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Gender and Equality in Muslim Family Law GENDER AND EQUALITY IN MUSLIM FAMILY LAW Gender title page_Layout 1 26/03/2013 19:49 Page 1 Gender and Equality in Muslim Family Law Justice and Ethics in the Islamic Legal Tradition Edited by Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe Published in 2013 by I.B.Tauris & Co Ltd 6 Salem Road, London W2 4BU 175 Fifth Avenue, New York NY 10010 www.ibtauris.com Distributed in the United States and Canada Exclusively by Palgrave Macmillan 175 Fifth Avenue, New York NY 10010 Copyright Editorial Selection and Introduction © 2013 Lena Larsen, Ziba Mir-Hosseini, Christian Moe and Kari Vogt Copyright Individual Chapters © 2013 Faqihuddin Abdul Kodir, Nasr Abu-Zayd, Zainah Anwar, Anver M. Emon, Hassan Yousefi Eshkevari, Aïcha El Hajjami, Mohsen Kadivar, Ziba Mir-Hosseini, Muhammad Khalid Masud, Marwa Sharafeldin and Mulki Al-Sharmani The right of Lena Larsen, Ziba Mir-Hosseini, Christian Moe and Kari Vogt to be identified as the editors of this work has been asserted by the editors in accordance with the Copyright, Designs and Patent Act 1988. All rights reserved. Except for brief quotations in a review, this book, or any part thereof, may not be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. Library of Islamic Law 5 ISBN 978 1 84885 922 7 A full CIP record for this book is available from the British Library A full CIP record for this book is available from the Library of Congress Library of Congress catalog card: available Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY TABLE OF CONTENTS Acknowledgements vii A note on transliteration and other conventions viii Introduction: Muslim Family Law and the Question of Equality 1 Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe 1. Justice, Equality and Muslim Family Laws: New Ideas, New Prospects 7 Ziba Mir-Hosseini Part I: Perspectives on Reality 2. Qiwāma in Egyptian Family Laws: ‘Wifely Obedience’ between Legal Texts, Courtroom Practices and Realities of Marriages 37 Mulki Al-Sharmani 3. Egyptian Women’s Rights NGOs: Personal Status Law Reform between Islamic and International Human Rights Law 57 Marwa Sharafeldin 4. The Religious Arguments in the Debate on the Reform of the Moroccan Family Code 81 Aïcha El Hajjami 5. From Local to Global: Sisters in Islam and the Making of Musawah: A Global Movement for Equality in the Muslim Family 107 Zainah Anwar v GENDER AND EQUALITY IN MUSLIM FAMILY LAW vi Part II: Approaches to Reform 6. Gender Equality and the Doctrine of Wilāya 127 Muhammad Khalid Masud 7. The Status of Women between the Qurʾan and Fiqh 153 Nasr Abu-Zayd 8. Gender Equality and the Hadith of the Prophet Muhammad: Reinterpreting the Concepts of Maḥram and Qiwāma 169 Faqihuddin Abdul Kodir 9. Rethinking Men’s Authority over Women: Qiwāma, Wilāya and their Underlying Assumptions 191 Hassan Yousefi Eshkevari 10. Revisiting Women’s Rights in Islam: ‘Egalitarian Justice’ in Lieu of ‘Deserts-based Justice’ 213 Mohsen Kadivar Part III: Instead of a Conclusion 11. The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law and the Modern Muslim State 237 Anver M. Emon About the Contributors 259 Index 265 ACKNOWLEDGEMENTS Besides the authors of the following chapters, we would like to thank the many other scholars who made notable contributions to the discussions in our work- shops: the Grand Mufti of Egypt, ʿAli Jumʿa; the President of the Mohammedia League of Moroccan ʿUlamāʾ, Ahmed Abbadi; and Mohammad Hashim Kamali (Malaysia), Syed Tahir Mahmood (India), Mohammed Khamlichi (Morocco), Ab- delkarim Khamlichi (Morocco), Amira Sonbol (Qatar), Heba Raouf Ezzat (Egypt), Fikret Karčić (Bosnia-Herzegovina), Mohammed Fadel (Canada), Arzoo Osanloo (USA), Usama Hasan (UK), Hania El Sholkamy (Egypt), Mohamed Ahmed Serag (Egypt), Tahar Mahdi (France), Maleiha Malik (UK), Ali Mabrouk (Egypt), Azza Soliman (Egypt), Homa Hoodfar (Canada) and Ibodullo Kalonov (Tajikistan). A warm thanks also to Aïcha El Hajjami, for helping to organise the Marrakech workshop; and to Gunilla Soliman and Mulki Al-Sharmani at the American Uni- versity in Cairo, and the staff of the Norwegian Embassy in Cairo, for assistance with the two workshops there. We wish to thank the Norwegian Ministry of Foreign Affairs for supporting this project. The Editors vii A NOTE ON TRANSLITERATION AND OTHER CONVENTIONS Transliteration of Arabic words in this book follows the example of the Interna- tional Journal of Middle East Studies. We distinguish between technical terms, on the one hand, and names, on the other. Only italicised technical terms are fully transliterated, with diacritics indicating long vowels (ā, ī, ū) and emphatic conso- nants (ḍ, ḥ, ṣ, ṭ, ẓ). The tāʾ marbūṭa and initial hamza are not transliterated, and ā is used both with alif and alif maqṣūra. Names are capitalised; diacritics are not used, but ʿayn (ʿ) and hamza (ʾ) are marked. Some terms are also considered to have en- tered the English language. Accordingly, we write Qurʾan, Shiʿi, Sunni and Shariʿa, as well as hadith, fatwa, mufti, jihad and hajj. A simplified Persian transliteration is sometimes used alongside the Arabic. Other local spellings are used for official names (e.g. Syariah Court in Indonesia). All dates are Common Era; Hijri dates (whether Shamsi or Qamari) are only given in a few references to publications that use them. Qurʾanic verses are cited as, for example, ‘4:34’. viii INTRODUCTION Muslim Family Law and the Question of Equality Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe Gender equality is a modern ideal, which has only recently, with the expansion of human rights and feminist discourses, become inherent to generally accept- ed conceptions of justice. In Islam, as in other religious traditions, the idea of equality between men and women was neither relevant to notions of justice nor part of the juristic landscape. To use an idiom from Islamic juristic tradition, gender equality is among the ‘newly created issues’ (masāʾil mustaḥdatha), that is, one of those issues for which there is no previous ruling. It is an issue that Muslim jurists have not had to address until the twentieth century. In the sec- ond half of the century, with the adoption of the United Nations Convention on the Elimination of all forms of Discrimination against Women (CEDAW), gender equality acquired a clear international mandate. Since it came into force in 1981, CEDAW has been ratified by all Muslim states except three (Iran, Somalia and Sudan); in most cases, however, ratification has been subject to ‘Islamic reservations’, which speak of unresolved tensions. This book explores the political and hermeneutical challenges that the idea of gender equality poses to Islamic legal tradition, the problems faced by those who advocate such an idea, and their prospects of success. There are two related contexts. 1 2 GENDER AND EQUALITY IN MUSLIM FAMILY LAW The first is that of twentieth-century shifts, both globally and locally, in the politics of religion, with a particular focus on changed relations between Islamic legal tradition, states and social practices. The second is that of the encounter between two radi- cally opposed value systems, one rooted in pre-modern conceptions of justice, gen- der and rights, as found in Islamic legal discourses that sanction discrimination on the basis of gender, the other shaped by the contemporary ideals of human rights, equality and personal autonomy, based on international human rights standards and documents, and advocated by feminism. The book firmly locates the issue of gender equality and Islamic legal tradition within these two contexts, and identifies several approaches that resolve and transcend what is still regarded by many as an irreconcilable conflict of ideas. The first chapter sets the stage by sketching twentieth-century developments in the politics of religion, law and gender in Muslim contexts, focusing on two key re- form texts and their implications for current debates. The following four chapters investigate current practical efforts at legal reform in the context of women’s lived social reality: in Egypt, Morocco and the global Musawah movement. The next five chapters deal with fundamental questions of how gender equality before the law can be supported from within the Islamic tradition, addressing the purposes of Islamic law, the hermeneutics of the Qurʾan and hadith (Prophetic traditions), and the role of reason and religious ethics. In lieu of a conclusion, the final chapter observes that equality must be negotiated and realised through broad social and political change. The argum ents in this book all deal, in their various ways, with institutes of Islamic law known by their technical Arabic terms as qiwāma and wilāya, both of which, in this context, denote forms of guardianship – traditionally, male guard- ianship over women, by the husband as provider, and by the father or other male relative as legal guardian arranging the marriage of his ward, respectively. These notions serve as a point of entry to tackling a broad range of problems relating to gender equality before the law. Another recurring concept is maqāṣid al-sharīʿa, the objectives of Islamic law. The idea that all Islamic legal norms pursue a set of general aims, connected with the common good and available to human reason, has a distinguished intellectual pedigree in classical thought and has inspired
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