Thematic Studies
Domestic Violence and Shari’a:
A Comparative Study of Muslim Societies in the Middle East, Africa and Asia
By Lisa Hajjar
Introduction
On
March 12, 2000, some 300,000 demonstrators took to the streets of Rabat,
Morocco, expressing their support for a new law expanding women’s right to
divorce. Simultaneously, a comparable number of demonstrators took to the
streets of the nearby city of Casablanca to protest the law as a deviation from
shari’a (Islamic law). While divorce
is a permissible and established option in Islam, in many Muslim societies it
tends to be treated as a male prerogative; women can easily be divorced, but not seek divorce.[1]
The new Moroccan law aimed to lessen this gender imbalance,[2]
sparking the competing demonstrations that, together, offered anecdotal
evidence of sharply divergent views on Muslim women’s rights.
Opponents of the new law
framed their position as a defense of religion and the family, claiming that
the law conflicts with women’s duties to their husbands, and contravenes their shari’a-based status as legal minors.
Supporters heralded the new law as an advance for women, not (necessarily) a
repudiation of shari’a. Those who had
been working for years to bring such a law into being had sought to alter
women’s status as perennial subordinates in the context of the family. Indeed,
the law’s significance, recognized by opponents and supporters alike, was its
potential for eroding masculine privilege, albeit slightly, by enhancing
women’s options to end a marriage.
In Morocco, as elsewhere,
one of the most common reasons women would seek to end a marriage is to
extricate themselves from a harmful situation. This illuminates the connection
between the right to divorce and female vulnerability to domestic violence.[3]
Domestic violence can be defined as “violence that occurs within the private
sphere, generally between individuals who are related through intimacy, blood
or law…[It is] nearly always a gender-specific crime, perpetrated by men
against women.”[4] One of the
strongest predictors of violence against women is the restriction on women’s
ability to leave the family setting.[5]
But, as most women’s rights activists would concede, divorce does not
constitute an adequate form of protection, or even an option for many women.
Myriad factors discourage, impede or prevent women from leaving a violent
relationship, including a lack of resources or support to establish alternative
domestic arrangements, and powerful social expectations and pressures to
maintain family relations at any cost.
In this study, the central
question concerns the relationship between domestic violence and shari’a. This relationship is of
critical importance because shari’a
provides both the legal framework for administering family relations and a
religio-cultural framework for social norms and values in Muslim societies. As the example of demonstrations over
the Moroccan divorce law illustrates, there are strong interconnections among
gender relations, religion and law. The example also illustrates the challenges
to pursuing legal reforms to enhance women’s rights, and the ability—indeed,
the likelihood—that constituencies with different interests and perspectives
will mobilize and compete for state support.
This study seeks to provide
an analytical framework and a comparative assessment of domestic violence in
Muslim societies in the Middle East, Africa and Asia. The approach is
socio-legal, probing the functions and uses of religious and other bodies of
law, and tracing struggles over the rights of women in the context of domestic
relations. Given the importance and attention devoted to the relationship
between women’s rights and Islam, to date surprisingly little comparative
analysis has been generated about the relationship between domestic violence
and shari’a. This study is an effort
to redress this lacuna.
Inequalities
between men and women are common the world over, albeit the forms and
conditions vary and change. It is a nearly universal truism that gender matters in ways that make and keep women
relatively less free, less independent, less empowered, less financially and
physically secure than men.
The arena where gender inequalities are most entrenched, in the context of family relations, is also where they are most widely accepted and thus most difficult to alter. Sexual and other physical differences between men and women lend themselves to understandings of social inequalities as both derivative of and conforming to “nature,” especially in terms of family roles and relations. Such understandings prevail in many cultures. But the challenges of contesting and altering inequalities are compounded in societies where gender and family relations are governed by religious laws, because the resultant hierarchies can be defended as divinely sanctioned.
Debates over the legitimacy
of gender equality have been especially vigorous in Muslim societies, and
display some common patterns related to shari’a.[6]
The Qur’an, which believers accept as the literal word of God and thus
eternally applicable, contains many verses that would seem inescapably
discriminatory toward women. So, too, do many of the hadith (sayings by and stories about the Prophet Muhammad). Yet
there are also many Qur’anic verses and hadith
establishing the equality of men and women. These seeming contradictions lend
themselves to multiple readings, claims and counter-claims about what Islam
prescribes for women.[7]
Although the use of shari’a to administer family relations[8]
contributes to certain commonalities in gender relations across Muslim
societies, notably the privileging and empowerment of men over women within the
context of the family, it is important to note significant variations as well.
The state is the most important variable for understanding variations across
societies, since, in the modern era, the state is the primary arbiter of law.
State power is deployed to regulate gender and family relations, as well as the
role of religion in society. Across the three regions that are the focus of
this study, the history and politics of the state—that is, the specific
experiences and legacies of colonial rule, and the trajectories of national
independence, integration and development—have given rise to vastly different
state projects and agendas in regard to gender relations, law and religion, and
the relationship among them.
State formation affects the position of women in
society in several ways. In particular, the state mediates gender relations
through the law…in its attempts to foster or inhibit social change, to maintain
existing arrangements or to promote greater equality for women in the family
and the society at large.[9]
The role of the state is
particularly important to any discussion of domestic violence because of its
capacity and responsibility to regulate (i.e., prohibit, punish, etc.) violence. For the purpose of this study,
which focuses on (and is limited to) relations and practices governed by shari’a, the categories of domestic
violence considered here include, inter alia, beatings, battery and murder;
marital rape; and forced marriage.
When violence occurs within
the context of the family, it raises questions about the laws and legal
administration of family relations. Are violent practices among family members
legally permitted or prohibited? In practice, are they ignored, tolerated or
penalized? Do perpetrators enjoy impunity (whether de jure or de facto) or do
they stand to be punished? Are civil remedies available to victims (e.g., right
to divorce, restraining orders)? Even failure or refusal on the part of the
state to deal with intra-family violence is an act, not an omission or absence,
of law.
In the 1970s, women’s rights
activists in many Western societies began pursuing an agenda (generally
successfully) of bringing criminal law to bear on intra-family violence.[10]
One outcome was to open up the “private sphere” of the family to increased
state intervention, at least in principle, by establishing prohibitions and
punishments for violence between family members. Criminalization has undermined
the ability of perpetrators to claim that what they did at home was “private.”
The model of criminalizing domestic violence has become a popular goal in other
parts of the world as well.[11]
Advocates of the criminal justice approach point to
the symbolic power of the law and argue that arrest, prosecution and
conviction, with punishment, is a process that carries the clear condemnation
of society for the conduct of the abuser and acknowledges his personal
responsibility for the activity…It is, however, critical that those involved in
policy making in this area take into account the cultural, economic and
political realities of their countries.[12]
The prospect of prohibiting
and punishing domestic violence depends, foremost, on the state’s willingness
and capacity to reform criminal and family laws. But the issue—and
possibility—of state-sponsored reforms is strongly affected by social beliefs
and ideologies about gender and family relations.
Law reform strategies work best…when the social
value base is in concordance with the desired new norms. As long as the old
regime of values is in effect, the tasks of making the new norms operative, or
activating the educative function of law to change values, will be difficult
and require action on many fronts.[13]
When the administration of
family relations is based upon or derived from religious texts and traditions,
as is the case in Muslim societies where shari’a
constitutes the framework for family law, the possibility for reform is
contingent on a serious and respectful engagement with religious beliefs and
practices. But the challenges to reform law in order to promote and protect the
rights of women are daunting; in many contexts, shari’a is interpreted to allow or tolerate certain forms of
violence against women by male family members. This raises questions—and
stimulates debates—about what religion “says” (or is believed to say) about the
rights of women. It also raises questions about the willingness or ability of
the state to prevent violence within families, especially when prevailing views
or powerful constituencies regard curbs on male authority as a contravention of
shari’a.
To establish a framework for
comparative analysis of the relationship between domestic violence and shari’a in Muslim societies, three
factors must be taken into consideration. One is the marked variation in the
uses and interpretations of shari’a,
which evince a lack of consensus among Muslims and should deter over
generalizing about Islam. Across and even within these societies, there are
differences in popular, scholarly and official understandings as to whether
Islam sanctions “wife beating” and other forms of intra-family violence.[14]
A second factor is the relationship
between religious law and state power. For comparative purposes, this
relationship can be divided into three general categories (which are elaborated
in greater detail below): In some countries, the state “communalizes” religion
by according its authorities and institutions semi-autonomy from the national
legal regime, the latter under the direct control of the state. In other
countries, the state “nationalizes” religious law by utilizing and
incorporating its principles into the national legal regime. And in a few
countries, the state “theocratizes” religion by basing its own authority on
religious law and functioning as its enforcer.
A third factor to consider
in assessing the relationship between domestic violence and shari’a is the influence of trans-national
discourses and movements. Two in particular are worth noting because of their
relevance to the subject of this study: Islamization and human rights. Since
the 1970s, Islamist movements have mobilized in many countries across the
Middle East, Africa and Asia to demand a (re)turn to Islam through the
establishment of a system of government that adheres to and enforces shari’a.[15]
In some countries, Islamists represent an opposition movement, in others they
represent an influential constituency, and in a few they have assumed control
of the state. However, regardless of the relationship between Islamist
movements and regimes, there is a generally shared commitment to the
preservation of patriarchal family relations. Indeed, even in contexts where Islamists
constitute a hostile opposition, states often are willing to accommodate their
demands on matters of gender and family relations as a means of placating them.[16]
Since the 1970s, there has
also been a mobilization of movements to promote international human rights.
Human rights organizations have been established in most countries, leading to
greater awareness of the discourse and principles of international law, and,
consequently, more visibility and critique of violations. The kinds of
activities that comprise this trend include monitoring and reporting on rights
violations, networking with activists from other countries and regions, and
advocating that governments adopt, adhere to and enforce international legal
standards locally.[17]
The issues of women’s rights
within the family and the role of shari’a
have been central concerns to both of these movements, albeit in often
contradictory and even adversarial ways. The critical—and debatable—question is
whether Islam and human rights offer compatible worldviews, and if not, which
should prevail. This is not an abstract philosophical matter; it is a deeply
charged political concern that informs the strategies that local actors pursue
to institute their visions and goals, whether their priority is to promote
women’s rights in accordance with international law, to promote an
“authentically Islamic” social order (however that is interpreted), or to
reconcile religious laws and beliefs with women’s rights.[18]
This
thematic study on the relationship between domestic violence and shari’a is part of a larger project on
Islamic family law.[19]
This study was designed with three main aims: 1) to map the problem of domestic
violence in Muslim societies in the Middle East, sub-Saharan Africa and Asia;
2) to analyze and compare how states deal with this problem; and 3) to analyze
and compare variations in interpretations and applications of shari’a in regard to intra-family
violence.
Domestic
violence is an extremely difficult subject to study because of the dearth of
reliable information. This is the case not only in Muslim societies but
virtually everywhere. The reasons for this include: the inability or
disinclination of victims to report violence; refusal or failure of authorities
to document reports and/or make reports publicly available; and official and/or
social acceptance of certain forms and degrees of intra-family violence. Hence,
the quality and availability of information about domestic violence varies,
from non-existent to partial at best.
In the societies that are
the focus of this study, estimated rates of domestic violence tend to be high.
However, the available information is extremely limited and uneven. Egypt and
Palestine are the only countries in the three regions for which national
studies that focus on or include domestic violence have been undertaken.[20]
For some countries, there is virtually no statistical information whatsoever.
Most information about domestic violence that does exist comes from local and
international organizations, including women’s and human rights organizations,
and certain bodies of the United Nations with mandates that focus on or include
women’s rights.[21] The lack
and unevenness of information is an important finding in its own right. But
clearly, it makes the first aim of mapping domestic violence in Muslim
societies all but impossible.
In regard to the second aim
of analyzing and comparing how states deal with domestic violence, the two most
important issues are the administration and laws governing gender and family
relations, and official commitment (or lack thereof) to women’s rights. The
kinds of questions that this research raises include the following: Has the
state signed and ratified the Convention to Eliminate All Forms of Discrimination
against Women (CEDAW)? If so, has it registered any reservations on the grounds
that CEDAW conflicts with shari’a? Is
there a constitutional authority guaranteeing equal protection of law for
women, and if so, is this authority used effectively to prohibit and punish
domestic violence? Is there national legislation and/or administrative
sanctions prohibiting domestic violence? What measures, if any, has the state
taken or authorized to deal with domestic violence and the protection of
victims (e.g., provision of social services and health care, education
campaigns)? Some information about the role and activities of the state, such
as ratification and reservations to CEDAW, is publicly available. But
information about the laws, policies and jurisprudence pertaining to domestic
violence is far more difficult to gather. The best sources tend to be
organizations that work on women’s rights issues, and these vary from country
to country.
In regard to the third aim
of analyzing and comparing interpretations and applications of shari’a as it impacts upon the issue of
intra-family violence, this study makes no claim to provide an authoritative
opinion on what Islam “really” mandates. Rather, the issue is what authorities
and members of society believe and accept, and how these beliefs are shaped,
debated and transformed. Despite variations across societies, there are some
commonalities, not least a general tendency to interpret shari’a as sanctioning gender inequality in family relations.
Specifically, shari’a tends to be
interpreted to give men power over women family members. Thus, gender
inequality is acknowledged, and justified in religious terms on the grounds
that God made men and women “essentially different”; that these differences
contribute to different familial roles, rights and duties, which are
complimentary; and that this complimentarity is crucial to the cohesion and
stability of the family and society.
Domestic violence is
strongly—and directly—related to inequality between men and women. But the contested
legitimacy of gender equality in Muslim societies impedes or complicates
efforts to deal with domestic violence as a social problem. There is strong
opposition to the notion that men and women should
be equal in the context of the family. The corollary is the belief that
domestic relationships are legitimately (i.e., “naturally” and/or “divinely”)
hierarchical. This belief is both derived from and reinforced by shari’a. However, for analytical
purposes, this study “brackets” the question of whether shari’a lends itself to or opposes formal equality for men and
women in order to foreground the issue of violence. Specifically, the question
addressed here is whether shari’a is
interpreted to construe violence against women as a harm or a right.
As a point of clarification,
the “bracketing” of gender inequality distinguishes the approach of this study
from most mainstream feminist and human rights discourse, which tend to see and
treat inequality as causal for
domestic violence.[22]
This inclines feminists and human rights activists to regard the struggle for
gender equality as the means of
combating domestic violence.[23]
This is premised on the idea that if women were equal to men and had equal
protection under the law, men would not be able to get away with perpetrating
violence against them. While this is a valid assumption, it either fails to
engage with or delegitimizes the beliefs and ideologies (in this case religious
and cultural) that provide justification
for inequalities.
Indeed, gender inequality
and domestic violence are integrally
related, and this understanding informs the analysis here. But in this study,
the primary emphasis is on violence,
and the social and cultural context in which it occurs. This relates domestic
violence to a lack of rights for women in order to probe the rationales and
justifications for that lack.
Defining violence in this way allows us to address
the record of violence against women as one not composed of a series of
instances of abuse…but as one located in a broad social and political context
in which not only men but women—and society as a whole—act to perpetuate
systems which result in various forms of abuse.[24]
Focusing critically on the
rationales that people actually utilize to claim that men have the “right” to
perpetrate violence against women has the potential to alter gender
inequalities in all social spheres. Conversely, establishing the illegitimacy
of violence against women undermines a tangible and harmful manifestation of
masculine privilege. But such an approach is less controversial—and hopefully
more persuasive—because it targets violent practices rather than gender
inequality. Moreover, it recognizes that the priority and interest of most
victims of violence would be to end the abuse, not their domestic relations.
The comparative dimension of
this study turns on the ways in which shari’a
informs both official policies and, more broadly, popular attitudes about
intra-family violence. Among Muslims, adherence to shari’a principles tends to be construed as a means of
demonstrating a commitment (socio-cultural as well as religious) to Islam.
Thus, this study strives to engage seriously with beliefs and practices that
underlie this commitment. However, this does not translate into a cultural
relativist sanctioning of violence against women.[25]
The assumption here is that domestic violence is a problem that demands
recourse, and that such recourse is not inimical to Islam.
It is the hope of those
involved in this study, and in the larger Islamic Family Law project of which
it is a part, that this research will provide a resource for action and
advocacy to combat the problem of domestic violence, and to enhance legal and
other remedies available to victims. Although the problem of domestic violence
and efforts to deter and combat it are global in scope, any possibility for
success must involve strategies and analyses that resonate with cultural and
religious norms and values.
The remainder of this study
is organized as follows: The next section lays out a framework for analyzing
domestic violence as a legal and a social problem. The following section
focuses on domestic violence and shari’a
in general terms of the scriptural and interpretive stances that inform their
relationship. The third, fourth and fifth sections focus, respectively, on
efforts to establish an international legal framework for combating domestic
violence within a larger campaign for women’s rights, culturalist resistances
to women’s rights, and manifestations of such resistance within Muslim societies
that utilize adherence to shari’a as
their basis. The final substantive section presents a comparative analysis of
domestic violence in Muslim societies, highlighting variations in the
relationship between religion and the state as it impacts upon the issue of
intra-family violence.
The Problem of Domestic Violence
Domestic violence is a
global phenomenon, and the seriousness of this problem cannot be overstated.
According to feminist geographer Joni Seager, it is reported as “common” in
almost all countries.[26]
It affects millions of women annually. According to Human Rights Watch, it “has
been one of the principal causes of female injury in almost every country in
the world.”[27]
But domestic violence is
also a hidden problem. For many countries, there is little or no statistical
information, indicating that it is “a crime that is under-recorded and
under-reported.”[28] For
countries where data is available, the rates vary.[29]
For example, in the United States, an estimated 28 percent of women have been
victims of domestic violence at least once in their lives. In South Africa, the
estimate is 48 percent. In Pakistan, estimates range from 80 to 90 percent.[30]
The prevalence of domestic
violence is a powerful indication of the inequality and vulnerability of women
across cultures. Domestic violence is the most common form of gender violence,
the latter encompassing all forms of violent practices perpetrated on females because they are females.
Whether gender violence operates as direct physical
violence, threat, or intimidation, the intent is to perpetuate and promote
hierarchical gender relations. It is manifested in several forms, all serving
the same end: the preservation of male control over resources and power.[31]
What distinguishes domestic
violence from other forms of gender violence is the context within which it
occurs (the “domestic” or “private” sphere) and the nature of the relationship
between perpetrators and victims (familial). Because domestic violence occurs
within the “private” sphere of the family, making it visible (as a first step
to making it redressable) is exceedingly difficult. It is the very “intimacy”
of domestic space and relationships that makes such violence difficult to study
and document. And it is the importance of the family in every society that
makes the formulation of effective strategies to protect women from abuse so
controversial.
In the case of intimate violence, male supremacy, ideology and conditions…confer upon men the sense of entitlement, if not the duty, to chastise their wives. Wife-beating is, therefore, not an individual, isolated, or aberrant act, but a social license, a duty or sign of masculinity, deeply ingrained in culture, widely practiced, denied and completely or largely immune from legal sanction.[32]
Women who are subjected to
or threatened with violence at home often are incapacitated by the violence itself (physical,
psychological, emotional) from seeking protection. They may be paralyzed by
terror and the ever-present threat of attack. Victims also often are deterred
from even imagining alternatives because of the importance of family as a
social institution. This vulnerability is compounded by economic dependence on
male family members, and by the fact that many women’s principal identity
derives from their membership and role in the family. The problem of domestic
violence is exacerbated by social and legal constructions of the family as
“private,” and popular perceptions of male power (including to dominate and
aggress against women) as normative.
Although domestic violence
occurs within families and overwhelmingly targets women, it is neither a
“private” matter nor a “women’s” problem; it is a societal problem, implicating
both the ruling state and the community within which families are socially
situated. Yet there is great reluctance or resistance in societies around the
world to recognize and deal with this problem because of an unwillingness to
see such practices as violence. By
imagining and referring to beatings, confinement, intimidation and insults as
“discipline” or “punishment,” rather than “battery” or “abuse,” the nature of
harm is obfuscated. Moreover, if prevailing social beliefs about family
relations include the idea that men have a right or obligation to “punish” and
“discipline” women family members, then the tactics used to do so can be
seen—and even lauded—as necessary to maintain order both at home and in society
at large. If, however, the safety and rights of women are—or can become—the
priority, then the use of violence against them can be seen and criticized as
illegitimate.
In contexts where
intra-family violence is not explicitly prohibited by law (i.e., criminalized),
perpetrators enjoy legal impunity. In
contexts where it is prohibited but the laws are not enforced, perpetrators
enjoy social impunity. In either
situation, such impunity constitutes a failure on the part of the state to
exercise its powers and prerogatives to deter, punish and prevent violence
against its subjects. It is also a failure of society to reject and condemn the
brutalization and intimidation of women at the hands of family members.
As those involved in efforts
to eradicate violence from women’s family lives attest, changing social
attitudes and official policies that contribute to the problem are arduous
tasks. Exposing and criticizing domestic violence calls into question the
structures and discourses of familial authority. Seeking means of ameliorating
the problem entails challenges and changes to the ways in which such authority
is legitimated and enforced. It entails, in short, changes in law and society.
Even in societies with
robust legal rights for women, domestic violence is both commonplace and
hidden, signaling an enduring difficulty to activate a legal solution. In
societies where women’s rights are weak, their vulnerability to violence is
compounded by a lack of options to seek protection from the law. And in
societies where gender and family relations are derived from religious law, if
jurists interpret and apply the law to sanction violence for specific purposes
or under certain circumstances, demands for protections and greater rights for
women can be condemned as heresy or apostasy. In Muslim societies where family
relations are administered in accordance with shari’a, intra-family violence is connected to the discourse and
practices of religion. Thus, it is crucial to consider the terms of this
connection.
Shari’a and Domestic Violence
In Muslim societies, shari’a functions both as specific legal
rules for organizing social relations, and as a general religio-cultural
framework for norms and values.[33]
In both senses, dominant interpretations of shari’a
accord men the status as heads of their families with guardianship over and
responsibility for women. The complement to this is the expectation that women
have a duty to obey their “guardians” (husbands, fathers or other male heads of
family). This hierarchical and highly patriarchal relationship is based on the shari’a principles of “qawwama” (authority, guardianship) and “ta’a” (obedience), from which gender-differentiated
rights and duties are derived.
The primary source of the
Qur’anic principles of qawwama and ta’a is Sura 4, Verse 34. This same
verse contains the most commonly cited reference used to assert men’s right or
option to beat disobedient women. Although this verse is translated—and
interpreted—in a variety of ways,[34]
a literal English translation, which captures popular understandings about
authority, (dis)obedience and punishment, states:
Men have authority [qawwama] over women because Allah has made the one superior to the
other, and because they [men] spend their wealth to maintain them [women]. Good
women are obedient [ta’a]. They guard
their unseen parts because Allah has guarded them. As for those [women] from
whom you fear disobedience [nushaz],
admonish them and send them to beds apart and beat them. Then if they obey you,
take no further action against them. Allah is high, supreme.[35]
Asghar Ali Engineer reports
the historical origin of this verse as the case of a man (S’ad bin Rabi’) who
slapped his wife (Habiba bint Zaid) because she had disobeyed him. She
complained to her father, who complained to the Prophet Muhammad. Sympathizing
with the woman, the Prophet told her that she was allowed the right to qisas (a form of legal retribution). Men
in the community protested that this would give women advantages over them.
Fearing social unrest, the Prophet sought and received the revelation (4:34)
which effectively reversed his earlier ruling giving women the legal right to
retaliate.[36]
In drawing interpretative
meaning from this verse, several factors are at issue. First, because this was
a revelation, it lends itself to
interpretation that God sanctions beating disobedient wives as a last option
(after admonishing them and abandoning their beds). But because beating women
was quite common in that place and time, it also lends itself to the
interpretation that God intended to restrict the practice. Moreover, to the
extent that shari’a functions as
“living law” adaptable to changing circumstances (e.g., through ijtihad), even the explicit sanctioning
of beating can be construed not as an ageless and divine right but as a
circumscribed means to express anger and frustration, and one that gradually
should be abolished. For example, Azizah Al-Hibri argues that the Qur’an
imposed limits on the common practice of beating, and transformed it into a
symbolic act.[37] Hitting was
not to be a normative standard of spousal relations but used minimally if it
could not be avoided entirely. Al-Hibri supports this reading by pointing to
the Prophet’s declaration to men: “The best among you are those who are best
toward their wives.” Indeed, on numerous occasions he told men not to beat
their wives and condemned the practice.
Other Qur’anic verses and hadith condemn violence between spouses.
For example, Sura 30, Verse 21 describes marital relations as tranquil,
merciful and affectionate, and the relationship itself as based on
companionship, not service or tyranny. In this vein, Riffat Hassan writes,
“God, who speaks through the Qur’an, is characterized by justice, and…can never
be guilty of ‘zulm’ (unfairness, tyranny, oppression or wrongdoing). Hence, the
Qur’an, as God’s word, cannot be made the source of human injustice.”[38]
Islamic jurists and scholars
have grappled with the question of whether hitting constitutes a de jure right under shari’a, or a de facto option. For example, some jurists have
proposed that men should be prohibited from hitting women in the face or hard
enough to cause pain. But the lack of clarity and consensus on this issue makes
it difficult to mount a campaign against wife beating as unjust in principle.
While authorities
responsible for the administration of family relations are not categorically
indifferent to the beating or brutalization of women, the violence usually has
to be extreme to prompt intervention, if that is a possibility at all. In fact,
most of what is known about wife beating emerges out of divorce cases in which
women use violence as a cause for seeking divorce. Even then, however, because
of the importance of family relations, saving the marriage often is prioritized
over saving or protecting women from violence. In many contexts, for a woman to
obtain a divorce from a shari’a court
on the grounds of violence, the harm would have to be so great—and
provable—that the judge would determine continued cohabitation to be
impossible. Under shari’a, legally
proving harm in the face of denial by the husband requires two witnesses, which
often is difficult to provide because domestic violence happens in private. And
legally proving the impossibility of cohabitation is difficult because women
often have to remain in—or return to—their marital home for lack of
alternatives.
The notion that beating
constitutes a right available to men and enforceable by law certainly
contradicts the Qur’anic ideal of marital relations as companionable and
mutually supportive. It also runs contrary to the Qur’anic right of both men
and women to dissolve a failed marriage, which would seemingly override the
notion that women have a duty or obligation to submit to violence. Yet because
there is a mention of beating in the
Qur’an, it has impeded efforts to prohibit and criminalize domestic violence,
and contributes to social attitudes about beating as a legitimate reprisal for
disobedience.
Marital rape is another form
of domestic violence that can find justification on the basis of shari’a. Although rape is a punishable
crime in every Muslim society, nowhere is the criminal sanction extended to
rape within marriage. Under shari’a,
there is no harm—and thus no crime—in acts of sex between people who are
married. Thus, marital rape is literally “uncriminalizable” under dominant
interpretations of shari’a. For
example, Sura 2, Verse 223 provides a Qur’anic basis for men’s unabridged
sexual access to their wives. This verse stipulates that “your wives are
ploughing fields for you; go to your field when and as you like.” Although
other Qur’anic verses and hadith
instruct men not to force themselves sexually upon their wives, these tend to
be superceded or overshadowed by the principle of female obedience.[39]
Indeed, a wife’s refusal to have sex with her husband can be conceived as a
defiance of her duties, and can give rise to accusations of “disobedience,”
thereby triggering legalistic justification for beating.
Forced marriage is a form of
psychological and emotional violence (with physically violent possibilities).
Although the Qur’an does not expressly sanction this practice, the principles
of male authority and female obedience create conditions in which women’s
subjugation to their “guardians” can enable men to impose their will on matters
of marriage. While the Qur’an recognizes “mature” (post-pubescent) women’s
right to enter freely into marriage, their status as legal “minors” under the
authority of male guardians undermines their freedom or ability to assert this
right in the face of male opposition.
Within patriarchal societies
in general, there is little normative acceptance of social, legal or sexual
autonomy for women. On the contrary, women’s options and behavior tend to be
heavily regulated and restricted. In contexts where gender and family relations
are governed by shari’a, wives have a
legal duty to concede to male
authority, as long as this authority is exercised in a manner compatible with shari’a, and as long as the male
fulfills his own obligations within the relationship. If women should act in a
way deemed “deviant” or “disobedient,” depending on the way in which shari’a is administered in a given
context, punishment may be the prerogative of the state, or may be left to the
discretion of members of the family or the community. But under either
circumstance, Muslim women’s vulnerability to violence is related to
jurisprudential traditions and social understandings of male authority and
female obedience, and this provides fertile ground for domestic violence to
occur with near-total impunity for perpetrators.
Of course, Muslim women are
not uniquely vulnerable to domestic
violence. Nor are social attitudes about female obedience and masculine
prerogatives to “discipline” and “punish” women uniquely “Islamic.” What is
unique, or rather what is particular to the situation of Muslim women are
rationalizations deriving from shari’a.
Indeed, the problem of domestic violence in Muslim societies in many ways
resembles its counterpart elsewhere, and so too do the difficulties in
combating it, given the gender biases operative in all societies. These
difficulties have given rise to efforts to develop an international legal
framework for dealing with a problem that is global in scope and harmful to
women everywhere.
In the 1980s, women’s
organizations around the world began campaigning for international recognition
and prohibition of domestic violence as a human rights violation. In the 1990s,
domestic violence became a major issue in a worldwide campaign to end violence
against women, part of a larger ongoing effort to promote women’s rights as human
rights.
While these initiatives are
important and commendable, their timing raises some troubling questions. “Human
rights” were established in the aftermath of World War II through the
promulgation of a new set of international laws “universalizing” the rights of
human beings everywhere.[40]
Violence—that is, the horrors and suffering that occurred during WWII—was the
driving concern to stimulate this revolution in law.
Over the decades, there have
been prodigious efforts—and achievements—to prohibit numerous forms of violence
as human rights violations. What, then, explains the delay in recognizing and
condemning domestic violence as a human rights violation? One key explanation
derives from the vagueness and inconsistency of international law in regard to
domestic relationships. There are three general factors at issue: 1) the
state-centered nature of international law; 2) the enduring emphasis in human
rights discourse and practice on civil and political rights (i.e., “public”
rights); and 3) deference to the family as a “private” domain. The delay in
recognizing domestic violence as a human rights violation can be explained by
the difficulty of framing abuses suffered by women at home into the
conventional framework of international law. “The distinction between public
and private life in international law is one of the principal theoretical
barriers to this effort.”[41]
Although the Universal
Declaration of Human Rights (1948) and other human rights instruments that came
into force in the 1960s and ‘70s (e.g., the International Conventions on Civil
and Political Rights, and Social, Economic and Cultural Rights) prohibit
discrimination on the basis of sex, international law proved a weak resource
for women. This weakness inspired women’s rights activists to begin pressing to
extend international law into the “private sphere.”
A major breakthrough was the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), which was adopted by the United Nations General Assembly in 1979 and
came into force in 1981. CEDAW often is described as the international bill of
rights for women.[42]
It clearly establishes the “indivisibility” of women’s rights in public and
private life,[43] and brings
violations by individuals within the purview of international law, at least
indirectly, by making states responsible for the actions of private parties
(article 2). Ratification or accession to CEDAW obligates states to abolish all
forms of discrimination against women. While CEDAW recognizes the importance of
culture and tradition in shaping gender roles and family relations, it imposes
upon states the obligation to take “all appropriate measures” to modify social
and cultural patterns of conduct that are discriminatory or harmful toward
women.
Despite the gains that CEDAW
represents, it has some serious limitations. It does not explicitly identify violence against women as a human rights
violation. And it has even less enforcement power than most other human rights
treaties.[44] The
Committee that administers CEDAW is limited to taking reports from state
parties about their efforts to implement its requirements, and issuing
recommendations. But the most glaring limitations derive from the reservations
that many states have attached to their ratification or accession to CEDAW.
Although CEDAW is the second most widely ratified human rights treaty (after
the Convention on the Rights of the Child), it is the one with the most
reservations.
To redress the limitations
of CEDAW on matters of violence against women, in the 1980s women’s rights
groups “began a worldwide campaign to make freedom from domestic and other
forms of violence a universally recognized human right.”[45]
In 1985, the final document of the UN Third World Conference on Women (held in
Nairobi, Kenya) affirmed the seriousness of violence against women and the need
for international measures to combat it.
In 1992, the Committee for
CEDAW issued General Recommendation Number 19, which holds that gender-based
violence is a form of discrimination that states must take measures to
eradicate. In 1993, women’s groups presented a petition with almost 500,000
signatures from 128 countries to delegates at the World Conference on Human
Rights (Vienna), demanding the recognition of violence against women as a
violation of their rights.[46]
Also in 1993, the UN adopted the Declaration on the Elimination of Violence
against Women, defining it as “any act of gender-based violence that results
in, or is likely to result in, physical, sexual or mental harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or private life.” This Declaration
explicitly includes violence occurring in the family, including wife battering
and marital rape.
In 1994, the UN appointed
Radhika Coomarswamy to serve as the first Special Rapporteur on Violence
against Women. The Rapporteur’s role is to build on and extend UN initiatives.
Her mandate includes domestic violence and, more generally, promotion of
adherence to all international instruments and treaties establishing women’s
rights as human rights.
In 1995, the Beijing
Platform of Action (issued at the conclusion of the Fourth World Conference on
Women) included an affirmation of the need to combat domestic violence.[47]
More than any previous initiative, the Beijing Platform articulates a clear set
of factors that perpetuate domestic violence,[48]
all of which governments are expected to remedy.[49]
It also identifies the lack of information and statistical data about domestic
violence as an obstacle to combating it. This inspired the World Health
Organization (WHO) to establish a database on violence against women and
develop a questionnaire and guidelines for undertaking national surveys,
although this process is still in its nascent stages.[50]
In 1999, the UN adopted an
Optional Protocol to CEDAW, which allows individual women or groups of women
(from signatory states) who have exhausted domestic remedies to petition the
Committee for CEDAW about violations of the Convention by their governments.
This Protocol also grants the Committee the authority to conduct inquiries into
grave or systematic abuses of women’s human rights in states that are party to
the Convention and the Protocol.[51]
Coomarswamy has taken a
leading role in formulating and promoting legal rationales to clarify states’
responsibilities to prohibit and combat domestic violence in accordance with
their international obligations.[52]
The two major legal doctrines identified for these purposes are:
1)
The doctrine of state responsibility and due diligence: States have an
internationally recognized responsibility and obligation to exercise “due
diligence” to prevent, investigate and punish acts by private actors that
constitute violations of human rights. Moreover, where a state fails to assume
this responsibility, it is complicit in the violations committed by private
actors. Complicity includes pervasive non-action. State responsibility includes
the institution of effective legal measures, including penal sanctions, civil
remedies and compensatory provisions to protect women against domestic
violence; preventive measures, including public information and education
programs to change attitudes that contribute to the perpetuation of domestic
violence; and protective measures to assist women who are victims or at risk of
domestic violence.
2)
The doctrine of equal protection of the law: International law imposes
a duty on states not to discriminate on a number of specified grounds,
including sex/gender. Failure to fulfill this duty constitutes a violation of
international law by the state. This means that states must apply and enforce
the same criminal sanctions and punishments in cases of domestic violence as
are applied to any other types of inter-personal violence. Any pattern of non-enforcement
amounts to unequal and discriminatory treatment on the basis of sex/gender.[53]
The emphasis of these two
doctrines clearly links gender inequality and domestic violence, and the
obligations of states to combat both. These linkages are based on the following
assumptions and principles: 1) gender violence is a form of discrimination, and
as such, violates international human rights standards which all states are
obligated to adhere to in their own practices and to enforce within all
relationships (public and private) within their jurisdiction; 2) women have a
right to equality with men, and this encompasses all relationships, including
those of the family; 3) local laws that sanction gender inequality must be
reformed to provide equal protections for women and men, and enforcement must
be non-discriminatory.
The development of an
international legal framework for women’s rights as human rights has
contributed to the mobilization of an international struggle against domestic
violence.[54] Such
efforts have heightened and focused international concern about the rights of
women in their relations with family members. Making international standards of
rights a reality for women around the world, though, is an ongoing and
difficult project. It entails bringing local legal regimes into conformity with
international law. And it entails reform of social attitudes to recognize the
legitimacy of women’s rights and a need for laws and other measures to protect
them from violence.
The successes in defining
and promoting women’s rights, including the prohibition of domestic violence as
a human rights violation, has generated criticism and reprisals. Social
conservatives around the world have responded negatively to efforts to empower
women and endow them with enforceable rights within the family, charging that
such initiatives constitute an assault on “family values,” traditions, national
cultures, and so on. In many societies, official and popular aversion to enforcing
international standards for domestic relationships is far more powerful and
influential than the forces seeking to promote and protect the rights and
well-being of women.
The promotion of women’s
rights as human rights, and the recent declarations and conventions to
internationalize and standardize those rights have become imbricated in raging
debates over the legitimacy of human rights in general. Indeed, the rights of
women constitute the quintessential challenge to the “universality” of human rights.
These debates have been particularly vigorous in many developing countries.
Critics and opponents argue that international legal standards contravene local
customs and cultures and/or religious beliefs and practices. Indeed, the
emphasis on individuals as rights-bearing subjects, and the tendency to
prioritize political and civil rights over social, economic and cultural rights
lend weight to arguments that human rights are “Western” and (thus) “alien.”[55]
Such arguments are bolstered by the history of human rights; the majority of
contemporary states were, at the time human rights were created, still
colonized by European powers and thus did not participate in the early stages
of establishing a framework for human rights.
Resistance
to the applicability of international law can not be understood merely as a
regressive reaction to change. Rather, it must be understood as a relational response to historic
conditions and globalization. The creation (and continuing expansion) of human
rights is one manifestation of the globalization of distinctly modern legal
norms and political relations. In broad terms, this process of globalization
includes the establishment of modern (sovereign, bureaucratic) states, which
had, by the latter decades of the 20th century, become virtually
universal (albeit continuously subject to local demographic and territorial
shifts and challenges). Globalization also includes the articulation of
increasingly detailed standards and norms of government that apply, at least in
principle, to all states.
The internationalization of
a common set of rights for all human beings has provoked a great deal of
anxiety about cultural homogenization, especially in societies in the Middle
East, Africa and Asia. To the extent that human rights are perceived as a Western construct, their legitimacy in non-Western
societies is debatable. Moreover, the requirement to reform local laws and to
transform local social and political relations to conform to international law
is widely construed as a manifestation of enduring Western hegemony, a
neo-imperial twist on a centuries-old global power dynamic in which values and
norms are articulated and spread unidirectionally from the West to “the rest.”[56]
Women’s rights, and the
issue of gender relations more generally, have become the primary redoubts of
these anxieties about cultural and legal imperialism. While certain aspects of
modernity, such as national security and bureaucratization, have been embraced
by states everywhere, the politics of culture—specifically cultural
difference—have marked women as a terrain for preserving that which is
(imagined to be) particular to a given society. In the colonial era, women were
made the principle targets for social transformation by Western administrators
and Christian missionaries (i.e., the “civilizing mission”). Modernizing
reformers from these societies also targeted women as objects for intervention
and change, whether to accommodate the imperatives of colonial administrations
or to justify demands for self-rule. These variants of “colonial feminism” made
the liberation of women both a means and a goal of modernization. According to
Deniz Kandiyoti, this created a close association in the minds of many Muslims
between the (changing) status of women and cultural imperialism, and sparked
countervailing attempts to maintain and reinforce “authentic” relations and
roles for women to resist such imperialism.[57]
Islamic authenticity may therefore be evoked to
articulate a wide array of worldly disaffections, from imperialist domination
to class antagonisms. This opens up the possibility of expressing such
antagonisms in moral and cultural terms, with images of women’s purity
exercising a powerful mobilising influence.[58]
When women are treated as
markers of cultural authenticity, and when cultural discourses posit that
women’s human rights are an alien concept, part of a cultural onslaught
emanating from “elsewhere,” the disadvantages that women experience as women can be justified and
defended—even glorified—as an aspect of that particular culture. Conversely,
when the promotion of women’s rights is read as a sign—and imperative—of
modernization (by vesting women with individual and inalienable rights), and
when this goal demands the revision or revocation of local laws and practices,
then it often provokes countervailing efforts to resist globalization and
foreign influence by defending that which is (deemed) authentic and particular
to a given culture or society.[59]
Whether state agents are the
authors of such resistance, or are pushed in these directions by powerful
constituencies, it is the state—as both the arbiter of law and the
representative of society in the international legal order—that bears primary responsibility for the provision
and enforcement of rights for its subjects. The struggles over women’s rights
are, in many ways, contestations over legal jurisdiction and authority, namely
whether international legal standards will prevail to guide state policy, or
whether other bodies of law (constitutional, religious, customary) are accorded
precedence when there is a contradiction.
Although resistance to
women’s rights is strong, it rarely manifests itself as an open defense of violence against women as a
cultural value or end in its own right (possible exceptions being female
genital cutting and sati[60]).
More commonly, concern about the safety and well-being of women is subordinated
to other values or ends, including social stability, male superiority, and, in
some contexts, adherence to religion and/or tradition. But if this serves to enable practices that constitute
domestic violence, whether by tolerating or ignoring them, it literally
sacrifices women to some other “social good.” There is—or should be—an
understood difference between the perpetration of violence against women because of culture (i.e., for reasons
related to cultural ideologies and relations) and the conflation of this
violence with the culture itself. As
Jean Zorn points out:
If wife beating occurs in almost every society in
the world, if it is almost universal, then can it be said to be part of any
society’s unique culture? It is certainly not what sets that society apart from
all others, that which gives the society its special character. One could argue
that, even if international law should recognize cultural differences,
universally applicable rules of international law may govern any behavior that
is itself all but universal.[61]
In societies where
resistance to women’s rights is expressed as a defense of social traditions
and/or religious norms, women’s rights activists have been challenged to
cultivate a persuasive distinction between “culture” and violence against
women. Disrupting tacit tolerance for practices that constitute domestic
violence requires efforts to make such practices visible as violence, to delegitimize justifications for the use of violence
by bringing culturally relevant arguments to bear in the defense of women’s
safety and well-being, and to challenge laws, jurisprudence and ideologies that
construe such practices as vital to the greater good of society.
In Muslim societies, there
is a pervasive belief that international standards for women’s rights conflict
with shari’a. This extends to the
idea that women’s human rights—and efforts to promote them—are “un-Islamic” or
even “anti-Islamic.” Thus, resistance (official and popular) to reform shari’a, whose sources are regarded as
divine, in order to accommodate international legal standards can be justified
as a refusal to sacrifice or subordinate the sacred to the secular.
What this reflects is not an
unyielding or inflexible commitment to religion per se, but a responsive influence of conservative
ideologies and interpretations of religious prescriptions about gender and
family relations in the face of sweeping social transformations that
characterize modernization.
Although Islamic rules have been reinterpreted,
modified, or simply treated as inapplicable when dealing with changing
circumstances in such issues as slavery and modern commercial practices, no
such flexibility has been shown with regard to women’s rights. For women, the
trend of interpretation has worked almost exclusively in the opposite
direction.[62]
The trend toward more
conservative positions on gender issues can be traced through Muslim
governments’ participation in the international process to develop a legal
framework for women’s rights. This process has highlighted and sharpened
differences over women’s right to rights.
In recent years, Muslim governments have consolidated their commitment to shari’a in direct response to pressures
to incorporate international legal standards locally. This history reveals the
fluidity of ideologies about rights and law.
In 1963, the countries that
sponsored a resolution calling for the preparation of a Declaration on the
Elimination of Discrimination against Women (the precursor to CEDAW) included
Afghanistan, Algeria, Indonesia, Morocco and Pakistan.[63]
The UN Secretary General, pursuing the resolution’s request for comments and
proposals about the contents of such a Declaration, received responses from
Afghanistan, Egypt, Iraq, Morocco, Sudan, Syria and Turkey, all of which were
supportive of the idea of women’s rights. For example, Afghanistan recommended
that “intense educational efforts” be made to combat “traditions, customs and
usages which thwart the advancement of women.”[64]
Egypt’s response called for educational campaigns to overcome discriminatory
customs and traditions.[65]
During the process of
drafting the Declaration, a controversy arose over whether it should call for
the abolition or the modification of customs and laws that
perpetuate discrimination. This presaged the kind of controversy that would
arise around the drafting and passage of CEDAW. But because the Declaration was
just that—a statement lacking contractual force—it was passed unanimously. The
drafting of CEDAW was a more difficult process, with a full week spent debating
articles 15 and 16, which give women equal capacity before the law, and
equality under marriage and family law.[66]
When the draft Convention was voted upon, most of the abstentions on these
articles came from Muslim countries. In the final vote, the Convention passed
130 to 0, with 11 abstentions, including Bangladesh, Djibouti, Mauritania,
Morocco and Saudi Arabia.
CEDAW was opened for
signatures in 1980. Most of the countries with majority Muslim populations that
have signed CEDAW have entered
reservations.[67] And all of
the reservations except those of Indonesia, Turkey and Yemen (former Democratic
Republic of Yemen) relate to the preservation of shari’a in matters of personal status.[68]
But the reservations themselves vary in scope, terms and specificity. For
example, Libya proclaimed that its accession to CEDAW is subject to a sweeping
general reservation of any provisions that conflict with personal status laws
derived from shari’a. Bangladesh
reserved on article 2, the core of the treaty, on the grounds that it conflicts
with shari’a. Egypt and Morocco
entered reservations similar to Bangladesh, but couched in a different
language, namely stating a willingness to comply with article 2 as long as it
does not conflict with shari’a.
As a matter of explanation, Morocco add[ed] that
“certain of the provisions contained in the Moroccan Code of Personal Status
according women rights that differ from the rights conferred on men may not be
infringed upon or abrogated because they derive primarily from the Islamic shari’a, which strives, among its other
objectives, to strike a balance between the spouses in order to preserve the
coherence of family life.”[69]
Most of the reservations by Muslim countries pertain to article 15, which grants women equality with men before the law, and article 16, which requires states to eliminate discrimination against women in matters of marriage and family relations.[70] Article 16, along with article 2, constitutes the crucial core of the Convention because it addresses relations and rights in the “private sphere,” which is “the fundamental site of discrimination against women which, effectively, sets the framework and opportunity for discrimination in public life.”[71] Bangladesh, Egypt, Iraq, Jordan, Morocco, Tunisia and Kuwait all entered reservations to article 16. While some of these countries did not elaborate on their reasons for reserving, Egypt, Iraq, Jordan and Morocco offered explanations that women are “advantaged” by the domestic legal regime (e.g., through payment of a dower, and men’s obligations to support their wives financially). For example, Egypt’s explanation states that the basis of spousal relations under shari’a is “equivalency of rights and duties so as to ensure complimentarity which guarantees true equality between spouses, not quasi-equality that renders the marriage a burden on the wife.”[72]
The substance and scope of reservations by Muslim countries sparked a great deal of controversy. Some countries, notably Mexico, Germany and the Nordic states, protested that the reservations are incompatible with the principles and provisions of the Convention as a whole.[73] Sweden was the most adamant, issuing a statement that such reservations
would render a basic international obligation of a contractual nature meaningless. Incompatible reservations…not only cast doubts on the commitments of the reserving States to the object and purpose of the Convention, but also contribute to undermine the basis of international contractual [i.e., treaty] law.[74]
Such objections raised the issue of reservations for international discussion. This, in turn, generated counter-objections by reserving states that such discussion amounted to “an attack by the West on, first, the Islamic world and, by extension, the whole of the Third World.”[75] These discussions about reservations continued in various sessions and committee meetings of the UN. Although Muslim governments were not the only ones to enter reservations, their reservations articulated a common theme about the precedence of shari’a, leading to a general sense that the controversy was a debate about Islam.
Following the submission of Bangladesh’s first report to the Committee for CEDAW, and no doubt influenced by the contents of that report, the Committee formulated General Recommendation Number 4 expressing concern about the significant number and potential incompatibility of reservations as they affect the object and purpose of the Convention. The Committee also requested the UN “to promote or undertake studies on the status and equality of women in the family…taking into consideration the principle of El Ijtihad [sic] in Islam.”[76] In response, Bangladesh as well as Egypt charged that this amounted to cultural imperialism and religious intolerance. Such a charge resonated with other Third World countries, not only those with majority Muslim populations. This led to the passage of a UN resolution squelching the Committee’s proposal for studies about women in Islam. According to Ann Mayer,
The result was that, faced with appeals to cultural particularism, the UN tolerated a situation where some countries would be treated as parties to a convention whose substantive provisions they had professed their unwillingness to abide by. Implicitly, the UN acquiesced to the cultural relativist position on women’s rights…, allowing parties to CEDAW to invoke Islam and their culture as the defense for their noncompliance with the terms of the convention. This was paradoxical, since…CEDAW was premised on the notion that, where cultural constructs of gender were an obstacle to the achievement of women’s equality, it was culture that had to give way—not that women’s rights should be sacrificed…[77]
“Islamic resistance” to international human rights law condensed around CEDAW in particular, and women’s rights in general.[78] In 1990, the Organization of Islamic States, to which all Muslim countries belong, issued a collective rejoinder to international efforts to establish women’s rights in the domestic sphere as human rights: The Cairo Declaration on Human Rights in Islam established that all rights were subject to Islamic law, and that where there was a contradiction between international law and shari’a, the latter would take precedence.
The assertion on the part of governments that religious beliefs and jurisprudence justify the disregard for international legal standards illustrates persisting and onerous obstacles to women’s rights. On the one hand, the sovereign prerogatives of states do provide for autonomy and independence on the legal character of rights within a country. On the other, the international nature of human rights standards and the jurisdiction of international law obligate states to conform under the doctrine of state responsibility. Indeed, to be a state is to be legally subject to the requirements and restrictions enshrined in international law. Abdullahi An-Na’im argues that the most effective means of reconciling state sovereignty and local culture with international legal standards entails the cultivation of a broader and deeper “overlapping consensus” on the universal cultural legitimacy of human rights, including women’s rights.[79]
In exercising their sovereign prerogatives, Muslim governments have sought to present themselves as defenders of “Islam” by building a firewall around shari’a. On the international level, despite the controversy that this has provoked, it epitomizes the capacity of states to speak and act in the name of their societies. Indeed, such a conflation is characteristic of the state-centric international order. Moreover, criticisms of Muslim governments’ policies by “others,” be they representatives of foreign governments or international organizations, can further entrench resistance to human rights within those societies.
But does such a stance actually represent a “Muslim consensus”? There is a substantial, albeit still marginal, discourse within Muslim societies that questions the putative incompatibility of Islam and women’s human rights, and, by extension governmental positions that assume that they are irreconcilable. This alternative discourse includes efforts to reinterpret elements of shari’a to provide for more egalitarian gender relations, and the censure or prohibition of practices that harm or disadvantage women.
Yet the degree to which this discourse can get a public hearing or impact upon national policy is limited by governments themselves. Many governments have acted to repress scholars, activists and organizations advocating women’s rights, even when such advocacy seeks to show their compatibility to Islam. Najla Hamadeh describes this as “the authoritarian discourse of silence,” which produces a sterile “juridical monologue.”[80] The effect is to reify religion by conflating “Islam” with government positions. The means entails the use of state power to stifle and preclude dissenting views or alternative interpretations of religion. But the problem of politically authoritarian states, which characterize the majority of regimes across the three regions, is perpetuated—even bolstered—by their capacity to use religion (albeit in varying ways, as elaborated in the following section) to justify the lack, restriction or even outright violation of rights of women.
Shari’a, the State and Domestic
Violence
The propagation of a
collective trans-national and official position on the incompatibility of
women’s rights and Islam belies variations in the role and uses of shari’a within Muslim societies, as well
as differences between the three regions. To understand these variations, the
most crucial issue is the relationship between religion and the state. In any
given country, this relationship is informed by the particular history of state
formation and development, as well as the demographic composition of the
population. In the Middle East, Muslims comprise a majority of the population
in every country except Israel. Islam is the dominant religion across the
region, and most Middle Eastern governments identify it as the official
religion. In sub-Saharan Africa and Asia, Muslims comprise majorities in some
countries, whereas in others Muslim populations co-exist with populations of
other religions.
In Muslim societies in sub-Saharan
Africa, more so than the other two regions, isolating the role of shari’a from other bodies of law
(customary, colonial and national) is difficult because the spread of Islam was
a gradual process, in many places combining syncretically with local customs
and cultures. Another regional distinction is that all the sub-Saharan African
countries that have signed CEDAW have
done so without entering reservations. However, such willingness has not,
generally, translated into a more activist stance by African governments on
matters of women’s rights. In all three regions, family and social relations
are patriarchal, and shari’a has
tended to bolster these arrangements.
It may well be that restrictions imposed by Islamic
and other forms of customary laws are reinforced and magnified by state
structures that institutionalize both Western and indigenous elements of
patriarchy. All these elements come together to disadvantage women vis-à-vis
men. These disadvantages exist in all societies. The degree and type of
disadvantage differs from culture to culture but the fact of disadvantage is
universal and certainly not unique to Islamic societies.[81]
One way of engaging a
comparative approach to the relationship between domestic violence and shari’a is to highlight variations in
the relationship between religion and the state. This relationship can be
divided into three broad categories: 1) “Communalization”: religious laws,
institutions and authorities are accorded semi-autonomy from the state; 2)
“Nationalization”: religious laws and jurisprudence are incorporated into or
influential over the state’s legal regime; and 3) “Theocratization”: the state
bases its own authority upon religious law and jurisprudence.
Communalization: In countries where separate systems of personal status laws are
applied to members of different communities, there are “two tiers” of law, one
under the direct control of the state, and the other based on religion (and/or
custom) and semi-autonomous from the state’s legal authority. In such contexts,
laws and legal institutions governing family relations are not only legally
separate from state law, but also are regarded ideologically as “outside” the state’s domain.
Israel, India and Nigeria
represent examples of countries where personal status laws are communalized. In
all three, the populations are religiously diverse, the national political
systems are “non-religious,” and each has a constitutionally-based legal
system.[82]
In Israel, communalization works to provide every religious group (Jews,
Christians, Muslims, Druze) with its own personal status laws administered by
religious authorities,[83]
whereas in India, communalization applies only to minorities, not the Hindu
majority. In Nigeria, sectarian law is administered under the rubric of regional
states (rather than communalization on a national scale).
In Israel and India, this
two-tiered system was instituted as part of a broader project of national
integration to accommodate religious and social differences and encourage
loyalty to—or dependency on—the state by religious authorities and
constituencies; communal autonomy over domestic matters formed an element of
the “social contract” in these countries. In Nigeria, communalization—and more
specifically Islamization—is of a more recent vintage. But in all three,
communalization of personal status laws serves to deprive women of equal citizenship rights. This extends to the
issue of domestic violence by impeding or preventing victims from seeking
protection from the state, since what occurs in the family is legally constructed as a “communal”
issue, not the state’s concern.
In India, the administration of shari’a is overseen by the All India Muslim Personal Law Board. Communal autonomy has been the subject of debate since independence, challenged by those who advocate a uniform civil code for personal status issues that would apply to all Indians regardless of religion. The debate heated up in 1985 following the notorious Shah Bano case. The Indian Supreme Court ruled that Shah Bano, a divorced Muslim woman, had the right to receive maintenance from her husband under Section 125 of the Criminal Procedure Code of India. This provoked conservative Muslim religious leaders and the All India Muslim Personal Law Board to protest state interference in a “communal” matter. The Indian government capitulated to the