effort to actively define the family through and rulings. Taken to an extreme, state intervention could entail surveillance of persons’ private lives and encroachment of their individual liberties. What, then, is the appropriate relationship of the liberal state vis-à-vis minority religious groups in terms of religious and/or cultural traditions that have been the purview of the “private” sphere?

This dissertation addresses the relationship between the liberal state and Muslim minority communities on the topic of domestic violence.6 I begin with the observation that the question of this relationship between state law and the practices of ethnic and/or religious minority populations regarding the family is acutely raised in relation to practices of gender violence.

Domestic violence is usually perpetrated by one spouse or intimate partner against another, although extended family members may be involved in patterns of abuse. Lisa Hajjar, borrowing

Radhika Coomaraswamy’s definition, defines domestic violence as “violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood, or law… [It is] nearly always a gender-specific , perpetrated by men against women.”7 We may broaden this definition to include practices of physical (including sexual), psychological,

6Ade Mahs ook, and Liberal Citizenship (New York: Oxford University Press, 2009), proposes to treat oal oflit i tes of the speifi poits of otat etee politial liealis as a ideal theo of soial cooperation and Islamic doctrine as a tradition of systematic thought about what may legitimately regard as perissile, . While I a ot addessig ssteatiall Islai ethial dotie o lieal theo, I fid isdo in the idea that points of contact provide ample opportunity for comparison of these ethical orientations for imagining the world. Ideas about the family and domestic violence constitute the primary points of contact between these groups for this dissertation. 7 Lisa Hajja, Doesti Violee ad “haia: a Copaatie “tud of Musli “oieties i the , Afia, ad Asia i Woes ‘ights and Islamic : Perspectives on Reform, ed. Lynn Welchman (New York: Zed Books, , . ‘adhika Cooaasa, Futhe Pootio ad Eouageet of Hua ‘ights ad Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Alternative Approaches and Ways and Means within the System for Improving the Effective Ejoet of Hua ‘ights ad Fudaetal Feedos, i ‘epot to the U.N. Coissio o Hua ‘ights, February 6, 1996. 3 and spiritual abuse.8 The most common perpetrators of domestic violence are men, and women constitute the largest number of victims; however, sometimes women abuse men, and domestic violence is also a problem in some same-sex relationships. Such violence is defined as domestic since it occurs within the “private” sphere of the home. (I use scare quotes around “private” here since, as the following pages show, the segregation between public and private spheres is far from a stable construction.) Domestic violence is a systemic social problem in the majority of societies, giving rise to physical injuries and other health-related issues and in some cases, causing death.

I contend that domestic violence manifests and concretizes the problem of collective failure to do justice to women in particular in a way that cannot be ignored by democratic legislative and bodies that claim to take an interest in, and protect, the integrity of persons. In a recently published anthology on and related forms of violence against , the authors frequently agree that regardless of one’s view of state power, the state has a moral obligation to protect its citizens that reaches beyond the confines of religious and ethnic affiliation or gender.9 How this intervention is theorized or legitimized, from the perspective of many of the contributing authors, is significantly less important than the idea of government and agencies acting swiftly and humanely to protect victims of violence. They maintain that tolerance for religious practices and freedoms should not include tolerance of gender violence and tyranny. Moreover, many of the authors argue that

European state policies of “laissez-faire” multiculturalism have resulted in significant harm toward women in migrant communities, which are organized according to patriarchal and/or

8 Maha B. Alkhateeb and Salma Elkadi Abugidieri, eds., Change from Within: Diverse Perspectives on Domestic Violence in Muslim Communities (Peaceful Families Project, 2007), 74. 9 Honor, Violence, Women and Islam, edited by Mohammad Mazher Idriss and Tahir Abbas (New York: Routledge, 2011). 4 tribal customs.10 In effect, the lack of state intervention in prosecuting minority group violence might be interpreted as a type of ethnocentrism and/or racism, in which the state permits those that are “other” to destroy one another.11

Such arguments, and the empirical studies on which they are based, indicate that productive discourse needs to move toward a collaborative model of gender justice. In current debates, theorists of multiculturalism and feminist theorists like Okin often end up talking past one another .What is entailed in such a collaborative paradigm? What methods and insights from the field of religious ethics can aid in the creation of a new paradigm? My argument for gender justice, as will become clear over the proceeding pages, is one grounded in the liberal political tradition of rights, insofar as rights are not applied in a top-down manner independent of the experiences of persons, but rather are employed reflexively within communities. I endorse the central liberal argument that women deserve equal protection from the state as well as recognition of their integrity by their communities. At the same time, I try to do justice to the complicated ways in which women’s roles and rights are negotiated in pluralist democracies characterized by multicultural . For many Western Muslims, especially those who identify as belonging to a minority ethnic/racial group in addition to being religiously “other,” the relationship to liberal ideas of gender equality and personal autonomy may be marked by tension and ambiguity, for historical reasons I will address in the course of the dissertation.

10 Aisha Gill osees that i the s, outs i the Uited Kigdo idel aepted aguets fo ultual defese i doesti iolee ases iolig iigats fo “outh Asia. “ee ‘eofiguig hoo-based violee as a fo of gedeed iolee i Honor, Violence, Women and Islam, edited by Mohammad Mazher Idriss and Tahir Abbas (New York: Routledge, 2011), 218—231. 11 This represents a counter-argument to arguments like those of Sherene Razack, who is critical of the hegemonic state as hyper-involved in the surveillance of individuals, particularly Muslims. See Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008). A more balanced account takes note of the doule-id that affets Musli ouities: o the oe had, the ae the ojet of goeet suti as potetial teoists o i tes of Musli oe, as those i eed of saig fo their culture) and on the other, the of thei iteal o piate affais a e egleted government. 5

The chapters contained in this dissertation show how a collaborative paradigm might proceed. They follow no explicit method in religious ethics, although a few methodological points are warranted. Without attempting to define the parameters of the field, religious ethics as a method of inquiry is constituted by the work of re-description (of empirical phenomena) as well as the normative work of deciding which types of action/forms of life are better or worse.

Jeffrey Stout describes moral philosophy as “reflexive ethnography” that begins in the use of moral languages that are situated in a particular social location and moves from there. Learning the facts about a particular situation and engaging in thick description comes prior to making judgments. Then, as more is learned, the moral philosopher can make decisions about what aspects of a tradition are worth keeping, reforming, or discarding. Every ethical position is an achievement of this process, which Stout calls “bricolage.”12 Bricolage allows for creative and constructive thinking in moral theory, using a variety of resources to solve moral problems.

The particular focus of religious ethics is on religious systems and traditions, specifically the ways in which persons who identify as practitioners of these traditions justify their arguments and practices. Religious practices are social practices that give rise to norms; and justification simply involves being responsible for or answerable to beliefs that we hold.13

Margaret Urban Walker also offers a useful framework for the study of ethics as a social phenomenon in her “expressive-collaborative” model of morality. This model contains a descriptive or empirical component as well as normative component, and the later identifies the better or worse uses of morality in human life. It accounts for the interpersonal aspects of morality and the ways in which persons negotiate their moral-social expectations and

12 Jeffrey Stout, Ethics after Babel: The Languages of Morals and their Discontents (Princeton: Princeton University Press), 74. 13 “ee Jeffe “tout, O Ou Iteest i Gettig Thigs ‘ight: Pagatis ithout Naissis, New Pragmatists, ed. Cheryl Misak (New York: Oxford University Press, 2007), 7—31. 6 responsibilities. In contrast with certain Platonic and Kantian conceptions of moral philosophy,

Walker views morality as a naturally occurring structure in all human societies; it does not transcend the social dimension of life. In the end, “Moral knowledge is as open-ended, revisable, and ultimately fallible as any other kinds of natural knowledge.”14

As moral practices are fundamentally social practices, the work of the moral philosopher or requires investigating social conditions of inequality or asymmetry that affect the distribution of responsibilities. As for Stout in the field of religious ethics, for Walker, moral critique thus entails a critique of power. “Substantial parts of moral-social orders commonly fail to be credible to, or trustworthy for, many participants who are less valued, protected, or rewarded than others in their orders’ differential distributions of responsibility.”15 Walker’s arguments are particularly helpful when addressing issues of systemic gender injustice as a failure of responsibility within and among social groups.

In my approach to the problem of domestic violence in Muslim communities in the West,

I generally try to adhere to the methodological insights articulated by both Stout and Walker.

On more than one occasion, domestic violence has proved to be a particularly challenging topic to examine and about which to write. In many respects, actions constituting domestic violence—including the verbal, physical, psychological and/or sexual abuse of a spouse or intimate partner—are categorically evil. To borrow ’s terminology, they are simply “ugly.”16 But clearly, such actions occur and are justified within particular contexts, even if the justifications made are weak. Upon closer examination, we find that Muslim justifications for and against domestic violence are implicated in a larger discourse of Islamic and sexuality in the modern world. Significantly, this discourse is not isolated from

14 Margaret Urban Walker, Moral Contexts 2nd ed. (Lanham, MD: Rowan and Littlefield, 2003), 175. 15Ibid, 110. 16 Khaled Abou El Fadl, Speakig i Gods Nae: Islai La, Authoit, ad Woe (Oxford: Oneworld, 2001). 7

Western ethical discourse on marriage and sexuality, and there are several points of continuity between Western religious and legal traditions and Muslim traditions that sanction abuse. The historical persistence of abusive practices, as well as their justification (or in some cases, justificatory silence on them) in diverse legal and/or moral texts, is something that should unsettle any naïve optimism that such practices can be easily or readily eliminated from human communities. Nevertheless, I think these problems are deserving of attention and resources in the field of religious ethics, especially because so often religious justifications are invoked in debates about the permissibility or impermissibility of practices of abuse, domination, and exploitation.

When scholars engage the ethical tradition of a community with which they do not identify as a member or “insider,” special considerations arise. For example, how do moral theorists or condemn practices of abuse and take care not to stigmatize the community under examination as one particularly prone to violence? That the Islamic tradition is

“inherently” violent is a charge that has maintained some popularity in the U.S. since the terrorist attacks of September 11, 2001. Regarding the phenomenon of domestic violence, many

Westerners share a widespread perception that Muslim men are inherently more domineering and violent toward women, and they correspondingly stereotype Muslim women as weak and passive. Amina Wadud articulates a representative concern in scholarship dealing with modern

Muslim women, who she argues “have too frequently been dismissed as self-defeating socially, culturally, religiously, and politically for what appears to be acquiescence to dominating patriarchal norms and expectations.”17 A dissertation written by a non-Muslim Westerner about

17 Amina Wadud, review of Politics of Piety, by Saba Mahmood, Journal of the American Academy of Religion, 74 no. 3 (September 2006): 814. 8 domestic violence within Muslim communities might be in danger of reinforcing these stereotypes.

Scholarship in religious ethics and feminist ethics treads fragile ground when dealing with socially vulnerable or marginal populations. In an essay entitled, “Globalizing Feminist

Ethics,” philosopher Alison M. Jaggar discusses the difficulty of feminist scholarship regarding the problem of insiders and outsiders.18 For groups that are socially marginalized, the scrutiny of outsiders directed toward their tradition can be met with legitimate skepticism. A scholar, if s/he is an outsider from a more socially privileged position, might be motivated by less than sanguine reasons to study the group (such as a need to rescue victims) or might end up silencing voices from the group by authoritatively speaking for them.

In the interest of engaging in conscientious scholarship, I think the best first step is to do as Stout and Walker respectively advise: figure out what is going on and gather data. As a primary characteristic of her expressive-collaborative model of moral philosophy, Walker insists that we need to know about the concrete aspects of the social problem that we study. Going beyond the collection of data, however, this model requires that we analyze the narratives associated with justifications of particular actions. Chapter One of the dissertation gives an overview of debate surrounding the interpretation of Qur’an 4:34, or the so-called “beating verse,” in Muslim communities. This chapter accounts for the various justifications scholars and popular preachers offer for their interpretive choices regarding this verse. In particular, it deals with narratives. How has this verse been narrated by both classical and contemporary exegetes?

How do competing contemporary narratives vying for authority complicate such interpretations?

18 Aliso M. Jagga, Gloalizig Feiist Ethis, i Decentering the Center: Philosophy for a Multicultural, Postcolonial, and Feminist World, ed. Uma Narayan and Sandra Harding (Bloomington, IN: Indiana University Press, 2000), 1—25. 9

Moreover, what do these narratives show about the various levels of freedom and constraint

Muslims perceive in engaging critically with their revealed traditions?

According to Walker, examining narrative serves an important function in moral analysis:

Determining responsibilities in the concrete usually involves grasping histories of trust, expectation, and agreement that make particular relationships morally demanding in particular ways. To know what general norms or values mean in situations now requires appreciating how these have been applied and interpreted before, within individual and social histories.19

In other words, narratives engender moral understanding not only for those who share them, but also for those who study the communities that adopt and preserve them. The narratives I examine throughout the dissertation vary from ancient narratives contained in sacred texts and traditions, to Muslim narratives responding to the domination of Western forms of life, to individual narratives that recount experiences of domestic violence at the personal level. Such an examination contributes to an understanding of moral choice and action as embedded in lived experiences of canonical texts, ideologies, and community stories.

Through an analysis of debate regarding the meaning and applications of Qur’an 4:34, we see that Islamic ethical discourse on marriage and sexuality is a shifting discourse that reflects the ebb and flow of specific historical developments. How are pre-modern conceptions of marriage, which stipulate certain gendered rights and duties, translated by contemporary exegetes? Contemporary debate about gender and sexual norms reveals disagreement about what it means to be authentically “Muslim” in the modern world, especially in relation to

Western norms of sexuality and individual autonomy. Muslim scholars and preachers who live in pluralist democracies turn to Islamic principles as outlined in the Qur’an and Prophetic Sunna

19 Margaret Urban Walker, Moral Understandings: A Feminist Study in Ethics (New York: Oxford University Press, 2007), 76. 10 in order to justify their positions; their turn toward a principled approach may reveal an attempt to overcome some of the great ethnic and regional diversity that characterizes Muslim populations in such states.20

Ideas about sexuality and historically have found practical application in law. Chapter Two surveys the historical evolution of (Islamic ) and sharia

() from their pre-modern origins to their contemporary appropriations, attending in particular to how conceptions about gender and the family are translated from classical sources into modern ethics and law. Critical political developments in regions of the Islamic world in the past two hundred years, in part as a result of interaction with Western colonial powers and their forms of law, created new circumstances to which Islamic legal theory and practices adapted. Revisionist historians of Islamic law have recently argued that contrary to Orientalist conceptions of Islamic law as static and rigid (e.g., ’s insistence that “the gate of ijithad is closed”21), in practice Muslim scholars and interpreted and applied the law with some flexibility. Much for this can be found in Ottoman court records and legal opinions. The Ottoman period signaled, however, a critical time for the shift in interpretive legal power away from the class of legal scholars (‘ulema) and toward the concentrated power of the political leader to create and enforce law.22 Additionally, in the later Ottoman period, European

20 Some of the most recent statistics, as reported by the Pew Forum on Religious Research in 2007, indicate that the majority of Muslim Americans are foreign-born (approximately 65%; 24% come from Arab countries); native- born Muslims are largely African American (20%). “ee Musli Aeias: Middle Class ad Mostl Maistea, http://pewresearch.org/assets/pdf/muslim-americans.pdf (accessed 3/18/2012). 21 As a epesetatie eaple, “haht agues egadig Islai la, Fo the fouth/teth etu oads, and until the growth of legal modernism in the present generation, there has been no official scope for independent new deelopets. “ee his Introduction to Islamic Law (New York: Oxford University Press, 1964), 202. 22 There are several reasons for focusing mainly on legal and political changes in the late Ottoman , as opposed to the (for example), in this dissertation. First, developments in and politics have greatly influenced the contemporary legal codes of Arab states; and Arab immigrants constitute the largest foreign-born Muslim population in the United States. Second, the relationship between the historical of sharia and the rise of totalitarian sharia states is notable, and the Ottoman example allows us to see 11 practices of codification influenced the development of sharia codes, specifically on matters involving the family.

While some scholars of Islamic law such as remain suspicious of the modern state and its colonial legacy of oppression and hegemony,23 other scholars such as

Abdullahi An- An-Naˈim take more strongly the position that Muslims should respect the will of the democratic state as the will of the people.24 Both Hallaq and An-Naˈim concur that sharia is a metaphysical entity on which fiqh is based, and that to reify select aspects of sharia through legal codification is to depart from God’s intent for human beings. Therefore they can basically agree that Islamists, in seeking to enforce pre-modern aspects of sharia with the coercive power of , violate God’s intention. Yet they differ on the question of how modern

Muslims ought to practice pre-modern legal and ethical traditions in a modern world that presents novel circumstances and demands, and in particular in the context of the modern state.

Hallaq, a historian, seems to argue for greater autonomy for Muslim groups to practice sharia in local forms.25 An-Naˈim, an activist-, worries about the human rights abuses that might occur if preferences are given to “local” practices of sharia. Moreover, the great regional diversity of Islamic practices of sharia generates an empirical problem. Although scholars are learning more about how sharia-based family law is being applied in various parts of the world,

with clarity the shift from sharia as a pre-modern diffuse and local system toward a comprehensive authoritarian system in the later modern period. 23 Wael B. Hallaq, Sharia: Theory, Practice, Transformations (New York: Cambridge University Press, 2009). 24 Abdullahi Ahmed An-Nai, “haia ad Islai Fail La: Tasitio ad Tasfoatio, Islamic Family Law in a Changing World: A Global Resource Book, ed. Abdullahi A. An-Nai Ne Yok: )ed Books, , —22. 25 Indeed, Hallaq argues that modern statist law and (classical) sharia are incommensurable in a number of ways. One of the reasons he offers is that the modern state, even in its democratic forms, is essentially hegemonic and its la, he agues , is supe-imposed from a central height in a downwards direction, first originating in the ight poes of the state appaatus ad theeafte deploed… [in contrast] a society subject to Islamic law is one that is largely self-governing, in which law, and the morality intertwined with it, largely operates in the interest of that soiet. 12 there is still much that is unknown about the way that Muslims practice and interpret it currently.26

An-Naˈim identifies a particular problem that is of concern to Muslim communities as well as to feminist theorists and activists: pre-modern traditions of family law, when interpreted literally and translated into modern legal codes, are often oppressive toward women. For many

Muslim and other communities, the family is part of the symbolic order of society and is almost always idealized in a particular, role-specific way. Chapter Three investigates the ways in which the family has become a focal point for consolidating identity in Muslim communities in

Western liberal states, and in particular the U.S. Calls for renewed, institutionalized sharia in modern Western states tend to be strongly conservative and patriarchal, as they are conditioned by a reactionary response to modern secular society. Online fatwas represent an emergent genre of sharia and tend to affirm patriarchal interpretations of law and the Qur’an. Gender roles are often rigidly constructed, and sometimes these constructions are used to support the argument that a man has the God-given right to physically discipline and/or punish his .

Such arguments can, and have been refuted by Muslim anti-domestic violence advocates.

These advocates challenge conceptions of gender hierarchy and male superiority that are either implicit or explicit in the historical legal and exegetical tradition and that are uncritically applied by contemporary preachers and scholars. They develop models of gender equality based on

Quranic verses that affirm tranquility in marriage, arguing in effect for a type of virtue ethic.

Such advocates engage in immanent critique of the tradition, particularly those interpretations that violate or threaten to violate the dignity of women.

These arguments do not take place in a vacuum but in the context of a secular state with its own history of contested gender norms and practices. In light of this point, Chapter Three also

26 An-Nai, . 13 examines feminist critiques of (secular) law with regard to liberalism’s private/public distinction, as well as feminist treatment of the issue of multiculturalism and gender. It identifies places of intersection and division between different feminist theorists and the work of Muslim anti- domestic violence advocacy groups, noting the importance of collaboration among these two approaches for ending practices of domestic violence. Certain feminist approaches to the question of multicultural accommodation are more helpful in creating a space in which Muslim communities can be allowed to “work out” these critical issues and exercise some legal-moral autonomy as a group, but also in which women and other vulnerable community members can receive necessary recognition of their equal rights by the state.

Chapter Four examines how liberal moral and political theory might serve as a resource for addressing questions of gender, multiculturalism, and violence. Using feminist critiques of the work of John Rawls, I argue for a reading of Rawls’s justice as fairness that stresses individual persons adopting the two principles of justice based on their own experiences. What is needed in order for this theory to be authentically reflective of experience, however, is a re- reading of Rawls’s discussion of associations, including the family, in such a way that can account for the dynamic and dialectical nature of moral experience along the lines of what

Margaret Urban Walker describes in her book, Moral Understandings. Rawls intimates that the end goal of moral reflection is a kind of impartial regard for one’s fellow citizens that allows one to exercise justice as fairness. In contrast, Walker and other feminist scholars like Seyla

Benhabib argue that relationships of both impartiality and partiality characterize moral interaction, including the practice of justice.

In particular, Walker offers an important contribution in her discussion of trust. For

Walker, notions of trust and accountability define much of moral activity insofar we hold

14 expectations of what others can and should do in relation to fulfilling their responsibilities. With regard to developing a collaborative model of gender justice, the moral concepts of accountability and trust require that scholars examine relationships within discrete communities, and not privilege atomistic individuals at the center of theory. This model is particularly helpful when addressing the problem of domestic violence as both a familial and a wider social problem, as it permits us to make a connection between how a failure of trust at one level of association

(between spouses in an abusive situation) can be related to the failure of trust at another level

(failure of religious leaders to communicate standards of trustworthiness). In democratic contexts, trust is not blind; instead, social criticism functions to engender trust. It allows us to see, for example, that incidents of gender injustice such as the act of wife-beating are very often part of a larger social web of inequality and uneven privilege that undermines practices of trust.

Walker’s discussion of trust and her particular focus on interpersonal and local contexts of morality should not detract from, but rather increase the possibility of, women’s full political participation and protection under the law. While Walker remains skeptical of attempts at moral theorizing at the universal level, or the level of law or principle that can be applied to all persons,

Benhabib and many other feminist theorists do not. Despite the fact that democratic state legal codes may be limited in their moral persuasiveness or their ability to encourage solidarity, we should not neglect that in pluralist democracies such laws can reflect and import moral recognition of persons as deserving of certain rights and thus respect.27 Thus it makes sense not to abandon civil legal discourse as irrelevant or unimportant to moral change within

27 Thanks to Martin Kavka for helping me think about this issue, as he made a similar point during a discussion of Judith Butles Atigoes Clai i the otet of a eadig of Hegels Phenomenology of Spirit. State (legal) recognition of forms of kinship, such as gay marriage, confers recognition to persons as fully equal and deserving of the same rights extended to heterosexual married persons. While ultimately the of gay marriage may ot pesuade all detatos of the oal alue of suh uios, the states suppot ad eogitio of suh uions sets a powerful example for its citizens. 15 communities, but instead to engage it as an active component of such change. Although Max

Weber argued that modernity was characterized by the separation of value spheres, notably of the moral from the legal, we should note that liberal statist discourse oriented around a concept of right is hardly devoid of moral conceptions about not only what the good life entails, but also who is entitled to live such a life. Modern legislation that criminalizes domestic violence and levels penalties for perpetrators recognizes the right of vulnerable family members, specifically women, to be protected from harm. Similarly, judicial decisions that ban exemptions—a topic to which I will turn in the third chapter—affirm that a marriage no longer gives a man the unlimited sexual use of his wife and/or wife’s body.

These legislative and judicial decisions reflect changing ideas about persons, as well as the kind of family structures and relationships that we as a nation want to foster. Religious discourse can and should be an important conversation partner in public discourse about the family and gender; although in order to make productive contributions, people need to continue to engage in forms of immanent criticism so that religious arguments are not accepted uncritically or simply on the authority of others. In lively democratic discourse, we must be on guard against all forms of authoritarianism, whether it lies in totalitarian tendencies of the government or it attempts to sneak in under the guise of religious “freedom of expression.” As the work of the anti-domestic violence advocacy group the Peaceful Families Project demonstrates, some of the most effective work against gender violence and injustice in the

Muslim community happens within the Muslim community. The Peaceful Families Project was started by the late Sharifa Al-Khateeb, who employed Islamic teachings and discourse, to which

Muslims of all ethnic backgrounds have a connection and a stake in understanding, in order to argue for the moral aberration of domestic abuse. I will refer to the work of this group

16 intermittently as an example that demonstrates how participants view their traditions as simultaneously providing opportunities for freedom or liberation and circumstances of constraint.

Gender justice in a pluralist requires the development of shared moral understandings, to borrow Walker’s term. This dissertation attempts to enlarge the conversation—and to create greater occasion for the development of shared understandings— between Muslims and non-Muslims who are interested in the evolving relationship between law, the development of religious and non-religious moral norms, and the institution of the family on both a theoretical and practical level in the democratic state.

17

CHAPTER ONE

On the Permissibility of Wife-Beating: Qur’anic Hermeneutics and the Trap of Islamic Authenticity

I begin the discussion about domestic violence and Islamic ethics by examining two stories, one medieval and one modern. Both deal with the questions of whether husbands may beat their , and what course of action a wife may seek in such circumstances. The first comes from the work of early Muslim historian Al-Tabari (838-923 CE), who reports the following story: A man from slapped his wife. The wife sought the advice of the Prophet

Muhammad, who thought this was an injustice and that she should be allowed to seek retaliation.

As the Prophet was relaying this advice, he received a revelation that the wife should not seek retaliation. This revelation was written as Qur’an 4:34, the so-called “beating” verse that allows husbands to beat their disobedient wives. Upon receiving this divine message, the Prophet is reported to have said, “This is not what we wanted, but what God wants is best.”

This is a curious report for several reasons. First, it shows the Prophet’s moral unease with the content of the divine speech, but his acquiescence to its authority nevertheless. Second, it suggests that , as understood by the early Muslim community, was attuned to the gender injustice that characterized Arabian culture of his time, and was prepared to act against this socially prevalent injustice by advising retaliation. Third, it shows a critical tension within the revealed tradition of Islam—that is, a tension between the norms of Qur’an and the words and of the Prophet (sunna).28 The latter point is of most interest to us, as it demonstrates that for early Muslims, the contextualization of a moral norm or dictate is important for its

28 There are Prophetic reports on the permissibility of wife-beating recorded in ahadith that conflict with one another. Thus the meaning of the Prophetic example on the permissibility and extent of wife-beating is unclear in these sources. For a good discussion of this, see Ayesha Chaudh, I Wated Oe Thing and God Wanted Aothe…: The Dilemma of Prophetic Example and Wife-Beating, Journal of Religious Ethics 39.3 (Summer 2011), 416—439. 18 application. Moreover, since the Qur’an and the become the two most important sources for Islamic legal theory as it is developed by Al-Shafi’i and his followers in the ninth and tenth centuries, this tension has implications for its interpretation in law.

We do not learn about the fate of the wife of the man from Ansar, but the story indicates that she could not seek revenge for her husband’s violence. The second story comes from the twenty-first century. A German Muslim of Moroccan descent was a victim of domestic violence and received death threats from her husband.29 She brought her case before a

German civil court, hoping to speed up the proceedings. The , however, refused to expedite the divorce on the grounds that a) the victim was of Moroccan culture, in which domestic abuse was permitted, and b) Qur’an verse 4:34 endorsed wife-beating, and since the woman was

Muslim, she was bound by this religious norm. German citizens and legal authorities expressed outrage at the judge’s actions, and she was suspended from practice. Like her seventh-century predecessor, the fate of this modern day victim of domestic violence remains unclear.

While different in many respects, these stories raise similar questions about the legitimacy of domestic violence as a practice employed by husbands against their wives, and about the role of authorities in intervening in, and ruling on, domestic affairs. On the one hand, characters in each narrative acknowledge that beating one’s wife is distasteful: in the case of

Muhammad, it is not what he would like or recommend; in the case of German citizens, it represents a breach of gender justice. On the other, the final authoritative ruling affirms the husband’s authority and discretional use of violence. Within the broader narrative of the history about Islam and domestic violence, each of these episodes relates a sense of ambiguity about justice within the marital relationship. They illustrate a question that Kecia analyzes in

29 Mak Ladle, Gea Judge Cites Koa, “tiig Up Cultual “to, , March 23, 2007. 19 classical Islamic legal terminology: what rights and duties does one have as a married spouse?30

Moreover, how are these rights and duties interpreted and/or enforced at the level of law? Ali focuses on these terms in the context of her scholarship on marriage and slavery in early Islam.

But these questions, as well as the meaning of the terms “right” and “duty,” are no less pertinent to modern practices of marriage and the legal and social expectations that accompany them.

Both stories also signal the importance of understanding how communities authorize particular interpretations and uses of texts, and the reality of disagreement that characterizes any tradition or mode of moral inquiry. In many ethical and political traditions, rules receive legitimacy from reasons, which are embedded in narratives that are rehearsed and reiterated by communities. Thus narratives have a fluid quality to them, and while rules seem “fixed” (e.g. verse 4:34 literally and indisputably allows for wife-beating), often they are subject to contestation.31 As the case of the German judge illustrates, failure to attend to the possibility that

Muslims might argue against domestic violence may result in a failure to prevent violence, but it also presents a false, essentialized version of a living and changing tradition.

This chapter does not assume that Islamic texts present a special case regarding religion and violence, but rather highlights how interpreters of this verse encounter it as a type of constraint. We can examine how proprieties have evolved within the Muslim exegetical traditions on domestic violence, and specifically how these traditions are interpreted in the context of modern society. Two tasks are at hand. First, we need to delineate briefly a history of

30 Kecia Ali, Sexual Ethics and Islam (New York: Oneworld, 2006). 31 Fatia Meissi ites the folloig aout the a that ode Aa politiias use Qua :: They use it today to affirm male supremacy, as if this were a verse without ambiguity, without differences in interpretation, ithout oflit, i Meissi, The Veil ad the Male Elite: A Feiist Itepetatio of Woes ‘ights i Isla, translated by Mary Jo Lakeland (Reading, MA: Addison-Wesley Publishing, 1987), 159. 20 debate internal to the exegetical tradition () of Qur’an 4:34.32 Second, we must consider broader trends in Islamic intellectual and social history related to the Qur’an that animate current ethical debate about domestic violence.

In an attempt to better understand the contemporary debate about domestic violence within the Islamic tradition, this chapter traces the influence of two competing narratives that adopt distinct interpretations of Qur’an 4:34. The traditionalist narrative configures the relationship between men and women in a way that stresses men’s guardianship over women and authorizes beating (even if in a limited sense) as a licit disciplinary action. Traditionalist interpreters read this verse literally, even if they qualify it. Wife-beating is permitted to preserve and maintain a specific kind of patriarchal family and authority structure. The reformist narrative, which takes a position against wife-beating, engages in alternate strategies of reading the Qur’an, often seeking to contextualize its meanings and balance it against other sources like hadith. Reformers pose questions to the Qur’anic text and its interpreters such as, what was the intended (and not necessarily the literal) meaning of the verse? Does the verse contradict other ideals or principles in the Qur’an? What is the possibility for legitimate dissent from a Qur’anic verse and/or interpretations of it? The reformist position also resists strict adherence to traditional gender roles.

The Qur’an is the supremely authoritative text for Muslims worldwide in the modern era.

In addition to looking at sources of premodern exegesis, this chapter deals with the relationship between politics, theology, and Qur’anic interpretation in the last century. I show that the debate

32 For an in-depth discussion of premodern tafsir as it applies to gender, see Karen Bauer, Room for Interpretation: Quai Eegesis ad Gede (Ph.D. diss., Princeton University, 2008). Bauer argues that tafsir is a porous, though distinct, genre of literature. Bauer maintains that the distinct function of tafsir is to itepet the Qua ese verse, which is a theological task as well as a very practical one, as the exegetes offer advice for how to live life on a daily basis. 21 over the meaning and use of 4:34 is thoroughly embedded in a debate about the nature of the ideal Muslim community or umma.

Literalist and Traditionalist Interpretations

In this section I demonstrate a historical connection between the interpretation of 4:34 as legitimizing a husband’s disciplinary action and a corresponding division of sexual rights and duties along a gendered hierarchical scheme. Traditionalist interpretations of 4:34 stress separate duties and rights for each gender within the marital relationship. This verse (aya) appears in a sura (chapter or segment of revelation) called Al-Nisa’ (“on women”). Abdullah Yusuf Ali, in a popular English version of the Qur’an, translates verse 4:34 as follows: “Men are the protectors and maintainers [qawammun] of women, because God has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband’s) absence what God would have them guard. As to those women on whose part you fear disloyalty and ill-conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly); but if they return to obedience, seek not against them means (of annoyance): for God is Most High, Great (above you all).”33

The first line of 4:34 states that men are qawwamun over women because they were given more by God, and that they have to support women. In Al-Tabari’s influential exegesis of this verse, his interpretation of qiwama as “guardianship” pertains to the wealth that men have.

(Ali uses the English words “protectors” and “maintainers” to describe qiwama.) One example of this presumed material wealth can be found in classical Islamic law, which stipulates that upon marriage that the husband gives the wife a dower. According to Al-Tabari, the upper hand,

33 Abdullah Yusuf Ali, The Meaig of the Hol Qua: Coplete Taslatio ith “eleted Notes (Kuala Lumpur, : Islamic Book Trust), 2001. 22 figuratively and literally, that men have in the marital relationship is derived from their duty to provide financial support.

What, then, is the wife’s duty? What kinds of transgressions (of said duty) warrant punishment by the husband? In Yusuf Ali’s English translation, the second line of verse 4:34 is critical, as it follows the explanation of the man’s role as protector or guardian of women. It reads, “Therefore the righteous women are devoutly obedient, and guard in (the husband’s absence) what God would have them guard.” Obedience (ta’a) is the key word; in the text of 4:34, the word nushuz is employed to signify wifely disobedience.34 Al-Tabari notes that acts of disobedience may include displays of arrogance or anger, but nushuz has a connotation of sexual disobedience.35 The classical legal tradition delineates sexual duties for a wife, and some interpreters and hadith reports emphasize the negative consequences of a wife’s failure to fulfill her husband’s sexual desires. One famous example is of a hadith in which a man calls his wife to bed and she refuses, and in response the angels are said to “curse her until morning.”36

The legal apparatus that developed around the Qur’anic revelation and hadith, as well as in contact with various local or customary practices, reflected a patriarchal bias in which men and women had different rights and owed different duties to one another within the marital institution. Kecia Ali examines the relationship between forms of ownership in the classical tradition of Islamic jurisprudence, including marriage, slavery, and concubinage. Although I will

34 , in his translation of and commentary on the Qua, sas that nushuz, interpreted as ill-will opises ee tpes of delieate ad ehaio of a ife toads he husad o of a husad toads his ife…. I this otet [:], a ifes ill-ill iplies a delieate, pesistet eah of he aital oligatios. Asad, The Message of the Qua (Bristol, UK: The Book Foundation, 2003), 127. 35 Aesha Chaudh otes that hile the Quai ephasis i : is o eatig as disiplia, i soe of the hadith literature there is a more liberal attitude toward permitting ause. “ee Chaudh, I Wated… 36 This tradition is reported by both Muslim and Bukhari and is today cited by Muslims. Upon doing an internet search to see what I could find on popular reception about this verse, I was directed to www.themuslimwoman.com. This website attempts to define Muslim womanhood by referring to select hadith, Quai ayat ad uligs. I a setio o the husads ights, this hadith appeas i tade ith Qua 4:34). Accessed 2/15/2011. 23 treat Islamic legal thinking more substantially later, it is helpful to identify the gender roles that are assumed in verse 4:34 and the social-legal matrix of which they are a part. Ali points out that marriage, in addition to slavery, was characterized as a type of ownership in classical legal thought. The word milk or dominion was used to describe both slavery and marriage; the former is translated frequently as milk al-yamin (“what the right hand possesses” or the legal right to sexual intercourse with a slave) and the latter as milk an-nikah (the legal right to sexual intercourse through marriage with a woman).37 Both types of milk conferred a man with sexual rights to women. Men acquired wives through a contract, and while the contract required mutual consent to initiate a marriage, the rights and duties of wives and husbands were differentiated according to gender roles. Wives owed certain duties to their husbands; and many legal scholars interpreted these duties along sexual lines, meaning that the wife had a duty to fulfill the sexual needs of her husband.

Another influential pre-modern Qur’anic exegete is Ismail Ibn Kathir (d. 1373), whose tafsir of 4:34 is largely based on Prophetic traditions. Ibn Kathir shares Al-Tabari’s argument that men’s financial responsibility for women gives them more power, but departs insofar as he argues that men are in essence superior to women. In order to support his argument, Ibn Kathir cites a tradition in which the Prophet says that women cannot ever lead a group to success.38 He moves from a functional to an essential definition of male superiority: on this view men are not simply better at fulfilling the task of guardianship through their capacity to earn money and support women; rather, it stipulates that in God’s eyes, men are superior. 39

37 Kecia Ali, Slavery and Marriage in Early Islam (Cambridge, Mass.: Harvard University, 2010), 171. 38Ismail Ibn Kathir, Tafsir Ibn Kathir, ed. Shaykh Safiur-Rahman al-Mubarakpuri, 10 vols. (Riyadh: Darussalam Publishers and Distributors, 2000) 2:442. The hadith oes fo Bukhais olletio. 39 “ee ‘osea Kellisos disussio of this poit i pe-ode Quai eegesis of : i “hao Du ad ‘osea B. Kelliso, At the Itesetio of “iptue ad La: Qua : ad Violee agaist Woe Journal of Feminist Studies in Religion 26.2 (Fall 2010), 17. 24

Traditionalist interpreters of the Qur’an accept a gendered hierarchy within Islamic marriage, which is present in the socio-historical context of the Qur’an’s revelation and is mirrored (and relatively unchallenged) by the divine speech itself. Given the asymmetrical nature of rights and duties, it is unsurprising that the argument for maintaining hierarchical norms can slip easily into an essentialist argument for the superiority of men.40 Contemporary interpreters often attempt to moderate the language of male superiority through an idea of gender complementarity that finds an analogue in the legal tradition’s rendering of rights and duties that each spouse owes to the other.

Pre-modern exegetes take for granted the hierarchical gender norms reflected in 4:34; with the exception of verses in the Qur’an that posit the spiritual equality of men and women and some Prophetic sunna that suggest the Prophet’s dislike of wife-beating, there is little to challenge them within the sources of the revealed tradition. Yet the cultural context of Muslim life has changed dramatically within the past 1,000 years; among other things, in the past 100 or so years communities around the world have recognized gender inequality as a problem to be rectified. Thus there are competing ideas within the global Muslim community about the permissibility of and justification for spousal abuse. While still connected to ideas of rights and duties, other influential legal ideas about personhood and marriage pose challenges to this traditional structure, and they bear an influence on exegetical arguments.

Where do modern exegetes echo pre-modern tafsir? Where do they depart from interpretations? First I look at the modern traditionalist/literalist exegesis of Yusuf Ali, Yusuf Al-

40 Aline H. Kalbian alludes to this problematic relationship between gender complementarity and male superiority in her book on modern Roman Catholicism and gender, Sexing the Church: Gender, Power, and Ethics in Contemporary Catholicism (Bloomington: Indiana University Press, 2005). For a concise criticism of the related phenomenon of theological linkages between ideas of divinity and masculinity in Jewish theology, see Rita Gross, Feale God Laguage i a Jeish Cotet, i Womanspirit Rising: A Feminist Reader in Religion, ed. Carol P. Christ and Judith Plaskow (San Francisco: Harper & Row, 1979), 167—173. 25

Qaradawi, and Sayyid . As we will see, they tend to affirm wife-beating as a legitimate disciplinary action, often to correct sexual disobedience or the failure of a woman to fulfill her wifely duties. These scholars recognize, in keeping with Prophetic reports, that gratuitous violence against one’s wife—whether it is uncalled for or excessive so as to leave marks—is morally reprehensible. But overall they do not question the husband’s right to this kind of action, nor do they question the husband’s power in the patriarchal family structure. In fact, Qutb argues that wife-beating is permissible for the sake of the security of the family unit.

Yusuf Ali has translated the Qur’an into other English versions, but the particular translation cited above is replete with parenthetical marks, as Ali qualifies or limits the occasions for, and nature of, any beating. By describing these punishments in sequential order, Ali describes a pattern of escalation, making the act of beating a matter of “last resort.” In an extended footnote on this verse, he notes that many traditions of the Prophet show that the

Prophet detested the idea of beating one’s wife, and he quotes a tradition related by authoritative hadith collectors Muslim (817-875 CE) and Bukhari (810-870 CE). “Could any of you beat his wife as he beat a slave, and then lie with her in the evening?”41 This tradition suggests that marriage, as compared to other forms of social hierarchy like slavery, conferred upon women a preferential status within the household. The Prophet argues that one should not treat one’s wife as one does a slave, for one shares a bed with one’s wife at night. Yusuf Ali shows hesitation that wife-beating should be the first step in resolving marital disputes.

Modern Egyptian intellectual and popular preacher Yusuf al-Qaradawi follows the pre- modern exegetes fairly closely in his delineation of gender roles in the household in The Lawful and the Prohibited in Islam (Al Wal- fil Islam). In a section dedicated to

“Rebelliousness and Strife” within the marital relationship, he argues that husbands should deal

41 Ali (2001), 4:34 footnote 66, 91. 26 with disobedient wives with a strategy of escalation. He is especially careful to describe the limitations on beating a wife: “… [I]t is permissible for [the husband] to beat [the wife] lightly with his hands, avoiding her face and other sensitive areas. In no case should he resort to using a stick or any other instrument which might cause pain and injury.” 42 He restricts the occasions of beating to disciplining rebelliousness, whether in response to real acts or as a preemptive strike.

Qaradawi then cites a few hadith, one of the Prophet restraining himself from beating a servant

(with a tooth-cleaning tool), and then the hadith from Bukhari about not beating a wife as one beats a slave. What does the avoidance of pain and injury mean in this context? In one respect, it pertains to Qaradawi’s emphasis on restraining excessive desire for cruelty on the husband’s part. And yet it also has to do with protecting the wife’s dignity. In an earlier section, he argues that “striking [one’s wife] on the face is prohibited, since it is an insult to her human dignity as well as being a danger to the most beautiful part of her body.”43

Qaradawi then cites a hadith concerning the rights of the husband that affirms a wife’s failure to fulfill duties of sexual satisfaction as an act of rebelliousness (nushuz). The hadith states, “It is not lawful for a woman who believes in to allow anyone in her husband’s house while he dislikes it…. She should not refuse to share his bed…”44 The injunction of a prohibition of an action, accompanied by the words “if the husband dislikes it” appear numerous times in this hadith. A wife’s duty is to please her husband, and she is obligated to fulfill her husband’s sexual needs. This statement echoes the traditional exegetical emphasis on a woman’s

42 Yusuf al-Qaradawi, The Lawful and the Prohibited in Islam, trans. Ahmad Zaki Hammad (Indianapolis, IN: American Trust Publications, 1984), 205. 43Iid, . The idea of ot leaig a ak o the ifes fae is i plae i Islai legal estitios o ife atte, and is based on ahadith in which the Prophet forbids hitting a wife on the face. In a recent court case in the , a judge upheld the legality of wife-beating in Islamic law. He did argue that the had committed a crime by disfiguring his ifes fae. “ee Edeio Matiez, Islai Cout: UAE “as Wife, Child Beatig O.K.—Just Dot Leae A Maks http://www.cbsnews.com/8301-504083_162-20019996-504083.html. Accessed 2/10/2011. 44Cited by Qaradawi, 204. 27 sexual duties to her husband, and further reinforces the exegetical strategy of viewing 4:34 as permitting the husband to take disciplinary action when confronted with sexual disobedience.

Sayyid Qutb, the influential Egyptian intellectual whose work has often been the source for Islamist militant movements and who was executed by the Nasser regime in 1966, wrote an extensive tafsir, In the Shade of the Qur’an.45 In it he devoted an entire volume to Surat Al-

Nisa’. As both admirers and critics have noted, Qutb’s tafsir is not exactly traditionalist, for it has an explicitly ideological aim. Writing in the context of a global , Qutb argued for the political importance of the Qur’an and a return to the values of Golden Age of the Prophet and his Companions. Manazir Ahsan writes in his preface to In the Shade of the Qur’an, Qutb’s tafsir is “an effort to reflect on the dynamic and revolutionary message of the Qur’an in its comprehensive sense and invite not only Muslims but all of humanity to come and enjoy the shade and blessings of the Qur’an.”46 Kate Zebiri explains that modern Islamic tafsir, especially of the Islamist variety, is not geared toward textual specialists but rather written for ordinary layperson to act as a catalyst for action.47 In the thinking of modern exegetes like Qutb, people’s hearts can be changed upon hearing the Qur’an, which can mobilize them not just to lead better lives but to take political action in the name of Islam.

Faith for Qutb means submission of all persons to God. He argues in the prologue to

Surat Al-Nisa’ that “submission means referring disputes to God and His Messenger for arbitration, leaving all matters to God and accepting whatever rulings the Prophet makes without

45 I sped oe tie disussig Quts tafsir than some of the other exegetes because Qutb has been so influential in modern Islamist discourse and because he writes extensively on the family and the importance of preserving strict gender roles. Futhermore, he predates Yusuf Ali and Yusuf Qaradawi, but his interpretive strategy is distinct from the traditionalist method and that is why discussion of his work appears after theirs. 46 Manazir Ahsan, Preface to In the Shade of the Qua, Vol 3, Sura 4 (Nairobi, Kenya: Islamic Foundation, 2001), x. 47 Kate )eii, The Eegee of Mode Tafsir, i Mahmud Shaltut and (Oxford: Clarendon Press, 1993), 128—49. 28 hesitation.”48 Qutb posits the existence of a “pure” form of Islam, which has not been invented by people. Overall he views the Qur’an as initiating novel reforms in the way of justice for orphans, women, and the socially disenfranchised, viewing “Islam” as an entirely new and redeeming phenomenon in the seventh century that has significant implications for how people ought to live today. As Rotraud Wielant in the Encyclopedia of the Qur’an notes, “The Islamist exegesis tends to assume that it is possible for Muslims today to regain immediate access to the meaning of the Qur’anic text by returning to the belief of the first Muslims and actively struggling for the restoration of the pristine Islamic social order.”49 This approach to exegesis interprets the gender roles of the Prophet’s time (as they are explicated in the hadith and Qur’an) as the authoritative models for all times and places.

Like the traditionalist exegetes, Qutb argues for gendered duties within marriage. Women bear children, while men provide financial support. God has bestowed the sexes with inherent qualities that support the function of these different roles, such as nurturing qualities of the woman and protective qualities of the man.50 Qutb’s gender essentialism finds expression in a framework of complementarity, and accordingly he thinks that “Islam” stipulates that each sex fulfill his or her role properly. He argues that modern society has sometimes confused the strict gender roles that God has appointed to men and women, and this has led to chaos and confusion.

Rebellion is defined in relation to acts that do or would undermine the stability of the family institution as it is based on this model of gender complementarity. Thus, the husband may employ retaliatory measures in order to prevent rebellion and safeguard the stability of the family. Qutb reads 4:34 sequentially, beginning with a husband’s admonition and then

48 , I the “hade of the Qua, Vol 3, Sura 4, translated and edited by Adil Salahi and Ashur Shamis (Nairobi, Kenya: Islamic Foundation, 2001), 9. 49 ‘otaud Wieladt, Eegesis of the Qua: Eal Mode ad Cotepoa, Elopedia of the Qua, 137. 50 Qutb, 131. 29 progressing to “depriving” a woman of her true power (sexual control of the man).51 Finally, if these measures should fail, husbands may employ a tactic of last resort, beating. “When we remember the aim behind all these measures, we realize that this beating is not a form of motivated by seeking revenge or humiliating an opponent…It is rather a disciplinary measure akin to the punishment a father or teacher may impose on wayward children.”52 Thus, like traditionalist pre-modern and modern exegetes, Qutb emphasizes that the occasions of beating are limited to disciplinary action. The husband exercises a kind of paternalism in the context of marriage.

Unlike the other modern traditionalist exegetes I have examined here, Qutb explicitly emphasizes a particular model of the family, with the husband as the authority within the home and the wife as an obedient subordinate. Qutb argues that persons achieve some kind of dignity from fulfilling these roles, and that when these roles are disturbed and rebellion is threatened, disciplinary action is necessary. For Qutb the family is the primary building block of Islamic society, and harmony within the home mirrors harmony within society. In Qaradawi’s tafsir, the occasions for beating occur in the context of disciplining rebellious female sexuality (even if they are not restricted to sexuality alone). While sexuality is important for Qutb insofar as it serves as an essential differentiating factor between men and women, he places more importance on the integrity of the family as a unit. He focuses on the family as a microcosm of Islamic society, which to be effective must be properly ordered.

We may summarize the traditionalist and literalist approaches to reading 4:34 as engaging in an interpretive strategy of gender dualism and complementarity. Within marriage, as within greater society, men are assigned certain rights and duties and women are assigned others.

51 Qutb, 136. 52 Ibid. 30

For some exegetes, male superiority is functional: God gave men more resources to fulfill their divinely-ordained duties. For other exegetes, male superiority is an essential quality: God made men “better” than women by investing them with certain traits and capacities. All traditionalist/ literalist exegetes agree that God, through God’s speech in the Qur’an and through the deeds and sayings of God’s Prophet Muhammad, made gender differences known to humankind. For Qutb, there is also a natural basis for knowing the truth of gender roles that can be seen in the biological ability of women to bear children and men’s physical strength. Moreover, each of these exegetes emphasizes the necessity of restricting occasions for wife-beating to disciplinary purposes, and many of them warn against the human tendency for revenge and gratuitous revenge. Thus, beating is theoretically a regulated activity, although in order to evaluate the implementation of this idea we will have to consider how this translates into legal language about domestic violence.

Finally, and this point is most evident in Qutb’s exegesis, is an understanding that the family, including the marital relationship, is part of a larger social, political, and religious structure. Thus, while Qutb speaks of the importance of respecting the rights of women within

Islamic homes and Qaradawi implores husbands to consider their wives’ dignity, the security of the family may trump any consideration of women’s rights independent of the family. In other words, it is within the institution of marriage that women gain certain rights; and although it is not discussed by these exegetes, it may be that within this institution that women then forfeit other rights.

31

Reformist Approaches

When we examine reformist approaches, we see that there is movement away from the language of gendered rights and duties in the context of marriage, or at least suspicion of this traditional discourse and its revival in modern global politics. A reformist interpreter of the

Qur’an, and of the Islamic legal and ethical tradition for that matter, can be defined as a Muslim intellectual who is willing to depart from previous exegetical and legal authorities in his or her reading of the tradition. As a group, reformists tend to highlight the historical circumstances surrounding the revelation of the Qur’an and the compilation of the Prophetic Sunna.53 Without assigning a relative value to the Qur’an or hadith, reformists argue for the necessity of understanding revelation in its own context, and for the importance of acknowledging the variation between the cultural values of the seventh century Arabian Peninsula and the various modern contexts in which Muslims live in the twentieth and twenty-first centuries. They engage in different strategies of reading the Qur’an and hadith that account for these differences, and in addition that value individual (or conscience) as one encounters these authoritative texts. Such strategies call into question the stability of gender norms across diverse historical contexts.

Regarding Sura 4:34, a number of Muslim reformist exegetes challenge the traditional reading of the verse and its association with distinct gendered sexual rights and duties. This reflects in part the influence of different gender and sexual norms that have confronted the

Muslim community in the last fifty to one hundred years. Some contemporary Muslims reject the classical legal tradition’s delineation of rights and duties within marriage. One strategy is to read

53 The late Pakistani intellectual Fazlur Rahman argued for eliciting general principles from specific rulings in the Qua ad “ua i ode to aout fo histoial hage that alloed sholas to uestio the eleae of verses that contradicted Qurai piiples of justie, suh as eses peittig polga. “ee ‘aha, Islamic Methodology in History (Islamabad, : Islamic Research Institute, 1965). 32 the key terms used to differentiate rights in a gender-neutral way. Khaled Abou El Fadl engages in such a strategy. He argues that nushuz can refer to men’s behavior in addition to women’s behavior, as this occurs in other parts of the Qur’an; he maintains that the term is best rendered as a lewd or sexual sin.54 Such an act requires the of a judge to make a determination about the degree of sin and whether a punishment should be administered; in other words, a husband does not have authority to make such a determination. Thus for Abou El Fadl, this verse has legal implications for how a judge might decide whether a woman (because she is the subject of 4:34) has committed a lewd act. Furthermore, Abou El Fadl argues that wife- beating is an intrinsically “ugly” act that seems to contradict the message of beauty in Islam.

Some of the strongest negative reactions to the traditional exegesis of 4:34 come from

Muslim feminist exegetes. One of the earliest feminist commentators on this verse is Fatima

Mernissi, who addresses 4:34 in her book The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam.55 Mernissi argues that other verses in the Qur’an posit a basic equality between men and women, such as verse 33:35. Why might there be contradictory ideas about women’s status in the Qur’an? Scholars of early Islam have observed that the verses revealed at tend to differ as a whole from verses revealed at (which are later in date as they correspond to Muhammad’s political and religious leadership in Medina toward the end of his life). Mernissi maintains that 4:34 was revealed at Medina, and may have been revealed during a time when the status of women in the nascent Islamic community was disputed. To support this argument, she draws upon accounts of disagreements within the early community between the Prophet, whom the ahadith report as refusing to beat his wives, and his

54 Khaled Aou El Fadl, O the Beatig of Wies, Conference of the Books: The Search for Beauty in Islam (Lanham, MD: University Press of America, 2001), 170. 55 Fatima Mernissi, The Veil ad the Male Elite: A Feiist Itepetatio of Woes ‘ights i Isla (Reading, MA: Addison-Wesley Publishing, 1987). 33

Companion ‘Umar, who beat at least two women accused of rebellion.56 ‘Umar apparently actively supported the practice of wife-beating; according to various hadith, he was “without scruples” in seizing the opportunity to beat his own family members.57 For Mernissi, the

Prophet’s treatment of women and his reported discomfort with wife-beating is the more authoritative example.58

Reading Mernissi against traditionalist exegetes of 4:34, we can see that the Prophetic example functions to assert the more exemplary way of treating one’s female relatives. Muslims might then ask themselves why ‘Umar’s example and argument prevails and not Muhammad’s.

Moreover, in placing the verse as part of a historical contest about women’s rights, Mernissi encourages readers and exegetes not to accept this verse and related ahadith from this time as passive recipients.

In a similar vein, Laury Silvers argues for the importance of seeing exegesis as an exercise in highlighting theological contradictions and ambiguities in the Qur’anic text.59She begins with the difficult question of divine justice, and approaches the question using the hermeneutics of the medieval Sufi Ibn Al-Arabi. She asks Muslims to confront the fact that 4:34 exists in the Qur’an, despite the attempts of numerous interpretive strategies to modify its content. One central tension raised by 4:34 has to do with who God is: an all-powerful God who commands wives to be obedient and allows husbands to physically discipline; and who also demands of Muslims justice and mercy toward one another. Silvers thus argues that this verse

56 Mernissi looks at the work of early Islai iogaphe I “ad d. aout the aset Islai ouit at Medina. 57 Mernissi, 157. 58 Meissis fous o the histoial eaple of the Pophet as authoitatie is oe a to deostate o ague that etai Quai ijutios ae poleatized ithi the taditio. This is otal distit fo Aou El Fadls (2001) approach to Sura 4:34. 59 Lau “iles, I the Book We Hae Left out Nothig: The Ethial Pole of the Eistee of Vese : i the Qua, i Comparative 2, no. 2 (2006): 171—180. 34 reminds individual interpreters of the “great burden of human freedom.” 60 Although the verse suggests that it is permissible to beat one’s wife, the Prophet’s example regarding the treatment of his wives provides a morally superior alternative. God entrusts humans with the ability to choose between the two options.

Amina Wadud, an influential American Muslim feminist and political activist, originally argued in Qur’an and Woman that 4:34 did not condone wife-beating.61 In a way that mirrors traditional exegesis of this verse and the assigning of gendered duties, Wadud interprets this verse to require a responsibility of men that is parallel to that of women in childbearing.62 This move brings her into closer alignment with traditionalist exegesis of 4:34. She argues that qiwama has been interpreted as material support, but that it should extend to spiritual and psychological aspects of human life as well. She does, however, question the traditional association of nushuz with wifely disobedience, arguing that it can refer to both men and women and not just sexual sin. More recently, Wadud has taken an unequivocal approach to reading

4:3463 and comes to the conclusion that a literal reading of 4:34 is harmful.

Wadud illustrates the dilemma than many reformist Muslims encounter when dealing with authoritative texts that endorse norms and behaviors that they find reprehensible. This dilemma points to questions about the limits of dissent within a tradition, particularly a tradition that is defined by reference to a canon of sacred texts. Feminist scholarship on Qur’an 4:34 employs a variety of methods that avoid a literal reading of the text, such as historical contextualization and reading 4:34 against ahadith that condemn wife-beating. One fairly

60 Silvers, 172. 61 Amina Wadud, Qua ad Woa: ‘eeadig the “aed Tets fo a Woas Pespetie (New York: Oxford University Press, 1999). This is not entirely clear, but does demonstrate a complementarian reading of gender roles in Islam. 62 Ibid, 73. 63 See Amina Wadud, Iside the Gede : Woes ‘efo i Isla (New York: Oneworld Press, 2006). 35 common strategy distinguishes between timeless principles and particular and contingent ones.

The approach is to explain certain questionable practices condoned by the Qur’an like slavery and as limiting ones that curtailed undesirable behaviors in society. Feminist interpreters identify an error in turning a contingent factor (like the qawwamun of males) into a universal one. In her interpretation of the Qur’an, Wadud uses Fazlur Rahman’s method of restricting the meaning and intent of Qur’anic verses that contradict gender equality to their historical context. Wadud and some other feminists argue that the “true spirit” or essence of the

Qur’an endorses male and female equality by citing other Qur’anic verses like 9:71: “The believers, male and female, are protectors of one another.” Verses like this are more representative of the spirit of justice and unity that pervades the Qur’anic message, on Wadud’s view. Unlike some of her other feminist colleagues, Wadud does not refer to ahadith that call into question the legitimacy of wife-beating; instead, she engages in an intra-Qur’anic hermeneutic.

Wadud also criticizes the authority assigned to traditionalist and literalist exegesis. She observes, “When a Muslim thinker claims authority to render interpretations of the [Qur’anic] text, most Muslims who read these interpretations will assume that they are legitimate aids to understanding.”64 In pointing to the problem of legitimate textual interpretive authority, Wadud refers to the fact that Muslims may read interpreters’ ideas into a text that should in a sense

“speak for itself.” But this comment also hints at a more specific critique of modern interpreters like Qutb whose method of tafsir, with its explicit ideological aims, represents a departure from traditionalist exegesis. This is potentially confusing, because on the one hand she argues that individual Muslims are authorized to read the Qur’an but their readings are accurate to the degree that they recognize the “true” or essential meaning of it, which is her reading. On the

64 Wadud (1999), 99. 36 other, in departing from a traditionalist “science” of tafsir, she and interpreters like Qutb are subject to the same criticisms. How are they authorized to read the text as they do? What exegetical methods constrain them? We find that these questions point to a pervasive problem for contemporary Muslims: in the absence of traditional structures of authority, which had authorized methods and strategies of interpretation and implementation of norms, how should authority be constituted? Can the text itself serve as a basis of authority? Can the text authorize particular readings of itself without institutional intermediaries?

The short answer is that such an idea is deceptive; a text cannot authorize readings of itself. Communities authorize texts and particular interpretations of them. It becomes evident that debates about the meaning of the Qur’an involve deeper debates about who Muslims are as a community, an issue that is far from easy to resolve. When Qutb and Wadud, in their own distinct arguments, assert that the Qur’an can somehow speak clearly and authoritatively “for itself” they demonstrate that in fact it cannot. The seemingly intractable nature of debate about

Qur’anic interpretation reveals deep divisions within the community regarding modern politics, and disagreement about gender norms is one expression of division.

Reformist approaches to Qur’anic interpretation appreciate the difference in contexts between seventh-century Arabia and modern society and in particular the different norms that guided medieval versus democratic societies. Stressing historicity, Aref Ali Nayed argues, “A

Muslim interpreter of the Qur’an should always keep in mind that what he really receives is

God’s answer as understood by a particular human being, conditioned by a particular tradition, and living in particular circumstances.”65 Reformers also argue that modern norms of gender equality and mutual consent are norms that resonate with ideas presented in the Qur’an and by the Prophetic example, although they have to negotiate texts that contradict these norms (such as

65 Aef Ali Naed, The ‘adial Quai Heeeutis of “aid Qut, Islamic Studies 31.3 (1992): 362. 37

4:34). Abou El Fadl warns against reading 4:34 as giving license for a husband to beat his wife, and he stresses the importance of outside legal adjudication for resolving serious marital disputes. This interpretation coheres with his worry about the rise of a politically authoritarian version of Islam in the last half century. (Abou El Fadl perceives an analogous relationship between the exercise of male violence in domestic sphere and the authoritarian exercise of power in the political sphere.) Feminist interpreters emphasize the importance of other Qur’anic and

Prophetic texts that challenge, if not contradict, a literalist reading of 4:34. They raise interpretive questions that point to more complex questions about legitimate textual and political authority in Islamic communities.

All of the reformers discussed in this section eschew questions about divinely-ordained gendered duties and focus on theological problems raised by wife-beating. (For the pre-modern and modern traditionalist exegetes, God’s intent seems to be explained by the division of rights and duties within marriage as they are realized biologically and explicated in revealed texts.) The reformers ask, if God created women and men equally, where is God’s justice in verses like

4:34? Collectively they reflect on what type of theological vision undergirds a political view of the family and its role in modern society. Moreover, they raise difficult theological questions about whether God allows unjust suffering (theodicy) and whether God permits unjust practices as a temporary stopgap measure.66

We find that questions about Qur’anic interpretation are inextricable from theological and political disagreements that characterize contemporary Islamic thought. Some of these disagreements have antecedents that stretch back to the time of Muhammad; disagreement about the role and treatment of women existed during the time of Qur’anic revelation and the formation of the early Islamic community. When appealing to and utilizing revealed sources to answer the

66 Ali (2006) raises these theological questions specifically regarding the practice of slavery. 38 question of whether wife-beating is an ethical practice, many reformers qualify the text by limiting its literal application to a bygone historical era and by determining, through the use of reason, what elements are consistent with the aspects of the tradition that pertain to God’s justice. They employ modern strategies of historical criticism, albeit in a limited way, and recognize the impossibility (and proclaim the undesirability) of resurrecting the social context of the Muhammad and his Companions.

On Tradition and the Hermeneutical Trap of Islamic Authenticity

This chapter has addressed the methodological strategies, including the explicit and implicit textual assumptions, of traditionalist/ literalist and reformist interpreters of the Qur’an.

The discussion of how different Muslims engage the text of the Qur’an raises questions about what it means to be a member of or participant in the tradition. In an interesting contrast to most discussions of how religious traditions undergo change in the modern period,67 Michael Satlow argues for the analytical importance of recognizing the static elements of a religion together with their constraining force.68 Satlow wants to “rehabilitate” the non-normative category of tradition in such a way that it may be useful for the study of religion.69 Framed this way, the question of why change is not as pertinent as that of how religious actors employ strategies to work within their traditions in different environments. This forces scholars of religion to analyze the ways in which religious actors deal with the constraints of tradition. In the case of contemporary

Muslim sexual ethics, the Qur’an (and verses such as Qur’an 4:34), hadith, and the classical legal

67 The focus on how Muslims are re-visiting texts about wife-eatig sees as a eaple of ho pesos adapt their traditions in light of contemporary circumstances. 68 Mihael “atlo, Taditio: the Poe of Costait, i The Cambridge Companion to Religious Studies, ed. Robert A. Orsi (New York: Cambridge University Press, 2012), 130—150. Although his endeavor to rehabilitate the concept of tradition is not exactly well-defined, Satlow may be attempting to show that those who think that all eligios eole aodig to a kid of odeist paadig ae isguided.

39 tradition constitute constraining forces with which Muslim interpreters, both reformist and traditionalist, must reckon.

Satlow thinks that scholars of religion need to be asking why particular teachings are preserved. What use do they have to the communities that employ them? In the case of contemporary interpretive debates about Qur’an 4:34, one answer might be that this verse highlights tensions occasioned by modern debates over the question of how to read the Qur’an as a modern Muslim. Why, after all, do not the more reform-minded Muslims attempt to dispense with the verse altogether? Why engage in a detailed of more egalitarian readings of the verse when it seems like a lot of trouble?

Another way to answer this question of why Qur’an 4:34 has received much attention by reformers and traditionalists alike in recent years is to look at the role and status of women as a

“marker” of Islamic progress and/or authenticity with Muslim and (non-Muslim) Western discourse. Modern Muslim reformers tend to welcome changes to what many perceive as a rigid gender hierarchy. Yet many reformist and traditionalist Muslims alike feel pressure to defend an

“authentic” or essentialist version of Islam in the wake of criticism about Islamic norms and practices. Kecia Ali observes the tendency of well-meaning Muslim intellectuals to make claims that “real” Islam “does” or “does not” endorse or require certain actions like polygamy, , veiling of women, etc.70 She argues that this way of thinking and talking about Islam shifts the discourse away from productive debate and constructive reflection on Islamic norms in modern circumstances.

Modern Qur’anic exegesis and the concern about identifying and promoting an

“authentic” Islamic position have exerted mutual influence on one another. One manifestation of the desire to formulate an authentic Islamic position is a reading the Qur’an as providing specific

70 Ali (2006). 40 laws and injunctions that may readily be applied to everyday life (Qutb’s reading). Another example of this mutual influence can be discerned in the argument that the Qur’an authorizes a particular interpretation of itself. Critics argue that this move strips the Qur’an of its historical moorings and therefore of a community of interpreters, which changes over time.71

Satlow’s category helps scholars think about how Muslims understand the Qur’an as a constraining force as much as they understand it as a tool of change. Modern Muslims confront the issue of whether the meaning of the Qur’an change in accord with the changing needs of the

Islamic community or remains timeless, as many interpreters (reformist and traditionalist) argue?

But for reformers, the timeless truths are contained in general principles. How then should one derive particular guidance from general principles? In terms specific to the study of religion, the debate about how to read the Qur’an in the modern era is also a debate about how to negotiate a relationship between traditional methods of exegesis and methods of modern history

(historiography). How far can one tip the scale in terms of history before skepticism makes the idea of revelation null and void? Reformist interpreters try to strike a balance between employing historical-critical methods and honoring the wisdom of the Islamic tradition as it has been expressed in revealed sources.

Contemporary disagreement over the interpretation of 4:34 in a way reflects the existence of dilemmas that affect modern Muslims involving questions about legitimate political and legal authority. As previously discussed, while modern Muslims agree that the Qur’an is authoritative because of its relationship to God and the Prophet Muhammad, they lack an authorized body of exegetes and/or lawmakers (‘ulema) that functioned in the past to enforce a particular reading

71 Even Wadud (1999), ho agues fo a kid of Quai self-refeetialis, agues that the Qua aot e udestood apat fo the eeds of a patiula ouit. “he ites, To estit futue ouities to the social shortcomings of any single community—even the original community of Islam—would be a severe limitation of that guidance, .

41 and application. Moreover, industrial and technological changes—and accompanying ideas about personal autonomy and reason—have influenced Muslim though as they have global society over the past two to three hundred years.72 Modern tafsir, whether literalist or reformist, has responded to the conditions (both the possibilities and the constraints) that industrial, technological, and economic changes have created for Muslim communities.

What might the existence and vitality of this exegetical debate mean for gender justice, and in particular the problem of domestic violence, in contemporary democratic societies in which Muslims live? In the coming chapters I will discuss how this exegetical divide relates to changing ideas about women and the family as they are reflected in Islamic law (sharia and fiqh).

As I have argued elsewhere, there is a fluid but corresponding relationship between patterns of

Islamic exegesis and legal thinking in the modern period.73 Sharia-based arguments about the permissibility of domestic violence and the role of women similarly involve competing ideas about the use and limits of reason and the authority of revelation. The modernist focus on the permissibility and scope of , or individual reasoning in Islamic jurisprudence, is one example of this. Questions about whether God empowers Muslims to use their own interpretive skills when reading verses that may be either unclear or morally problematic relate to questions about the role of human reason in determining the contemporary relevance of classical legal and ethical provisions.

72 See Marshall G.S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization, Vol. 3, The Gunpowder and Modern Times (Chicago: University of Chicago Press, 1974). See specifically Hodgsos arguet aout the pheoeo of the Geat Weste Tasutatio. 73Cf. Dunn and Kellison, At the Itesetio… 42

CHAPTER TWO

Between Pluralism and Neo-Traditionalism: Sharia and Fiqh in Transition

In the case of Qur’an 4:34, exegetical debates about the practice of disciplining one’s wife through take place in the field of Qur’anic studies and interpretation, but more broadly within a social context in which gender, Muslim identity, and the family are social symbols. This chapter takes special interest in the subject of law, in relation to the laws of personal status, as a medium used to articulate both ethics and as a symbol of identity. It recognizes law as one way to order the symbolic universe; the concepts of fiqh (jurisprudence) and sharia (divine law) have served to order and unify Islamic societies since the early days of the Islamic tradition.

Although the term “sharia” has multiple signifiers, in this chapter it points to an ongoing tradition of practices to which transcendent authority is often ascribed, in the sense of a divine author or commander. Sharia is fundamentally a system of ethics or of ordering human behavior to a divine end. This is most clear in its five-point classificatory scheme, in which certain acts are ranked from obligatory to forbidden, with the intermediate categories of recommended, neutral, and reprehensible. Thus, while some actions may be technically or legally allowed, they may be strongly discouraged as morally repugnant.74 Abdullahi An-Naˈim describes sharia as the

“general normative system of Islam” as historically developed by Muslim jurists, especially during the first three centuries of Islam.75

74 One example is unilateral male-initiated divorce (talaq thalaatha), which most schools of law evaluated as a reprehensible act. 75 Abdullahi A. An- An-Nai, “haia ad Islai Fail La: Tasitio ad Tasfoatio, i Islamic Family Law in a Changing World, ed. Abdullahi A. An- Nai (New York: Zed Books, 2002), 1. 43

In the first half of the twentieth century, Orientalist scholars made claims about the essentially static or rigid nature of Islamic law in comparison to modern bureaucratic legal traditions in the West. In the past twenty years, historians of Islamic law have challenged these dominant conceptions of classical Islamic legal theory and practice by showing the ways in which fiqh did not function as fixed and rigid system, but instead accommodated a wide range of needs in Muslim communities. Some of these works are types of microhistories, or those which focus on smaller aspects of historical life, such as a family or other discrete social unit, as a way of understanding larger social trends.76 Other revisionist works address broader trends and themes across historically-Islamic regions, such as Judith Tucker’s writing on gender and

Ottoman law.77 In a recent ambitious work entitled Sharia: Theory, Practice, Transformations,

Wael B. Hallaq deals more explicitly with changes in classical to contemporary Islamic legal theory, with an aim of refuting conceptions of modern statist law as superior to pre-modern

Islamic forms of law and morality.78 Methodologically, these revisionist works share an emphasis on the ways in which ordinary persons, and not only trained jurists (fuqaha), encountered forms of Islamic law. This marked difference in approach shows both the wide applicability of fiqh to Muslim populations over time and also increasing scholarly attention to the way in which social factors like gender and class impacted legal interpretation and practice.

These trends in revisionist history and historiography have an important, if subtle, influence on the way in which a religious ethicist narrates certain developments in Islamic legal thinking. Ethicists and moral theorists should pay attention to the rich contexts in which theory is extrapolated: legal theories, and the principles they support or engender, do not emerge from a

76 See for example Iris Agmon, Family and Court: and Modernity in Late Ottoman Palestine (Syracuse, NY: Syracuse University Press, 2006). 77 Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman and Palestine (Berkeley: University of California, 1998). 78 Wael B. Hallaq, Sharia: Theory, Practice, Transformations (New York: Cambridge University Press, 2009). 44 vacuum. But any telling of history is constrained by the normative lenses of the narrator/author: what parts of the past does she/he seek to preserve or present as having some authoritative weight? In the shift from the classical text to the family in court, for example, what is to be learned that was previously hidden or forgotten?

I do not claim to be a historian, but I do think that the history of concepts and institutions—and specifically, the ways that people have employed them— is important material for ethicists, however. In trying to map the parameters of contemporary Muslim discourse on marriage and family law as they pertain to domestic violence especially, it seems critical to attempt to piece together how certain arguments about law and the family have evolved over time in Islamic thought. Regarding domestic violence, it also behooves the ethicist to know how certain institutions of jurisprudence, particularly those that pertain to the regulation of conflict within the family, have functioned historically. For example, in contemporary political discourse, the term “sharia court” has multivalent significance. In a very basic sense, a sharia court signifies a space where Islamic jurisprudence prevails (as opposed to modern secular jurisprudence). But there is an ideological question that follows. Is a sharia court identical with what Islamists in

Nigeria (who have codified sharia law as state policy) say that it is?79 Or, does a sharia court ideally function in a more circumscribed way in a secular state? Without a basic grasp of the historical relationship between sharia and statist law as it developed in the last century and a half, we would not be able to comprehend certain developments in, and arguments about, contemporary Muslim family arbitration.

The chapter is structured as follows: first, I look at the development of guiding norms and sources in classical Islamic legal theory, as well as the relationship between law (sharia) and

79 Fo a helpful disussio of the ode goth of shaia outs i Nigeia, see Aduluii Adeao Oa, The Sharia Court of Appeal in Northern : The Continuing Crises of Jurisdictio, American Journal of vol. 52, no. 4 (2004). 45 political power (siyasa). Then, I highlight a few modern historical influences on the development of Islamic law: the codification of sharia under the Ottomans and the enormous shift in power created by the decreasing lack of authority among the learned class of scholars, and the impact of

European colonialism on sharia generally.80 Finally, I examine both classical legal arguments about gender and family, as well as the forms of dispute-resolution historically available and employed by families to resolve their conflicts, as well as modern legal arguments about the family. While it should be noted that many legal developments in the last several hundred years are marked by particular local and customary practices of law, we can observe general trends in

Islamic legal theory.

Sharia as a normative social practice developing over time: the classical

For an ethicist, the study of law can provide a window into a society’s process of making norms authoritative, or how it weighs some values against others in a social practice that unfolds over time. As with an examination of Qur’anic exegesis, an examination of legal thought can reveal how communities authorize and dispute particular norms. Law articulates principles that a group determines to be binding. At times, changes in social practices and ideas render certain legal decisions obsolete, or in some cases authorities may exercise tyranny over law, which binds participants to rules that they no longer view as reasonable or to which they are willing to support. Within a given tradition, we may observe that law is both an adaptive mechanism (as it responds to changes in social circumstances) and a culture-conserving

80 The Ottoman transitions, while not taken to be wholly representative of statist changes in the modern Islamic world, reflect contemporaneous global changes in Islamic jurisprudence such as codification of the sharia, the increased control of the state over the affairs of local communities, and the collapsing of the classical boundary between the power of law as interpreted by the ulea and the power of the sovereign. 46

(conservative) mechanism. Any substantial examination of legal and moral discourse should not extricate it from its social and political contexts.

In the West since the early modern period and Enlightenment, epistemological changes involving the questioning traditional sources of authority, and political changes involving the formation of the modern state, led to the development of a contractualist position on law. The contractualist view placed the authorizing and compelling power of law in the hands of citizens, even if it tended to rely on religious or semi-religious founding narratives. Law became an important regulatory tool in the development of , and also a way of compelling persons to act in a particular way according with the needs and demands of the state. While I will discuss in more detail the overlapping of legal discourse and moral discourse in the West later, I call attention to this statist, secular way of framing law as a point of contrast to pre- modern conceptions of law.

For an interpretive framework, I understand law as fundamentally a social practice, which derives its legitimacy and authority from communities themselves. I recognize that pre- modern communities did not view law in strictly this fashion; this fact does not prevent or hinder sociological analysis of legal decisions, structures, and methods, however. For example, in the case of classical Islam, or sharia was understood as authoritative because it was derived from God’s revelation in the Qur’an and the Sunna of the Prophet Muhammad.

Modern Muslims continue to argue that these sources form the basis of the sharia’s legitimacy.

According to this tradition, sharia should not be understood as a purely human endeavor; it requires discerning God’s will for humanity. Iranian scholar Ziba Mir-Hosseini makes the following distinction between fiqh and sharia: “While the sharia is sacred, universal, and eternal, fiqh is human and—like any other system of jurisprudence—subject to change. Fiqh is

47 often mistakenly equated with sharia, both in popular Muslim discourses and by politicians and academic and legal specialists, and often with ideological intent…”81 Hosseini argues that in their conflation of sharia and fiqh, Islamist ideologues are much more likely to claim the infallibility of sharia for their views.82

The task of the scholar of religious ethics is to examine how a particular community, at a particular time, uses sources and methods as a way of articulating norms; in other words, it is to view law as an ongoing social practice. Without assuming, as Muslims do, the divine origin of the Qur’an as well as the inspired example of the Prophet, we see at the outset that legal methodology developed in accordance with the specific needs of Islamic communities who were already in the first few centuries after the advent of Islam undergoing rapid change. When

Muslims argue that God prescribes one action over another, we examine their reasons for doing so within a concrete historical moment.

Between freedom and constraint: the method of usul al-fiqh. Here it will suffice to briefly introduce themes that will be of relevance for the discussion of contemporary legal discourse. The origins of Islamic law can be traced from the time of the life of the Prophet

Muhammad, who as a religious-political leader established a community after he began receiving divine revelations that came to be collected in the Qur’an. After Muhammad’s death, the early Islamic community experienced disagreement as to who should succeed Muhammad

81 Ziba Mir-Hosseii, Musli Woes Quest fo Eualit: Betee Islai La ad Feiis, Critical Inquiry vol. 32, no. 4 (Summer 2006). Like many Muslim feminists and liberal reformers (excluding, notably, An-Nai, Hosseini argues that fiqh interpretations contain patriarchal biases, while sharia does not. Sharia is a tasedetal ideal that odes all elatios of eploitatio ad doiatio. I otepoa Musli discourse, the line between fiqh and sharia is rather unstable, but I do think the point about sharia as encompassing more than human aims is an important distinction. 82 Related to claims of infallible sharia are claims used to undergird the creation of modern Islamic states that are goeed shaia. Although I do ot disuss aguets fo o agaist Islamic statehood in any detail, interesting arguments on this topic can be found in Abdullahi An-Nai, Islam and the Secular State: Negotiating the Future of Sharia (Cambridge: Harvard University Press, 2010); for a discussion of how reformists associate calls for Islamic statehood with violence, see John Kelsay, Arguing the Just War in Islam (Cambridge: Harvard University Press, 2007). 48 as leader. Eventually, several different groups were formed as a response to this fundamental disagreement, among them the Shia, who recognize the family of Muhammad as the heirs to the tradition, and the Sunni, who interpret the scholars/ keepers of Islamic law as the proper heirs.

By the ninth century, the words and deeds of Muhammad, collected in hadith reports, would gain greater authority within the tradition. There was a pragmatic reason for this: the needs of the expanding Islamic empire required a more systematic and universal, and less locally-based customary approach, to law and ethics. Usul al-fiqh is the methodology of the law

(usul translates as “roots”), comprised fundamentally of the four central sources of Islamic jurisprudence: Qur’an, Sunna, consensus (‘), and reasoning by analogy (). In the development of usul-al-fiqh, ninth-century jurist al- Shafi’i is recognized for his role in gathering and making more authoritative Prophetic sunna (contained in hadith reports) and circumscribing reason (in the form of opinion, or r’ay) in legal judgments.83 Al-Shafi’i created a method for collecting and determining authentic hadith wherein he distinguished authoritative or muwwatir reports from weak reports. In the process, the Prophet’s status within the nascent ethico-legal tradition was elevated, and obtained a similar status to the revealed Qur’anic text.

This legal methodology was worked out in the context of a seminal theological debate, and it affirmed a traditionalist position that was articulated by Al-Ash‘ari and his followers, which sought to guard against the excessive philosophical rationalization of theology by the

Mutazilites.84 This traditionalist position came to be dominant throughout the Sunni Islamic world; Devin Stewart notes that by the end of the eleventh century (CE), “Sunni jurists

83 Muhammad Ibn Idris al-Shafii, Risala. Translated and with an Introduction by Majid Khadduri (Baltimore: John Hopkins University Press, 1961). 84 “ee Halla, Was Al-“hafii the Maste Ahitet of Islai Juispudee? International Journal of Middle Eastern Studies 25, no. 3 (November 1993): 587—. Halla agues that “hafiis ies ee ifoed theological debates between Asharites and Mutazilites about the nature of human responsibility and the role of human rationality. 49 succeeded in establishing themselves as the foremost religious authorities in Islam and in founding institutions which would ensure their continued dominance of Islamic religious discourse.”85 Stewart demonstrates how the formation and consolidation of Sunni

(legal schools) also relegated non-Sunnis to a relatively marginal position in Islamic religious discourse for much of Islamic history.

Historically, this traditionalist emphasis has meant that ijtihad, which refers to critical and independent reasoning in making legal decisions, did not license complete juristic freedom.

Rather, jurists were constrained by the conservative legal methodology of usul al-fiqh. The widely adopted pre-modern practice of , or following the opinion of a legal scholar within a particular school, preserved this traditionalist position. Hallaq argues that the practice of taqlid was not necessarily indicative of blind obedience: “The great majority of cases handled on a daily basis by the judges and jurisconsults involved simpler forms of taqlid, such as the application of legal doctrine—generally much in the same way that a Western judge applies the law in his or her court.”86 While this aspect of legal practice shows the culture-conserving aspect of sharia, it did not mean that jurists did not exercise intellectual when forming legal opinions. When they did, they did so within the parameters articulated by legal methodology.

As previously noted, the historical patterns of privileging taqlid over ijtihad, and of endorsing a traditionalist account against a rationalist position, is inextricable from historical debates about theology and politics. All of this underscores the importance of understanding the project of law as an ongoing social practice, subject to the events of history and the interpretation of a community of believers and practitioners. For the majority of Sunni history, the traditionalist point of view has prevailed, which has had ramifications for the legal tradition.

85 Devin Stewart, Islamic Legal Orthodoxy: Shiite Responses to the Sunni Legal System (Salt Lake City: University of Utah, 1998), 241. 86 Hallaq (2009), 113. 50

While Shafi’i’s project did not exactly result in the “closing of the gate of ijtihad” as Joseph

Schacht famously argued, it undoubtedly privileged revealed sources over sources of reason.87

The Islamic legal tradition, through its method, has emphasized the supreme authority of

God’s revelation. As Mohammad Kamali argues, “An adequate grasp of the methodology and rules of interpretation also ensures the proper use of human reasoning in a system of law which originates in divine revelation.”88 The view that God is the author of law, and human beings its interpreters has prevailed for the majority of . Kamali argues that the are permanent and may not be overruled on grounds of rationality or the requirements of social conditions. As I showed in the previous chapter, however, many modern Muslim Quranic exegetes have re-configured the relation of one source to another, sometimes privileging one exclusively (Qur’an) over the other (Sunna). Moreover, the revival of ijtihad as a lay practice has empowered many Muslims to engage in novel interpretations of law and ethics.

Law and politics in the classical Islamic state. Jurists, in addition to interpreting and preserving the sharia for purposes of legal and theological orthodoxy, played a significant role in holding political leaders accountable to the dictates of the divine law. The learned class of scholars, the ‘ulema, were a specialized class that exercised authority in discovering and interpreting the divine law, an authority that was not granted to caliphs, , or other supreme political leaders. In the classical Islamic state, the figure of the (judge) pre-figured the systemization of the legal system under al-Shafi’i, emerging in the Umayyad administration.

The qadi made decisions based on the Qur’an and customary practice (‘), and could elect caliphs. engaged in a kind of “applied ijtihad” in which they applied the law to disputes

87 See Joseph Schacht, Origins of Muhammedan Jurisprudence (Oxford: Clarendon Press, 1979). 88 Mohammed Hashim Kamali, Principles of Islamic Jurisprudence, Third edition (Islamic Texts Society, 2005), 3. 51 between real people.89 The of the qadi applied to Muslims only, as and

Jews were governed by their own legal .

Briefly, we should note how the qadi has functioned historically within the Islamic community. According to H. Patrick Glenn, qadi is understood as a dynamic process, “one in which all cases may be seen as different and particular, and for each of which the precisely appropriate law must be carefully sought out.”90 In contrast to practice, Glenn argues, the process of adjudication under the qadi is not adversarial, and resembles in many ways the process of obligatory . However, the qadi does not contribute to the formation of the law; figures of legal expertise such as the , who provided

(and still provides) written legal opinions fill this role in the development of the legal tradition.

Glenn observes, “Free of formal responsibility, yet possessed of immensely useful knowledge and great analytical ability, the mufti comes to be the most effective means of bringing vast amounts of law to bear on highly particular cases.”91 The mufti’s opinion, the fatwa, has historically been an important factor in the development of Islamic law. Schacht explains,

“Islamic law represents an extreme case of a ‘jurists’ law’; it was created and further developed by private specialists, a phenomenon well known to the .”92We should also not underestimate the effect of the lack of a formal legal hierarchy or structure in the Islamic tradition, which has had the effect of vesting legal authority in “the private, or religious,

89 Asifa Quraishi, O Falliilit and Finality: Why Thinking Like a Qadi Helps Me Understand American , Michigan State Law Review no. 2 (2009): 339. 90 H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, Fourth edition (New York: Oxford University Press, 2010), 188. 91 Ibid, 190. 92 Schacht (1979), 209. 52 community and not in any particular ruler.”93 This separation between the religious law and political institutions influenced the development of Islamic forms of government.

By the time of the Abbasids (750-1258 CE), Islamic law had undergone more systemization and the caliph had increased appointive power of qadis. Although the sharia was restricted to interpretation by the ‘ulema, this was one way in which it could be enforced by the state. Despite the supreme political authority vested in the caliph, he nevertheless was bound by the religious law, and the ‘ulema maintained a distinct role as its interpreters. Significantly, the caliph did not have the right to legislate; he exercised siyasa or the discretionary power of sovereign to apply and complete sacred law, in distinction from the ideal system of sharia

(religious law administered by qadis). Schacht observes,

Islamic law provides the unique phenomenon of legal science and not the state playing the part of a legislator, of scholarly handbooks having the force of law (to the extent to which Islamic law was applied in practice). This depended on two conditions: that legal science guaranteed its own stability and continuity, and that the place of the state was taken by another authority, high enough to impose itself both on the government and the governed.94

In the early Islamic state, class differences became pronounced between the ruling elite and a nascent legal-religious class that represented the interests of the Islamic community. It was precisely in this milieu, Hallaq argues, that “jurists and judges emerged as the civic leaders who, though themselves a product of the masses, found themselves, by the nature of their profession, involved in the day-to-day running of civic affairs.”95 This distinction between political and religio-legal authorities would serve a critical function in maintaining a balance of power during the period of the classical Islamic state. describes this structure as one of mutual validation wherein “the ruler affirms his duty to the law and the law in turn recognizes the

93 Glenn, 191. 94 Schacht (1979), 211. 95 Hallaq (2009), 130. 53 legitimacy of the ruler is a delicate thing under any circumstances.”96 Scholars had the authority to depose a caliph who did not follow the law; in Feldman’s words, they had the authority to

“bind the community to obedience.” Even when the was no longer a viable institution for ordering government, a central principle managed to be maintained: the caliphate, even as a relative fiction, ensured the validity of all legal acts and affirmed the primacy of the sharia.97

In contrast to contemporary codified forms of law, sharia was a non-centralized and non- institutionalized phenomenon in the pre-modern Islamic world. Political leaders were bound by sharia, and their power was checked by the legal scholars.98 The and informal law court functioned as legal spaces in which people resolved their disputes with minimal or no input from regnant political authorities. The casuistical method was integral to Islamic legal thinking, and the moral and ethical ideas that characterized the ideals of sharia had real-world applications.

Although the legal methodology of usul al-fiqh was solidified within a few hundred years of the advent of Islam, the tradition continued to evolve especially with the creation of fatwas and the practice of . Also, it is important to keep in mind that Islamic law had a personal, individualist character to it, in which a person was accountable for his or her actions not only before the community but as such actions affected that person’s standing with God. Sharia instilled a sense of personal responsibility as concurrent with the goal of establishing universal justice.

At this point it will be useful to summarize a few critical features of classical Islamic law and politics in anticipation of a discussion about changes in Islamic thought in the modern

96 Noah Feldman, The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2007), 36. 97 As an example, Feldman (36-38) highlights al-Maadis aguet fo the otiued ule of the aliph afte the Buwayids took power and denied the caliph independent governing authority. 98 Not all conflicts were regulated by scholars trained in fiqh. Feldman (42) explains that a ruler or his deputies ould efoe adiistatie egulatios ith the foe of la. The ules authoit, hoee, as ultiatel grounded in the sharia. 54 period. First, Sunni approaches developed in part as a response to theological debates about the use of reason in relation to revelation, and in a political environment reacting to the political of traditionalists by rationalists. The conservative legal methodology evolved in an environment of traditionalist piety and it exerted caution about individual opinion (r’ay) by constraining the exercise of juristic reason (ijtihad). The four legal schools preserved a degree of pluralism, however, which permitted disagreement (iktilaf) and debate.

Regarding legal practice, early on the scholarly class secured for itself a role as the interpreters of sharia and a place distinct from the authority of the caliph, the supreme political leader of the classical Islamic state. The fuqaha exercised special authority in the Islamic empire as ones who defined and interpreted law in accordance with usul-al-fiqh, and thereby were responsible for establishing and maintaining legal orthodoxy. Sharia was practiced as primarily jurists’ law, not case law or legislative law.99 Although formally unified by legal method and the works of eminent jurists from the four madhabs, local communities also relied on the interpretive work of (jurisconsults) who issued opinions pertaining to specific cases. Fatwas thus became one engine for development and change in Islamic jurisprudence, and the practice of sharia in this case may be viewed as more context-dependent than the classical methodology seems to allow.

Sharia in the modern period: codification, constitutionalism, and colonialism

Ideas about the content and application of sharia changed as a result of shifting social conditions in modernity. While the intervening years between the systemization of usul al-fiqh and the advent of the have historical significance, for my purposes it is

99 “ee Ahao Laish, The Tasfoatio of the “haia fo the Juists La to “tatuto La i the Cotepoa Musli Wold, Die Welt des , New Series, Vol. 44, Issue 1 (2004): 85—113. 55 necessary to highlight the ways in which the modern period, and Islamic interaction with , created a reactive shift in Islamic legal thinking. Noah Feldman argues, “The death of the classical Islamic is intimately intertwined with the decline of the Ottoman Empire— and the efforts to reverse that decline through reform and modernization.”100 Scholars of Islamic law and history agree that classical Islamic jurisprudence, and conceptions of Islamic self- identity bound up with it, underwent radical transformation in the Ottoman period. While much of the focus will be given to Ottoman examples, I will also briefly attend to how colonial exercise of power on the Indian subcontinent altered traditional forms and interpretations of sharia as well.

The Ottoman Empire: state centralization and sharia codification. The Ottomans came onto the world scene of history in the fifteenth century CE and created an absolutist monarchy with a strong, centralized . Historians of Islamic civilization concur that it is during the period of Ottoman rule that the phenomenon of state centralization and control becomes the modus operandi for governing. For the practice of sharia and the class of scholars, this had important consequences. First, the scholars were brought under state control; Marshall

Hodgson shows that this phenomenon was not unique to the Ottomans but rather characterized other early modern states influenced by the Mongols.101 The Ottoman state, Hodgson reports, was in great part defined by its militaristic opposition to Christendom and its sense of communalism fostered by the sharia.102 Within this structure, the class of scholars maintained an authoritative role at the same time as their office came under the control of the state. A bureaucracy flourished in which members of the ‘ulema occupied state-controlled (state funded

100 Feldman, 59. 101 See Marshall G.S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization, vol. 3, The Gunpowder Empires and Modern Times (Chicago: University of Chicago Press, 1974), 105. 102 Hodgson, 108. 56 and supervised) positions. In time, the school of law became the exclusive authority for state ; it underwent codification in conjunction with the needs of a more efficient bureaucratic state.

One important piece of evidence for this growing alliance between state and law is the influence of the shaykh al-Islam () Khoja Chelebi or Abu al-Sa‘ud (1490-1574). On the one hand, the role of the mufti and Grand Mufti in particular in creating binding fatwas was expanded; Islamic jurisprudence continued to develop through this mechanism. On the other hand, the sharia became more entrenched with the aims of the ruler. The shaykh appointed other mutftis, and “worked out the principles that justified the way the sharia was accommodated to the state: in particular, the doctrine that the qadis, deriving their authority only from the monarch, are bound to apply Sharia according to his directives.”103 This rationalization of absolute political power had deleterious effects on the ability of the scholars to check the power of the political leader, and it placed the application of sharia into the ruler’s hands. As Feldman explains, the Ottoman sultans never quite accepted the yoke of the law as interpreted by the scholars, in part because of their great power.104

Some of the greatest changes to law and the classical legal structure occurred with the decline of the Ottoman Empire, which had enjoyed several hundred years of stability and flourishing, up until the late eighteenth and early nineteenth centuries. It suffered a series of military defeats by European nations in the early nineteenth century. Moreover, technical advances in the West had given rise to an extremely efficient European bureaucracy. The

Ottomans engaged in measures of reform in order to compete with European powers; the

Tanzimat (1839- 1876) were a series of reforms that ranged from military to judicial. The

103 Ibid, 110. 104 Feldman, 54. 57

Tanzimat operated at the discretion of the . Feldman divides the judicial reforms into legal and constitutional categories: the first includes the process of codification (or reduction of Sharia to rules to be applied by a trained bureaucrat) and the second pertains to the creation of new institutional bodies into the preexisting constitutional order.105 Feldman argues that taken together, these reforms destroyed the scholarly class, and they simultaneously created the possibility for both secular government and modern autocracy. The reforms impacted the educational structure of legal training. Hallaq argues that the method of civil service training gradually pushed out traditional training in the sharia: “In the course of time, the early Tanzimat generation was to groom the next generation—mostly their children, who would have grown up to study sharia, but did not—as bureaucratic servants, thus easing much of the traditional into a modified form of non-Sharia, state service.”106

Generally, at this time the Ottomans looked to Western law for guidance about judicial reform, and codification is a means by which a person such as a judge could have at his/her disposal a set of comprehensive rules. Feldman explains that while early Ottoman codes did not present much of a threat to the authority of the scholars, later, more rigorous codification did.

Codification in one of its more extreme forms occurred in late nineteenth century Ottoman

Empire. From 1870 to 1877, sixteen books of a new , the or Mejelle, were produced and promulgated as sultanic code. This systematic attempt to formulate classical

Islamic jurisprudence in the form of code ran askew of traditional features of the legal system, such as the restriction of the role of the judge to someone who merely applies ready-made law to a situation but does not interpret it or act as an intermediary between the abstraction of (God’s)

105 Feldman, 60. 106 Hallaq (2010), 429. 58

Law and the particularity of the case.107 The Mecelle was an embodiment of secular law, and though not exhaustive (other forms of law could still be consulted), its use did not require a specialized body of interpreters. Feldman argues that the Mecelle effectively denuded the scholarly class of the power it once held; he also maintains that it is puzzling as to why the scholars did not vociferously object to their replacement in the form of codification (although he speculates that it has something to do with the way that scholars had already ceded authority under the bureaucratic structure of the Ottoman state many years prior to codification).

Compounding the effects of codification on the class of scholars were constitutional changes. Feldman points to the Ottoman constitution of 1876 as a prime example of sultanate power and sovereignty, as it declared the sultan as the “Supreme Caliph.”108 It also created a legislative body, which ultimately failed as a check on executive power, especially with the reign of Sultan Abdulhamid II, who suspended the constitution and the in 1878.

Feldman explains that on the whole, the class of scholars was viewed by reformers as an impediment toward progress, as the former group represented a sometimes-rigid traditionalism that did not permit the appropriation of outside knowledge. The government allowed the scholars to maintain control over religious rituals, as well as family and personal status law as a token of sorts, which is important for how gender and the family become implicated in broader discourse about Islamic law and politics. Specifically, this move enabled the family to become a special locus for debates about the authenticity of sharia and Islamic identity. This move was also true of many colonial policies, since managing the family through law was not in the explicit interests of

European powers. As Hallaq argues rather cynically, Europeans failed to care about laws of personal status because they did not interfere with cultural re-ordering for material and political

107 Feldman, 63. 108 Feldman, 71. 59 exploitation.109 The sharia tribunal would persist as a legal and social mechanism for addressing family disputes, although ideas about what sharia consisted in and methods of discerning and applying it continued to be in flux.

Colonialist interventions. Modern social, economic, and epistemological changes challenged sharia as it was interpreted and practiced for most of Islamic history. Thus sharia, from its original context in the classical and early modern Islamic state, has been in the process of being re-interpreted and has been transported in a fragmentary way in modern Islamic countries and Western states. Therefore it is impossible to narrate a story about recent Islamic legal history without acknowledging the increasing dominance of Western secular law in the nineteenth and twentieth centuries, which is connected to the rise of the political-economic apparatus of the modern state. The demise of the Ottoman Empire, the advent of European hegemony as well as the concomitant dominance of modern technology and the method of scientific rationalism, and the widespread dissolution of traditional Islamic economic and legal structures, are all factors that have influenced attempts to re-think and re-articulate Islamic law in the modern period.

What Hodgson called the “Great Western Transmutation” affected the Islamic world, and correspondingly the classical tradition of Islamic jurisprudence, in no small way. Northern and

Western Europe made significant intertwined technical and economic advances beginning at the end of the fifteenth century, which allowed European states to venture beyond their borders in conquest of land and resources. In addition to its political and economic aims, European colonialism was a project of collecting and systematizing knowledge about various colonized

“others,” Edward Said has pointed out,110 and as countless other postcolonial thinkers have

109 Hallaq (2010) 445. 110 Edward Said, Orientalism (New York: Vintage Press, 1979). 60 adopted as a fundamental impetus of colonial practice. Fields of study such as anthropology and sociology emerged as premier human sciences that attempted to understand and explain the behavior of groups of various “others” around the world; this data was not infrequently used to justify the need of European states to intervene and “civilize” groups.

Such arguments and actions not only illustrate the greed and prejudice of colonizers, but reflect a genuine perplexity and anxiety about the shape of a nascent European identity as a civilization separated from its roots by the ongoing scientific-rationalist political program called

“modernity.” While it is easy to adopt a skeptical perspective, I prefer to view these developments as containing both productive and destructive elements. One must acknowledge, for example, a troubling and yet inextricable relationship between the historical development of democracy (productive) and concurrent political and economic hegemony of Western states, most clearly evident in the colonization of foreign lands (destructive). This provides a basic reason for narrating the relationship between modern Western states and Islamic populations carefully.

As mentioned earlier, one way that Ottomans attempted to deal with the challenges leveled by the dominance of Europe was through a series of reforms, which some modeled on the West.111 Part of Hodgson’s thesis, however, is that the West had made large cultural strides

(without ascribing any moral weight or merit to them) with which other civilizations could not keep pace. Thus it is not unimaginable that those in many other societies, like the Ottomans, felt torn between adopting Western measures of reform so as to enjoy some kind of prosperity—to name one possible motive—and wanting to preserve traditional forms of social life. During the

111 See Albert Hourani, Arabic Thought in the Liberal Age: 1798-1939 (New York: Cambridge, 1983). Hourani accounts for the role that burgeoning nationalism plays in reform as well, which is an important piece of the story. He explains that early reformers, such as Tahtawi, looked to France and other European nations as models on which to base the civilizing reforms of Arab countries. 61 period of Ottoman reforms, in the late nineteenth century, Muslims thinkers were under pressure to reconcile European ideas of law with Islamic jurisprudence. The changes created by the

Tanzimat provided a “new legal and moral basis”112 for the Ottoman Empire.113

Colonialist legal interventions on the subcontinent. In 1772, the British Hastings Plan enforced a multi-tiered system of jurisprudence that assigned power in the following order: at the top were British administrators, followed by British judges who consulted with local muftis and qadis with regard to issues of Islamic law, and then at the bottom of this hierarchy sat Muslim judges. Sir William Jones (1746-1794) proposed the creation of codes to systematize Muslim and

Hindu laws. Hallaq has argued that the entire process of creating this new hierarchy and system served as a means for the British to exercise total control over the Indian judicial system, and in effect displaced native legal culture.114 British colonial administrators justified this displacement by arguing that native systems of law were not only arbitrary, but irrational and unchanging. This view would be expounded upon by Max Weber’s term kadijustiz to refer to Oriental law, which,

Hallaq observes, the British were interested in diminishing.

Hallaq notes two major changes to sharia on the Indian subcontinent that irreversibly changed the ability of Muslim legal scholars and judges. The first was the translation and codification of the Hidaya,115 which allowed the British to eliminate the need for Muslim judges to interpret the law. The other was the conversion of the sharia court into a body that operated on

Stare Decisis, or the obligation of courts to follow uncontroversial previous judicial decisions of

112 Hourani, 87. 113 Enlightenment antipathy toward traditional sources of authority manifested itself in skeptical attitudes not only toward European but toward other religious systems and cultures, and became the basis for justifying the substantial destruction and/or revision of native legal cultures and systems. Enlightenment thinkers privileged a conception of reason and morality unmoored from tradition, and this viewpoint, articulated through colonial presence as well as university education, was negotiated by early Muslim reformers. 114 Hallaq (2009), 375. 115 The Hidaya is a Hanafi jurisprudential text that is widely influential in parts of , translated by Charles Hamilton from Persian into English. 62 higher courts.116 In effect, this move disempowered the mufti, who had been trained to adjust and administer the law according to his legal expertise and the context of the circumstances. Hallaq argues that this transformation of the sharia court ultimately silenced the hermeneutical activity that had characterized much of Islamic legal practice.

While the invention of Anglo-Muhmmadan law on the subcontinent demonstrates a stronger colonial interventionist example than the Ottoman case, many of the changes are similar and thus noteworthy. First, both illustrate a shift in increased state power, including the centralization of state authority to interpret and enforce law that had previously been the jurisdiction of a specialized class of scholars and/or judges. Second, in both cases, administrators undertook the codification of sharia as a way to make religious law “more efficient” and systematic for the needs of (each) empire. And in the process, much of the original legal methodology that characterized pre-modern sharia was lost or determined to be irrelevant. Hallaq argues, “Ijtihadic hermeneutics was the very feature that distinguished Islamic law from modern codified legal systems…”117 and was consequently hindered by colonial legal interventions.

Despite Hallaq’s grim narrative of the decline of the sharia in legal contexts around the world, it is important to point out that ideas about sharia, and about the methodology of Islamic law, have continued to evolve. One way of looking at the contemporary situation of Muslim thought is to note the way in which ijtihad has been revived in the last century and a half, first as a scholarly and then as a “lay” movement. Briefly, let us note that ijtihad in this sense has not functioned solely in the strictly legal contexts it once did, and has expanded as a way for

Muslims of all classes and backgrounds to engage sacred texts and traditions. Muslims have employed ijtihad to re-define the role of reason within the tradition. With the demise of the

116 Hallaq (2009), 381. 117 Ibid. 63 authority of the legal class, many Muslims adopting a “modern” viewpoint argued for the necessity of reinvigorating ijtihad in legal thinking, as opposed to the widespread pre-modern practice of taqlid.118 Ijtihad, though interpreted in diverse ways and embraced by diverse thinkers (from Islamists to Muslim feminists, for example) embodies a modernist impulse to read traditions anew, not specifically on the authority of its previous interpreters. European university education encouraged the ferment of Enlightenment ideas among Muslim reformers in the late eighteenth and nineteenth centuries. Among early reformers, Jamal al- al-Afghani argued for the necessity of using reason to apply the principles of the Qur’an to the issues of their time. His student, Muhammad ‘Abduh (1849-1905), was influenced by the work of Montesquieu and

Voltaire, and also argued for the importance of the practice of ijtihad. In his autobiographical reflections, ‘Abduh wrote that he sought to “liberate thought from the shackles of taqlid,” and to return to the first sources of religious knowledge and “weigh them in the scales of human reason” in order to show that the methods of science and religion were congenial.119 Hourani notes that this desire was not foreign to the Islamic tradition, as it showed the influence of al-

Ghazali, Ibn Sina, and even the rationalism of the Mutazilites, on Abduh’s thought. Nevertheless, such a statement expresses optimism about this relationship that resembles a European hope in the progress of science and humankind.

One can see how the embrace of modernist ijtihad, here articulated by ‘Abduh, might undermine the special role of the legal scholar as the authoritative interpreter of sharia.

Moreover, following a European model of knowledge, some Muslim intellectuals were inclined

118 As Muhammad Zaman points out, following British colonial interventions the Indian ulea were far more likely to interpret sharia in a way that resembled British literalism in law. This involved taqlid, in reverence to either classical teachings or a particular school of law, but in a novel way. In part, this practice served the need to secure the uleas authoit ude Bitish ule. “ee )aman, The Ulaa i Cotepoa Isla: Custodians of Change (Princeton: Princeton University Press, 2002), 24—25. 119 As recorded by Muhammad in Taikh al-ustadh al-imam al-shakh Muhaad Aduh, third edition (Cairo, 1947-48), i. II. In Hourani (1983), 141. 64 to re-think the relationship between revealed knowledge and reason. Reformers like ‘Abduh did not see a contradiction between ijtihad and methods of Western science and rationality, even though they were often critical of the secular aims and uses of science. Although the more traditionalist view has since dominated Islamic global politics, and has defined ijtihad in less rationalist overtones than ‘Abduh (Qutb’s work is a good example), discussion about the necessity and process for the examination of reasons in the form of individual inquiry (ijtihad) has been voluminous in the last half-century.

These shifts in politics and legal interpretation have had significant implications for how gender roles are conceptualized and re-defined in the last century. First, we can think in terms of how colonial intervention circumscribed the role of sharia to family law, and in a way reified classical gender roles as symbolic of modern Muslim identity. In a related manner, authoritarian political developments in some Muslim-majority states created and/or endorsed new forms of patriarchy and reinterpreted sharia to accord with their ideological aims. In the next section, I address more specifically the relationship between classical and modern legal interpretations of family law in this context.

The family in sharia: ambiguity, definition, and change

Laws of personal status: marriage and the family in classical Islam. Since its inception, Islamic fiqh affirmed the institution of the family as a core component of Muslim society, and delineated family roles along a gendered hierarchy in which men held more social power. In the interest of avoiding essentialist claims about whether Islam is or is not patriarchal,

I note that Muslims have used legal arguments in the pursuit of justice for the socially marginalized at the same time as they have employed legal arguments to privilege persons

65 according to gender, social status, and religious identity. For example, early jurists, following the directives of the Qur’an, criminalized chthonic Arab practices like female infanticide, but often promoted and maintained the pre-Islamic patriarchal structure of society through rules restricting equal access to and divorce.

On the matter of classical sharia pertaining to matters of the family, we must take into account that the family was a legal entity, subject to the norms of sharia, even though family conflicts were not always nor exclusively resolved by representatives of the law, such as qadis and muftis. The sharia-based legal system functioned in the context of a largely kin-based social structure, which was governed by family relations. This location of the family as both a private and a public entity has had implications for how disputes pertaining to marriage, children, and inheritance were resolved. In pre-modern society, Muslims seeking to end a family related conflict frequently did not go to court, preferring instead to seek mediation in a less-formal setting, in which religious law and norms still played a part. Hallaq argues, “Many private disputes, such as spousal discord and disagreements over joint family , were often mediated by the head of household or an authoritative figure in the clan or neighborhood. Village imams, as well as the elders of nomadic, semi-nomadic and settled tribes, commonly appear in court records as having intervened as arbitrators in disputes prior to the arrival of a case before a judge.”120 Hallaq intimates that it was not always a matter of convenience that motivated parties to resolve their disputes privately; the fear of publicly airing “dirty laundry” was enough to keep many Muslims from seeking the more formal aid of law courts.121 Disputes over a marriage

120 Hallaq (2009), 162. 121 What Hallaq does not explicitly acknowledge (and it is surely a non-trivial point) is that such a kin-based system operated with its own devices of social accountability, such as concepts of shame and honor, which were not eessail alas i hao ith ideas of uiesal justie poulgated the Qua ad the shaia. This is a tension of which we should be especially aware with regard to the development of family law and attendant conceptions of gendered rights and duties. 66 could quickly morph into a tribal conflict. Nevertheless, court records and fatwas provide more adequate evidence of how the law addressed and constructed gender and the family, in contrast to the practice of informal mediation.

Returning to the idea that the family occupied an ambiguous legal and political place, the classical legal system supported a de facto conception of the “private sphere,” which was affirmed and maintained through boundaries of gendered space.122 As late as Ottoman Syria and

Palestine, Judith Tucker shows that the classical legal distinction between gendered duties was strong: “All of the [legal] cases dealing with family matters were strongly gendered, in the sense that women and men made their claims or defended their actions with explicit reference to their rights or obligations as gendered individuals.”123 As Kecia Ali’s work on classical Islamic jurisprudence demonstrates, the division of gendered rights and duties is a consistent feature of

Islamic law, and persists in some forms into the modern period.

Tucker explains that the order of the classical Islamic social world depended on sex- segregation, perhaps for the basic reason that human sexuality posed a distraction to members of society and to the unity and stability of Muslim communities. She shows that law was predicated on a gender binary, and marriage was the context in which this binary was affirmed.

Thus marriage was both an ethical relationship in which jurists expounded on the appropriate ways to treat one’s spouse and simultaneously a symbolic relationship on which the harmony of society depended. Tucker explains that judges often found themselves in the delicate position of protecting and enforcing the rights of individuals within the context of marriage when a conflict

122 The division in the modern state between public and private, insofar as it relegates religious belief and practice to the private sphere, differs from the pre-modern Islamic conception of public/ private, which is for the most part limited to the delieatio of gedeed duties ithi the doai of the household. “ee Moshe a, A Itodutio to the Puli ad Piate Deate i Isla, Social Research vol. 70, no. 3 (Fall 2003). 123 Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California, 1998). 67 between spouses arose, but also of preserving marriage as a foundational institution of Islamic society.

This binary found expression in the complementary marital duties of obedience and guardianship, the transgression of which may have had legal and/or non-legal implications (such as the right to beat one’s wife). After our discussion of interpretive debates about 4:34, it should not be a surprise that this verse historically played an important role in legal thought pertaining to the subject of marriage. Tucker explains that the doctrine of nafaqa (Arabic for

“maintenance”) spelled out wife’s material claims on her husband: the right to maintenance, etc.

On the other hand, the doctrine of nushuz (disobedience) fixed the price the wife was to pay, and outlined what the kinds of activities that would entitle her husband to discipline her (through the revocation of support, or perhaps physical punishment). Tucker explains, “The husband’s central right in marriage was his right to his wife’s body: maintenance began when his wife became sexually available to him and could be terminated if she refused sexual intercourse or even his caresses, or left the marital domicile thereby making herself inaccessible to her husband.”124 She reports that some jurists thought of nushuz as a master-servant relationship, with physical punishment as one logical consequence for transgression of duties, although others imposed an escalating scale. Jurists did invoke Qur’an 4:34 in this context, of course.125 She argues, “Nushuz could not but be a defining concept for marital relations, inscribing dominance and submission in the marital relationship.”126 The legal tradition affirmed the male right of sexual access to one’s wife, predicated on a relationship of complementary gender roles.

124 Judith Tucker, Women, Family, and Gender in Islamic Law (New York: Cambridge University, 2008), 53. 125 Appaetl, I Taia seized upo Qua : as poidig a justifiatio fo the eatig of oes ife. See Tucker (2008), 56. 126 Ibid. 68

Another related mode in which the concept of gendered duties is delineated in the Islamic legal tradition is in classical legal discussions of marriage as a form of ownership, as discussed in

Chapter One. Kecia Ali states the implicit rationale behind the jurists’ opinions: “A woman could not exercise control over a sexual relationship because as a woman she was incapable of being an owner in marriage or in concubinage.”127 On the classical model, there exists an active/passive binary along which gender roles are construed. Al-Shafi’i maintained that males could not be concubines because this would invert the proper gendered right of ownership.128

Comparing his arguments with those of other classical jurists, Ali argues that only male ownership made the sexual relationship legal or licit in the eyes of the jurists.

These historical arguments and examples highlight the consistent ascription of rights and duties within marriage along gendered lines. Thus the family was simultaneously the object of public legal concern and relegated to the private dominion of male heads of household. The

“private” dimension of the family can be discerned both in practices of and in the forms of male ownership associated with marriage and concubinage and slavery. And yet, as an institution considered foundational to the functioning of society, gender and the family occupied an important place in the definition of Muslim social life. Tucker argues, “The various rules elaborated for family membership, family obligations, and family rights must be seen…. as central to relations of power…When the muftis and the courts handled matters pertaining to

‘family law’, they were mediating a set of social relations that shaped the distribution of wealth and power in the society at large.”129

127 Ali (2010), 181. 128 “hafii easos, The a is the oe ho aies, the oe ho takes a ouie, ad the oa is the oe who is married, who is taken as a concubine. One cannot ake aalogies etee thigs that ae diffeet. “hafii, Kitab al-Umm, K. al-Nafaat, Ma jaa fi adad a ahillu i al-hai a l-ia a a tahillu ihi al- fuuj, 5:215, cited by Ali (2010), 15. 129 Tucker (1998), 183. 69

Despite the patriarchal nature of Islamic jurisprudence, it would be a mistake to claim that Islamic law is fundamentally opposed to women or women’s experience. Rather, women and men were likely to use the law to their advantage whenever possible. In the classical legal system women were not without rights or recourse to legal help. Tucker, Hallaq and others point out that under Islamic law a woman enjoyed certain legal protections in marriage, such as property and expectation of material support. Within the institution of marriage, women gained certain rights, and could reasonably expect the legal system to hear their claims and enforce some kind of fair ruling.

One basic point to emphasize is that in pre-modern Islamic society, the legal system in theory and practice reinforced the separate nature of gender roles. Women gained some legal advantages from marrying (especially compared to women who were concubines or slaves) and had recourse to judges if and when their husbands failed to perform their duties. The relationship between law and gender was thus not straightforwardly one of female oppression, though to the degree that legal discourse reified gender roles and privileged male participants over female participants, it was patriarchal.

With regard to laws involving gender and the family, we see that classical Sunni Islamic jurisprudence, articulated by jurists in the four schools, consistently held gender difference to be a fundamental organizational principle of society. Women’s sexuality, and men’s ownership thereof, tends to be a recurrent topic in classical legal literature on marriage. Kecia Ali has convincingly argued that marital practices such dower () and divorce (talaq) are intelligible in relation to the principle of male sexual prerogative.130 Although matters of conduct within the home were considered to be private (subject to the control of the male head of household), frequently courts had to address claims brought forth by individuals dealing with rights to

130 See Ali (2006). 70 maintenance, divorce, and the like. Jurists were called upon to enforce justice within the home, although as Hallaq argues, many times family members, imams, and local arbitration panels mediated marital conflicts. Thus, premodern or classical fiqh was not neat and tidy, but as a system it was on the whole flexible and durable. As a tradition of reasoning, the application of sharia in various forms of fiqh involved the messy and imperfect judgments of human beings, whose ideas were subject to revision.

Family law after codification. I will attend to two important changes within legal reasoning that have impacted family law in the last century and a half. One is the impact of statutory codes in Arab countries on ideas about gender and family; while codification alone does not entail human rights abuses, its use by Islamist groups or states may entail such abuses.

The other change involves the way that following the significant legal changes of the last century, ijtihad has been invoked as a method to argue for gender justice.

As discussed earlier, the Ottoman period represents a seminal transition in terms of increasing state authority and the codification of law. While Tucker has stressed the doctrinal components of sharia on gender that were consistently represented in Ottoman law, Elyse

Semerdijan has written on the innovative ways that Ottoman jurists dealt with the task of upholding the sharia and practicing law to fit the needs of particular communities.131 She argues that sharia did not always provide a ready solution for the problems the Muslim community encountered; her research shows how judges very often leveled less-severe (non-sharia) punishments for the crime of or adultery. As the Ottomans were dealing with the practical needs of a large and diverse empire, they devised kannunmes, or sharia distilled into a practical code, and issued fatwas. Kannunmes were a mixture of fiqh and , and they tended

131 Elyse Semerdijan, Off the “taight Path: Illiit “e, La, ad Couit i Ottoa Aleppo (Syracuse: Syracuse University Press, 2008). 71 to provide less-severe punishments for hadd like adultery, such as fines instead of forms of corporal punishment.

Semerdijan examines sharia court records, among other sources, to determine the reasons for this trend. She observes that local populations used the courts to reflect a collective

“community will” of sorts, so that, for example, when prostitution generated necessary revenue for a community, judges found ways to moderate punishment. She shows how concepts of (public interest) and (preferred result) allowed jurists to circumvent doctrinal law and apply customary law in this case. While noting that courts were nevertheless steeped in sharia-based ideas of gender roles, Semerdijan observes a distinct contrast to modern statist versions of sharia in which harsh punishments (such as ) are meted out for crimes like adultery. This argument supports the claim, made by scholars of Islamic law like Abdullahi An-

Naˈim, for the innovative and erroneous application of sharia by modern Islamist states.

In reflecting on the major changes in Islamic law in the last several hundred years,

Tucker highlights the ways that erosion of a kin-based society and the emergence of interventionist states (and especially authoritarian Islamic law states) have changed legal ideas and practices. Codification, the practice of making customary or sharia-based law into state code, has played a particularly important role. “Codified law cannot, by definition, be flexible and fluid law. Legal codes no longer offer a variety of possible interpretations; rather, they work to standardize cases and minimize the element of judicial subjectivity.”132 When thinking about gender and the family in relation to codified law, there are potential harms as well as benefits.

Harm to women might come in the form of an overly rigid code based on narrow interpretations of gender roles, including male privilege. On the other hand, statutory codes may reflect attempts to grant women systematically more rights within marriage.

132 Tucker (1998), 184. 72

An-Naˈim explains that during the colonial period, family law remained the relatively privileged domain of sharia that was able to resist codification; this had the effect of solidifying

Islamic identity around matters of family law.133 Like other aspects of fiqh, however, family law was eventually subjected to codification in the late Ottoman period (and in other Arab countries later). Lynn Welchman writes, “In Muslim family law, the claims of the state as the originator of authoritative norms were attenuated by a proclaimed subordination to the norms of the sharia as extrapolated, mostly, from the established and diverse jurisprudence of Muslim jurists.”134 Thus the ‘ulema still retained some “control”—however limited—on matters pertaining to the family, like divorce, , etc. The most famous example is the Ottoman Law of Family Rights

(1917), which was employed until the Turkish state adopted a different code for family relations.

The OLFR was used by other groups, including, as Welchman points out, the British Mandate power in Palestine, who used the OLFR to govern Muslims separately from Jewish and Christian groups.

An important piece of the OLFR for the purposes of this dissertation is Article 73, which requires that a husband treat his wife kindly in return for her (unqualified) obedience. Hallaq argues that in this instance, the word for rebellion, nushuz, became strictly associated with a wife’s refusal to obey her husband on a wide range of issues. Whereas in classical jurisprudence, disobedience had been “narrowly” defined as sexual disobedience, in the OFLR a husband had greater latitude to make claims that his wife was disobedient if she left the house without his permission, etc. Hallaq argues, “The overall end result was one that intercalated women into a regimented domestic sphere.”135 Colonial ideas about domesticity as the domain of the wife, as

133 An-Nai , . 134 Lynn Welchman, Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy (Amsterdam: Amsterdam University Press, 2007), 12. 135 Hallaq (2009), 459. 73 well as changing family patterns in the in which the roles of extended family members were diminished, influenced the development of what Hallaq calls a “new patriarchy,” distinct from classical forms.136

Depending on the country, today family law issues may be adjudicated by a sharia court or by the civil or national legal system. Welchman and others note that codification has rendered static certain provisions in classical jurisprudence, with potentially negative consequences even for men. One aspect particular to modern life is the ability, and even economic necessity, of women working outside of the home. Codes have had to address this matter, and in the process, frequently retain the classical gendered divide between male maintenance and female obedience.

As an example, Welchman notes that many courts, despite changes in economic circumstances, often fail to take into account the wages married women who choose (or must) work outside the home when deciding on male compensation for arbitrary divorce or injury.137 Welchman argues that the “gender contract” (wherein female obedience and male maintenance constitute the marital equation) remains the rule in the , though it has been amended to reflect more gender in places like .

Moreover, regarding disobedience (ta’a), codes have been less strict in forcing a woman to return to her marital home at the husband’s request. In classical Islamic jurisprudence, women who left the home without permission of the husband could be classified as acting out of rebellion or disobedience, therefore losing entitlement to maintenance or even requiring discipline such as corporal punishment. Modern codes may still restrict the reasons women may

136 I take Hallas poit to e alid, isofa as ode atioalis has gie ise to idetifiale fos of eo- patriarchy that while may be based i lassial tets ad teahigs, defiitel iopoate ode eleets ad ideas. At the sae tie, hoee, I eai skeptial of Hallas athe ao ie of the ode state as unequivocally oppressive and his reduction of all of its aims to a gross materialism. 137 Welchman (2007), 89. 74 leave the home (to working, visiting relatives, etc.) but overall they reflect awareness of how changed social circumstances alters what may be classified as wifely “disobedience.”

The role of states, in this case Arab or predominantly Muslim states, in defining the family must be taken into account as part of the background to discussions of family in contemporary jurisprudence. We should note how the family becomes a medium for articulating a modernist Islamic identity, particularly of the conservative Islamist type. It serves as a target for political reforms in a novel way, and we should connect the rise of authoritarian political programs with social efforts to define and enforce gender norms according to variants of the pre- modern tradition. This conservative position is articulated by groups as diverse as the Sunni

Egyptian Muslim Brothers or the Shiite ayatollahs following the of 1978-79.

The particular novelty involved is that states or strong political groups redefine sharia in a way that accommodates the modern centralization of state power and/or employs sharia as a coercive legal apparatus of the state.

Thus the power of the state over jurisprudence has increased at the same time that the family (and women’s roles therein) have become a target for state and/or Islamist reforms. This has had negative consequences for gender justice, here understood as the ability of women to receive equal legal treatment or at a minimum, legal protection from forms of abuse and discrimination. And yet modern changes to sharia, including the changes spurred by colonialism, have created the possibility of reinvigorating the practice of ijtihad. Specifically, one way that ijtihad has been applied in arguments about gender equality is in the historicizing of gender roles and concomitant duties. By arguing for the historical, rather than essential, nature of gendered practices, especially practices that have historically put women at a disadvantage, like polygamy, theorists engage in immanent critique of the tradition. Reformists have argued for the need to

75 revisit and critique traditional texts on gender that marginalize and oppress women. They recognize that significant historical and contextual differences between seventh century Arabia and the twentieth century account for changes in norms. Sometimes reformers and women’s rights advocates adhere to traditional legal methodology expounded in usul al-fiqh or in related principles (such as maslahah or the public good) to achieve their reformist interpretive goals; in other instances, radical reinterpretation or rejection of the methodology itself may be involved.

One example of how ijtihad relates to family law reform can be found in the ruling of

Pakistan Commission on Islamic Family Law on the matter of the legal legitimacy of polygamy.

In 1956, the majority report ruled that polygamy was no longer an acceptable practice for

Muslims. In presenting reasons for this argument, the writer of the report appealed to practice of ijtihad as one endorsed by the Prophet Muhammad:

Although there was primitive simplicity in the life of Arabia during the time of the Holy Prophet, his prophetic wisdom was conscious of the fact that there may be situations and problems not clearly envisaged by the Qur’an…. He enjoined on his own companions, to whom important duties were trusted, to exercise their own rational judgment with a pure conscience if the Holy Qur’an and the Sunna did not provide any precise guidance in any particular situation.138

The writer argues that the exercise of individual rational judgment is necessary in legal and ethical thinking, if for the simple reason that novel circumstances require novel judgments.

Rather than such judgment being at odds with Islamic legal thinking, he maintains that it is incorporated into the very fabric of reasoning, originating with Muhammad and his companions.

Modern Islamic jurisprudence, subject to political power in ways unthinkable to classical jurisprudence, has evolved to support political agendas and policies that are either traditionalist

(even fundamentalist) or in rarer cases, reformist. The power and scope of the modern state in

138 Modeist Majoit ‘epot, Gazette of Pakistan, June 20, 1956, 1199, reprinted in Islam in Transition: Muslim Perspectives, ed. John J. Donohue and John L. Esposito (New York: Oxford University Press, 2007), 205. 76 shaping law and policy is a factor for not only Western liberal states but also for states that have an implicit or explicit connection to . For example, Muhammad Zaman notes that as a result of these characteristics of the state, the modern ‘ulema in places like Pakistan have an ambiguous reaction in terms of their opposition on the one hand to new forms of state intrusiveness into religious matters and at the same time their embrace of the idea that the state should foster Islamic beliefs and practices.139 With regard to Islamic law as it appears in the

West, the question of what role such law should play in relation to secular liberal law is fraught with different difficulties. Overall, new forms of sharia have emerged as a consequence of modern life, and the family as a fundamental social institution is influenced by these forms. The rather inevitable point is that modern statehood has influenced the ways in which groups claim the mantle of tradition for their legitimacy, as well as the interpretive moves they make in the process.

Concluding Thoughts

This chapter has documented broad trends in order to demonstrate the importance of examining sharia within discrete historical moments, and in particular to contrast pre-modern with modern statist characteristics of law. The reason for this emphasis is twofold: one, legal practice and theory respond to particular events and/or crises. Although sharia is culture- conserving, in order to be functional in Muslim societies, it has adapted in accordance with changing social needs and circumstances in order to be legitimized (although the nature and scope of revision varies). Colonial interventions and the development of the modern state presented pre-modern legal systems like the sharia with unprecedented challenges, and it was

139 Zaman, 100. 77 fundamentally altered as a result. Thus when we examine contemporary forms of sharia, we notice hybridity.

Two, it is necessary to connect historical ideas about gender and the family with the particular challenges that Muslims seeking to apply sharia face in the modern period. In the modern period, family law has become the locus of Islamic, and particularly Islamist, identity, as well as embattled territory for human rights and gender liberation discourses. When other aspects of law became secularized in colonial and post-colonial states, family law continued to be defined by sharia. As one can imagine, frustration and resentment toward Western colonial interventions into Muslim social and economic forms of life have fueled some, if not many, reactionary neo-patriarchal policies. For those who live in Muslim majority states, a serious obstacle to addressing and potentially eradicating domestic violence is posed by Islamist groups that enforce pre-modern traditions of Islamic family law.

In his recognition of the overriding legal legitimacy of the democratic state, Abdullahi

An-Naˈim argues that states should not adopt pre-modern sharia traditions. “It is better to recognize that this field [of family law], like all other law, derives its authority from the political will of the state…. This will enable Islamic countries to make family law more consistent with other aspects of their legal systems, including their constitutional and obligations to protect the human rights of women.”140 Sharia as a pre-modern system of law is unable to provide a comprehensive guide for modern statist law; it leaves much to the imagination of (potentially authoritarian) leaders to fill in the gaps. In an earlier book, Toward an

Islamic Reformation, An-Naˈim argues that a better approach for Muslims who want to restore

140 An-Nai , . 78 some kind of public authority for Islamic law is to find aspects of sharia that are compatible with modern standards of constitutionalism, , international law, and human rights.141

An-Naˈim maintains that instead of blindly applying precepts contained in the Qur’an, hadith and classical fiqh, communities need to go through a process by which they determine the historical significance of such texts in relation to their own contexts.

Wael Hallaq raises criticisms of the colonial project and articulates a scathing indictment of the power of the modern state, and ultimately this leads him to conclude that sharia and the legal apparatus of the modern state are fundamentally incommensurable and cannot work together. He seems not to consider that democratic states can exercise legitimate power, and thus teeters on the brink of neo-traditionalism in a way reminiscent of Alasdair MacIntyre’s early work.142 Therefore, while Hallaq’s analysis functions as an immensely useful account of modern changes to sharia, it cannot suffice as a guide for how tenets of sharia might productively function in a modern pluralist democratic state.

With regard to Muslim minority populations in the secular West, what happens in

Muslim majority states regarding family law has a significant influence on beliefs about gender and the propriety of violence against women. As I will discuss in the next chapter, Muslim immigrants who leave authoritarian political systems frequently transport corresponding authoritarian conceptions of gender hierarchy in the family. Salma Abugideiri, president of the

Muslim anti-domestic advocacy group the Peaceful Families Project, has observed that immigrants to the U.S. also frequently claim that the “door to ijtihad” is closed, which she thinks

141 Abdullahi A. An-Nai, Toward an Islamic Reformation (Syracuse, NY: Syracuse University Press, 1996), 9. 142 Although Hallaq is clearly a historian of law and not a moral philosopher, he at times crosses disciplinary boundaries in his analysis. His similarity to MacIntyre can also be noted in their Marxist critique of the state as capitalist, as well as modern moral-legal systems as operating on the arbitrary whims and desires of individuals as opposed to the moral ethos of a community. I will discuss connections between MacIntyre and Hallaq in the conclusion. 79 is more representative of a lack of critical thinking than anything else.143 Abugideiri and other

Peaceful Families advocates therefore tailor their training workshops for both imams and lay

Muslims in such a way that emphasizes the role of critical reasoning in the Islamic tradition, as well as explicitly encourage imams to make a connection between classical teachings in the

Qur’an and fiqh and the practical need for gender justice in the community.

In a polemical environment in which Western law and customs are contrasted with

Islamic law and customs, Muslim communities may feel pressure to embrace interpretations of sharia that diverge from Western sexual norms and practices. In the absence of legal codes that restrict the rights of women to divorce, for example, communities may find extra-legal ways to pressure women not to seek a divorce in an abusive situation. The perceived inaccessibility or hostility of Western courts or law enforcement may only make it more difficult for more vulnerable persons in the family to seek help. Suffice it to say that there is much disagreement among Muslim scholars and/or practitioners of law about the ideal relationship or configuration of sharia to the modern state. In part, this disagreement stems from debate over the legitimacy of the modern state as a medium of law and morality, as well as different ways of construing

“sharia” as a set of moral and/or legal practices that can be applied in modern life.

143 Salma Abugideiri, personal correspondence, 3/5/2012. 80

CHAPTER THREE

Sharia, Multiculturalism, and the Challenge of Democratic Trust

Historians like Hallaq and legal theorists like An-Naˈim collectively lament the authoritarian connotations that many contemporary political groups claim for the sharia (and for themselves as its implementers/interpreters). In response to colonial and postcolonial social, economic, and legal events, some Muslim communities have generated versions of sharia that tend to be essentialist, comprehensive, and so forth. For example, Islamist militants’ arguments about sharia are clothed in a Manichean formula: sharia represents all that is good, with Western representing all that is evil. This argument, and its association with terrorist plots, has sparked a reaction among many Westerners to denounce forms of sharia in the West altogether.

Following the terrorist attacks of September 11, 2001, there has been an increased fear of

Muslims, and Muslim political power, in the United States. While this fear takes on many forms, one specific manifestation of it is the call to end or prohibit “sharia law” from guiding Muslims, or in more extreme cases, supplanting the authority of secular democratic structures.

These totalitarian-absolutist versions of sharia, while they deserve scholarly attention, tend to obscure the more common practices and attitudes of Muslims regarding sharia who live in countries in which they are a minority. Many Western Muslims transport and/or translate elements of sharia into their daily lives rather than creating a complete or comprehensive alternative to state legal institutions. They incorporate sharia through practices dealing with the family: marriage, divorce, birth, and so forth. The second chapter of this dissertation introduced the idea of the family as a mediating structure for Islamic legal traditions in the modern period.

Family life represents the cornerstone of political life in the sense that members are born into, and die out of, the family. Regulation of the family, and therefore of marriage and sexuality, is of

81 critical interest to any community. In a way it is unsurprising that family law comes to take on a special significance in the modern period, both for Muslims and for other groups as well. Legal theorist Ayelet Shachar observes that in the contemporary context, “Family law’s peculiar power lies not so much in its delineation of ‘blood’ membership as in its value as a political expression of the group’s power to determine its (non-territorial) membership boundaries…”144 In particular, for minority groups that seek to establish and maintain a separate identity and practice ways of life that differ from the dominant majority, family law gains importance.

As a result of this focus on family law as a critical gateway for maintaining identity and membership boundaries, issues of gender come to the forefront. While Muslim women have historically benefited from rights in marriage, like the right to maintenance, marriage in the classical legal tradition is fundamentally conceptualized as a kind of sexual control, or more crudely, ownership, of women (although this conception exists in tension with Qur’anic verses and traditions in which marriage is understood as a partnership). While many contemporary

Muslim communities reject the classical legal concepts of concubinage and slavery also associated with sexual control, the classical emphasis on the husband’s sexual prerogative remains strong. Forms of neo-patriarchy spurred by nationalist discourses have further contributed to a modern idea of the husband’s right to exercise control over the private domicile.

Muslims who live Western liberal democracies may encounter specific challenges when attempting to reconcile traditional Islamic conceptions of marriage and family—and the sexual norms that govern these institutions—with state norms and policies.145 The challenges may be embodied in different ideas about gendered rights and duties within marriage; Muslims may also

144 Ayelet Shachar, Multicultural Jurisdictions: Cultual Diffeees ad Woes ‘ights (Cambridge, UK: Cambridge University Press, 2001), 54. 145 As emphasized in previous chapters, disagreement within Muslim communities regarding the proper interpretations of verses and traditions means that Muslims will engage state policies (and the norms that undergird such policies) differently. 82 express concomitant desire to exercise some degree of sovereignty over membership practices.

The liberal state also has an interest in regulating membership and defining the family structure, though historically it has granted discretion to individuals and groups on the matter of marriage and family. Thus while liberal states like the U.S. have been in many ways accommodating to groups regarding membership/family practices on the basis of protecting privacy, there have arisen definitive moments where the state has defined (legally) acceptable limits for the influence of religion/ religious practices on the family.146 When located within this matrix of religious and secular state law regarding marriage and the family, domestic violence raises the particular problem of which party (state or group) has the authority to hold perpetrators accountable, as well as the more general problem of whose norms of marriage and sexuality are definitive.

This chapter undertakes the task of describing select interpretations of sharia related to domestic violence in Muslim American communities as well as discussing how they compare with liberal views of the family and privacy. In addition, I begin to develop a normative framework for how liberal political theory might more productively engage the topic of gender violence within minority communities. Liberal theorists make the familiar claim that domestic violence presents issue of bodily and/or psychological injury to persons, which often inhibits the exercise of autonomy. One issue that liberal theorists could draw greater attention to, however, is the way that domestic violence erodes trust within families, religious communities, and larger social institutions. The question of social trust and domestic violence in the context of a religious minority community requires special attention, not least because many groups may already experience forms of social vulnerability that create alienation from political institutions.

146 Fo eaples, see Wiifed Falles “ullia, ‘efoig Cultue: La ad ‘eligio Toda, in The Cambridge Companion to Religious Studies, ed. Robert A. Orsi (New York: Cambridge University Press, 2012), 319—337. 83

Questions about whose and which norms and practices should be regulative in family affairs can heighten tensions between the state and minority groups.

My basic argument is that a robust conception of gender justice, if it is to reflect an expansive understanding of social trust, must be open to collaboration between religious communities and secular liberal theorists. This conception is premised upon an understanding that “secular” and “religious” legal systems, while distinct, can be porous and mutually influential. To be clear: I support a view in which the law of liberal states requiring the equal protection of persons serves as the final word on the matter of domestic violence. This chapter, however, is more specifically concerned with the question of how groups create accountability to ideals of equality and justice expressed in religious and secular legal formulations. Practices of immanent critique serve as one method of creating accountability within a tradition and a community. By examining types of immanent critique at work both within the Muslim American community and liberal feminist theory on the topic of domestic violence, we can identify areas of possible collaboration.

Addressing the Issue of domestic violence in Islamic law: online fatwas and the critique of

Muslim advocacy

In the U.S., Muslim religious authorities provide guidance on marital matters, whether they are trained and/or assume the role of jurists and issue fatwas or as imams who provide counseling. The internet has created a public space for Islamic law, as the research of Gary R.

Bunt has demonstrated, which is especially significant for Muslims living in Western states where religion and religious expression are privatized.147 In the U.S., state law regulates divorce and provides mechanisms to punish domestic violence offenders. Muslims have the option to

147 Gary R. Bunt, iMuslims: Rewiring the House of Islam (Chapel Hill, NC: University of North Carolina, 2009). 84 voluntarily seek mediation or marital advice from imams and other authorities regarding domestic violence, but formally state law prevails.

In trying to determine what kinds of actions are in accord with Islamic teachings, some

Muslims look to the internet for answers. In an article addressing the use of fatwa websites in

Europe, Vit Sisler argues that the internet creates new public spaces where European and Islamic identities collide.148 Sisler points out that since fatwas are non-binding their appeal is persuasive and often based on the authority of the particular mufti who issues them. Sisler finds that such websites encourage the role of the individual in choosing to voluntarily adhere to Islamic law, which seems to embrace Western preference for individual choice in making religious decisions.

He argues that the internet creates a space for the imagination of a trans-national umma and sharia.

The Association of Muslim American Jurists (AMJA) promulgates fatwas through the internet and they meet annually as a group to discuss matters related to Muslim life and sharia in the United States. This group is among a growing body of Islamic legal associations and groups in the West without the power of the state to enforce legal rulings, but nevertheless tries to determine what living an authentically “Islamic” life in the West looks like and publishes fatwas and articles for Muslims to read in Arabic and English.

Dr. Hatem al-Haj is a frequent contributor of online fatwas for the AMJA and has written several articles related to women, marriage, and the family. In a fatwa from 2006, al-Haj responds to a lengthy question about under what circumstances women are authorized to initiate divorce and disobey their husbands and engages in a reasoned defense of Islamic marriage as a non-abusive institution. In particular, al-Haj supports the man’s right to sexual access of his wife,

148 Vit “isle, Euopea Couts Authoit Cotested? The ase of aiage ad dioe fatas o-lie, Masaryk University Journal of Law & Technology vol. 3, no. 1 (2009): 51-78. 85 based on two factors: it is in the man’s nature to seek out his wife for sexual intimacy, and it is rude for a wife to refuse his advances like a child resisting the advice of a father. The refusal of a woman to have sex with her husband may result in infidelity, which will be her fault.149 Al-Haj concedes that there are valid reasons, psychological and physical, for which a woman may refuse her husband’s advances, but he does not elaborate on what these include.

Al-Haj concludes the fatwa by affirming the non-transferability of gendered rights and duties. He argues, “Equity between the genders which is established in Islam does not mean they are similar and have the same roles, and subsequently the same rights and duties. That notion brought about grief to the western women [sic] and it constitutes one of the west’s falsest and most unfounded dogmas…”150 This re-statement of rights and duties is rooted in classical texts and traditions, but modified to reflect a model of gender complementarity.151 While the classical jurists asserted a “cosmology” of gender hierarchy, in which the man’s power is derived by his closeness in role/power to God, the modern argument for gender complementarity involves recognition of the equal spiritual ontology of man and woman, with heightened attention to the different roles and functions of each spouse within the home. The duty of women toward their husbands entails obedience, and women’s rights, often most likely to be invoked in situations involving abuse, are to be protected from harm. This presentation of Islamic marriage, even as it associates wifely duty with honoring the male sexual prerogative in marriage, does not openly endorse violence against women as a disciplinary measure.

Although Al-Haj here seems to condemn physical and as unjust, what actions might classify as domestic violence according to this framework? The legal norm of

149 Hatem al-Haj, Fata # . AMJA fatas, ude the atego of Fih fo Epets, a e foud olie at: http://www.amjaonline.com/en_f_details.php?fid=1707. Accessed 11/6/2011. 150 Hatem al-Haj, fatwa #1823. 151 See Ali (2010). 86 the male sexual prerogative in marriage creates difficulty when classifying certain acts as forms of abuse. This question comes up more acutely in the context of another inquiry, directed this time to the website askimam.com, run by Mohammed Dessai.152 The inquiry is entitled, “Is there such thing as rape between a husband and wife? And what evidence does a wife need to prove if so….” In a brief response, Dessai replies, “In Islam there is no such thing as rape between husband and wife. However, both spouses should be considerate to one another in their conjugal relationship. If a husband or wife does not wish to have a relationship due to circumstances, for example being tired, ill, etc., then that should be considered.”153 Like al-Haj, Dessai argues for a harmonious view of marriage in which the two parties consider the other’s needs. Dessai dismisses the possibility of marital rape, arguing that it is not recognized by Islam. If marital rape is a conceptual impossibility (in the classical tradition, illicit sexual activity involves zina or adultery, and presumably that is where the logic of this argument is derived), then how does the tradition protect wives who experience forms of sexual abuse by their husbands?

The question of the permissibility of wife-beating comes up in the section of a fatwa entitled “Reform,” in which Dessai summarizes Qur’an 4:34 in the following way: “Allah says,

‘Advise them (the women) and leave them (in sleeping with them) and hit them.’ This clearly indicates that there should be a reformation process.”154 Dessai interprets these steps sequentially, and suggests only resorting to hitting as a disciplinary measure when a wife continues to be disobedient. Again, to hit one’s wife out of anger is improper, as “such using of force is to jolt her to obey. Physical abuse to satisfy anger is Haraam [sic].”155Similar to

152 Dessai is based out of San Jose, CA. While he generally argues that Muslims should adhere to the laws of the state in which they reside, he advises Muslim women not to go through civil courts to seek divorce but instead seek a local authority to get a ruling. 153Mohammed Dessai, Fatwa response #10597, askimam.com. Accessed 10/24/2011. 154 Mohammed Dessai, fatwa #3885, askimam.com. Accessed 10/24/2011. 155 Ibid. 87 traditionalist exegesis of Qur’an 4:34, Dessai maintains that hitting or beating one’s wife is a

“last resort” measure.156 Accordingly, a man acts improperly when he allows his anger to dominate his use of physical violence; this seems to imply that self-controlled and rational physical violence is acceptable. Dessai views the proper use of violence as dependent on an individual’s disposition and gender.

It is difficult to assess the direct impact of such fatwas on Muslims in the U.S. who seek advice from these websites. These fatwas generally affirm that when married couples fight, it is best to resolve conflicts in . However, they often present simultaneously the message that men are responsible for disciplining their wives (preferably non-violently) and the male sexual prerogative should be honored by wives. Taken together, these ideas represent shared social beliefs that permit ambiguity in definitions of, and thus prohibit solutions to, domestic violence.

In part as a response to these kinds of teachings on domestic violence, Muslim anti- domestic violence advocacy groups like the Peaceful Families Project create educational awareness programs to dispel blatant conceptions of male power and privilege associated with

Islamic teachings. Their approach may be described as one of immanent critique insofar as they employ resources within the tradition to argue against abuse. The more specific ethical argument may be classified as having two components: first, it employs a contextual framework in which abuse is analyzed as the product of unjust social and political arrangements; and second, it uses a virtue ethics argument in which virtues such as justice, patience, and mercy are reinterpreted as not supporting abusive behavior.

Contextually, advocates may interpret domestic violence as the result of authoritarian structures within the home, which mirror wider social authoritarian structures. As founder

156 “ee Adullah Yusuf Alis oeta o :34 in The Meaig of the Hol Qua: Coplete Taslatio ith Selected Notes (Kuala Lampur, Malaysia: Islamic Book Trust, 2001). 88

Sharifa al-Khateeb argued, immigrants who grew up in countries with tyrannical governments

“tend to produce extended families and societies where only the man at the top can pronounce what is right or wrong…”157 This “despotism within the home” replicates power structures that create vulnerability for women and children. This type of social criticism connects the public political realm and the private domestic realm.

Al-Khateeb and other advocates have taken the position that Islam unequivocally forbids domestic violence, based on interpretations of the Qur’an and Prophetic hadith. For example, Al-

Khateeb cites Qur’anic verses that enjoin kindness to women, such as Qur’an 4:19: “O you who believe, it is not right to inherit women by compulsion….And live with them in kindness.” She also recounts ahadith from Bukhari relating the Prophet’s distaste for hitting women. In responding to traditionalist exegesis of verse 4:34 (which finds voice in Dessai’s argument), she argues that the intention of the verse is not to stress a woman’s obedience to another human being (her husband) but instead to God.

This brings us to the Peaceful Family Project’s approach, which does not challenge the basic argument for gender complementarity, but rather emphasizes new readings of traditionally-deemed “submissive” virtues like patience and obedience, arguing that these are due to God instead of man. We might imagine a response to al-Haj’s insistence on unconditional wifely submission to a husband’s sexual advances in the form of an argument that stresses love and mutuality as fulfilling the criterion of obedience to God’s will in the spousal relationship as opposed to one of control and domination. By defining harmony within marriage as a shared partnership, and stressing the role of the man as the caretaker of the wife, such arguments attempt to delegitimize the use of force and violence.

157 Sharifa Al-Khatee, Edig Doesti Violee i Musli Failies, http://www.isna.net/Resources/articles/domestic-violence/Ending-Domestic-Violence-in-Muslim-Families.aspx, 2. Accessed 1/10/2012. 89

Boldly, Al-Khateeb calls on authorities within the community to prevent domestic violence, arguing that imams have a special role in protecting women from abuse and to be educated in domestic violence counseling. She encourages them to work with non-Muslim resources in an effort to help the community. In her arguments Al-Khateeb demonstrates the centrality of social accountability in resolving the problem of domestic violence in the Muslim community.

Another form of immanent critique can be found in the work of imams who preach sermons against domestic violence in the Muslim community, using Qur’anic verses and concepts. Shaykh , a white convert to Islam, is a popular imam in the San

Francisco Bay Area whose sermons are broadcasted on YouTube. In a particular sermon,

“Removing the Silence on Domestic Violence,” Shaykh Yusuf argues that Islamic teachings demonstrate the priority of tranquility in the home, which is achieved by a harmonious and loving relationship between spouses.158 He discusses at length the problem of social violence, which he says causes great human suffering.

Shaykh Yusuf examines verse 4:34 to determine its potential meaning for the Muslim community regarding the role of the spouses in marriage. He addresses the question of what it means for the husband to “maintain” his wife, and argues that although this male role is normative, it may not be ideal for all circumstances. Sometimes, women care for and maintain men. By suggesting the possibility that such a role is not necessarily circumscribed by one’s gender, Yusuf seems to depart from the strong emphasis on gender complementarity in Islamic discourse on sexual and marital ethics. He also argues that male aggression is a kind of tyranny,

158 “hakh Haza Yusuf, ‘eoig the “ilee o Doesti Violee, www.youtube.com/watch?v=6Q2ttaKx1BI, accessed 10/24/2011. 90 one which God does not permit, and that when a husband assumes the power of God a kind of

“patriarchal jahiliyya” ensues.

In an interpretive move similar to Al-Khateeb, Yusuf postulates that the Qur’an could never endorse domestic violence, and to read 4:34 as doing so is a false way of reading the text.

Using a type of apologetic explanation, he maintains that the verse actually eliminates the need for domestic violence, which occurs as the result of bad impulse-control. Instead of reading the permission to hit or beat in 4:34 in the manner of a “last resort” measure, Yusuf takes a different approach by arguing that the steps of 4:34 indicate the need to recognize one’s own anger and to be responsible for one’s feelings.159 Perhaps implicitly referring to the hadith in which the

Prophet disagrees with the practice of wife-beating, he mentions the need to seek and outside arbitration when one is having difficulty managing aggression. Nushuz or disobedience can refer to the behavior of both spouses, and need not be limited to the wife. Overall, Yusuf endorses the teaching that Muslims should “do no harm” and that this means a prohibition on striking women and children.

The popularity of Yusuf’s sermon in venues like YouTube reveals the degree to which online teachings can make positive interventions in Muslim domestic violence discourse.

Moreover, figures like al-Khateeb and Yusuf strong argue for un-harnessing conceptions of patriarchal violence from Islamic teachings about marriage. Whereas al-Haj and Dessai seem to take for granted conceptions of relatively unlimited male power within the marital institution, especially as manifested in acceptable disciplinary practices for wives, Al-Khateeb and Yusuf recognize a negative relationship between excessive male power and abusive situations.

159 Yusufs aguet eseles Lau “iless itepetatio of : as eidig hua eigs of the geat ude of feedo. “ee “ilvers (2006). 91

Both conservative and more liberal arguments invoke an essentialist “Islam,” though of course by stressing different qualities. In the case of online fatwa authors, the concept is oppositional: Islamic concepts of marriage and marital harmony stand in contrast to Western teachings about gender, which have created confusion and error. In the arguments of al-Khateeb and Yusuf, Islamic marriage involves a set of just practices between spouses, and in which violence intrinsically threatens the justice of the marriage partnership. Yusuf repeats the statement “this is Islam” several times in his sermon, as if to emphasize that not only is domestic violence forbidden by Islamic teachings, but to assert that the true “house of Islam” is a peaceful exemplar to the world. These arguments support Shachar’s observation about the importance of family law and family norms as significant and powerful way to define community, here hinting at an ideological battle occurring within the American Muslim community about the function of gender roles within marriage and the propriety of certain gendered behaviors within marriage.

As we saw in the chapter on contemporary Qur’anic exegesis, verse 4:34 yields ambiguity within the Islamic corpus of ethical and legal literature, which proves more difficult for those interpreters who want to claim the Qur’an as the inimitable divine speech and simultaneously want to condemn wife-beating on Qur’anic grounds. Without a strategy of abrogation or some kind of explicit historical contextualization, reformist thinkers may have difficulty persuading their communities that Islam does in fact condemn wife-beating and other forms of domestic violence. (This is where collaboration between advocates and reformist

Qur’anic exegetes can be beneficial.)

Returning to the criterion of accountability as a indicator of social trust, the Peaceful

Families Project (and its ally imams, such as Shaykh Hamza Yusuf) develops networks of trust by engaging in methods of education that connect persons at all levels of the problem: victims,

92 advocates (secular and non-secular), community and religious leaders, and so forth. They demonstrate a commitment to the integrity of relationships and uphold standards of gender justice that respect the dignity of both parties in marriage. Moreover, they acknowledge that a type of reciprocal relationship exists between the home and the public sphere, and argue that tyranny ought to be condemned in both spheres.

The authors of the online fatwas, al-Haj and Dessai, are more comfortable with an authoritarian model of power in which power is rightly exercised unilaterally by the husband, when his intention is good. While this structure of power can also create trust within the home— a system that is predictable, and in which persons achieve fulfillment in enacting specific roles, for example, may yield some degree of trust—the threat and possibility of violence would seem ultimately to undermine a strong sense of trust among family members. Moreover, leaders who treat domestic affairs (whether involving discipline and/or violence) as the purview of the head of household, may create obstacles for victims to seek the aid of resources outside of the home.

When the practice of domestic violence is sanctioned under the authoritative symbol of a fatwa, this can add to the pressure that many domestic violence survivors feel to hide abuse. As Keilani

Abdullah explains, “While arbitration in disputes is an Islamic principle, many Muslim cultures regard family honor as paramount, and avoid any act that may compromise this. Keeping problems within the family is a way to ‘save face’ and maintain dignity.” 160 Such reasons for keeping family affairs “private” can also indicate a lack of trust toward those secular institutions of the law perceived as “outsiders,” such as law enforcement and civil courts.

160 Keilai Adullah,A Peaceful Ideal, Violent Realities: A Study on Muslim Female Domestic Violence Survivors, i Change from Within: Diverse Perspectives on Domestic Violence in Muslim Communities, ed. Maha B. Alkhateeb and Salma Elkadi Abugidieri (Peaceful Families Project, 2007), 74. 93

The private sphere, domestic violence, and state intervention

At this point it will be useful to compare liberal feminist arguments about state involvement in defining the family and protecting women from harm in domestic violence situations. Secular Western countries like Canada, Britain, and the United States allow for various degrees of accommodation to religious law in the area of family or personal status law.

While there are a number of pragmatic reasons for this, historically this provision may be understood in relation to the concept of the family as private property. This is compounded by the notion that religion should be confined to the private sphere, and that the state should protect freedom of religious belief and practice as a negative liberty. While the state has an interest in protecting privacy in the family, it also has an interest in defining it through law. In Europe and the U.S., certain religious practices involving women and the family have become most conspicuous targets for state control and regulation. Issues from granting from the freedom of

Muslim women to wear the veil in various public settings to the right of Mormon communities to practice (for example) have served as grounds on which a war between a kind of secular liberalism and religious neo-traditionalism has been waged.

More specifically, issues of cultural identity have moved to the center of political discussion in the West in the late twentieth century, which may be described as the turn toward multicultural . Some groups have claimed the right to self-determine in a way similar to individual conceptions of autonomy in modern liberal thought. Pascale Fournier has observed the following about liberal state’s position vis-à-vis religious minorities who make groups’ rights claims: “When faced with the claims of subordinated groups, liberalism typically is asked to make concessions by which these collisions intensify and multiply.”161

161 Pascale Fournier, Muslim Marriage in Western Courts (London: Ashgate, 2010), 1. 94

When the topic is domestic violence, Western moral philosophers deal urgently with the questions of what it means for the liberal state to protect its citizens from harm, as well as what the protected realm of privacy ought to entail. There exists a philosophical and pragmatic difficulty for the classical liberal position when families are considered sovereign units, left to a sphere of privacy unregulated by the government. When one family member physically, verbally, or psychologically abuses another member, what recourse should the state have to prosecute and punish the offender?

Setting aside the particular issue of religion and religious identity for the time being,

Western feminists in the last thirty years have drawn attention to the perils of intimate partner violence and similar crimes, which disproportionately affect women. In the late 1980s, outspoken feminist legal theorist Catharine MacKinnon argued that feminist theory oscillated between a liberal theory of the state and a leftist theory of the state on the other.162 In the former case, the state is viewed as a neutral arbiter of disputes, structured on principles. In the latter, the state is understood as “a tool of dominance and repression, the law legitimating ideology…”163

MacKinnon argued that given these two (rather limited) alternatives, feminists had to choose between a vision of the state as tool-for-betterment or an ideal of state abandonment, in which women are left to .

MacKinnon also highlighted the way that the idea of a negative state (in which the government promotes freedom when it abstains from interfering in existing social arrangements) and social attitudes of male superiority combine to make privacy a sacred value that benefits mainly men. When social conditions do not permit women the same kind of access to rights, such as privacy or consent, the notion of equal rights becomes hollow in meaning. The historical

162 Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), 159. 163 Ibid, 160. 95 legal treatment of marital rape is illustrative of this problem, and serves as a comparative point to

Dessai’s argument.164 It was long affirmed in American law that consent to marriage on the part of the wife entailed consent to sex, including acts of sexual coercion, by the husband.165This belief does not contradict a conception of privacy that lies at the core of American ideas about the family: that the government should have a limited right to intrude or intervene in family life, and that men are the proper heads of household. Many state laws embraced this dominant understanding of marriage and privacy by putting in place marital rape exemptions that did not recognize marital rape as a phenomenon; other states, however, in recent years have struck down such exemptions.166 Perhaps it is the phenomenon of marital rape MacKinnon had in mind when she wrote, “The law of privacy treats the private sphere as the sphere of personal freedom. For men, it is. For women, the private is the distinctive sphere of violation and abuse, neither free nor particularly personal.”167

Whether the private sphere always and necessarily entails abuse and/or inequality for women is a controversial point, as it assumes that women have little if any power within this arena. (And surely some privacy is desirable.) MacKinnon captures, however, the tendency of many liberal feminists to argue that law can and ought to be used to correct injustices that occur within the home, even amidst skepticism. The feminist concern is that the freedom granted to

164 Fo a iteestig atile o the diffiult of lassifig aital ape, see Moga Lee Woolle, Maital ‘ape: A Unique Blend of Domestic Violence and Non-Maital ‘ape Issues, Hastigs Woes La Joual 269 (2007). 165This reasoning is associated with the British jurist Sir Matthew Hale. It took several hundred years in the United States for the law to discredit this argument: in the case People v. Liberta (1984), the New York Court of Appeals ruled that this reasoning was absurd and violated the equal protection clause. Nevertheless, even though in 1993 all 50 states made it a crime for a husband to rape his wife, over half of these states allow marital rape exemptions under certain circumstances. For more information on marital rape laws, see Natalie J. Sokoloff, Baaa ‘affel, ad Jeae Flai, The Ciial La ad Woe, Criminal Justice Women, 3rd Edition (New York: McGraw & Hill, 2004). 166 Many statues recognize rape as stranger rape, thus making it difficult for law enforcement to intervene within a marriage. For a relatively recent case in which rape was defined as involving a stranger, see the South Carolina case, State v. Crawford (1992). 167 MacKinnon, 168. 96 men by an autonomous private sphere may compromise justice for those less powerful within that sphere. One solution is to expose the sanctity of the private sphere as a possible cover-up for injustice, and perhaps then to justify the state’s role in “policing” the private sphere in a manner akin to public space. Even though, for example, the state is responsible for regulating marriage and divorce, this argument would allow for more thorough state definition of, and intervention into, family life.

Greater state regulation and intervention reflects a socio-legal trend in the recent history of U.S. and European law. Mary Ann Glendon wrote extensively on the phenomenon of the modern state’s role in defining the family. In The Transformation of Family Law, she explains that since the 1960s, the rise of administrative states has increased the bureaucratic control of families. At the same time, this trend has survived alongside the language of neutrality and privacy that has prevailed in an ethnically and religiously diverse country. Glendon argues that we can view policies that encourage tolerance as a signal of governmental withdrawal of the regulation of marital life: “The ideology of tolerance, the belief system of an influential elite, has become the leitmotif of American family law.”168 Despite this high regard for tolerance, Glendon acknowledges that the state, and its legal system, confronts the problem of protecting women, children, and other vulnerable members of the family from violence within the domestic sphere.169 In the contemporary landscape of American family law, the sacred values of privacy and tolerance are far from absolute.

Liberal feminist political theorists working on the topic of tolerance and multiculturalism have encountered this dilemma in serious form, particularly as it pertains to determining what constitutes harm. They have largely followed MacKinnon’s strategy, which is

168 Mary Ann Glendon, The Transformation of Family Law: State, Law, and the Family, in the United States and Western Europe (Chicago: University of Chicago Press, 1997), 85. 169 Ibid, 146. 97 to view women as a separate group from men (and by emphasizing their individual rights before the law), therefore downplaying the membership of women in particular ethnic and minority groups and the claims such membership might place upon a person’s choices. The state’s role as an alternative representative voice, and a positive advocate, for such women is often assumed.

How the state best assumes its responsibility to women of different ethnic backgrounds and religious commitments is a controversial topic for liberal feminists. Here I will review two approaches, both rooted in the tradition of political liberalism, to addressing the role of the state in regulating minority affairs, particularly with regard to matters of gender justice.

Okin: Multiculturalism is “bad” for women

Published in 1999, Susan M. Okin’s essay, “Is Multiculturalism Bad for Women?” responds to the argument that the particulars of one’s cultural identity trump one’s rights as an individual citizen. She argues that many groups invoke group identity rights as a way to assert patriarchal control over women. Okin highlights the discriminatory nature of many cultural practices and laws that focus on punishing or curtailing women’s sexuality, such as honor crimes. In contrast, she maintains, the West has made significant advances, “largely at the urging of feminists…. to preclude or limit excuses for brutalizing women.”170 Okin maintains that the protection of the law in the West should extend to all citizens, an idea formulated in the equal protection clause (something, perhaps not coincidentally, that was invoked by proponents of banning marital rape exemption laws). Part of the difficulty that minority group women might have in fully realizing legal equality, she notes, is that sex discrimination often occurs in the private sphere, and it is rooted frequently in “cultural” traditions. Okin creates an opposition between the practices of culture and the legal practices of the state.

170 Okin (1999), 19. 98

This dualism invokes, unfortunately, the old colonial opposition between the “backward” and the “civilized,” an association that several of Okin’s critics are quick to point out.171 Her decision to contrast diametrically cultural traditions with the rights tradition of the West glosses over the sub-par legal and social treatment of women in much of Western political history, and creates an “other” in potentially any non-Western community. Perhaps more concerning is that these missteps obscure what Okin gets right: she is correct in articulating that the private sphere, thus formulated by liberal theory, is a formidable foe of gender justice. She could have been more precise about the Western legal system’s role in reifying the autonomy of the private sphere in this particular argument. In an earlier work, Justice, Gender, and the Family, Okin explains this problem with great clarity: “A society that is committed to equal respect for all of its members, and to justice in social distributions of benefits and responsibilities, can neither neglect the family nor accept family structures that violate these norms….”172

Okin’s essay is short and lacks sustained engagement with concrete examples of gender injustice, but we can bring it into conversation with the ongoing discussion of domestic violence and sharia. Given the nature of the debate, Okin might have questioned the invocation of sharia in Western contexts to regulate family matters because it could be a ruse for maintaining patriarchal customs and for restricting the rights of women. Certainly, the content of the selected online fatwas might be used to prove the inherently patriarchal nature of cultural and religious traditions. Although such fatwas ultimately belong to the genre of persuasive, and not legal- coercive, discourse regarding marriage and spousal relationships, their existence and popularity indicate the importance of family law as an area of definition for Muslim communities in the

West. Okin would be suspicious of attempts by leaders to curtail women’s sexuality and

171 See for example the responses of Sander Gilman and Homi K. Bhabha in Cohen, Howard, and Nussbaum (1999). 172 Susan M. Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), 22. 99 autonomy (these two terms are not in fact synonymous, but many interpreters of law and social mores seem to treat them as such).

Martha Nussbaum argues that Okin’s view of religious traditions is too narrow and resembles John Rawls’s earlier position of a comprehensive liberalism, which, she maintained, restricted religious liberty.173 Nussbaum worries about the state (or one of its mechanisms for regulation, law) restricting religious liberty on account of a single definition of what constitutes the good. While I will deal more explicitly with specific Rawlsian arguments in the next chapter, it is sufficient to say that Okin does advance a kind of comprehensive liberal position, in which individual autonomy is a guiding principle for political and social life. It is fair to hypothesize that Okin would find deficiencies in any legal or extra-legal system that denies women autonomy in decision-making.

Okin’s solution to injustices within the home, including incidents of domestic violence, would likely entail greater state intervention into, and definition of, women’s rights within the family. What this would look like is not exactly clear; would it involve greater restrictions on certain minority group practices and/or areas of jurisdiction, or would it involve increased legislation aimed at developing certain spheres of autonomy for women? In addition, Okin’s argument remains problematic insofar as she relies on an extremely unhelpful dichotomy of

Western legal systems vs. cultural legal systems, which is not only biased in favor of the former but also assumes a kind of incommensurability between the two. Ayelet Shachar provides a more nuanced response to multicultural politics and law, and it is to her work that I now turn.

173 “ee Matha C. Nussau, A Plea fo Diffiult, in Is Multiculturalism Bad for Women? Ed. Joshua Cohen, Matthew Howard, and Marta C. Nussbaum (Princeton: Princeton University Press, 1999), 105—114. 100

Shachar: A multicultural solution in plural jurisdictions

In response to the political question of multiculturalism, Shachar recognizes the tension between identity groups wanting control over particular areas of life (such as the family) and the state’s concern that groups might use the power of increased group autonomy to restrict the rights of group members. She argues, “Multiculturalism begins to present a problem whenever state accommodation policies intended to mitigate the power differential between groups end up reinforcing power hierarchies within them.”174 This Shachar describes as the “paradox of multicultural vulnerability,” in which the state ends up supporting oppressive practices. Shachar shares with Okin a suspicion of unchecked hierarchies within groups, and argues that the state should not ignore the oppressive potential of such hierarchies. A solution lies in creative adaptation: state accommodation should account for the needs of three parties: the state, the group, and the individual. The state must respect the need of cultural groups to have jurisdiction over certain areas, but it cannot compromise the rights of its citizens.

Shachar recognizes that the state is always involved, directly or indirectly, in the formation of an identity group’s understanding of itself. The state remains a player in the affairs of any minority group, even in matters of the private sphere. Shachar regards as an improvement increased state intervention into the private sphere in matters of domestic violence, since

American law (before the twentieth century) took the position that a battered woman had voluntarily consented to abuse when she consented to the marriage. She wants to preserve the active state interest in protecting the individual in discussions of multiculturalism and law.

Shachar describes two predominant models for dividing power with regard to family law: the secular-absolutist model and the religion-particularist model. Under the secular-absolutist model, the state defines the family and regulates its formation and dissolution. Shachar points out

174 Shachar, 17. 101 that in this model, religious practices are relegated to the private sphere and thus have no validity in the public sphere. While the secular-absolutist model is able to guarantee formal equal rights to all parties, it fails to recognize what Shachar calls “the identity-preserving function of family law” as well as its own predominantly Christian roots.175 On the other hand, the religious- particularist model stipulates that each community is self-governing from the perspective of family law. Historical examples of this model include the Ottoman system, in which separate religious courts adjudicated matters affecting their communities. While such a system reinforces the autonomy of particular groups, these groups can also “use these powers to perpetuate a community structure that includes an unequal distribution of rights, duties, and

(ultimately) power between men and women within the community, as well as to enforce gender- discriminatory rules that would never have passed constitutional muster outside the protected realm of religious personal law.”176

Shachar instead argues for what she calls a model of transformative state accommodation, which capitalizes on the divisibility of social arenas and maintains a separation of powers. She favors a system in which group members can openly express their views with relation to group and/or state policy, either through a formal system of voting or another comparable mechanism. Groups and the state must permit open disagreement with policies. In the end, neither the state nor the group exercises complete control over the family. Shachar understands that ethnic/cultural/religious groups are constituted by disagreement at least as much as agreement, although she acknowledges that religious traditions are not democratic, in the sense that “the interpretation of the group’s established traditions is rarely, if ever, open to public

175 Shachar, 75. 176Ibid, 81. 102 deliberation.”177 State involvement might serve as a more regulatory mechanism in religious- based courts.

Seyla Benhabib largely agrees with Shachar’s conclusions about the need for a model of transformative accommodation in dealing with the paradox of multicultural vulnerability. Her main criticism of this model is that transformative accommodation runs the risk of legal eclecticism and that it fails to establish clear lines between negotiable and non-negotiable practices.178 Benhabib also questions whether legal accommodation may undermine the political process of debate and conflict-resolution:

Multicultural may result in a kind of multicultural cold war: there may be peace but no reconciliation; there may be bargaining but no mutual understanding….Precisely because multiculturalism, in so many of its manifestations, challenges key assumptions of liberal democracies, it needs to release its conflictual and explosive potential in the public sphere through dialogue, confrontation, and give-and- take of ordinary citizens.179

In other words, should not allow groups to retreat into their own spheres of influence. Part of what makes democracy vibrant and workable is that people must learn to engage those who think and act differently in discursively-productive ways. Benhabib draws a point of contrast between the realm of law and the realm of politics; in her opinion, the need for legal regulation must not hinder the political process of democracy, or of working out substantial disagreement and managing conflict.

What, then, does Shachar’s theoretical work contribute to the topic of domestic violence and Islamic law? She would endorse the creation of state-recognized bodies of Islamic jurisprudence that abide by certain standards of equal treatment for the genders, which might

177 Shachar, 49. 178 Seyla Benhabib, The Claims of Culture: Equality and Diversity in a Global Era (Princeton: Princeton University Press, 2002), 128. 179 Benhabib (2002), 129. 103 minimize the popularity of online fatwas among American and other Muslims living in pluralist states. She also understands that although the most powerful members of a group have the greatest stake in maintaining the status quo, their power is never uncontested. In other words, she would recognize the work of Sharifa Al-Khateeb and the Peaceful Families Project as constituting a critical intervention into the Muslim ethical tradition.

Shachar also calculates more carefully than Okin the reactive component in religious groups that perceive a threat in modernity/secularity in the form of the modern state’s jurisdiction; she is aware that whether and how the state delegates power to minority groups is critical to its ability to gain trust and credibility. Under a multicultural jurisdictional paradigm, it may possible to confront outmoded liberal conceptions of privacy in the family and to hold minority groups similarly accountable for gender justice within the family.

Test-Case: ’s “Dispute Resolution in Family Law”

One major foray into establishing state-recognized courts for Muslim personal status law occurred in Ontario, Canada in 2004 when former Attorney General Marion Boyd was asked to compile a report on the topic of Muslim family arbitration.180 While a model of religious arbitration in matters involving the family had prevailed in Canadian Muslim life (although without legally-binding power) since at least 1991 with the passage of the Arbitration Act, there was growing concern among the general population that the formation of a separate “sharia court” was occurring. Thus, the report set out to answer two questions raised by religious arbitration: 1) what types of religious freedoms the Canadian permitted, and 2) whether or not the decisions of family arbitration courts could be in fact become legally-binding.

180 Maio Bod, Dispute ‘esolutio i Fail La: Potetig Choie, Pootig Ilusio, Deee http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/executivesummary.pdf. Accessed 1/31/12. 104

Boyd examined the relationship that arbitration had or might have on the most socially vulnerable persons: women, the elderly, and children. She also noted that arbitration did not apply to ; thus, cases of child abuse would rightfully be the jurisdiction of civil courts. Domestic violence, while technically in the jurisdiction of criminal law, had been handled by many religious arbitration councils, however. The Boyd report ultimately concluded that an arbitration-only approach to domestic violence might be deleterious for women, noting that

“Alternative dispute resolution may provide a venue for continued abuse after the breakdown of a relationship, and therefore safeguards must be in place.”181 Such “safeguards” include recourse to , which presumably (in the eyes of Boyd and many other Canadians) provides better protection to individuals. The report submits a host of recommendations, but the stated philosophy is to balance multicultural group rights with individual rights. The secular state cannot treat everyone equally, the report maintains, because different cultural backgrounds may lead to different applications and meanings of the law. The proper solution in the end is to not allow cultural groups “complete freedom” to define family life, for fear that they will trample the rights of individuals and engage in discriminatory behavior toward them.182 Thus, Canadian law could not grant legally-binding power to decisions made by religious arbitration panels.

One prominent spokesperson for the argument to grant greater autonomy to Muslim family courts was Syed Mumtaz Ali, a member of the Islamic Institute of Civil Justice. He argued in defense of greater legal power for arbitration councils, “Religion is a way of life, a set of values, a framework which is intended to penetrate into, shape, color, and orient all facets of an individual’s life.”183 The politics of the secular state are constantly in danger of infringing on

181 Boyd (2004). 182 Ibid. 183 “ed Mutaz Ali ad A. Whitehouse, The ‘eostutio of the Costitutio ad the Case fo Musli Pesoal La i Caada, http://muslim-canada.org/case.pdf ; accessed 2/9/12. 105

Muslim identity, as Ali interprets the problem. Ali cites the constitutional right to practice one’s as supporting the expanded power of Muslim family law arbitration. He asserts the sovereignty of a sharia-based system of law, but because it is here limited to personal status and family matters, it is within the confines of state law that permits freedom of religion, particularly within the private sphere.

Commenting on Ali’s strategy of argumentation, Jean Francois Gaudreault-DesBiens notes, “[Such] claims are as much political as they are religious; in the name of freedom of religion (whether or not their understanding of that freedom is legally correct), they seek to establish a rapport de forces to shift the balance of power between religious groups and the state.”184 For Gaudreault-DesBiens, Ali’s argument resembles the totalizing claims made by many religious believers (here he alludes to the Rawlsian term “comprehensive doctrines”) that continuously cause tension with the exercise of the secular state’s power to protect individuals’ religious liberty. Gaudreault-DesBiens questions Ali’s insistence that there is a singular Muslim way to live, asking whether “having free access to binding Islamic personal/family law is at the core of freedom of religion for Muslims.”185 He concludes that Ali’s position equates religious freedom with a kind of legal sovereignty.

In one respect, Gaudreault-DesBiens is correct to raise questions about what religious freedom entails with regard to religious arbitration. Given that religious arbitration can be used to restrict the rights of group members, sharia courts should not be given unlicensed freedom to interpret and enforce law. He supports the Canadian decision to legally limit the power of arbitration courts. In a related way, Gaudreault-DesBiens’s approach is very similar to Susan

184 Jean-Francois Gaudreault-DesBiens, ‘eligious Couts ‘eogitio Clais: To Qualitatiel Distit Naaties, i Sharia in the West, ed. Rex Ahdar and Nicholas Aroney (New York: Oxford University Press, 2010), 68. 185 Ibid, 65. 106

Okin’s in emphasizing the importance of the state in not only protecting individual liberty, but also in protecting liberal ideas about personal autonomy. Like Okin, he envisions the relationship of religious courts and secular courts as presenting an either/or situation: either Islamic politics prevail or the politics of the sovereign (liberal) state.

The Canadian Council of Muslim Women (CCMW), in an initial statement responding to the Boyd report on religious arbitration, similarly expressed its concern for the impact of the report on vulnerable populations. Without criticizing the conservative Islamic Institute of Civil

Justice or declaring the injustice of the proposal of a sharia tribunal, the CCMW argued that the

Boyd report had not gone far enough in assuring the civil protection of Muslim Canadian women:

CCMW chooses to trust that the Ontario government will now accept its direct responsibility for conducting a more thorough and comprehensive examination of family law and the equitable use of arbitration so that Muslim women’s equality rights are included and protected within the existing family law provincial system.186

This represents, in effect, a request for more state oversight and regulation of arbitration panels.

At one point in the document the CCMW states that it will press for the complete removal of family matters from private arbitration. This indicates a strong rift among Muslims in Canada in terms of their expectations of religious freedom and liberty regarding family law matters.

Taking a more moderate approach to the justice of family arbitration panels in Canada,

Shachar recognizes that sometimes the strict separation of religious and secular spheres of justice forces women and other vulnerable members of a religious minority community to choose between maintaining the membership in their group or exit their communities. She acknowledges the liberal concern (and Okin’s primary concern) that the “consent” of women in religious

186 Canadian Couil of Musli Woe, Iitial ‘espose to Maio Bods ‘epot o the Arbitration Act, http://www.ccmw.com/press/press_room_2004.html; accessed 2/9/12. 107 minority communities to the ruling of arbitration panels might be coerced. In responding to the

Canadian decision, she cautions state leaders not to create a rigid dichotomy in accepting or rejecting modes of religious arbitration: “The core issue for us to assess is whether, and under what conditions, women’s freedom and equality can be promoted (rather than inhibited) by law’s recognition of faith-based obligations that structure marriage and divorce for religious citizens.”187 One way to aid in this process of creating more effective and accommodating legal structures for religious minority groups is to directly consult the experiences of marginalized persons within those communities.

Shachar ultimately rejects the “absolutist” nature of the solution proposed by Boyd and

Canadian legal authorities, for it “shuts down, rather than encourages, dialogue between civil and religious authorities.”188 Such dialogue is important for building trust among groups in a pluralist democracy, which ultimately can lead to greater justice for individuals. Shachar argues for a model in which the “either/or” option does not rule the matter, viewing it less as a zero-sum game than a matter for sub-division and compromise. Each social arena is not purely indivisible; there is a distinction within marriage, for example, of a demarcating function and a distributive function. Shachar provides a British Muslim example: many women in these communities turn to religious arbitration councils to remove religious barriers to remarriage, but simultaneously to secular courts for aid in matters such as post-marital financial obligations like alimony and child support. This example supports Shachar’s argument that a “regulated interaction” approach to family law with regard to minority religious communities living in secular states would not be all that different than from what many people already practice.

187 Aelet “haha, “tate, ‘eligio, ad the Fail: The Ne Dileas of Multiultual Aoodatio, i Sharia in the West, ed. Rex Ahdar and Nicholas Aroney (New York: Oxford University Press, 2010), 124. 188 Ibid, 127. 108

The case of sharia-based arbitration in Canada, and in particular the question of its legal recognition, allows us to view several issues at stake in the relationship of religious law to secular law. First, what does freedom of religion entail, and how do persons experience this freedom differently? As the Boyd report acknowledged, because of Canadian citizens’ diverse backgrounds, the law cannot deal with people in terms that they will equally recognize/ like to be recognized. In other words, state law is limited. Nevertheless, the law takes individual rights as an important baseline for determining limits of religious freedom. The CCMW would press the law further to try and treat all persons equally, regardless of background. In the opinion of Syed

Mumtaz Ali, the Canadian of freedom of religion should allow Muslims to be free to follow their religion in a way that respects its sovereignty over their lives, which entails control over family life. For feminist commentators like Shachar, a conception of freedom of religion should not penalize the socially-vulnerable members of minority groups at the same time as it allows people to live their lives according to community rules they perceive to be binding and/or meaningful.

Conclusion: Collaborating for a Model of Accountability-as-Justice

This chapter has examined forms of sharia in online fatwas as well as debates about the creation of legally-binding sharia arbitration courts in the West. One central aim has been to account for ways in which sharia is conceptualized in these various media, and we find that sharia as such is a negotiated normative Muslim space both apart from and dependent on

Western secularized models of law and morality. Western arguments of privacy and freedom of religion have also complicated how sharia is to be interpreted, particularly with regard to matters

109 of domestic violence. I have demonstrated that the content and authoritativeness of modern sharia law in the West is contested by, and a subject of negotiation within, Muslim communities.

Western feminist arguments, insofar as they represent a critical engagement with the liberal political tradition that has influenced the development of secular law and other moral norms in the United States, are a critical piece of this discussion as well. Liberalism has its own historical of gender inequality, as well as its very origins in a Christian debate about religious freedom. Thus feminist engagement with this tradition tends to be diverse in its conclusions about what religious liberty and gender equality should entail.

In comparing the arguments of Muslim anti-domestic violence advocates and liberal feminists, we can see that both share a commitment to the just and humane treatment of women and to a model of private and public relationships that are affirming of, and fulfilling to individuals. The argument that the law must forbid and criminalize domestic violence is uncontested among Okin, Shachar, and those who argue on behalf of the Peaceful Families

Project; the question at stake is whether some of these arguments are more congenial to the task of democratic trust-building than others. The characteristics of effective arguments include: 1) an adequate understanding of the social factors that permit practices of domestic violence, and 2) the inclusion of voices of the parties involved. Responding effectively to the fatwas of Hatem al-

Haj and Mohammed Dessai (or in a secular context, arguments for the marital rape ban exemption law) requires a clear understanding of the social circumstances that shape views of power and domination, for example. Al-Khateeb links models of despotic political leadership in parts of the Muslim world and patterns of male dominance in the Muslim American home. She recognizes a nascent crisis in forms of Muslim masculine politics that has encouraged some men

110 to abuse their wives and children. Al-Khateeb argues that these aspects of social life ought to have little bearing on Islamic teachings, which in her opinion, counsel justice for both genders.

Some arguments run the risk of simplifying the relationship of patriarchy and . According to Okin, religions are hopelessly patriarchal, and patriarchy is inimical to the pursuit of gender justice, and therefore religion and religious reform must be dropped as a strategy for gender justice. For example, one obstacle for a liberal theorist like Okin would be that Al-Khateeb, along with much of the Peaceful Families Project literature, does not challenge a notion of gender complementarity that informs so much of contemporary Islamic sexual ethics.

Gender complementarity, with its assignation of separate rights and duties, offends liberal sensibilities because it restricts gender role flexibility and may consequently limit autonomy.

Shachar recognizes the tendency of religious groups, left to their own legislative devices, to restrict women’s rights, but at the same she does not use it as a justification for excluding religious voices in discussions of gender justice. Since traditions are constituted by disagreement, it is mistaken to think that all religious people will come to the same conclusions about what constitutes justice. Because the state, minority groups with separate legal and religious traditions, and individuals are each involved in the production of norms regarding gender and the family, it makes sense to account for each of these perspectives in legal discourse. Shachar argues that the powerful state has an overriding responsibility to actively protect the weakest members from harm, including harms that might be overlooked by their respective communities. And ultimately, one test of social trust is how well it can protect the most vulnerable persons.

Political theorist Danielle Allen, in her book Talking to Strangers, posed the question:

What modes of citizenship [in a liberal democracy] can make a citizenry whole without covering

111 up difference?189 Her basic answer is that desirable forms of citizenship involve trust, in which people acknowledge the difficulty, loss, and sacrifice involved in democratic politics. We change our habits of thinking when we confront the disintegration of the “old” order, whether it is an order based on white dominance, male privilege, or another unjust arrangement. Accountability to ideals about equality and justice, and equally significantly, accountability that is realized in our commitments to our fellow citizens, can produce trust in a social fabric of substantial political engagement.

Social trust is a necessary resource for the flourishing of democratic culture and politics.

When we think of practices of accountability in a democracy, we should think of ways of holding one another responsible for beliefs and actions so as to establish trust between citizens and in the political institutions in which they participate. Even when gender justice is formulated legally in the articulation of a set of rights, it can be realized only to the degree that people adhere to and hold one another accountable to such ideals through practices such as immanent critique. Advocates can speak forcefully of the importance of women’s rights or how women ought to be protected from violence within the home, but unless they examine and understand how community practices allow for or replicate structures of violence, little will come of such talk. When analyzing the phenomenon of domestic violence, it is necessary to direct scrutiny at the functionality of various networks of accountability (at the level of family, religious community, and state) in order to gain a clearer understanding of how responsibility is socially distributed.

189 Danielle Allen, Talking to Strangers: Anxieties Since Brown v. Board of Higher Education (Chicago: University of Chicago Press, 2006). 112

CHAPTER FOUR

Justice Reconsidered: Accounting for Experience and the Limits of Abstraction

The previous chapter engaged the question of how a kind of democratic accountability might be realized, both in the areas of 1) leadership within a minority community regarding issues of gender violence; and 2) the position of the state vis-à-vis its citizens, especially those who identify as a part of a minority group. In the latter part of that chapter, I noted that feminist critique has played a role in debates about state accommodation to minority groups, as it has stressed the priority of attending to the rights of citizens as individuals, but often has downplayed the membership of persons in groups.

I suggested that in order to effectively address practices of domestic violence within minority communities in liberal states, collaboration between liberal feminist theorists and group advocates is required. Conformity or complete agreement between such parties is unnecessary; rather, the emphasis should be on developing a sense of mutual trust that can function as the basis for creating stronger social structures of accountability. In some measure, building trust can be achieved by raising awareness of what particular groups or theorists are saying about domestic violence, how they justify their arguments, and their practices within their communities.

In this chapter, I examine feminist criticisms of political liberalism, and consider what strands of political liberalism lend support to collaborative justice between persons working out of different traditions. John Rawls’s A Theory of Justice and Political Liberalism have contributed significantly to feminist thinking about gender justice, both in terms of affirming feminist commitments about the importance of gender justice and also in raising questions about the capacity of liberal thinking to adequately promote gender equality. Rawls addresses the ways

113 that persons with different backgrounds interact with one another in the public sphere to make decisions justly, so it seems highly appropriate to refer to these texts in light of the topic at hand.

I think that political liberalism holds a central place in discourse pertaining to gender justice both in terms of its historical genesis190 and in terms of its conceptual currency in contemporary social life. Classical liberal arguments provide tools for conceptualizing human freedom, such as ideas about human rights and capabilities that stand regardless of whether a particular ruling body wishes to grant them. Legal protection, articulated in the abstract language of rights, may be necessary to assure basic liberty to persons in a secular state.

From a feminist perspective, however, there is a seemingly intractable difficulty of applying liberal theories of justice that rely on ideas of morality that transcend the experience of particular persons in particular communities: whether their histories, traditions, or other ways of being in the world. This is in part due to the abstract nature of much of liberal thought, for example Rawls’s theory of justice as fairness holds under ideal conditions. Moreover, liberal theorists do not necessarily take into account the particular processes whereby communities determine and enforce certain moral norms.

In elaborating the importance and the difficulties of political liberalism with respect to gender justice, I begin with Susan Okin’s discussion of Rawls’s theory of justice, specifically it applies to the topics of gender and the family. Okin, while critical of Rawls’s relative inattention to gender inequality and justice within the family, affirms that a Rawlsian theory of justice supports the quest for women’s equality and generally supports the argument for abstract and impersonal justice. Then I examine arguments of feminist theorists who express more skepticism

190 J.“. Mill ote, That the piiple hih egulates the eistig soial elatios etee the to sees—the legal subordination of one sex to another—is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege o the oe side, o disailit o the othe. Fo The Subjection of Women, edited and with an introduction by Susan Moller Okin (Indianapolis: Hackett Publishing, 1988), 1. 114 about the accuracy of a Rawlsian theory of justice, rooted as it is in Kantian and Enlightenment conceptions of an individual abstracted from his/her social environment. Seyla Benhabib and

Margaret Urban Walker each argue for a more nuanced understanding of the relationship between agent and her particular social context.

Walker’s approach in particular supports a conception of gender justice as embedded in practices of social accountability (or as a set of practices that reinforce social accountability and trust). I maintain that while not explicitly political, this conception promotes an understanding of morality as a dialogic process wherein parties negotiate their relationships with both concrete and abstract others. In addition, I argue that Rawls’s discussion of the development of moral psychology is an important point to consider regarding the topic of trust, and one significant question we ought to ask is whether his model of human psychology remains an adequate representation of how persons conceptualize justice.

Rawls and his Liberal Feminist Critics

Why begin with Rawls? There are the obvious points to mention: Rawls is the major intellectual spokesperson for political liberalism in the last half-century; he has amassed many followers, though in equal part to critics; his ideas about tolerance and justice capture some essential tensions occurring in American life involving the respective roles of religion and capitalism in political discourse of the late twentieth century. Feminist followers and critics of

Rawls have expressed specific concerns pertaining to gender justice and liberalism, some of which touch on questions about and economic justice.

In this section, it makes sense not to canvass the whole of feminist thinking about

Rawls’s work, but rather to focus on what particular feminist theorists have taken from Rawls

115 regarding the topic of religious affiliation or association as it affects women’s political participation, and how the institution of the family impacts gender justice. These issues relate to the problem of domestic violence and the question of how the most vulnerable members of society receive access to social and material goods (in concrete terms: access to employment, domestic violence shelters, , etc.).

In A Theory of Justice, Rawls argues for an idea of justice as fairness in which the original position of equality corresponds to the state of nature in the original contract model.

Rawls stresses that this is a hypothetical construct, not a situation that actually exists in space and time. The principles of justice191 are chosen behind a veil of ignorance, meaning that no one knows his/her social and economic status. Everyone who sits behind the veil of ignorance is similarly situated. Rawls’s method attempts to reduce and eliminate contingency so that persons can focus on moral principles.192

In the OP, the elements of choice and consent are key, as people must agree to principles freely even without knowledge of their particular location in society. He argues, “Thus we are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties to determine the division of social benefits.”193 Persons behind the veil of ignorance are both rational and reasonable; they have a conception of the good and they have the capacity for a sense of justice. The person as rational and reasonable chooses principles that she thinks fair for all, irrespective of religious, economic, or gendered factors that characterize one’s identity.

191 The two central principles of justice are liberty and equality (specifically social and economic); the first principle is prior to the second. These principles apply to social institutions. See Rawls, A Theory of Justice (Cambridge, MA: Belknap, 1971) II, 11. 192 John Rawls (1971), I.3, 15. 193Ibid, 11. 116

Although this is made more explicit in the Introduction to Political Liberalism, guiding

Rawls’s thinking is the fact that religious allegiances can be dangerously divisive in politics:

Even though their differences are profound and no one knows how to reconcile them by reason, men can, from the standpoint of the original position, still agree on this principle [of equal liberty], if they can agree on any principle at all. This idea which arose historically with religious toleration can be extended to other circumstances. Thus we can suppose that the persons in the original position know that they have moral convictions although, as the veil of ignorance requires, they do not know what these convictions are.194 Under the ideal conditions of the original position, a person does not have knowledge of his or her religious affiliation, and must imagine that any affiliation is possible. Particular moral positions are thus detached from particular religious teachings or dogma.

Rawls advances a Kantian interpretation of justice as fairness, and insists that “[T]he principles [the moral agent] acts upon are not adopted because of his social situation or natural endowments, or in view of the particular society in which he lives or the specific things that he happens to want. To act on such principles is to act heteronomously.”195 We can discern an emphasis on viewing actors as free and equal (even if it consists in an exercise of the imagination), and as making choices based on what they perceive as being best for others. Rawls strongly allies his argument with the Kantian argument for autonomy, and explicitly with the categorical imperative. In considering this kind of argument for a society characterized by religious and ethnic diversity, as well as a growing gap between wealthy and poor persons, there is logic to appealing to basic principles to which all persons could agree, regardless of circumstances. At the same time, however, some scholars in moral and political theory disagree

194 Rawls (1971) IV.34, 220. 195 Rawls (1971) IV.40, 252. 117 with this construal of morality, especially in regard to his lack of attention to how communities and traditions shape the moral outlook of persons.

In responding to this kind of criticism of A Theory of Justice, Rawls argues in his later major work Political Liberalism that competing conceptions of the good, contained in reasonable comprehensive doctrines, can inform and lend stability to principles of justice. Liberal political theory depends on people lending legitimation to policies based on their comprehensive ideas of the good. Christine Korsgaard explains, “Since liberalism claims that political policies are justified only when they are acceptable in the eyes of the citizens, we must be able to offer reasons in support of these coercive policies…”196 Reasonable religious teachings may aid in the promotion of justice as fairness. Rawls retracts his earlier position of endorsing a strong liberal comprehensive doctrine, which he likens to a Millian or Kantian view, and argues for a

“freestanding” conception of political liberalism that is informed by an overlapping consensus.

There are three basic features of an overlapping consensus: 1) reasonable pluralism exists; 2) justice as fairness is a freestanding view, independent of comprehensive religious, moral, and philosophical doctrines; 3) it is stable, which means that those who support it will not withdraw their support should the relative strength of their view in society increase and become dominant.197 Together these aspects ensure that overlapping consensus is not a modus vivendi but is instead a moral conception.

As a result of these changes to the theory of justice, the OP becomes the object of “a contingent, overlapping consensus among those with varying fundamental views which do not guarantee any convergence on reasons for affirming those views.”198 People inevitably have

196 Christine M. Korsgaard, The Constitution of Agency (New York: Oxford Univ. Press, 2008), 318. 197 John Rawls, Political Liberalism, expanded edition (New York, NY: Columbia University Press, 2003), IV.3. 198 Ooa ONeill, Costutiis i ‘als ad Kat, The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 349. 118 different reasons for assenting to the principles of justice. Citizens will accept what Rawls calls the “burdens of judgment,” acknowledging that reasonable people will hold different religious, moral, and philosophical positions.

Susan Okin raises several criticisms of Rawls, even as she recognizes the value of some of his insights for gender equality.199 As observed in the previous chapter, Okin supports the inclination to circumscribe the influence of religious ideas and teachings, particularly those that subordinate women, in the public sphere. This is perhaps where she and Rawls find most agreement. While Okin maintains that Rawls’s arguments for justice as fairness advance gender equality in several respects, she remains critical of Rawls’s treatment of the family.

In her initial response to A Theory of Justice, Okin criticizes Rawls for imagining the persons in the OP as male heads of household: “The argument of the book is designed to show that the two principles of justice as fairness are those that individuals in such a hypothetical situation would indeed agree upon. But since those in the original position are the heads or representatives of families, they are not in a position to determine questions of justice within families.”200 Okin questions the supposed impartiality of the original position; she shows that those individuals from various backgrounds that Rawls explicitly charges with (impartial) decision-making may actually be quite similar in outlook. She points out that Rawls seems to imagine men behind the veil of ignorance, who, based on their knowledge of the world, may agree that families are best constituted by a gendered hierarchy and a strict division of labor.201

199 Okin was one of the first and most vocal feminist critics of Rawls; most of her comments and criticism focus on TJ. 200 Susan Molle Oki, Justie ad Gede, Philosophy and Public Affairs 16 (1987), 49. 201 One reason that Okin argues that Rawls imagines a male subject is his use of exclusively male pronouns to represent the subject behind the veil of ignorance. There is nothing explicit in the Theory of Justice that suggests that the male subject is incapable of thinking about how the two principles of justice apply for women and hilde; fo Okis ie, ‘alss eo sees to e ail oe of oissio. 119

Okin does, however, think that one could use the original position in a way that goes beyond this constraint. Although Rawls does not address explicitly gender hierarchy in society, his concept of the veil of ignorance can be understood in such a way to fight gender discrimination. In order to demonstrate the virtue of the veil of ignorance as a tool for moral imagination, Okin refers to the example of a cartoon depicting three elderly male who discover that they are pregnant. This creates the impression among the viewer that there is little doubt these judges, upon their of their miraculous condition, would vote for laws that did not discriminate against women on matters dealing with pregnancy and childbirth. Thus there is significant potential for the OP in expanding and enhancing women’s political participation, understood as greater rights and legal access to services.

In her 1989 book, Gender, Justice, and the Family, Okin responds to a wider range of contemporary arguments in political theory about justice within the family. She contends that non-liberal conceptions of the family constitute a more grave threat to gender justice than

Rawls’s omissions and oversights in A Theory of Justice; in particular, she singles out Alasdair

MacIntyre as committing the sin of “nostalgia for tradition” which she maintains is unable to deal with the problem of domination.202 When she evaluates Rawls’s work, she applauds Rawls for including the family in the basic structure. Okin notes that it has great potential insofar as he portrays the family as having the capacity to instill moral values in children and here she refers to Rawls’s discussion of moral development. By acknowledging the role of the family as a first

“school” of moral development, “Rawls clearly recognizes the importance of feelings, first nurtured within supposedly just families, in the development of the capacity for moral thinking.”203 Although this statement may raise the question of how sometimes very fair-minded

202 Okin (1989), 44. 203 Okin (1989), 98. 120 and just persons come out of homes characterized by injustice and abuse, it connects the private to the public sphere in a non-accidental way. The justly-ordered and justly-governed family imparts the value of fairness to future citizens, in hopes of one day enabling them to productively cooperate with others.

According to Rawls, the family is a type of association, governed by common sense rules of morality and the constraints of particular roles within the association.204 It is worth attending to how Rawls conceives of the relationship between the family (as a kind of association), other associations, and political institutions; this occurs in the context of his discussion of moral psychology. This section addresses what human qualities make humans able and willing to adhere to a conception of justice as fairness. Rawls makes a limited effort to connect how a person may arrive at the principles of justice to the kinds of experiences a person has in the home and among friends and associates. First, the morality of an association is determined by “the moral standards appropriate to the individual’s role in the various associations to which he belongs.”205 These may be more or less structured along a hierarchy; in the family, for example, children are encouraged to learn the virtues along the lines of roles: what makes a good daughter or son. Parental authority determines good and bad behavior and enforces rewards and punishments for such behavior. This kind of thinking extends into other types of human associations: neighborhoods, clubs, churches, and so forth. People may be judged by how well they fit a particular role and how well they cooperate in these different community settings, and eventually, people learn how to navigate a variety of roles and the ideals associated with such

204 This discussion is found in the context of the stages of moral development in TJ, VIII, 71. Rawls explains that these roles are often hierarchical, as between parents and children, and come with corresponding rights and duties. 205 Rawls (1971), VIII.71, 467. 121 roles. Eventually, as a result of this process, people learn how to negotiate different points of view.

Moreover, associations allow people to form attachments to one another in a way that allows the creation and fulfillment of social expectations. “If those engaged in a system of social cooperation regularly act with evident intention to uphold its just (or fair) rules, bonds of friendship and mutual trust tend to develop among them, thereby holding them ever more securely to the scheme.”206 Newer members receive inspiration to uphold ideals by looking to the older, more established moral exemplars of the organization. This serves as a model for wider civic society: people initially feel motivated to comply with the principles of justice out of “ties of friendship and fellow feeling for others.”207 Rawls imagines a developmental scheme whereby persons come to be attached to the principles themselves, so that the importance of acting justly for its own sake supersedes acting justly within the context of a particular relationship. On the one hand, this allows persons to accept just institutions that apply to them and the public principles of justice that are binding upon all citizens. On the other, it permits persons to seek the good of others, including strangers. The contrast between the first stage of association in the family, where a type of fear of parental authority prevails as a type of motivation, and this final stage of adoption of the principles of justice based on their own intrinsic worth, is marked. “Once a morality of principles is accepted…moral attitudes are no longer connected solely with the well-being and approval of particular individuals and particular groups, but are shaped by a conception of right chosen irrespective of these contingencies.”208

Rawls thus argues that while moral attitudes originate in the family and in other associations, first perhaps in learning and fulfilling one’s role in a hierarchy and then in the

206 Rawls (1971) VIII.71, 470. 207 Ibid, 473. 208Ibid, 475. 122 context of mutual trust and friendship (which do not seem to be mutually exclusive categories), they eventually transcend these immediate contexts when persons attempt to resolve conflict in the public sphere. There seems to be a bit of a Kantian ought-implies-can in this argument; for

Rawls, the ideal situation involves persons adopting the principles of justice regardless of the contingencies of life. Moreover, this effort to transcend contexts pertains to the problem of determining proper motivation for adopting the principles of justice. Samuel Freeman argues that

Rawls thinks the parties in the original position are motivated fundamentally by a sense of justice, not by any sense of self-interest or its contrary, altruism. He thinks that Rawls’s goal is to show that people have a rational interest in cultivating justice.209

Toward the end of this chapter, I will have occasion to further evaluate whether this model is realistic, or desirable, as a model of how people learn to be just in liberal democratic societies. For the time being, however, I will consider feminist criticisms of Rawls’s portrayal of the family as a type of association. Okin argues that Rawls assumes that the family is a just association, and that loving parenting is the beginning of moral development in children. Okin pushes Rawls on this point, noting that if many fathers do not equally share in the nurturing and raising of children, how do children of both sexes “come to develop a sufficiently similar and well-rounded moral psychology to enable them to engage in the kind of deliberation about justice that is exemplified in the original position?”210 Even the utility of a hypothetical device like the original position is limited by the fact that children who do not witness gender justice within the home will incur psychological consequences that will make it difficult to see things from the other’s point of view.211

209 “auel Feea, Oigial Positio, i The Stanford Encyclopedia of Philosophy (Spring 2012 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2012/entries/original-position/, accessed 3/19/12. 210 Okin (1989) 100. 211Ibid, 107. 123

A problem with the family construed as an association lies in the fact that associations are understood as having a voluntary quality: persons are free to join and exit as they wish. This may work when talking about the Elks’ Club, or to a lesser degree, a religious group (different constraints seem to be involved, as religion also tends to involve familial commitments); but in the context of family life, children and more vulnerable members of the family may exercise limited, if any (in the case of children), choice to either enter or exit the home or the relationships that are constitutive of it. Domestic violence situations provide a salient example of how the family may function negatively in the moral-school-of-development category and also oppress weaker members.

In order to demonstrate the fundamental flaw in construing the family as a voluntary association, Okin refers to Goodin’s principle of asymmetrical vulnerability,212 in which the asymmetry or, conversely, mutuality of a relationship can be measured by the parties’ respective ability to withdraw from it. For Okin, the factors underlying women’s asymmetrical vulnerability are frequently found in marital practices: “Women are made vulnerable, both economically and socially, by the interconnected traditions of female responsibility for rearing children and female subordination and dependence, of which both the history and the contemporary practices of marriage form a significant part.”213 In other words, marriage frequently creates and reinforces women’s vulnerability, making it difficult for women to pursue independent projects (at best) or escape from oppressive circumstances (at worst). She suggests that, as a solution to the gross gender inequality that characterizes American society, men and women share more equally in the work involved in child-rearing and taking care of the home, or fairness in the distribution of

212Robert Goodin, Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities (Chicago: University of Chicago Press, 1985). 213 Okin (1989), 139. 124 labor. In addition, such practices would permit greater flexibility of gender roles. Okin’s solution ultimately consists in the direct application of the principles of justice to the family.

In an essay on feminist criticisms of and contributions toward the elaboration of Rawls’s thought, Ruth Abbey observes a tension in Rawls’s thinking between embracing a strictly freestanding political conception of justice and endorsing a more comprehensive liberal view when it comes to women’s rights.214 In other words, the move from A Theory of Justice to

Political Liberalism was not a clean or total transition of thinking about such matters. This tension finds particular expression in his writing on the family, and Abbey cites “The Idea of

Public Reason Revisited” as an important later work in this regard.

In “The Idea of Public Reason Revisited,” Rawls reiterates his commitment to justice as fairness as a political rather than a comprehensive doctrine. He explains that public reason does not attack any comprehensive doctrine, religious or nonreligious, “except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity.”215 He distinguishes civil society, to which public reason pertains, from a person’s “background culture,” which is comprised of associative relationships. Political conceptions of justice have three features: their principles apply to the basic structure, they can be presented independently from comprehensive doctrines, they can be worked out “from fundamental ideas seen as implicit in the public political culture of a constitutional regime, such as the conceptions of citizens as free and equal persons, and of society as a fair system of cooperation.”216 His aim is in part to clarify the kinds of reasons that should be given in the public sphere: “to engage in public reason is to appeal to one

214‘uth Ae, Bak Toad a Copehesie Liealis? Justie as Faiess, Gede, ad Failies i Political Theory 35.1 (Feb. 2007): 5—28. 215 Joh ‘als, The Idea of Puli ‘easo ‘eisited i Political Liberalism, expanded edition (New York: Columbia University Press, 2005), 441. 216 Rawls (1997), 2.2, 453. 125 of these political conceptions—to their ideals and principles, standards and values—when debating fundamental political questions.”217 This still allows for the proviso, however: we may introduce into political discussions our comprehensive doctrines, as long as we can provide in due course properly public reasons to support principles and policies. Some critics took issue with the way that certain kinds of discourse, under this model, are sidelined. Specifically, Jeffrey

Stout argued that Rawls’s idea of public reason marginalizes religious discourse in the public sphere by limiting the type of reasons that are acceptable to give and take. 218

Importantly, this section is followed by a discussion of the family, where Rawls directly addresses some of his feminist interlocutors. In this discussion, he balances the rights of women in particular with the liberal political quest to respect reasonable pluralism. Abbey argues that as a result of this balancing act, Rawls applies the principles of justice to the family in a rather ambiguous manner: “Committed to respecting reasonable pluralism, justice as fairness leaves as much space as possible for people to choose how to live.”219 The government, while maintaining an interest in the family as a just institution, cannot dictate that it take a specific form.220 Abbey notes that Rawls wants to preserve the choice to decide on family dynamics, thus recognizing a plurality of valid forms of family life, such as non-heterosexual relationships. Moreover, Abbey notes Rawls’s reluctance to apply the principles of justice to the family as it constitutes an association not regulated by government or by the strictures of public reason (in the same way the public sphere is to be regulated).

217 Ibid. 218 “ee Jeffe “tout, ‘eligious ‘easos i Politial Aguet, Democracy and Tradition (Princeton: Princeton University Press, 2004), 63—91. “tout is hadl aloe i this itiis, hih ould e eteded to lieal theoists treatment of religion historically. I will address this issue in the Conclusion. 219 Abbey, 12. 220 Rawls (1997) 2.4, 457 126

At the same time, however, Rawls insists that the principles may be applied irrespective of whether a community inheres in a public institution or a private association. He takes into account feminist criticism when he states, “It may be thought that… the principles of justice do not apply to the family and hence those principles do not secure equal justice for women and their children. This is a misconception.”221 Rawls goes on to argue that people may think that a non-comprehensive conception of liberalism gives license to powerful family members, and by extension, undemocratically elected leaders of other associations like churches, to treat their members as they see fit. He explains that even though the principles of justice do not apply

“directly to the internal life of churches,” they extend to protect the rights and liberties of church members. For the family, the argument is the same because the principles “impose internal constraints” by “specifying the basic rights of equal citizens who are the members of families….Since wives are equally citizens with their husbands, they have all the same basic rights, liberties, and other opportunities as their husbands….”222 Rawls thus applies the first principle of justice directly to members of the family.

Abbey argues that this set of statements constitutes a kind of revision of a strictly political liberalism, for in them “there is no domain or space immune from the principles of justice.”223 She notes that Rawls alternates between the language of giving priority to citizenship as the determining factor of protecting rights and the language of allowing reasonable groups self-determination as far as how they organize and treat members. As we have seen previously, this oscillation is in many ways characteristic of liberal feminist approaches to multiculturalism.

(Susan Okin, both in her responses to Rawls and in the “Multiculturalism” essay, may have been unique in her refusal to equivocate on such matters.) Significantly, in this section of “The Idea of

221 Rawls (1997) 5.2, 468. 222 Ibid, 469. 223 Abbey, 17. 127

Public Reason Revisited,” Rawls recognizes the potential harm created by the public/private boundary, and in a way attempts to transcend that boundary by insisting that women’s rights as citizens entitle them to protections regardless of social setting—whether familial, religious, or public. “The principles defining the equal basic liberties and opportunities of citizens always hold in and through all so-called domains [private or public]. The equal rights of women and the basic rights of their children as future citizens are inalienable and protect them wherever they are.”224

What might Rawls argue in terms of the propriety of state intervention into the home, or into the affairs of a minority community attempting to regulate family affairs? Or, to state a related question, what kind of comprehensive liberalism is this, and what are its potential practical effects? I think Abbey’s analysis is instructive, for she argues that Rawls is interested in preserving a kind of autonomy for women (and others) within the home that may not necessarily entail the equal division of labor or the eradication of potentially oppressive religious beliefs.

Rawls manages to concede that “a liberal conception of justice may have to allow for some traditional gendered division of labor within families—assume, say, that this division is based on religion—provided it is fully voluntary and does not result from or lead to injustice.”225 She maintains this concession is indicative of a “partly comprehensive doctrine,” and says that any feminist liberal position (or liberal position that takes seriously) must be necessarily comprehensive to some degree. While she does not elaborate on this point, one might infer that

“comprehensive” pertains to the so-called private sphere and whatever domestic life exists therein.

224 Rawls (1971) 5.3, 471. 225 Ibid. 128

To briefly put Abbey in discussion with Shachar, we might think of the ways that modern life (and the modern state) has reinforced or tacitly designated family law and family practices, especially among minority groups, as a protected area where groups determine membership, among other things. That religion has become so identified and associated with the “private” practices of family groups and related associations, is likely a consequence of .

This is not to suggest that the family is by and large a reactionary institution that will harbor patriarchal religious beliefs if allowed to go unchecked; rather, the same conditions that engendered ideas about liberty and equality in the public sphere seem to have reinforced a concept of religion as a private matter, to be manifested in the family, among other associative relationships.

Abbey does stipulate that supporting a comprehensive doctrine of gender equality does not entail state intervention into the home to enforce equal gender relations, nor does it involve a kind of “perfectionism” with regard to the exercise of autonomy. We might say that such a comprehensive doctrine involves at base a commitment to recognizing that women’s equal participation in the public sphere is in some way contingent upon their ability to exercise some autonomy in the private sphere. Ultimately, I do not think Shachar disagrees with a liberal feminist theory that advocates for the rights of women-as-individuals. She would want to discuss the implications and impact of minority group membership on individual rights, however, particularly in relation to the secular state.

At this point, I turn to feminist theory that is more sensitive to the social contexts that generate moral responses, in particular the ability to be just. As with the analysis of Rawls and

Okin, I examine what Benhabib and Walker argue about the nature of women’s political participation in relation to the family and other commitments of “partiality.” One clear difference

129 emerges: Benhabib and Walker account for how life’s contingencies condition the moral life, a point that Rawls attempted to guard against. For Walker particularly, contingency frames questions of moral responsibility and accountability in ways that should not be ignored by moral theorists. In this next section, I will identify feminist criticisms of the Rawlsian theory of justice, particularly in terms of the assumptions it makes about the individual in relation to his or her moral communities.

Feminist Reservations

Some feminist reflections on dominant trends in political and moral theory in the last thirty years have highlighted a discrepancy between impersonal models of morality and models that account for features of interpersonal relationships: responsibility, care, and solidarity. The subject of feminist critique has often been the Kantian model of morality, the Kingdom of Ends, in which the standpoint of a “generalized other” prevails. Under Rawls’s “thick” veil of ignorance, people are completely deprived of information about their social location.

Contemporary critics of political liberalism have also argued against this kind of de- contextualization and de-historicization of the moral agent generally; virtue ethics and communitarian critiques have been particularly pointed in this area.226

This feminist critique carries important implications for how we conceptualize moral agency, and specifically how we understand the formation and authority of norms governing group life. There arises a phenomenological issue: how do we describe the process by which

226 See Alasdair MacIntyre, After Virtue: A Study in Moral Theory (South Bend, IN: University of Notre Dame Press, 1984); Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, MA: Harvard University Pess, . Both of these tets, i diffeet as, asset the itatess of patiula ultual goups. While some feminist theorists have agreed with the importance of contextualizing moral theory, they frequently have disagreed with some of the more politically-conservative implications of communitarian theory. See Susan Heka, The Eodiet of the “ujet: Feiis ad the Couitaia Citiue of Liealis, Journal of Politics, vol. 54, no. 4 (November 1992): 1098—1119. 130 people take on or attribute certain moral stances as authoritative? Several feminist critics of

Kantian accounts of morality and politics argue that people do not simply appeal to an autonomous moral law as a way of responding to difficult moral questions. These critics draw attention to the way that human experience makes moral understanding a bit of a shifting target, particularly as human beings experience the world differently according to gender, race, sexual orientation, and other characteristics with social meanings and inscriptions. It is not merely that these social realities limit or circumscribe behaviors and ideas, but that an agent’s negotiation of his or her place in various social hierarchies affects the development and exercise of his/her moral capacities in morally-significant ways. What comes to be understood as authoritative is many times a result of a complex process of negotiation.

The previous section demonstrated that while Rawls exhibits Kantian tendencies in his principled approach to justice as fairness, there are aspects of Rawls’s thinking regarding the development of the moral psychology of individuals that indicate important differences. Rawls shows an interest in the family as part of the basic structure in a well-ordered society. He also attempts to connect emotional development to moral development, insofar as there are things we learn in relation to other human beings about what it means to trust and be trustworthy that have impact on our ability to imagine and deal with abstract others.

It is precisely the issue of abstraction that concerns the feminist criticisms that I will examine in the following pages. Benhabib and Walker, in different ways, question the adequacy of imagining a moral agent who is abstracted from the details of lived experience in community.

In her early work, Benhabib notes that the Enlightenment picture of the individual as rational, autonomous agent is a product of a version of modernity that was subject to criticism by Hegel and Marx. Hegel realized the impact of particular forms of social life, such as the family, on

131 moral development and attempted to explain them.227 Benhabib’s later work, epitomized in texts such as Situating the Self, takes up the question of moral agents’ capacity to negotiate questions of community and state.

Walker, in contrast, does not engage in the type of intellectual history that characterizes a good portion of Benhabib’s writing. They both share, however, a suspicion of morality as grounded in certain values of the modern state: instrumental rationality, pure autonomy, bureaucratic efficiency, and morality as best represented by a juridical (impartial) model of deliberation. Walker maintains that morality should be understood as “a socially embodied medium of mutual understanding and negotiation between people over their responsibility for things open to human care and response.”228

In Critique, Norm, and Utopia, Benhabib looks at critical appraisals of Kantian ethics, with its universalistic and formalist approach. She focuses on Hegelian and Marxist (as well as the work of later social critical theorists) critiques of Kantian conceptions of autonomy and freedom. Historically, she notes continuity between a strong emphasis on the autonomy of individual actors independent of their circumstances and the development of impersonal systems of justice. In some ways, this shift reflects the cultural transition that occurred in Europe following the Enlightenment, when an emphasis on both impersonal rationality and the capacity of individuals to adopt and act on a universal perspective prevailed. Benhabib connects this philosophical perspective with the rise of statist with an emphasis on understanding morality as a legalistic-juridical process.

227 For an interesting and provocative ead o the fail i Hegels Phenomenology, see Judith Butler, Atigoes Claim: Kinship between Life and Death, The Wellek Library Lectures (New York: Columbia University Press, 2002). 228 Margaret Urban Walker, Moral Understandings: A Feminist Study in Ethics (New York: Oxford University Press, 2007), 9. 132

Benhabib thinks that morality as a community activity cannot be equated with law practiced and enforced by the state, and turns to Hegel’s discussions of the ethical life

(Sittlichkeit) to offer an alternative. Hegel understood that morality extended beyond the privileged domain of juridical and quasi-juridical relations and extended to the areas of lived relations and life practiced in the context of institutions.229 In Hegel’s work, areas of life aside from the polis, including the home and various associations, constitute important places for the development of an ethical way of life. Benhabib identifies an important legacy of Hegelian critique: to show that depiction of an agent removed from social circumstances, and thus free to make autonomous moral decisions, is a less-than-adequate construction. Benhabib sees harm in privileging a juridical perspective alone, while a vision of a community of needs and solidarity is ignored and rendered irrelevant.230

Benhabib is not opposed to Kantian ideas about autonomy and freedom, per se, and she points out that Hegel modified such conceptions to fit his projects. Without going into depth regarding Kantian and Hegelian ways of construing moral action and freedom, we can say that this discussion points to questions about the efficacy, and even desirability, of the strictly

Kantian way of conceiving public life and public rules. Benhabib affirms the importance of individual dignity for which Kant argues, however. In several respects, her later work, which follows closely Habermas’s communicative ethic, retains significant ties to Kantian ideas about autonomy and . In Situating the Self, she makes a case for communicative or discourse ethics, which draws upon modern theories of autonomy and of the social contract. She maintains that it is concerned with a procedure of argumentative practice instead of a “silent”

229 Benhabib (1986), 78. 230 Iid, . Behais ok has long focused on the distinctiveness of the other person in political ethical imagination, and constitutes one of her central points of disagreement with the Rawlsian conception of the original position. 133 thought experiment.231 “Instead of asking what I as a single rational moral agent can intend or will to be a universal maxim for all without contradiction, the communicative ethicist asks: what principles of action can we all recognize or agree to as being valid if we engage in practical discourse or a mutual search for justification?”232 She stresses a norm of reciprocity as being basic to communicative ethics, and argues that it is not that different from Rawlsian reflective equilibrium. Similar to Rawls’s justice as fairness, a communicative ethic constrains concepts of the good in the interest of procedural justice. A communicative ethic departs, however, from the juridical model of public discourse, which defines liberation in accord with rights and liberties.233

Like other feminist critics, Benhabib identifies the weakness of cognitive and procedural theories’ reductionist treatment of the emotional basis of moral judgment. She argues, “We are not born rational but we acquire rationality through contingent processes of socialization and identity formation.”234 Moral theory is limited, she maintains, by both the macro-institutions of a polity (politics, administration, market) and one’s culture (interpretations of the good life, etc.).

The modern reflective self does not identify strictly with either side, but exercises autonomy in relation to both.

What are the implications of these arguments for critiques of liberal views of gender and the family? Benhabib recognizes the modern liberal bifurcation of spheres into a public realm, which defines the activity of bourgeoisie males, and a domestic sphere that defines the activity of

“others,” including women. She argues that, in historically, this bifurcation can be understood as existing between justice and the good life. She thinks that Rawls’s theory of

231 Seyla Benhabib, Situating the Self: Gender, Community, and Postmodernism in Contemporary Ethics (New York: Routledge, 1992), 24. 232 Ibid, 28. 233 Ibid, 113. 234 Ibid, 50. 134 justice does not have the potential to fully eradicate biases against women and non-elite males, biases that also characterize earlier contract theories. Benhabib argues for a moral and political theory that accounts for the perspective of the “concrete other,” which means being able to view each person as one with a history, identity, and affective-emotional constitution.235 People interact with one another often outside of the public sphere, and the norms in effect may be ones of care, friendship, and love instead of strictly rights and duties. The original position cannot, in

Benhabib’s view, adequately account for the types of exchange that occur at this level. While

Okin, for example, considers that the original position potentially helps to advance the social status of women, Benhabib remains skeptical. “Selves who do not have knowledge of their distinct interests can also not have adequate information about the interests of relative others.”236

The OP and its device of the veil of ignorance represent an attempt at reviving a type of

“noumenal agency” in which selves are no longer individuated. Ultimately, Benhabib thinks the adoption of discursive ethics effectively permits greater participation and greater justice among genders, classes, and ethnic and religious groups as it encourages a semi-agonistic space where people can learn about one another through engagement of difference.

We can summarize Benhabib’s critique of Rawls, particularly with regard to his treatment of women and the family, as follows. Rawls inherits a legacy of gender dualism from social contract theory, and he is not always as critical of it as he should be. Despite the fact that

Rawls mentions the affective ties an individual develops in familial and other associations, his conception of the just agent remains largely removed from such ties and the kind of moral understanding that they engender between individuals and within communities. While Rawls argues for a moral universalism that recognizes all persons, such universalism tends to be gender

235 Benhabib (1992), 159. 236 Ibid, 166. For Benhabib, a idiiduals iteest sees to hae less of a pejoatie eaig that ‘als seems to ascribe to it; for the former, the term appears to encompass legitimate particular moral claims. 135 blind because it remains ignorant of the concrete experiences of women. Moreover, a proper conception of autonomy should not consist in an imagined “freedom from” knowledge of social constraints, histories, and identities (“noumenal freedom”), but rather in engagement with, and reflection on, such facts. As briefly discussed in the previous chapter, Benhabib is interested in the ways that communities shape persons morally, and thus to know something about the particularities of an individual and her community, ideally enables greater understanding and greater communication between persons.

Margaret Urban Walker is also wary of a strictly Kantian/ Enlightenment method of moral theorizing; she criticizes what she calls the “theoretical-juridical” model of morality, which is based on conceptions of right and contract. This model is modular insofar as it assumes the portability of a moral system of guidance from one context to the next. Moreover, it defines morality along the lines of “career-selves,” which values autonomy at the expense of all other moral traits. This preoccupation reflects dominant trends in philosophy in which each is a

“superintendent” of himself, planning his [sic] life and monitoring it so that it follows accordingly.237

Walker takes interest in the way that persons develop shared moral understandings that define responsibilities and prerogatives in common. She proposes an expressive-collaborative model of morality as an alternative to the theoretical-juridical model. On this template, people learn to “express their understandings through practices of responsibility in which they assign, accept, or deflect responsibilities for different things.”238 There is no Archimedean point at which to stand and judge moral arguments. Since not everyone is comparably situated in making

237 Walker (2007) 157. 238 Ibid, 10. 136 moral judgments, the process of engaging in moral deliberation consists of gathering empirical data and working to describe situations and analyze them accurately.

Moral understanding is not relativistic insofar as it involves critical evaluation and judgment about whether some ways of living are better than others. Walker is careful to emphasize that we should abandon the hope of trying to determine whether one form of life is good for all persons everywhere, but this is not equivalent to negating the normative task of ethics. Walker argues, “I see the task of fully normative reflection as intrinsically comparative; in other words, when we ask ourselves what can be said for some way of life, we are asking whether it is better or worse than some other way we know or imagine.”239 Moreover, making ethical arguments involves knowing “which features of our lives we are fully prepared to stand on, and when there are features of others' ways of living we can justify not standing for.”240

By locating morality in practices of responsibility, Walker preserves the immediacy of ethical interaction. How do I judge another in her failure or fulfillment of her duties toward me, or toward others? In several respects, this emphasis on interpersonal responsibility reflects

Walker’s indebtedness to feminist criticism. Like Benhabib, she rejects the idea that morality is noumenal in quality, but involves instead “concrete others.” Moreover, Walker argues that feminist theory has demonstrated the way that philosophers have distorted the ethical subject by assuming that one particular socially-located subject could “stand in” for all others:

Feminist critiques show how moral philosophers have in fact represented, in abstract and idealized theoretical forms, aspects of the actual positions and relations of some people in a certain kind of social order. This social order is the kind where the availability of these positions depends on gender, age, economic status, race, and other factors that distribute powers and forms of recognition differentially and hierarchically.241

239 Walker (2007), 13. 240 Ibid, 14. 241 Ibid, 23. 137

This point raises questions about who has the proper authority to represent the moral life. It also presents a rather straightforward critique of the original position, one that is not all that different from Okin’s criticism of Rawls’s presumption of the male head of household as the ideal moral agent. For Walker, misrepresentation matters insofar as it perpetuates the misrecognition of the disparate effects of social power.

A collaborative-expressive approach to ethics serves to guide action and inform us of the persons to whom and institutions to which we are accountable. Morality, on this model, creates common expectations and “teaches us to view ourselves as beings capable of making choices.”242

It requires that persons analyze situations and relationships in order to achieve greater understanding of the commitments involved, as well as the way that differences in social power affect choices.

Integrity also plays a crucial role in Walker’s thinking about morality. She defines integrity as kind of “reliable accountability,” in which we strive to maintain or reestablish our reliability in matters involving commitments and goods.243 Moral justification is profoundly interpersonal, not a method of applying rules mechanically. The central question at stake in the matter of integrity is: how do we respond to our lot and its demands? The main difference between autonomy and integrity lies in the fact that one’s integrity is not determined by oppression; rather it exists in spite of external hardship and corresponds to what a few contemporary scholars have described as virtue.244

Walker’s focus on the interpersonal aspects of morality shifts attention to the conditions under which people find it reasonable to act in certain ways. She and Seyla Benhabib find

242 Ibid, 70. 243 Ibid, 113. 244 For example, see John Bowlin, Contigency and Fotue i Auias Ethi (New York: Cambridge University Press, 1999); Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (New York: Oxford University Press, 2005). 138 agreement in their construal of morality as something other than formalist theoretical-juridical models of morality (which are reflective of the arguments of Rawls and Okin, among others).

Accordingly, moral practices are such that they may ultimately lend legitimation to certain legal forms and principles but are not directly equivalent to, or entirely contained, by them.

Analysis and Application

In this section, I will first evaluate the merits of the expressive-collaborative model vis-à- vis the topic of domestic violence, showing that its conception of moral life as consisting of responsibility and ultimately trust serves to correct tendencies toward abstraction in liberal theorizing. I contend that an expressive-collaborative model of morality sheds light on the study of Muslim ethics and law in relation to domestic violence in a way that the so-called theoretical- juridical model cannot. First, it requires gathering information about the shared contexts and expectations within not only a discrete home, but within Muslim discourse on marriage and sexual ethics. Walker’s insistence that we examine the contexts of role fulfillment and expectation makes much sense in relation to an analysis of Muslim marriage ethics. As mentioned numerous times in the preceding pages, modern Muslim exegetical and legal interpretations that deal with domestic violence must contend with the classical division of gendered rights and duties in marriage. The question over whether these classically-defined rights and duties are binding, and what they entail by way of content, constitutes a major point of debate between reformist and traditionalist interpreters.

In Chapter Three, I showed that one fairly consistent expectation of gendered rights and duties among contemporary Muslims is a concept of gender complementarity, in which each spouse fulfills his/her divinely ordained gendered role through certain actions. Both conservative

139

(online) jurists and their more liberal anti-domestic-violence counterparts enjoin individuals to fulfill their God-given responsibility to their spouses according to such rights and duties, although their arguments differ about what specific duties entail. For the former group, it cements a power differential and secures the man’s right to discipline his wife in a way that adheres to the classical tradition (and a particular interpretation of it). For the latter group, the emphasis on fulfilling gendered duties and responsibilities is often used to show how a husband who physically or verbally abuses his wife falls short of his God-given duties to maintain his wife. Many Muslims in the U.S. share an expectation that spouses should fulfill specific moral roles and correspondingly cultivate specific gendered virtues based on gender.

Second, the emphasis on the interpersonal as an important context of morality and moral development goes beyond what Rawls presents in A Theory of Justice, and manages to be critical of abuses of power at the same time. In other words, our experiences, whether they occur in public or private transactions, can provide an important template for learning and eventually social criticism. Walker, without being explicit about the role of the family in moral discourse and development, argues that practices of accountability in immediate interpersonal contexts do not preclude, and eventually allow for, critical distance and evaluation of broader social trends.

Thus, it would be difficult to accuse her of endorsing a gender status quo in which males are breadwinners and females are housekeepers:

A system of complementary breadwinner/housekeeper gender roles…may support a shared understanding between spouses of their different responsibilities in family life, under a presumption of reciprocity and respect. But learning about correlations among power, exit options, and earned income in marriage might reveal to one or both that this arrangement is something other than it seems.245

245 Walker (2007), 71-72 . 140

This example recalls the idea of asymmetrical vulnerability discussed earlier, but draws attention to the way in which such inequality is socially normalized under the guise of reciprocity and respect. What appears at first as a simple argument for gender complementarity—whether outlined in classical Islamic jurisprudence, or by theories, or any other authoritative teaching—may involve systemic injustice that is reinforced by differentials in social power. This provides a salient example of how gender justice may be pursued through a type of immanent critique, and resonates with some of the criticisms articulated by Muslim reformers regarding domestic violence. The use of an idea of gender complementarity to justify unequal treatment of women, such as insisting that in their domestic role women have limited mobility/travel outside the home, will appear to be what it is: abusive.

Walker’s argument about the necessity of locating the interpersonal contexts of morality within the larger framework of moral discourse also coheres with some domestic violence survivor stories in the American Muslim population. In one representative account, a woman experienced abuse not only at the hands of her violent husband, but also abuse in the form of lack of support from her family and from the Muslim community of which she was a part.

Through her struggle to obtain a divorce, she was able to recognize some of the unequal social pressures placed on young Muslim women by their parents and by the wider community. In connecting the problem of failed communal responsibility in her own situation to the plight of other Muslim women who experience domestic violence, she reminds elders in the community of their responsibility to inform young women of their marriage rights, particularly in drawing up equitable marriage .246

246 Mejae Hope, Boke Wigs o Moe, i Change from Within: Diverse Perspectives on Domestic Violence in the Muslim Community, ed. Maha B. Alkhateeb and Salma Elkadi Abugideiri (Peaceful Families Project, 2007). On the use of aiage otats as a a to pesee a ifes ights i otepoa Islamic marriage, see The Muslim Marriage Contract: Case Studies in Islamic Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge, 141

Third, while trust as an important quality of moral life is acknowledged by Rawls,

Walker calls attention to the way that trust is rather foundational to moral practices. Rawls treats mutual trust and friendship instrumentally: they allow a person to eventually adopt and employ the abstract principles of justice as fairness. While Rawls would have conceded that friendship is a good on its own terms, in this argument he is explicitly concerned with how love and trust expressed in the context of partiality can translate into an attitude of impartiality that better lends itself to justice. Benhabib’s criticism of Rawls on this point is particularly relevant, because it appears that for Rawls true justice must always have a disinterested, impersonal character.

In some contexts, like Supreme Court hearings and at certain institutional levels impartiality is necessary. But when we talk about everyday practices of individuals who interact in public and private contexts, an ideal of impartiality divorced from interactions based on mutual trust or distrust may not be coherent. When we consider the family is a moral association or group characterized by interpersonal relationships, it makes sense to talk about role- fulfillment expectations and patterns of trust based on experience. It seems that a more accurate reading of moral decision-making may be obtained by attending to the specific contexts and levels of trust and integrity that characterize relationships among, and between, particular communities. Moral theorists might do well to examine the specific forms of trust that characterize social interactions in the communities they study.

It is not always entirely clear what Walker means by “trust,” however. At some points, trust refers to what we can count on others to do by way of fulfilling their responsibilities, and this undergirds a functional social order. Socially, we must trust that moral expectations can be communicated and understood, or in short, shared:

MA: Harvard University Press, 2008), and Asifa Quraishi and Najeeba Syeed-Mille, Islai Fail La i Aeia Musli Hads, in Woes ‘ights ad Islai Fail La: Pespeties o ‘efo, ed. Lynn Welchman (New York: Zed Books, 2004), 186. 142

At the core of any moral social order there must be trust that certain basic understandings are common and that the common understandings are the operative ones shaping shared life. There must also be confidence‐ that these understandings yield a way of life not only in fact lived by some people but worthy of their allegiance, effort, restraint, or sacrifice. Without this trust and confidence, there really are just ways some people can make others behave.247

In this sense, trust constitutes a foundational social good. It entails being prepared to know why we believe certain things to be true about the moral life, and being prepared to stand up for them and make sacrifices for them, when necessary.

Walker does not provide specific criteria for determining whether persons are trustworthy, or what types of interactions are indicative or deserving of trust. Several times she mentions that practices of manipulation, deceit, and violence tend to violate the integrity of the social fabric; one might extrapolate that these practices erode trust. Walker seems to suggest that moral theory can assume an important role in exposing the places where trust is lacking in social life: “It is precisely the job of moral criticism to examine human social arrangements, to find their moral floors, and to discover how so often they have made out of the basic human goods of trust and responsibility something sad, paradoxical, twisted, or mutilated.”248 This statement implies that often, distortion of trust occurs in relations of unequal power, in which the more powerful abuse their power and take advantage of weaker, more socially-vulnerable persons.

Trust and justice bear some relation to one another; perhaps it is fair to say that injustice destroys trust, and that a minimal amount of trust is necessary for people to be willing to fulfill their obligations of just responsibility toward one another. Regarding the latter point, Annette Baier

247 Walker (2007), 263. 248 Ibid, 245. 143 observes that “a climate of trust must first exist before we can expect the virtues that sustain it.”249

Despite its lack of clear criteria, Walker’s argument about trust carries important implications for the criticism of practices of domestic abuse, whether within a religious or a secular community. It involves moral critique of the standards of the relationship between a couple (are persons accountable to one another in just ways?) and then extends outward to the extended family and community (does the community engage in action that supports justice in marriage? Is the advice of community leaders trustworthy?). Although trust is built on highly interpersonal or “partial” experiences, it involves judgments that involve critical reflection and the consultation of “impartial” sources and authorities, which are not impervious to criticism. In fact, practices that engender trust can be highly critical activities. When Sharifa Al-Khateeb argued for Muslims leaders, particularly imams, to be accountable for protecting their community members, she was arguing for a type of increased social trust along the lines that

Walker describes. Clearly, such trust is not a “blind” trust in the goodwill of others, but instead a highly critical trust founded on experience and the awareness of abuse and evil in the world. Al-

Khateeb realized that trust has to be present for cooperation and for positive social change.

It would be a mistake to read Benhabib’s and Walker’s feminist criticisms of Rawls as merely endorsing a model of partial morality over an impartial one. Rather, I think their arguments encourage us to envision the moral life as fundamentally characterized by a web of expectations and responsibilities characterized by both partial aspects and impartial aspects. It is not a matter of “either/or.” Perhaps the difference is best stated this way: the telos of Rawlsian moral theorizing is abstraction, or the application of pure principles to a situation, in order to

249 Annette Baier, Reflections on How We Live (New York: Oxford University Press, 2010), 179.

144 ensure justice. Okin adopts this position as a way to guarantee persons are treated equally, and in a way she goes beyond Rawls on insisting on the applicability of such abstract principles to the family. On Walker’s and Benhabib’s respective accounts, this telos is unrealistic and ignores important features of the moral life as comprised by experiences with concrete others with particular needs. The telos of their moral theorizing, in contrast, involves an increased understanding of one’s capabilities as a moral agent as well as the moral contexts in which one operates. As I read Walker, justice is to some degree contingent upon a measurable level of social trust, at the same time as it reinforces an environment of trust.

Russell Hardin points out that that for many liberal theorists and proponents of democracy distrust of those in power has functioned as a healthy practice.250 There are two aspects to this argument. Hardin argues that some distrust of institutions is important for democracy: “A certain amount of distrust may be useful to a society or government. Certainly, large, modern democracies work better if we can be sure that there are professional distrusters or cynics or skeptics who act as watchdogs, raise alarms, or provide contrary information.”251 At the same time, however, Hardin acknowledges the role that institutions play in mediating trust between persons: , courts, forces, and other institutional bodies can increase social trust (or conversely, decrease it when institutional power is abused). Thus one can distinguish between healthy skepticism and a kind of endemic distrust that ends up fracturing social relationships.

Another way to think about the role of distrust in liberal theory is this way: social contract theory is based on the idea that people have natural reasons to distrust one another, therefore creating a need to contract an agreement about how to live together according to certain

250 Russell Hardin, Trust and Trustworthiness (New York: Russell Sage Foundation, 2002). 251 Ibid, 107. 145 rules. Perhaps another way to frame the utility of the original position is to say that it tries to minimize the potential that social and economic inequality will generate distrust among persons.

In this respect, Rawls wants to engender social trust, but he thinks that it is necessary for persons to be deprived of concrete knowledge about their social location in order to think justly.

While Rawls may be misguided in his teleology of abstraction, his (however under- developed) ideas about the importance of mutual trust and friendship in moral development allow for an important continuity with the feminist theorists discussed here, not least because he wanted people to adopt principles of justice for the “right” reasons. Ruth Abbey notes, “One of

Rawls’s central aspirations from the first to the last of his formulations of justice as fairness was that members of the well-ordered society experience its principles of justice as their own, freely and fully, rather than receiving them as alien impositions.”252 This aspiration indicates that

Rawls recognized the importance and diversity of life experiences among people living in a well- ordered society, and the need for moral principles to connect to such experiences.

Conclusion

Questions about the utility and/or applicability of liberal theory for the public and private lives of women, especially with regard to religious practices, seem to be more pertinent than ever. One of the central tenets of Rawlsian liberalism is its insistence on women’s integrity and equality with men, which entails the ability to exercise some autonomy within the private sphere.

For feminist interpreters of Rawls, this tenet will inevitably conflict with some groups’ claims to be able to practice religious freedom; Rawlsian feminists do disagree, however, about whether the best way to resolve such conflict entails abandonment of all religious tradition or a more nuanced engagement with traditional texts and teachings.

252 Ruth Abbey, The Return of Feminist Liberalism (Ithaca, NY: McGill-Quees Uiesit, , 173. 146

In the early months of 2012, the Obama administration’s requirement for religious employers to cover the cost of their employees’ birth control raised the question of religious freedoms for Roman Catholics. Some bishops in the Roman Catholic Church, notably the outspoken Cardinal Timothy Dolan, claimed that such policies violated their religious freedom and showed marked intolerance to Catholic teachings on birth control, such as Humanae Vitae.

While it is clear that the ban on birth control has long been criticized by many American

Catholics who engage in their own forms of immanent critique contesting such an interpretation of natural law, for example, this latest case raised the issue of whether and how this ban could be imposed upon the general American public being served by Catholic employers and health care providers. While the long-term outcome and effects of universal health care legislation are difficult to predict, women’s reproductive health and choice will likely continue to be a target area between the secular state and religious groups. Contests over the control of women’s sexuality are directly related to questions about membership in a particular community and who is allowed to regulate such membership. Moreover, in the recent case of the Catholic health providers and birth control, we see that an effort to enforce a particular view sexual propriety not only among members of the group, but among others as well.

One key to making Rawlsian liberalism useful in a theory of gender justice is to preserve the tension that Rawls’s writing embodies between tolerating the teaching of reasonable comprehensive doctrines on women and the family and advocating for women’s equal rights as citizens.253 (I would submit that for Rawls, reasonable comprehensive doctrines do not permit violence within the family; they may, however, allow for gender hierarchy.) Perhaps Rawls saw merit in restricting the state’s power to define and order the conduct of families on matters of

253 Korsgaard (2008) explains that for Rawls, the two principles of justice inform the way we view the pursuit of good: eah idiidual eeds to e fee to pusue his o he o oeptio of the good as effetiel as possile hile leaig eah ee as fee as he o she as efoe, . 147 religious importance, but also in asserting that state’s role in curtailing the unequal treatment of women carried out in the guise of religious freedom.

Feminist liberalism, even its more comprehensive doctrinal varieties, can and should disassociate itself from the classical liberal meta-narrative of rescuing women from their

“backward” cultures or religious commitments. Thinkers like Martha Nussbaum have been articulate in this respect;254 Susan Okin, unfortunately, was not as careful to avoid such dualisms in her arguments. Ruth Abbey’s argument that feminist liberalism is a kind of comprehensive doctrine does not mean that religious beliefs and practices are de facto disrespected or discounted on this view; it means, rather, that in democratic societies there exist basic considerations about the human dignity of women that cannot be overridden by appeal to the authority of religious or any other traditions. This kind of feminist argument may serve as a justification for allowing universal access to forms of birth control, for example, or for providing state-funded resources to prevent and eradicate domestic violence. Furthermore, this view affirms that the state must permit individual women discretion when making decisions that affect their health and welfare and that of their families, and this ultimately overrides offending authorities in a given religious tradition. There is a distinction to be made between curtailing religious liberties/ violating the religious freedom of a group and provoking offense, especially among members of the hierarchy whose health and welfare would remain relatively unaffected by the particular policy in question.

(We return to Margaret Walker’s emphasis on taking into account social power differentials when conducting moral analysis.)

Nevertheless, appeals to a generic conception of “women’s rights” will not always be morally persuasive to all persons in all contexts; and divorced from concrete interpersonal relationships and expectations, such a construct may be seen as an unfitting label or an

254 Martha C. Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1999). 148 imposition. From the standpoint of terminology, people may associate the idea of rights with the state, and therefore as something not original to the normative ethical traditions of their particular communities. As Salma Abugideiri of the Peaceful Families Project explained, she and many other Muslim women have difficulty with the identification of their advocacy work as

“feminist” in the sense of “promoting the rights of women”; however, she acknowledged the

Peaceful Families goal of justice within families certainly overlaps significantly with feminist theory and anti-domestic violence advocacy.255 She explained that the term “feminist” did not accurately reflect her experiences within her community, to whom “feminism” signaled something alien and perhaps dangerous. Abugideiri’s rejection of “feminist” as a descriptor of her work and convictions reveals the larger question of intersectionality, or how individual women understand themselves in light of their experiences in particular communities.

In light of the issue of intersectionality, Ruth Abbey argues that feminist liberalism has difficulty at times reconciling its view of women’s rights with “women’s diverse self- interpretations.” Susan Okin and Martha Nussbaum, among others, have each articulated a set of egalitarian standards that transcend the particular experiences of women. Nussbaum develops and outlines a capabilities approach, while Okin argues for a comprehensive doctrine of liberalism that eradicates inequality in the public and private spheres. Abbey observes that both scholars’ models of equality respond to a fundamental concern that women in oppressive conditions will develop “adaptive preferences” that render them vulnerable to exploitation. 256

255 Salma Elkadi Abugideiri, personal correspondence, 3/5/2012. 256 In some respects, scholars like Saba Mahmood respond to this problem in feminist liberal theory when she argues that liberal assumptions about the importance of freedom and agency are misguided. In her ethnographic aout of Islai eialis i Egpt, she eplais that she ats he ateial to speak ak to the oatie liberal assumptions about human nature against which such a movement is held accountable—such as the belief that all human beings have an innate desire for freedom, that we all somehow seek to assert our autonomy when allowed to do so, that human agency primarily consists of acts that challenge social norms and not those that 149

They express concern that too often women themselves end up accepting and reinforcing the circumstances of their own oppression. Abbey explains the fear is that “women everywhere are vulnerable to adaptive preferences because their desires have not always been formed in conditions of justice and equality.”257 Therefore, many liberal feminists feel a need to articulate minimum standards of justice and equality that would do away with or minimize harmful adaptive preferences.

As discussed previously in this chapter, imposing a set of moral standards is potentially destructive when abstract ideas and persons become a substitute for morality as a kind of lived dialogic experience. In a viable theory of gender justice, both the abstract and the experiential

(impartial and partial) are needed; the danger consists in the exclusion of one for the sake of the other. Recall that Abbey argues that Rawlsian feminists ought to take more seriously Rawls’s interest in how persons freely and fully adopt the principles of justice as fairness as their own.

Rawls insists that political liberalism draws from shared understandings in a liberal democracy, and we may understand these as grounded in various types of experience.

Taking Margaret Walker’s and Seyla Benhabib’s arguments into account, liberal feminists can more adequately account for the diversity of experiences that women have in their membership in families and associations, as well as being participants in civic life. We can then begin to think of the ways in which practices of immanent critique, which call for greater responsibility among religious leaders to the health and welfare of women, support the principles of justice as fairness. This model conceives of morality as consisting of a network of partial and impartial relationships, instead of a unidirectional process by which moral partiality eventually gives way to the goal of moral impartiality. Thinking in more concretely political terms, the uphold the, ad so o. Mahood, The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton Uiesit Pess, . I uestio soe of Mahoods assuptios as ell, ut oe o that late. 257 Abbey (2011), 177. 150 decision-making processes of any religious minority community in a pluralist secular state will be influenced by both its internal debate and also by what state policies are in place. Constant negotiation characterizes this interaction.

Moreover, focusing on the ways in which people understand themselves as answerable to one another in the fulfillment of their moral and civic responsibilities should constitute a central component of moral analysis. In the case of Muslim communities dealing with the problem of domestic violence, the distrust of secular authorities and law enforcement can mean continued harm or even the loss of life for women. Several parties are responsible for the failure to foster trust, though to varying degrees. Abugideiri explained that Muslims’ trust of law enforcement in the D.C. area is highly variable, due to prejudice against Muslims and also against immigrants generally. While officers are not required to report domestic abuse violations to Homeland

Security, many of them do, and this has resulted in the deportation of one or more spouses, a situation which can wreak havoc among families already made vulnerable by violence within the home.258 Also, many Muslims are encouraged by their imams not to report incidents to the police because they are told that to take such action is to “rat out” one’s brothers. Each of these factors indicates the need for greater trust between police and the Muslim community, a task that is one of the Peaceful Families Project’s goals through its community and cultural awareness programs.

Without very basic forms of trust between Muslim community members and state law enforcement, justice for women and for families will remain elusive. At the very least, these examples demonstrate that justice requires the combined effort of persons at several levels of society, and collaboration requires basic trust in the capacity of persons to fulfill their responsibilities toward themselves and others. Whether it is imams instructing their community

258 Salma Elkadi Abugideiri, personal correspondence, 3/5/2012. 151 members how to treat their spouses with respect (without violence), or citizens holding law enforcement accountable for their poor treatment of Muslim minorities, such actions create an environment more conducive to pursuing gender justice.

As I have demonstrated, Rawls and his feminist interlocutors continue to inform conversations about gender justice in the liberal state, and can do so productively in the context of discourse about religion, multiculturalism, and gender violence. Domestic violence presents a practical problem that demands a kind of unequivocal respect for the dignity of women in a principled way that Rawlsian liberalism can support. In order to be useful in this context, however, a Rawlsian conception of justice as fairness should emphasize moral development as an ongoing, dialogic process rooted in experience and which does not culminate in a state of impartial nirvana. Impartiality will likely not guarantee the type of political stability that perhaps

Rawls would like it to. By extension, the strict application of the principles of justice as fairness to the family (as articulated by Okin) cannot achieve a stable system of gender equality. Instead, it is better to emphasize the development of trust as a social resource that can help to ensure just practices, keeping in mind Walker’s argument that without trust, practices lose their moral authority, “whatever other powers continue to hold them in place.”259

259 Walker (2003), 109. 152

CONCLUSION

What is gender justice in a “post-secular” age? By examining contemporary Islamic discourse on gender and the family, as well as feminist liberal discourse on these topics, I have highlighted and tried to elaborate productive ways to think about justice in and across traditions.

In one respect, we may conceive of gender justice in the context of domestic violence in relatively simple terms that are broadly agreed upon by feminists and Muslim anti-domestic violence advocates. Legally, gender justice entails protecting women (as a population more prone to experiencing violence within the so-called domestic sphere) through laws that prohibit abuse and punish offenders. State and community leaders have a responsibility to extend community resources to aid victims and their families and implement programs that encourage the prevention of domestic violence.

Yet this dissertation has noted substantial tensions among and within contemporary liberal political and Islamic traditions in terms of how to properly conceptualize the relationship between religion, morality, and law.260 In some ways, we may attribute a certain amount of confusion to the sheer number of changes and transitions in the modern period, as well as the encounters and coexistence of different systems of law (legal pluralism) and morality. I have attempted to demonstrate that debates about gender and the family that are seemingly internal to ethical traditions (e.g., debate as to whether Qur’an 4:34 permits the beating of wives) are

260 For a more formalist treatment of comparative religious ethics regarding these topics, see David Little and Sumner B. Twiss, Comparative Religious Ethics (San Francisco: Harper and Row, 1978). The book employs the terms la, oalit, ad eligio to desie alue-spheres that make practical justification intelligible. While such a designation is a modern Weberian one, the questions of how these three categories a) should be defined, and b) relate to one another remain central ones for discussions of legal and moral pluralism. 153 situated in relation to broader narratives about state power and secularism, as well as the contested place of religion in public life.

The juxtaposition of secularism and religion has been a powerful explanatory and normative concept in Western liberal political thought in the last two hundred years. Therefore it warrants our consideration. I will discuss variants of a critique of secularism as a mythological construction of the powerful liberal state, and then go on to discuss problems with this critique.

Namely, while this critique correctly highlights the connection of ideological secularism with the marginalization of particular religious “others,” it reduces liberalism to a mythology, thereby disregarding the positive moral and legal achievements of liberal theory and practice.

While there are different narratives that attempt to explain the relationship between secularism and political liberalism, one of the more popular in the contemporary study of anthropology and religion is suspicious of secularism as a tool for the modern liberal state to exert control over its subjects. Talal Asad is one of the most outspoken critics of secularism as an ideological construction in the service of the modern state. Asad argues that secularism arose in the context of modern Euro-America and has been employed by the capitalist hegemonic modern state.261 In a direct challenge to the liberal political narrative that associates secularism with the rise of tolerance and the association of religious conviction with private preference,

Asad posits, “A secular state does not guarantee toleration; it puts into place different structures of ambition and fear. The law never seeks to eliminate violence since its object is always to regulate violence.”262 Asad criticizes the idea that the worst type of violence is religious violence

(in particular, Islamic terrorist violence) and that correspondingly, forms of religious expression that criticize the state’s personality or threaten the peace should be circumscribed in public

261 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003). 262 Asad (2003), 8. 154 discourse. Modernity is a project with the particular goal of institutionalizing secularism, among other ideologies; modern states aim to mediate the identities of their subjects through practices of discipline. Asad reconstructs a genealogy of secularism in order to demonstrate the ways that the modern state has created a façade of secularity and rationality to cover its (true) interest in monopolizing violence.

In particular, Asad attacks liberalism as the political ideology responsible for great violence and damage done in the name of concepts like “human rights.” He charges that in ostensibly protecting freedom of expression, liberty, and individual conscience, liberalism claims

“the right to exercise power, through the threat and use of violence, when it redeems the world and punishes the recalcitrant.”263 Asad questions the secular mythology of liberalism with its promises of emancipation and liberation, especially those that claim to regard suffering as accidental.

As this dissertation has shown, law has served as one medium for the liberal state to differentiate the secular from the religious, and to enforce its power over pre-modern religious practices. Winifred Fallers Sullivan observes that from the perspective of the modern state, where law and religion are divided into separate spheres, religious law is understood as a pre- modern conception and secular law is its modern replacement.264 The codification of sharia in modern states, modeled on European law, is one example of the secularization process and the process of imperial colonization. Being restricted to family matters, the sharia was fundamentally transformed; Asad argues that it was “rendered into a subdivision of legal norms that are authorized and maintained by the centralizing state.”265 He notes that the family thus becomes a legal category for regulation by the state, “an object of administrative intervention” and at the

263 Asad (2003), 60. 264 Sullivan, 320. 265 Asad (2003), 227. 155 same time religion is “allowed to make a public appearance” in the form of personal status law.266 Liberal secular life requires that religious law is circumscribed and therefore changed; religion becomes linked with the private endeavor of ethics.

Suffice it to say that Asad challenges a simplistic view of the modern liberal state as redeeming the world from religious violence through regulation and limitation of religious voices and practices. Asad’s sharp criticism of liberalism is affirmed in a different way by historian of

Islamic law Wael Hallaq, who asserts that religion and secularism represent an axis on which modern life hinges. In Hallaq’s historical account of the declining authority of sharia, the boundary between secularism and religion functions as a moral and ideological one. Hallaq argues, “The marginalization of religion and the concomitant triumph of secularism in the West produced a form of rationalism that has played a powerful role in the colonialist project….Humanism was little more than a euphemism for man’s dominance over the world, including the natural one.”267 This statement employs a popular meta-narrative of the Western state’s banning of religion from public life, though for Hallaq it has roots both in Islamic ideas about God’s sovereignty and Marxist critique. Importantly, Hallaq’s argument reflects a deep sense of loss and outrage at unjust structures of colonial and Western capitalist exploitation that have uprooted traditional Islamic ways of life. Perhaps this is why he treats the categories of

“secular” and “religious” as if they are self-explanatory, with the former category representing the eventual downfall of humankind. As much as I resist Hallaq’s over-simple designation of these terms and his narrative of decline, I think it is necessary to acknowledge that the recent ongoing history of Western political and economic dominance in parts of the Muslim world has

266 Asad (2003), 230--231. 267 Hallaq (2009), 503. 156 encouraged a strongly negative perception of the relationship between the legal and moral systems of “the secular West” and “Islam.”

In his argument that Western secular society irreparably severed the (religious/Islamic) relationship between law and morality, Hallaq seems to follow Alasdair MacIntyre’s argument in

After Virtue that modern persons are deprived of a shared conception of the human good, which once stood to justify moral standards. Hallaq’s privileging of pre-modern sharia in its diffuse forms seems at one level to conjure MacIntyre’s argument about ancient Greece. MacIntyre refers to the heroic culture of ancient Greece in order to demonstrate that morality is always tied to the socially-local, and further that there is no way to possess the virtues except as a part of a tradition in which we inherit them. This example serves as a counter-example to the vacuous morality of the liberal state, which is founded upon utilitarian conceptions of desire and instrumental rationality. It is MacIntyre’s contention that ultimately, such conceptions reveal the lack of a common moral system: “There is a poverty of shared morality in liberal, pluralist societies.”268 Thus while Hallaq’s explicit aim in Sharia is historical, and while he is not the sophisticated moral philosopher that MacIntyre is, his yearning for a time when tradition was

“whole” and unchallenged by the demands of modern social and economic life reveals a nostalgia for, and idealization of, the past.

These arguments can be categorized broadly as tradition-centered critiques of liberalism, which rely on a unified conception of liberal moral and political theory as an ideological engine for the hegemonic secular liberal state. In MacIntyre’s narrative, liberal moral theory is overly concerned with upholding the desires of the individual above all else, including the community.

Legally, this liberal value is translated into laws and other practices that promote individual freedom but at the cost of traditional community values. When government takes a stance of

268 MacIntyre, 226. 157 neutrality in determining what the good life entails (e.g. Rawls’s position), it fails to act as a moral educator. For MacIntyre, tradition becomes the location for restoring community values and knowledge, and for cultivating the moral virtues through practices. MacIntyre and Hallaq each seem to embrace the restoration of religious traditions as normative and authoritative centers in public life, an idea that is counter to the bureaucratic and impersonal morality that they think characterizes liberal modernity. For scholars who argue for a tradition-based critique of liberalism, post-secularism could also signal an era of renewed dominance of certain pre-modern religious forms of the moral life.

Ideas of gender justice in feminist liberal theory—particularly the pursuit of greater freedoms and access to resources for women—have been connected to the genealogy of secularism in non-accidental ways.269 By now, we are familiar with the trope of Western feminists trying to rescue Muslim women from their patriarchal traditions by exposing religious commitments and practices to be the product of false consciousness (or “adaptive preferences”) and oppression. One of the more vehement responses to this argument comes from Saba

Mahmood, a student of Asad’s, who criticizes this position as representative of Western feminism generally. In particular she questions the liberal characterization of the moral subject as seeking freedom. In the Politics of Piety, which includes a study of female Egyptian participants in the Islamic Revival, she argues against the liberal view that subjects must see their desires as distinct from socially-imposed norms. Such a view, she maintains, “turns upon an imaginary freedom, one deeply indebted to liberal political theory, in which an individual is considered free on the condition that she act autonomously: that her actions be the result of her own choice and free will, rather than that of custom, tradition, transcendental will, or social

269 See Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven: Yale University Press, 1992). 158 coercion.”270 Mahmood’s argument, on one level, might be read as demanding a more complex understanding of how women negotiate tradition and other socially-constraining factors, which appears to be a legitimate critique. On another level, however, such an argument (being made about Muslim women in particular) may have the effect of essentializing patriarchal gender norms and authoritarian practices as representative of the Islamic tradition. In Mahmood’s framing of the secularist/religionist debate, women’s moral agency is in a way reduced to which side (products of the same historical process) is more representative of women’s experience.

Mahmood wants to re-define the debate about religion and secularism on different terms than modern liberalism has allowed, with its labeling and valuing of reasonable as opposed to unreasonable religious ideas and practices. She defines secularism as “the re-articulation of religion in a manner that is commensurate with modern sensibilities and modes of governance.”271 Secular definitions are limiting, and while they appear to be neutral, they are in fact determined by the normative goals of those in power. This kind of argument has served some utility in the study of religion by highlighting the ways in which “secular” theorists and other dominant voices in scholarship omitted certain voices or misrecognized certain practices that did not comport with their conception of what normative religious practice ought to look like. In colonialism, this entailed the marking of other traditions as backwards or uncivilized and hence in need of correction. We can also recognize a form of the colonialist-secularist argument in contemporary pressures for groups to assimilate by legally requiring them to abandon visible symbols of their religious/ cultural difference.272

270 Mahmood, 148. 271 “aa Mahood, ‘eligious ‘easo ad “eula Affet: A Ioesuale Diide? in Critical Inquiry 35, no. 4 (2009): 836--862. 272 The French headscarf controversy of 2003-, i hih the Feh goeet aed all ospiuous religious symbols from public schools, specifically targeted Muslim girls. 159

Critics of secularism like Asad and Mahmood, and their tradition-centered counterparts like Hallaq, give us ample reason to be suspicious of any narrative of secular gender justice as guaranteeing human rights to women. In different ways, this dissertation has aimed to given a skeptical reading of the argument that liberal theory offers a ready-made solution to gender injustice and that the proper remedy is greater legal intervention (and an increase of state power) into the lives of women and men. Indeed, I have observed that at times liberal theorists, in their quest for stability, end up violating liberal norms of personal or religious freedom. There are certainly mythological elements to the liberal narrative, such as attempts to justify its place as a refuge from violent religious doctrines. Moreover, it is a reality that ideals of liberty are frequently checked against the state’s concern for its own survival and sovereignty.

My goal is not to redeem liberal theory from itself or from its critics, but rather to point out that liberal theory remains an important and in many respects, inevitable, component of modern ethical theorizing, especially regarding gender justice. As a theory of social cooperation, some recourse to liberal theory is inevitable to the degree that we expect the modern liberal state to protect individual liberties, including liberties of association such as religion and family. It is a mode of discourse that allows us to articulate expectations and responsibilities of selves to various others.

I did not set out to explicitly refute claims about the of liberalism and the virtues of pre-modern traditions (a variant of the religious critique of secularism), a task which would require more time and would take us in a different direction. But liberalism’s critics commonly fail to acknowledge the positive moral achievements made by modern systems of law, which are reflected in political philosophies that seek to enlarge the scope of dignity for all persons. While we should acknowledge that ideas about human rights have coexisted with practices of slavery

160 and other degrading practices (such as torture), we should not dismiss the project of human rights as morally or politically impotent, nor as an unworthy goal to be achieved. Although modern democratic statist law may be limited in its ability to be morally persuasive, or to bind communities in solidarity, it still serves as an important medium for moral expression and the enforcement of rights. And like other forms of moral-legal discourse it is characterized by debate and forms of immanent critique.

Reformist scholar Abdullahi An-Naˈim argues that Muslims should be cautious about retreating to sharia as superior mode of government to secular constitutionalist government. One reason is that classical sharia discriminates against non-Muslims and women and arguments for these types of discrimination are “no longer justifiable by standards of justice and reasonableness prevailing today.”273 Additionally, An-Naˈim raises the issue of Qur’an 4:34, arguing that a verse/teaching that licenses a man to beat his wife is incompatible with the human dignity of women. An-Naˈim’s arguments serve as a reminder that when any “tradition” is hypostatized, whether as a refuge from the chaos and confusion of modernity, or as providing timeless rules that apply regardless of context, it belies the contests that characterize living traditions. Too often, idealizations of pre-modern traditions have found articulation in political ideologies that restrict the rights of women and privilege authoritarian conceptions of power.

Thinking about gender justice in a post-secular age requires that we consider carefully how discourse on women’s rights has been implicated along a secular/religious divide. On the one hand, we can acknowledge An-Naˈim’s point that secular legal reforms and ideas, such as constitutionalism, granted women greater freedom. On the other, there is an accompanying dominant narrative that secular structures of government could somehow secure women’s salvation from backwards religious cultures; scholars have shown that this model of the modern

273 An-Nai , . 161 state (and its administrators) as women’s savior has colonialist roots. If take An-Naˈim’s argument seriously with regard to domestic violence, we recognize that while the modern state may have helped to initiate new forms of the family and patriarchy and secure male power in new ways, it hardly invented wife-battery and other forms of gender violence. When modern states codified sharia practices of family or personal status law, they often reified extant practices or provisions in classical Islamic law that were gender biased against women. Thus it is critical to attend to the way that pre-modern and modern legal and moral discourses intersect and inform one another in such instances. In this case, the prevalence of violence against women, qua their identity as women, in the private sphere is a political and a religious issue that creates a moral imperative for which state systems and religious systems bear some responsibility.

Anthropologists like Asad and Mahmood think that the discourse of ethics, construed as a modern liberal phenomenon, a) is always Kantian, and b) inevitably privatizes belief/ religious commitment over practice. In contrast, they each employ as an analytical device a kind of practice-based ethic to understand alternate forms of modern subjectivity. The argument is that subjects, as constituted by practices, interact with inherited traditions in ways not properly captured by liberal ethical discourse. This focus on practices, of course, runs the danger of turning subjects into uncritical receptors of tradition, as I previously pointed out with regard to

Mahmood’s argument. The danger of such a method when applied to a social problem like domestic violence is obvious, in the sense that women risk great damage to themselves and potentially to their children (though responsibility realistically extends to all community members) when they fail to question the interpretation of certain Qur’anic verses or classical teachings. Educators and advocates in the Peaceful Families Project demonstrate that devout

Muslim women are able to confront and end abuse often when they make a qualitative

162 distinction between submission to God and submission to their husbands. This shows that practices of “submission” are implicated in political and social power structures that should not be uncritically endorsed.

Regarding religious ethics, as scholars we ought to acknowledge the genesis of our field in a modern “secular” age and the ways in which a focus on rational argumentation and subjectivity have informed how we conceive of moral agency. But as feminist scholars like

Margaret Urban Walker demonstrate, there are helpful ways to amend Kantian and Rawlsian theories of morality so that we do not idealize abstract, self-legislating or “bureaucratic” individuals as the subject of human rights. In arguing that scholars ought to work to understand persons as participants in various communities, and as both free and yet constrained by their commitments to concrete others, I am saying that we do not need to follow Mahmood’s lead in rejecting outright Western liberal feminist theory as necessarily misrepresentative of Muslim women’s experiences. There exists the possibility of preserving the valuable insights in liberal political theory, such as arguments for justice as fairness, and articulating the possibility of a shared morality without compromising the particular experiences and needs of persons and the social groups with which they identify.

Given the critiques in question, and in particular the linkage of liberal theory with a normative secular agenda, is it possible to abandon the narrative of the secular/religious dichotomy on the grounds that it is at best no longer useful, or at worst, harmful? Can we limit the “religious” and “secular” as concepts that have explanatory value in the context of a historical narrative only, without lending to them the kind of normative force that neo- traditionalists and their more extreme liberal counterparts might want to ascribe to them? Is it

163 possible to identify another paradigm that would lend legitimacy to a different model of religious group and state interaction in a liberal democracy?

To invoke post-secularity in the title of this dissertation is to invite the reader into an ambiguous space, perhaps for the simple reason that secularism (both as a normative program and an explanatory device) seems so nebulous and difficult to define. For Jurgen Habermas, post-secularity describes an evolutionary stage in liberal thinking about religion and politics.274

According to his interpretation, liberal society has abandoned its quest to replace religious life with secular life because these terms no longer hold the same force as normative categories.

Habermas’s earlier view was that metaphysical religious ideas and conceptions of community must be abandoned for secular conceptions that all could share. Later, however, he adopted a different stance toward the relationship between religious belief and practical reason. “Practical reason fails to fulfill its own vocation when it no longer has sufficient strength to awaken, and to keep awake, in the minds of secular subjects, an awareness of the violations of solidarity throughout the world, an awareness of what is missing, of what cries out to heaven.”275

Habermas identifies the meaning-making aspect of religious traditions as critical to maintaining social solidarity and supporting democratic political structures.

Does Habermas add anything substantial to this conversation? This argument resembles the Rawlsian argument for reasonable comprehensive doctrines that lend legitimacy to political liberalism (in a kind of overlapping consensus) and is not a novel conception. Habermas’s acknowledgement that religious convictions (and the legal and other social-practical forms they

274 See Habermas, An Awareness of What is Missing: Faith and Reason in a Post-Secular Age (London: Polity Press, . I thik thee is a a to edose Haeass oatie agument about the importance of religious reasons in the public without adhering to the (descriptive) idea that liberal politics has made sufficient progress in including long-eluded eligious othes i puli disouse. I fat, a etal goal of the post-secular state might be the recognition of such others, and the particular processes they employ to make rules and decisions. 275 Habermas, 19. 164 take) will continue to shape public morality and discourse may seem late to the game, but his insistence that we stop idealizing the secular as a normative political situation is noteworthy.

Habermas thinks that liberal political theory is able to recognize the past error of its ways and be more accommodating to religious reason. The critics of secularism would (correctly) question a thesis that implies that harmful assimilationist vestiges of the religion/secularism dichotomy no longer exist.

One way to test the potential utility of a post-secular paradigm relies on empirical data which demonstrates a fluid and pragmatic relationship between so-called religious and secular spheres. Several examples discussed in this dissertation have shown that forms of sharia have continued to exert influence on modern Muslim communities in secular states, and that many secular states have made concessions to religious forms of law, even if the state does not grant such laws binding power. As the reality of multicultural jurisdictions demonstrates, the boundary between the secular and the religious, as legal and discursive categories at least, is not a tidy one.

The example of proposed legislation increasing the legally-binding power of Canadian Muslim arbitration courts shows that people differ in terms of what they perceive religious freedom to entail. Moreover, legally-hybrid practices are so prevalent as to suggest that scholars should spend more time researching how communities themselves address and resolve seeming contradictions between the secular and the religious, such as practices and ideas claiming the authentic title of sharia that have emerged in secular public space, including the internet.

Ultimately, they show the porous nature of this boundary, and illustrate the ways in which minority communities find ways to live both within and yet transcend state-defined boundaries.

When we read Habermas’s argument as endorsing a model for the broader cooperation and recognition of religious and non-religious reasons, the idea of post-secularity can be useful.

165

From the standpoint of public policy dealing with domestic violence in Muslim communities, it does not seem tenable to dismiss either (secular) feminist approaches or (religious) Muslim approaches. Given that the milieu of American Muslim life is comprised of a mixture of both secular and religious sources, this only makes sense. Among advocates, different ideas about what liberation or emancipation entails will continue to create tension and areas of disagreement between (a) those who want to end domestic violence to improve the lives of women and thereby increase their opportunities to exercise autonomy, and (b) those who view it as a means to strengthen the ties of the Muslim family and ultimately, the Muslim community. An examination of women’s liberation movements in parts of the Middle East demonstrates that the family- centered argument has prevailed in Muslim feminist discourse for well over a century. Margot

Badran argues that in the early twentieth century, Egyptian feminists

did not challenge the notion of the family predicated on the distribution of complementary rights and responsibilities to women and men….Feminist activists focused their attention upon Muslim men’s abuse of their lawful rights and responsibilities; men avoided responsibilities to the family, oppressed women within the context of the family, and deprived women and children of security.276

I think there is pragmatic merit to recognizing particular features of incommensurability between the arguments and goals of secular feminists and observant Muslim advocates, and to acknowledge that there are plenty of people who do not fit neatly into either of these categories.

But the recognition of points of incommensurability does not preclude the possibility of collaboration between these groups in order to solve the common problems that women who are in abusive relationships face, or at the macro-level, to seek to change social attitudes and laws that are unjust toward women and other vulnerable persons. In other words, each tradition of

276 Margot Badran, Feminists, Islam, and Nation: Gender and the Making of Modern (Princeton: Princeton University Press, 1995), 125. 166 moral inquiry uses methods of determining just from unjust practices, and when we compare them, we find enough agreement to sustain collaboration.

In healthy democratic societies, people will continue to argue about what types of religious reasons should receive serious attention in public discourse; they will continue to debate the nature and limits of religious freedom. While we can appreciate Asad’s worry that the modern liberal state has strong incentive and ability to limit the power and scope of non-liberal religious practices and arguments, we should be careful not to reduce ideas about individual freedom of conscience (for example) to mere liberal “mythology.” After all, recourse to individual conscience is hardly an alien notion in Islamic theological ethics.277 A concept of gender justice in a post-secular state encourages the judicious exercise of responsibility at many levels, from the interpersonal to communal to the state. Such a concept permits communities the space, within reasonable limits, to work out both for themselves and for others what kinds of commitments are worth standing for.

277 An-Nai agues, “haia addesses the osiee of the idiidual Musli, hethe i piate o puli ad offiial apait, athe tha the istitutios ad opoate etities of the ouit ad the state, . 167

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BIOGRAPHICAL SKETCH

Prior to completing her doctorate in religion at Florida State University, Shannon Dunn earned a bachelor’s degree in religion from the University of Puget Sound and a master’s degree from Claremont School of Theology. In addition to the topics situated under the umbrella category of religion and violence, her research interests include moral philosophy and character development. In 2012, she will begin an appointment as an Assistant Professor in Christian Ethics at Gonzaga University in Spokane, WA.

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