The University of Chicago Law School Faculty Blog

Student Blogger - #dgemw Blog: Musawah

Zainah Anwar is the founder of Sisters of Islam, which gave rise to a movement and organization known as Musawah. "Musawah" means equality. Ms. Anwar gave a hopeful view of what was happening on the ground. Musawah had a meeting in Kuala Lumpur in February to discuss strategies for making arguments against patriarchal interpretations of Islam. One important area for reform is family law, the topic of the afternoon's first panel. Many Muslim countries have unequal family laws, in provisions dealing with marriage age, consent to marry, grounds for divorce, and custody. A divorced woman, for example, only has custody of male children up to age seven and female children up to age nine; the former husband still has authority over those young children for anything requiring consent by a guardian. Anwar praised new scholarship giving alternative interpretations of the Qur'an and its historical context, for example, by pointing out assertions of women in marriage contracts hundreds of years ago. This movement has achieved some successes, such as family law reform in Morocco, a ban on polygamy in Tunisia, and a domestic violence law in Malaysia. By breaking the monopoly of traditional clerics over the interpretation of religion, women are opening the space for debate.

Student Blogger - #dgemw Blog: Fiqh and Policy

Many thinkers wonder whether reform is best achieved by working within doctrine, or Fiqh, or by rejecting it. Kristen Stilt argues that this question is a trap and it blinds us to some important aspects of history that would be useful in bases for reform. After some introduction, she presented some examples from Medieval Cairo to flesh out this view.

Prof. Stilt points out that the realm of Islamic law goes beyond Fiqh. Why has doctrine become synonymous with Muslim law? In medieval Muslim states there was a separation of power between military and religious rules and both participated in law making. The Sultan was the head of the political unit. He kept order and dictated policy. The religious legal scholars, on the other hand, wrote the books that make up Fiqh; they focused on religious doctrine. Sometimes they opposed each other, but more often they worked as partners. They issued commands to the people, but we do not talk about the orders made by the Sultan when we talk about Muslim law. Part of the problem here is that we have records of the determinations of the scholars, but the Sultan's orders were not reproduced and saved. However, there were historical records taken. Some polities appointed an official who chastised or commanded people who were not following law. There were handbooks for these officials prepared by the scholars. These officials had discretion and choices in applying the law and they applied law from both sources.

The first example takes place in Cairo in 1422, during the preparation for the pilgrimage to Mecca. Everyone wanted to see the procession, including women, so they camped out over night. When the men and women mixed, inappropriate behavior resulted. The official forced the women leave, but ultimately they returned. The manuals for this official provide guidance about men and women mingling in public. There are some provisions about preventing women from being in public frivolously, but others were about punishing men for harassing women. Boys should be punished for speaking to women in the market unless the where purchasing goods. The manuals instructed officials to pay attention to men lurking in places where women congregate. In this case, the official chose to send the women away, not the men, but this was not required by the Fiqh.

The second example involved a Sultan, as opposed to a lower-level official. During a plague, the Sultan gathered the scholars to determine why the plague was sent and how they could get rid of it. The first scholar responded that fornication was the cause. Another suggested that women be forced to stay indoors. A third agreed that this would be in the public interest, a secular claim. The Sultan decided to ban all women from going outside. How was the move made from fornication to keeping women out of the streets?

These stories are meant to show, inter alia, that there are other things that we can look at, besides Fiqh, in our historical bases for reform. It could be argued that policy is not Islam, but she argues that Fiqh recognizes that it has a necessary partner in policy. Also, there is evidence that policy choices bled into the Fiqh, which reified inegalitarian policy choices that were not essentially religious.

Student Blogger - #dgemw Blog: The Effect of Government

The moderator, Aziz Huq, raised a question to all of the panelists about how various factors affect the ability of various actors to influence the state. Professor Nussbaum focused on how the constitutional structure affects the power of the participants in public debate; the British in India delegated decisions on family law to religious authorities, which empowers a reactionary and male portion of the populace. Professor Shissler pointed out that the opposite problem could occur, such as in Turkey where the government has aggregated all of the power to itself, making it more difficult for elements of society to debate the law and make the government accountable. Professor Nussbaum suggested a distinction between free exercise and establishment; the American style of preventing establishment of religious doctrine but empowering individuals to freely exercise their religion may be the best balance.

Student Blogger - #dgemw Blog: 1917 Ottoman Family Rights Law

Professor Holly Shissler highlighted the legal reform and debate that occurred in the second half of the nineteenth century in the Ottoman Empire. During this period, the state was codifying its laws and attempting to aggrandize power to itself. Although the family law was not codified until 1917, many reforms took place in the 1800s. For example, in the 1860s, bride prices were codified by class, preventing individual negotiation; an 1858 land law stipulated that women had an equal right to inherit real property (although it was not often honored); throughout the second half of the nineteenth century, more and more events had to be recorded with the state, such as births, deaths, marriages, and divorces; and a legal guardian had to be present for marriages by those under the age of twenty, but not for those older. The 1917 Ottoman Family Rights Law was the first codification of family law in the Muslim world. It incorporated many aspects of religious marriage and also included rules for Christian and Jewish marriage. Some view this law as religious; others claim that it was a step toward secularization because it brought an aspect of religion under the power of the state; some view it merely as aggrandizement by the state.

During the later 1800s, a vibrant press movement emerged, and this movement included women. Journals and newspapers existed that were targeted at women, and they were often written by women. Many of these writings challenged parts of the family law, and this criticism continued even after a general crackdown on the press starting in 1876. By the end of the nineteenth century, an indigenous feminist movement--both Islamic and secular--emerged that carried on to the Turkish republic.

[Civil Unions]: When Reasonable Isn't Reasonable

Doug Laycock is nothing if not reasonable. But sometimes reasonable is not right. The most important area of disagreement he addresses, and the one most central to this discussion, concerns the appropriate breadth of the religious exemption that would give individuals and organizations a legally-recognized right to discriminate against gays and lesbians.

At the outset, I must concede that Doug is correct that I misread the breadth of his proposal. Or, more accurately, in my discussion of this issue I focused on Rick Garnett’s version of the exemption rather than on Doug’s. In an April 20 letter to the Speaker of the House of the Connecticut legislature, Rick and three other law professors called upon the Connecticut legislature, in the wake of the Connecticut Supreme Court’s decision holding the denial of same-sex marriage unconstitutional, to enact a law that would exempt any “individual” from any law of the state, “including but not limited to laws regarding employment discrimination, housing, public accommodations,” etc. “for refusing to provide services, accommodations, advantages, facilities, goods, or privileges,” whenever recognizing the legitimacy of a same-sex marriage would “violate their sincerely held religious beliefs.” It was primarily to this proposal that I was responding in my May 5 post.

Student Blogger - #dgemw Blog: Religion, Culture and Politics in India

Martha Nussbaum presented two moments from Indian history that highlight the ways that the reconstruction of religion for political purposes can sometimes be bad for women. She is not focused on Islam, but her insights are relevant to today's discussion nonetheless.

In 1890, a 10 year old child was raped to death by her adult husband. Under existing law, this was not a crime. The marriage age was 10 and marital rape was not recognized. There was a reform movement which tried to have the husband prosecuted, but the British judge chose to accept the husband's version of the events and the law. The judge said that he had to defer to the wisdom of Hindu tradition. He noted the inadvisability of external influence and meddling. Hindu reformers pushed for legislative change, but the British resisted this as well out of respect for "Indian" culture and tradition. There was a tremendous push for reform in this time period involving many women. Why did this fail? The British did not allow internal reform. "Primitive India" was easier to control. The British promoted mysticism at the expense of science. Another view is that the British recognized that subject males needed to rule something. Ruling over women made them less troublesome for the colonial power.

The other moment that Prof. Nussbaum discussed is more recent and ongoing. The Hindi Right came about in opposition to reformers like Ghandi. This movement reconstructed Hinduism reinforcing female docility and male aggression. They were also greatly influenced by German nationalist thought. Gandhi saw Hinduism to mandate equality for women and was joined by liberal Muslims. The Indian independence movement was built on these movements together. These movements were not secular; they followed their religion to these egalitarian ideas. The Hindu Right depict themselves as pure, but aggressive towards enemies. They then depict Muslim men as overly sexual and violent. They claim that this is true Hinduism and call reformers, like Gandhi, secular, not really Hindu. They pick and chose passages from Hindu texts that reinforce purity in love and aggression in war. They do not like, and react violently, to presentation of Hindu texts that are in opposition to this vision.

Why did Prof. Nussbaum choose to share these historical moments in Hinduism at a conference devoted to the Muslim world? She wanted to stress the fact that democratic reform movements are not always inauthentic and they are not always Western. Both of the reform movements discussed above are internal to India and were opposed by the West, or western thought. She also wanted to draw attention to the common phenomenon of the distortion of religious tradition and doctrine when they become tied to politics and power. Additionally, she would like us to remember that this distortion is often used to subjugate women.

Student Blogger - #dgemw Blog: Space for Debate

Professor Ziba Mir-Hosseini focused on how the rise of political Islam paradoxically gave the space for feminist Islamic critiques. Before the twentieth century, anticolonial attitudes prevented feminist legal thought from gaining a foothold because of anticolonialism's unifying force on the society, which deterred dissent. The rise of secular, autocratic regimes in the early twentieth century codified patriarchal laws that existed before in traditional Islamic practice. During this period, Islamic jurisprudential debate was confined to the ivory towers. In the second half of the twentieth century, the rise of political Islam brought this debate to the public sphere. Professor Mir-Hosseini focused on the distinction between Shari'a and Fiqh; Shari'a is God's will as revealed to Muhammad, which is universal and eternal, but Fiqh literally means "understanding" and refers to the man-made interpretation of the Qur'an and Islamic law. Feminist Islam questions the layers of understanding that have been applied by traditionalists. She stressed the incorrectness of starting a sentence with "Islam says…" Islam does not speak; rather, people claim to speak on Islam's behalf. Women can apply their own interpretation to the Fiqh to bring about effective change in the Islamic world.

Student Blogger - #dgemw Blog: Welcome

Madhavi Sunder opened the conference by explaining some of the concerns that inspired it. In talks about democracy in the Muslim world, Muslim self-determination has been set up in opposition to equality for women and other democratic concerns, such as freedom of speech, but a recent Gallup pole has shown that large numbers of people in Muslim countries (or countries with large Muslim populations) favor equal rights for women. The problem, it seems, is not convincing the Muslim world of the democratic egalitarian vision. The question is how to bring this into practice effectively. There are many pressing questions that will be addressed today at this exciting conference. What are the problems with making the promise of democracy and equality a reality? What does it mean to be an Islamic feminist and how is this related to secular feminism? What is the role of outsiders in these movements? Prof. Sunder notes that often the distinction between insiders and outsiders is overdrawn. Western conceptions of equality and democracy have informed Muslim thinkers throughout history. Non-interference is not only non-option; it is dangerous. It affirms the views of fundamentalists and obscures the influence the West has had in these areas.

#dgemw Today: Live Blogging the Democracy and Gender Equality in the Muslim World Conference

Students Alex Kolod and Bryan Hart, who very successfully live-blogged the 13th Amendment conference several weeks ago, will be doing so again for today's conference on Democracy and Gender Equality in the Muslim World, organized by Madhavi Sunder and Martha Nussbaum.

If you're on Twitter, and happen to be Tweeting the conferecnce, please use the #dgemw hashtag.

Student Blogger - Chicago’s Best Ideas: Madhavi Sunder on “Reading the Qur’an in Kuala Lumpur”

Update: Video of this talk is embedded after the jump. You may also download a .mov or .mp3 file.

A perception exists in the West that Islam is a sort of mirror-image of Western values. Western countries separates church and state while Islamic countries impose Sharia law; democratic liberalism supports freedom of the press, but Islam does not permit any criticism or even visual representation of Muhammad; the West supports equality for women, but the Qur'an counsels the subordination of women to their husbands. This dichotomous thinking supports a "clash of civilizations" mindset.

On May 6, Professor Madhavi Sunder gave a talk as part of the Chicago's Best Ideas lecture series entitled "Reading the Qur'an in Kuala Lumpur." (She has an earlier post on this blog on the same topic, as well as an interview in International Affairs Forum.) She stressed that Islam is in fact quite heterogeneous, and that heterogeneity creates space for cultural dissent within the religion. A movement that began with women reading the Qur'an for themselves in Kuala Lumpur is now experiencing some success in forging greater equality for women in the Muslim world.