FEMINIST NARRATIVES ON ISLAMIC LAW: ALTERNATIVE APPROACHES FATEMEH HAJIHOSSEINI A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO MAY 2011 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington OttawaONK1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-80575-6 Our file Notre reference ISBN: 978-0-494-80575-6 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduce, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1*1 Canada Abstract The presence and participation of women as lawmakers, policymakers and narrators has often been limited by authoritarian institutions and frameworks who have not welcomed women into their realms. Islamic jurisprudence is no exception. As subjects of the law Muslim women have seldom had the opportunity to provide their own understanding of what the law is and what it ought to be. Facing the challenges of a long- established legal framework with its systems of hierarchy and power Muslim Feminists are challenging the status quo by providing their own alternative narratives of what the law ought to be with regards to women. Their readings and narratives of the socio- historical development of Islamic jurisprudence, its norms and its laws, provides an alternative framework to existing practices of Islamic law. These feminist narratives of the law serve as an authoritative and authentic means towards changing the norms and practices of Islamic law to make it more meaningful, relevant and most importantly more cognizant of women's needs, roles and aspirations. As a divine system of laws Islamic jurisprudence establishes justice and egalitarianism as the building blocks of its foundations. It is the hope of feminist Muslim scholars to make these foundational aspirations real in the frameworks of an egalitarian and gender-sensitive Islamic jurisprudence. iv Acknowledgments I have been on an intellectual and personal journey in the hope of finding a meaningful and authentic solution for establishing a women's rights framework in Islam for quite some time. This dissertation has allowed me to explore my horizons and expand the boundaries of how I see law's interaction or lack thereof with women, their rights and their needs. I am grateful to the intellectual and emotional support of many who have helped me grow the seeds of my curiosity throughout the years. I would first like to thank the members of my advising committee for their tireless efforts in guiding the direction of this research and for their very helpful insights, comments and questions. I wish to thank Prof. Obiora Okafor, my dissertation advisor for steering me through the complexities of the dissertation by supporting my thoughts and helping me see outside the prism of my own writing. His tireless intellectual and administrative support has made the completion of this dissertation possible. I thank Prof. Susan Drummond and Prof. Annie Bunting of my advising committee for asking serious questions during the course of the project, which greatly helped guide the writing of this dissertation. I thank all three for their untiring intellectual and emotional support. I also thank my external examiner Prof. Mehdi Noorbakhsh for accepting this role and for his very insightful comments. My family has been a great source of inspiration and support throughout the years. I wish to thank Maman, Baba, Alireza and Mahdi for first supporting me on this journey and by being there for me emotionally and intellectually. I wish to thank Mehdi my husband for supporting me throughout the years in all his capacity and most importantly for believing in me, and sharing my hopes and aspirations. I thank friends and family in Iran, Toronto, New York and Houston for their unending support. Last but not least, I am indebted and thankful to the intellectual aspirations and works of many Muslim women scholars and activists who throughout the years have provided fuel for my thoughts and inspired me to take action through writing. My thoughts were not born in a vacuum, rather, they were inspired by the curiosity, questions and concerns of many other Muslim women who have been puzzled by the complexities of the Islamic legal framework. I will forever be indebted to Muslim women pioneers who paved the way for Muslim women like me. v TABLE OF CONTENTS Abstract Acknowledgments Introduction 1 Chapter 1: Expansion and Contraction of Islamic Law 24 I. Introduction: Why is Law Important in Islam II. Primary Sources of Islamic Law: The Quran and Hadith III. Secondary Sources of the Law IV. The Madhab V. Shiism Conclusion: Creativity and Rigidity Chapter 2: Narrative, Authority and Power 56 I. Nomos and Narrative II. The Authorities III. The Mujtahid IV. The Muslim Reformers Conclusion: Law, Power and Authority Chapter 3: Muslim Feminist Narratives (I) 85 I. Introduction II. Islamic Feminism III. The Scholars and their Works 1. Leila Ahmed 2. Fatima Mernissi 3. Ziba Mir-Hosseini Conclusion Chapter 4: Feminist Narratives (II) 157 I. Islamic Feminism in the West 1. Amina Wadud 2. Azizah Al-Hibri Conclusion Chapter 5: Islamic Family Law in North America 199 I. Introduction 1. Islamic Family Law in US Courts 2. Shari'a Arbitration Tribunal in Ontario, Canada Conclusion Chapter 6: Progressive Narratives 238 I. Introduction II. Progressive Scholars III. Progressive Jurists Conclusion Conclusion: Where to From Here 261 Bibliography 272 vn Introduction I. Objective of Research The relationship between women and the "law" is rather complex and challenging. As subjects of the law, women have not always been treated with fairness and equality. The "gendered" aspect of the law has been highlighted by feminist scholars, activists and politicians who have been seeking to make the law more gender-neutral and gender-sensitive. Essentializing "women" into a homogenous category overlooks their vast differences, nevertheless women across the world experience discrimination, inequality and patriarchy through laws, social norms, public policies, and cultural and religious traditions. In this vein, despite their differences one can say that they tend to share the same broad goal of wanting to change norms and reform laws to reflect more egalitarian and gender sensitive values. Studying women's rights under any form of legal system cannot take place without considering the context of the law, its history, and the influence of politics, economics, religion and cultural orientations. The "woman question" and the concept of patriarchy continue to be critical issues to address for academics, politicians, activists and ordinary women in different parts of the world. The struggle against inequality becomes ever more difficult when women are challenging laws and norms that are deeply rooted within the psyche of their societies. In this event, women not only have to learn the language of the law but they must also change the minds and hearts of lawmakers, See for example, Catherine MacKinnon, Feminism Unmodified: Discourses on Law and Life (Cambridge, MA: Harvard University Press 1987). 1 politicians, judges and everyday people in order to prove that traditions and norms ought to change so as to transcend discrimination and inequality. The objective of this dissertation is to ask whether a new narrative on women's rights under Islamic is in the making. Looking at Islamic law as a legal system, which has been constructed through human endeavor over time, this thesis considers the role that power and authority play in constructing the law, and posits that Muslim feminists are currently engaged in producing alternative narratives of what Islamic laws and norms ought to be with regards to women. These alternative feminist narratives can be as authoritative and valid as long-established male narratives. Islamic Law, similar to any legal system,