Student Blogger - #dgemw Blog: Islamic Legal Realism
Havva Guney Ruebenacker spoke about how feminist Islamic interpretation is in fact invoking techniques of critical legal theory and critical social theory; hence, it is a form of "Islamic legal realism." Islamic legal realism challenges claims of Islamic authenticity and claims of social utility. One of the most important scholars in this area was Qasim Amin, who wrote The Emancipation of Woman in 1899 attacking the inequalities of women's social standing at the time. Around the same time, American legal realists were pointing out artificialities of the legal formalism prevalent at the time. Roscoe Pound pointed out that contract benefits those who already have the power within society. To parallel, some claim that women should put conditions in the marriage contract to equalize it, but only the most well-off women have the power to do so. Those defending the traditional system today parallel the formalist arguments in America; the jurists claim to be deductively applying self-executing principles to create a consistent, gapless whole of the law. Even when making revisions to modernize the law, these new formalists claim that they were making minor revisions to preserve consistency and gaplessness. Ruebenacker's talk helped situate Islamic law within other traditions of law.