INTRODUCTION

This chapter engages with the paradox of rights in the context of Muslim women's status in family law. Using the lens of relational autonomy, it places women's rights in the context of patriarchal societal structures, posing the question: how useful is the formal equality paradigm in analysing Muslim women's rights within a structurally hierarchical framework? To this end, the chapter engages in a critical debate reflecting the limits of formal rights as conceptualised in Western liberal discourse. Formal rights start from the assumption that all persons interact and co-exist on a level playing field and have had equal access to resources, are equally valued irrespective of gender and will have equal opportunities to make claims on their families, communities, society and state. ‘Bare’ equality provisions sometimes fail to translate into real and actual equality on the ground for Muslim women. Conversely, entitlements informed by male superiority have been used by women to empower themselves. Using a fluid and gradualist framework of corrective, protective and non-discriminatory rights, it is argued that an unequal departure point of women's rights in the Islamic legal traditions does not imply that these inequalities are fixed and permanent. On the contrary, they may also be understood as the beginning of the non-discrimination and gender justice journey in Muslim communities. The chapter thus calls for a more nuanced understanding of rights and entitlements within Muslim communities and the various forms of resistance from within the Islamic legal traditions. Whilst this chapter uses a specific category of Muslim women (i.e. from Pakistan and South Asia) to articulate questions and propose ways forward, its general conclusions are relevant to broader women's rights issues.

SETTING THE CONTEXT OF THE RIGHTS DISCOURSE IN MUSLIM COMMUNITIES

I begin by recalling my own social, cultural and religious traditions and context, as well as the increasing international and global influences informing our understandings of Muslim women's rights in the family. As a Pukhtun, Muslim, Pakistani and more recently, British woman born in the mountains of Swat and sent to a Catholic convent boarding school in Lahore 400 miles away from home, I was exposed to pluralities of law and religion, culture and ethnicities, language and expression from an early age.

Introduction

A key challenge in the study of Islamic law is how to approach modern concepts that do not readily avail themselves of comparators within the Islamic legal traditions. This inquiry assumes a more complex nature when those conceptual comparators themselves are evolving, contested and open to varying definitions. Constitutionalism is one such concept which has become the subject of increasing scrutiny challenging traditional conceptions of Muslim state and government.

In its earlier, liberal conceptions, ‘constitutionalism’ was broadly defined and built upon three pillars: upholding the rule of law, the enforcement of effective limitations on governmental powers, and the protection of fundamental rights. This was essentially the model received in the Muslim world, upon which Islamic law was grafted so as to ‘Islamize’ constitutional texts and constitutionalism. But modern constitutionalism presents itself in various forms and raises many different challenges and potential contradictions within itself. Constitutionalism and democracy, for instance, appear ‘intimately related yet intrinsically opposed’, giving rise to much debate regarding ‘constitutional democracy’. Loughlin and Walker alert us to the paradox of constitutionalism in the tensions generated by the power inherent in the people on the one hand and in constitutional forms on the other, through which alone it may be exercised. Other issues at the centre of debates on constitutionalism include the impact of global, transnational and international law and governance networks. The constitutionalization of international law, as well as the pluralist nature of domestic legal structures, poses a threat to the very existence of constitutionalism in its classical form.

As in most areas of the Islamic legal traditions, opinion on Islamic constitutionalism too is far from unanimous. Most Islamic law scholars agree that ‘constitutional law (usul-al-hukm) is one of the most under-developed areas of Islamic law and jurisprudence’. Some Qur'anic verses and the Sunna, however, provide elements on which the structure of constitutionalism may be built, including shura (consultation), bay'ah (allegiance), principles of justice and the accountability of rulers. Other antecedents, including the Medina Charter (discussed below), are also cited in support of the historical beginnings of an Islamic constitutionalism. Despite a number of discernible trajectories within Muslim intellectual thought on the subject, claiming an Islamic constitutionalism as inherently a part of the Islamic traditions would in the opinion of some scholars be an exaggeration and ‘falling prey to an anachronism’.

Introduction

One of the main arguments advanced in this book is the inherent dynamism of the Islamic legal traditions and their responsiveness to social realities through various juristic techniques, mechanisms and institutions. Historically, one such mechanism has been the fatwa (plural fatawa) through which an individual, a qadi (judge) or a ruler sought a non-binding response to a specific legal issue. Over time these opinions grew into an imposing body of materials, some of which was incorporated into legal textbooks and manuals for future reference. As a flexible vehicle of legal interpretation, fatawa are a reflection of evolving norms of Islamic law and society in language comprehensible to lay members of Muslim communities.

Today, in an age of print and electronic media, the institution of ifta (the act of issuing fatawa) has undergone significant transformation whilst retaining its core function. Beyond the mediums of newspaper, radio and television, fatawa in their latest manifestation are being issued by ‘Internet muftis’ to a growing, Internet-savvy population of fatwa-seekers. Discourse on Internet fatawa as an interpretative and pedagogical tool, as well as an emerging discursive space in a virtual environment, is an ever-expanding field of investigation.

The present chapter looks at the idea that, in employing a combination of traditional ifta tools as well as the virtual environment of the World Wide Web, Internet fatawa simultaneously challenge tradition and modernity. Tradition is being challenged by a fragmentation of authority and a democratizing of knowledge, making it more accessible to individuals and communities at the national, transnational and international levels; while modernity is being challenged in the way Internet fatawa are legitimating and reviving historical formulations of legal interpretations.

Drawing upon a selection of fatawa on women, gender and family law norms from selected Internet sites, this chapter makes a number of observations. Most basically, the arrival of Internet fatawa has led to a dislocation of traditional forms of authority within the Islamic legal traditions. Internet fatawa exist within a virtual space, available within the privacy of the home, that makes women in particular more confident in raising questions which they would not pose face-to-face.

Introduction

A significant articulation of plurality and evolution within the Islamic legal traditions and conceptions of sharia came about with large numbers of Muslims migrating to non-Muslim-majority jurisdictions and putting down roots there. In the United Kingdom, for instance, the application of Islamic law and sharia is continuously undergoing a transformative process, emerging and evolving as what has been called Angrezi (‘English’ in Urdu) sharia – a hybrid of Islamic law and UK law. In common with Muslim-majority jurisdictions, the focus of Islamic law lies in the sphere of family law, this being central to group identity and cultural preservation through control of members of the group, especially women. An example of such control comes in the form of dispute resolution, focusing on family matters, in Sharia Councils.

The fact that British Muslim communities’ interest in Islamic law and sharia lies foremost in being able to control the outcome of marriage and divorce disputes resonates with how the wider British public and state institutions perceive Islamic law. In 2008, the then Archbishop of Canterbury, Dr Rowan Williams, famously declared that Muslim communities sought the freedom to live under sharia law, and that there needs to be ‘access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK’. He then qualified this by cautioning that ‘recognition of “supplementary jurisdiction” in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women’.

Lord Bach, speaking in the House of Lords a year after Dr Williams's speech, was of the view that we

Reflecting at the Dihliz

As we reach the concluding pages of Modern Challenges, the vantage point from where I stand at the dihliz enables me to look back at the ground covered and offer some reflections. My vantage point has opened up for me panoramic views of wide-ranging pluralities within the Islamic legal traditions, especially when I have looked through the lens of culture and tradition. When I have shifted my sightline to look from a Western and a global angle, I have been able to see the multiple challenges and opportunities posed to Islamic law and sharia by tradition and modernity.

The dihliz, this in-between place, is both interior and exterior to the traditions I have sought to explore. Critically placed at the intersection of overlapping discourses and intellectual universes, the dihliz has for me facilitated insights into various texts and interpretations and cultural frameworks. Privileged to have grown up with multiple identities and languages, and with lived experiences from Muslim-majority and non-Muslim jurisdictions, crossing and negotiating boundaries has always come naturally to me. At times and places where civilizations and cultures meet, interact and are transformed, language and terminology assume a great importance. The richness and depth of the Islamic traditions, steeped in so many cultures, can only be captured by listening to ‘linguistic communities’ other than those of the academy. The vital and living oral traditions of Muslim communities continue to inform the day-to-day dynamics of the Islamic legal traditions, and they cannot remain unheeded.

Poised at the dihliz, I conceptualized the sharia as a flowing stream composed of varying currents – intertwined, dynamic, vibrant, and responsive to changing place and time.

The word dihliz is common to Arabic, Turkish, Persian and Urdu, those great languages of the Muslim world, with cognates in many related languages besides (in my native Pashto, the word is darshal). A literal, albeit inadequate, English translation might be ‘threshold’ or ‘vestibule’ – the dihliz is an ‘inter-space’ or an ‘in-between place’. As a metaphor, though, the dihliz has a deep cultural significance that goes well beyond its bare translation, encompassing a passage or corridor connecting and disconnecting spaces, places and buildings; a notional path that connects and frames other spaces.

Much like the poet, I am poised at a dihliz, exploring conceptual and analytical tools to contextualize and write about Islamic law, a subject that constitutes both a personal and a professional journey. How do I link theoretical perspectives of a discipline to its lived reality in language that resonates with readers across cultures, geographies and knowledge systems? In seeking an appropriate vantage point from which to engage with the Islamic legal traditions, the metaphor that comes to mind is of being poised at the dihliz. This in-between place or threshold is also imagined as a passage or corridor connecting and disconnecting spaces, places and buildings. Located at the dihliz, one is simultaneously inside and outside the broader frameworks of life and knowledge. Conscious of competing experiences and contexts, at the dihliz one is offered multiple panoramic visions dotted on the horizons beyond one's immediate proximity. From its vantage point, I position myself to explore and expose multiple interpretations of Islamic law as well as the complexity inherent in handling plural normativity. Modern Challenges to Islamic Law aims to bring to the fore the diversity within Muslim communities and the various cultural and linguistic lenses through which they perceive and experience their religious traditions. At the level of state and government, it aims to demonstrate how Islamic law is served up rhetorically and selectively for popular consumption and for the retention of authority.

Introduction

As highlighted in Chapters 1 and 3, Islamic law in its colonial and post-colonial variants is a modern phenomenon – at best a hybrid of its classical form and substance. The inevitable outcome of historical, socio-economic and political processes, Islamic law as generally experienced today exemplifies continuities, discontinuities and ruptures. Modernity, globalization and the nation state increasingly interact with religion, diverse cultures and official and unofficial legal orders, resulting in synthetic phenomena such as modern Islamic finance and banking.

Islamic finance law consists of rules (and institutions) that base their objectives and operations on Islamic law and sharia. A variant of Islamic commercial law, Islamic finance law ‘is based on certain parts of classical Islamic law concerning commercial transactions.’ In popular Muslim consciousness, though, Islamic finance is equated with ‘interest-free’ banking the prohibition of (i) riba (exorbitant or excessive interest, or usury), (ii) gharar (uncertainty, risk or speculation), and (iii) maysir (gambling and games of chance). In theory, engaging in religiously permissible, non-exploitative, equitable and ethical financial activities forms the cornerstone of Islamic finance; in practice, for many centuries the reality has been otherwise, and the vast majority of the Muslim world has engaged with conventional (interest-based) financial regimes in one form or another.

Classical Islamic finance has two arms: first, there is the ‘profit-and-loss-sharing’ paradigm, where lender and borrower share the risk of making or losing money, rather than the lender alone being guaranteed a fixed, predetermined return. Islamic finance, being equity-based, treats the financier and the entrepreneur as joint partners, co-joined in risk-taking and profit-sharing. Capital is unsecured, unguaranteed, and not entitled to predetermined or fixed interest, and may appreciate or depreciate depending on the market. Second, there is the entrenched requirement of promoting social justice through mandatory almsgiving (zakat), voluntary almsgiving (sadaqa), and ‘benevolent loans’ (qard hasan). Modern Islamic finance has prioritized the profitable over the charitable arm, largely ignoring the moral economy that was an integral component of its classical antecedent. Furthermore, contemporary Islamic finance law is a law operating without a fully supporting legal system, and the emergent picture is one that combines Islamic form with conventional (Western) substance, leading some commentators to observe that, in practice, Islamic finance appears to mimic the conventional financial regime.

Introduction

One of the most challenging encounters between Islamic and international human rights law comes in the shape of women's human rights. This can be clearly seen in the ratification process of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The treaty, adopted by the General Assembly of the United Nations on 18 December 1979, has been hailed as an international bill of women's rights and is the most comprehensive treaty in the field, with 188 ratifications. But it is also the treaty that, upon signature and ratification, attracted the largest number of reservations from states. Amongst those states entering reservations, some Muslim states specifically mentioned Islam and Islamic law as their reasons, whilst others did not invoke religious grounds. A third group of Muslim states ratified CEDAW without entering any reservations at all, or entered reservations to Article 29 alone, whilst a fourth group (Iran and Somalia) have neither signed nor ratified the treaty. In keeping with the interpretative plurality of the Islamic legal traditions, there is little uniformity in the positions adopted by Muslim states towards CEDAW, in the articles reserved, or indeed in the text of those reservations.

Literature on CEDAW in relation to Muslim states has focused almost entirely on their reservations, with sparse critical engagement with the drafting processes of CEDAW and interventions made by representatives of Muslim states during the deliberations. Little is mentioned of the positive role played by delegates of Muslim states in including a developmental perspective on women's human rights in collaboration with other states from the developing South. This has led to the impression, as Waltz states with reference to the drafting processes of the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, that, ‘Frequently, it is supposed that Muslim states were either absent, fundamentally contested the process and project, or played no significant role. That is not the case.’

The present chapter contributes to filling this gap in the literature by linking the inputs of delegates from Muslim states during the drafting process to the subsequent reservations entered by their governments.

Introduction

Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim women's contribution to the drafting of CEDAW. This chapter investigates the extent to which CEDAW finds a place in governmental and non-governmental policy documents, legislation, judicial decisions, governance structures and institutions in Pakistan. It poses the question whether CEDAW's pre- and post-ratification processes and attendant discourse have ‘domesticated’ it within state, government and society in that jurisdiction. The study suggests that in a country where pluralism is deeply embedded in legal culture as well as in religious and cultural norms, human rights instruments in general and CEDAW in particular receive an ambivalent and mixed reception as the newest layer of plural legalities.

This chapter draws upon a variety of governmental and non-governmental sources, and upon surveys of judicial decisions of the high courts and the Supreme Court that have invoked CEDAW since Pakistan's ratification in 1996, and is informed by academic literature on the approach of Pakistan and other Muslim states to CEDAW. I was a participant in the accession process and draw upon those personal experiences in developing the present study. This chapter has also benefited from discussions and personal communications with members of the Pakistani NGO communities, in particular those involved in the thirty-eighth session of the CEDAW Committee, in 2007, where Pakistan's country reports were under discussion.

As mentioned in Chapter 5, literature on CEDAW focuses on the post-ratification scene, especially in Muslim states due to the far-reaching reservations entered by them citing Islamic law and sharia. Hence there is a need to take a step back and explore the pre-ratifications debates and discourse and then link them to the post-ratification situation. The present chapter attempts to undertake this task using Pakistan as an example.

CEDAW within a Religious, Cultural and Socio-legal Context

Since its inception as an independent nation in 1947, Pakistan has struggled with multiple strands of its identity (religious, cultural, ethnic, linguistic) and the manner in which these inform conceptions of state, government, law and society, as well as the status of women.

Introduction

The focus of any discussion on the Islamic legal traditions within Muslim communities is sharia. The very word evokes radically different responses from different constituencies: while the vast majority of Muslims perceive it as a path of guidance, some Muslims, and the popular Western media, ascribe to it mostly negative meanings, often confining it to the field of criminal justice, the use of brutal punishments and the oppression of women. At an ideological level, some consider its application a panacea for all the ills befalling Muslims, whereas others regard it as the main obstacle to progress. As to its scope, it is believed by some to be the equivalent of ‘Islamic law’, and by others to be an all-encompassing framework for how Muslims ought to lead their lives, extending well beyond the legal realm. One of the main questions that arise from this, then, is what precisely do those various protagonists understand by sharia? Bearing in mind that sharia has fourteen centuries of history behind it, it is not my intention here to engage in a straight historical account. I am aware of the jurisprudential complexities arising from multiple interpretations of the Qur'an and Sunna, from the origins and development of the various schools of juristic thought in Islam, and their bearing on sharia. This chapter is not about Islamic fiqh (jurisprudence). Instead, the insights presented here are meant as signposts to how sharia is understood and employed by Muslim states and governments, and in the lived realities of Muslims at an individual and collective level.

Divine injunctions and human endeavours have together created an evolving set of regulatory norms for all aspects of Muslim life. Themes such as pluralism, tradition, modernity, contestation over authority and authenticity, fragmentation of authority, and globalization have informed this evolution and underlie the various chapters of Modern Challenges. Each demonstrates aspects of the discursive nature of the sharia, evolving and resilient in the face of challenges and questions posed to it by tradition and modernity. What, for instance, are the mechanisms applied to understanding the sharia? Has the sharia undergone a reductive process whereby its moral and ethical dimension has been sidelined and legal elements placed centre stage, or vice versa? How have tradition and modernity impacted on sharia?