Progressive Muslims: On Justice, Gender and Pluralism (32 page)

24. Ibid., 56.

1. Ibid., 57
   

2. See Barbara Stowasser’s comprehensive discussion on the term and concept of
   hijab
   in her article “The
   Hijab
   : How a Curtain Became an Institution and a Cultural Symbol,” in
   Humanism, Culture and Language In the Near East: Studies in honor of Georg Krotkoff
   , ed. Asma Afsaruddin (Winona Lake, IN: Eisenbrauns, 1997), 87–104.
   

3. Leila Ahmed,
   Women and Gender in Islam
   , 164.
   

4. Fadwa El Guindi, “Veiling Intifah with Muslim Ethic,”
   Social Problems
   , 28, 1981, 465.
   

5. Even this is not universal, since there is evidence that the Egyptian fashion industry has responded to women who are interested in a more fashion conscious mode of
   hijab
   . Accordingly, the industry has marketed all kinds of head coverings, which include berets and pillbox hats to be worn over the scarf. See Stowasser, “The
   Hijab
   ,” 87–104.
   

6. See Ziba Mir-Hosseini,
   Islam and Gender: The Religious Debate in Contemporary Iran
   

   (Princeton: Princeton University Press, 1999), 7.
   

7. Linda L. Lindsey,
   Gender Roles: A Sociological Approach
   (Upper Saddle River, NJ: Prentice Hall, 1997).
   

8. Chandra Mohanty, “Cartographies of Struggle: Third World Women and the Politics of Feminism,” in
   Third World Women
   , 4
   

9. Ibid., 7.
   

10. See Desire´e Lewis, “Feminisms in South Africa,”
    Women’s Studies International Forum
    , 16, 1993, 538.
    

11. Azza Karam, “Feminisms and Islamisms in Egypt: Between Globalization and Postmodernism,” in
    Gender and Global Restructuring
    , ed. Marianne March and Anne S. Runyan (London: Routledge, 2000), 207, warns, however, that even within this approach there are researchers who duplicate the older ideological biases of focusing on investigating the specificities of Muslim women’s oppression rather than looking at newer ways to study the specificities of women’s empowerment strategies.
    

12. For a discussion on different types of feminisms among Muslim women see Azza Karam,
    

    Women, Islamism, and the State
    (New York: St Martins Press, 1998).
    

13. miriam cooke,
    Women Claim Islam
    (New York: Routledge, 2000).
    

38. Ibid., 59.

1. See the collection edited by Azizah Al-Hibri: “Women in Islam,”
   Women’s Studies International Forum
   , 5(2), 1982.
   

2. See, for instance, Riffat Hassan, “Equal before Allah? Woman–Man Equality in the Islamic Tradition,”
   Harvard Divinity Bulletin
   , 17(2), 1987, 2–14, and Amina Wadud,
   Qur’an and Women: Rereading the Sacred Text from a Woman’s Perspective
   (New York: Oxford University Press, 1999).
   

3. See, for instance, Leila Ahmed,
   Women and Gender in Islam
   , and Fatima Mernissi,
   The Veil and the Male Elite
   (New York: Addison Wesley, 1991).
   

4. Elizabeth Fernea,
   In Search of Islamic Feminism: One Woman’s Global Journey
   (New York: Doubleday, 1998), 416.
   

5. For discussions by Muslim women scholars on the centrality of Islam in their advocacy of gender justice and the rejection of secularist biases in some contemporary forms of feminism, see interviews with Azizah Al-Hibri, Amina Wadud, and Heba Rauf Ezzat in Fernea,
   In Search of Islamic Feminism
   , and Maysum Faruqi, “Women’s Self-Identity in the Qur’an and Islamic Law,” in
   Windows of Faith: Muslim Women Scholar-Activists in North America
   , ed. Gisela Webb (Syracuse, NY: Syracuse University Press, 2000), 72–101. Webb’s volume is one of the best contemporary collections of essays by Muslim women scholars.
   

6. Maysam Faruqi, “Women’s Self-Identity in the Qur’an and Islamic Law,”
   Windows of Faith
   , ed. Webb, 74.
   

7. miriam cooke,
   Women Claim Islam
   , 61.
   

8. Margot Badran, “Feminism,” in The
   Oxford Encyclopedia of the Modern Islamic World
   , ed. John Esposito (New York: Oxford University Press, 1995).
   

9. For a detailed discussion of the politics surrounding the feminist exegesis that takes place in
   Zanaan
   see Ziba Mir-Hosseini,
   Islam and Gender: The Religious Debate in Contemporary Iran
   (Princeton: Princeton University Press, 1999).
   

10. Amina Wadud has contributed another of the essays to this volume, titled “American Muslim Identity: Race and Ethnicity in Progressive Islam.”
    

11. Fatima Mernissi,
    The Forgotten Queens of Islam,
    trans. Mary Jo Lakeland (Minneapolis: University of Minnesota Press, 1993).
    

12. Fatima Mernissi,
    The Veil and the Male Elite
    (Bloomington: Indiana University Press, 1987).
    

13. Karamah
    has a useful web site, which serves as a resource for many Muslim women in North America: http://www.karamah.org.
    

7

PROGRESSIVE MUSLIMS AND ISLAMIC JURISPRUDENCE: THE NECESSITY FOR CRITIC AL ENGAGEMENT

WITH MARRIAGE AND DIVORCE LAW
1

Kecia Ali

Progressive Muslims have a difficult relationship with Islamic law. Many progressive Muslims have undertaken alternative close readings of the Qur’an, or have delved deeply into ethical and mystical aspects of Islam to find teachings that can be used as a cornerstone of a progressive Islamic interpretation. But we have been reluctant to enter into serious conversations about Islamic law, which is generally seen as the realm of more conservative scholars. Partially as a result of this hesitancy, discussions of Islamic law today tend to reflect only different degrees of conservatism and fundamentalism. Debates over implementing
Shari‘ah
revolve around issues like the stoning of adulterers or amputating the hands of thieves. For those living in the Muslim world, negotiations with Islamic law as it is enforced through personal status codes are a practical necessity. Muslims who live in the West, however, encounter Islamic law only to the extent that we choose to apply it in our personal dealings. For many, that means most especially in matters of family. Paradoxically for progressive Muslims, this is the arena where traditional Islamic law is thought to be most conservative.

Despite the fact that Muslim marriage is not generally thought of as a progressive institution, even progressive Muslims generally want to get married. We do not want our relationships to be bound, however, by the strictly hierarchical rules that we assume to be enshrined in Islamic law. A few Muslims in the West simply leave aside Islamic law in personal matters, choosing to abide exclusively by secular laws, which tend to be more egalitarian. These couples work to keep the spirit of Qur’anic proclamations on the nature of marriage alive in their relationships, but do not consider its legal pronouncements literally applicable. Other progressive Muslims, perhaps most, follow the key elements of classical marriage in the wedding, but may reduce the dower to a symbolic

amount due to discomfort with its “commercial” connotations. There is an implicit understanding, in these unions, that traditional legal rules – such as those allowing the husband to take additional wives or to forbid his wife from leaving the marital home without permission – will not govern the spouses. Both of these approaches are based on an understanding of Islamic marriage law as inherently biased against women; therefore, it is avoided or observed primarily in the breach. Islamic law, in this view, does not accurately embody the ideals of Islam regarding relations between spouses, which are mutuality, respect, and kindness. A third stance, however, calls for selective appropriation of provisions of classical law, allowing for the spouses to customize their marriage contract through the inclusion of numerous conditions, generally favoring the wife, that modify traditionally accepted rules for spouses’ marital rights.

Proponents of this approach argue that, in fact, women are guaranteed numerous marital rights by Islamic law, some of which surpass rights granted by secular Western laws; women simply need to learn how to protect themselves by invoking them. The lawyer Azizah al-Hibri is the most prominent, though by no means the only, advocate for this view, which has gained widespread attention in recent years and has been adopted by many Muslim women’s organizations. It is also quickly becoming conventional wisdom among some non-Muslim feminists concerned about avoiding orientalist stereotypes surrounding “women’s status” in Islam.
2

Al-Hibri was recently featured in “Talk of the Town” in
The New Yorker
. There she explained that women have rights in Islamic law that are often unknown and unutilized, with the right to make stipulations in marriage contracts primary among them. According to the article,

A woman can secure her right to work outside the home at any job she likes; she can reassert her right to have her husband support her financially, even if she has a job or is independently wealthy; she can keep her finances separate from his and invest them wherever she wishes; she can specify the sum of money she expects to receive should the marriage end in divorce or should she be widowed; she can negotiate the right to divorce her husband at will, should he, for example, take another wife; [and] she can reserve the right not to cook, to clean, or to nurse her own children.
3

This picture does not resemble at all the laws governing most Muslim women’s marriages today. If implemented, however, such rights would seem to guarantee women a life of ease and comfort. Further, to the extent that these rights can be supported by opinions from texts of classical jurisprudence, they are more likely to achieve acceptance than attempts to rework marriage law entirely, since they can claim an “authentic” Islamic pedigree.

In this essay, I will argue that this approach misses the forest for the trees.

While its adherents may or may not be right about any particular contractual stipulation
4
(and often they significantly overstate the extent to which specific

conditions are enforceable), they fail to address the basic parameters of the marriage contract itself and the assumptions it is based on. By focusing on isolated rights without paying attention to how they are embedded in a system of interdependent spousal obligations, al-Hibri and other advocates for women’s legal rights implicitly accept the basic structure of the marriage contract as understood by Muslim jurists to be the divinely sanctioned norm for Islamic marriage. However, this framework is not God-given but rather was developed by men working at a particular time and place, governed by certain assumptions. Before we simply accept the traditional legal understanding of marriage and move to modify its practice with conditions attached to marriage contracts, its basic premises must be subjected to sustained analysis and careful critique.

One purpose of this essay is to present such an analysis of the traditional jurisprudential understanding of marriage. I will demonstrate, through an exposition of the views of early Sunni jurists, that the overall framework of the marriage contract is predicated on a type of ownership (
milk
) granted to the husband over the wife in exchange for dower payment, which makes sexual intercourse between them lawful. Further, the major spousal right established by the contract is the wife’s sexual availability in exchange for which she is supported by her husband. This basic claim, which would have been accepted without controversy as an accurate portrayal of the legal dimensions of marriage by virtually any pre-modern Muslim jurist, is unthinkable today for the majority of Muslims, including those who write about Islamic law. This portrait of how traditional jurists conceived of marriage is a necessary precursor to the evaluation of contemporary discourses on marriage in Islamic law that I undertake in the second half of this essay.

I will address two types of modern discourses on Islamic law: neo- conservative and feminist-apologist. Both attempt to appropriate the authority of traditional Islamic law through various means, in each case upholding some of its substantive doctrines while setting others aside. Neo-conservative authors suggest that the rationale for men’s and women’s differing marital rights and duties is the natural difference between husbands and wives that results from a divinely ordained “complementarity” of males and females. Though presenting their views as simply restatements of traditional law, these authorities allow some rights previously granted to women to lapse, since they do not make sense as part of the new framework.

Feminist and reformist approaches that take women’s rights and needs as their main concern make different interpretive moves from those of the neo- conservatives. In some cases, they reject juristic interpretations and turn instead to the Qur’an and, to a lesser extent, the
hadith
collections as source of legal guidance. In this essay, though, I am concerned with the way these discourses focus on particular substantive rules of jurisprudence. Claiming back rights that have recently gone unnoticed or even been denied outright, those working from this perspective attempt to promote and defend wives’ rights by appeal to

traditional legal authority. In doing so, however, they provide new justifications and interpretations for these rights that do not accurately reflect their original place in a system of spousal rights and obligations.

In my view, neither contemporary approach profiled here accurately or thoroughly engages with traditional jurisprudence. To do so would be to acknowledge that traditional Islamic legal understandings of marriage and divorce are unacceptable from a modern perspective. A serious analysis of traditional jurisprudential logic leads me to the conclusion that a new jurisprudence is required. It cannot be achieved piecemeal, or through strategies of patching together acceptable rules from different schools. Nor can it be sidestepped by an exclusive focus on scripture. There is no getting around law; we must understand it, then work to replace it. This essay is a preliminary step in the direction of comprehension.