About the Center
Search
Center News
Gendering Islamic Law: Enduring Themes
Judith Tucker
Published in 2005
[No download available]
As I began to work on my current book project in the fall of 2002, I was the unhappy recipient of much bad news, forwarded on by friends and colleagues in the Middle East, Europe, and North America. A woman in Nigeria who had given birth out-of-wedlock faced a sentence of death by stoning as soon as her baby, whose father had been allowed to deny paternity, was weaned. The wife of a prominent entertainer in Cairo grew suspicious of her husband’s behavior, followed him to an apartment, found him in bed with another woman, and made a huge scene, only to discover that the other woman was a legal second wife. Feeling was still running high in Saudi Arabia about the decision by religious police to prevent “uncovered” girls from leaving their burning school building, leading to the death of fifteen. A religious council challenged the minimum legal marriage age of eighteen in India, arguing that it violated the rights of community members to marry off their daughters as soon as they reached puberty. All this in the name of Islamic law. Of course, these incidents cannot be taken to represent current doctrines and practices of Islamic law. Still, they demand our attention: how could a legal system that attempts to follow the will of God, a God who is compassionate and just, permit and even facilitate the expression of such rampant misogyny and unbounded patriarchal privilege? Why would many Muslim women, and their male allies, remain steadfast in their belief that Islamicnprinciples are the fount of goodness and righteousness in this life and the hereafter, and that Islamic practices, although perhaps in need of some review and revision, are the best guarantee of rights, privileges, and fairness for women?
The question was further complicated, for me, by the fact that my prior research interests, as a social historian of the Ottoman period in the Arab world, had brought me into contact with Islamic legal materials, including some of the juristic texts and records of legal practice that survive from the seventeenth and eighteenth centuries. I found it very difficult to reconcile the texture of these discussions and practices, imbued as they were by palpable concern for the rights of vulnerable members of society—the poor, the orphaned, the female—with the tone of current debates on matters like female dress and adultery. What was the relationship of the views of traditional jurists to those of the present? Are there enduring themes in the Islamic legal position on women and gender or do we see great variation over time? What are the basic premises of the Islamic legal constructions of women and gender, and how have they been affected by historical contingencies? How have those constructions shaped and been shaped by the understandings and activities of ordinary people?
In my current project, working on a book that I hope will serve as an introduction to the field of Islamic law and gender, I raise these questions as a historian. I am not a Muslim and I am not exploringIslamic law from a faith-based perspective. My purpose is not, and cannot be, to engage in original interpreting of the law or to sit in judgment on how others have understood the rules of their religion. Rather, I approach the topic of Islamic law, women, and gender as a study of a multilayered history. It is part the history of doctrinal development, the ways in which Islamic jurists, working with received texts and sophisticated methodologies, formulated rules about women, men, and their relationships. It is part the history of legal institutions and practices, how these rules were understood, implemented, and even modified by a range of legal actors, from individual judges to centralized state powers. It is also part the history of lay members of Muslim communities whose choices of doctrines to follow and legal avenues to pursue allowed the law to develop in rhythm with social needs, just as their legal inquiries and court appearances also served, at times, as contestation of legal discourse on women and gender issues. I try to address all three of these interwoven layers as I consider how Islamic law and the Muslims who lived it constructedthe relationship between law and gender.
In the course of the book, I intend to discuss the basic issues of legal discrimination, the use of a male standard and the pervasive gendering of the law, and the possibilities for female agency. I take a thematic approach to the subject of women and gender in chapters that deal with: 1) marriage, 2) divorce, 3) the legal persona as guardian, witness, and property-holder, and 4) the body. In each case I try to cover relevant legal doctrine from the four major schools of Sunni jurisprudence as well as Shi`i law with attention to the ways in which doctrines developed in reference to textual sources on the one hand and historical contingencies on the other. I also attempt to pay attention to the many tensions in Islamic jurisprudence insofar as possible over the course of a long and varied history. My exploration of this doctrine is, necessarily, partial and somewhat idiosyncratic, based on my own sense of what seems most relevant or significant to the law and gender focus. The law is a vast textual arena and the processes involved in the development of the legal tradition were complex and varied, taking place in widely disparate times and places. I try to do my best to capture the flavor of this tradition and its methodologies which were the product of some of the best minds of the time, but I cannot pretend that I supply a comprehensive survey of doctrinal developments. That lies beyond the boundaries of my study.
I am interested not just in doctrine, but also in the lived experience of the law, the ways laywomen and men understood their rights and options, and what actions they took as a result. I am dependent here on scholars who have done research on the practice of Islamic law in various times and places, but the field still suffers from the paucity of such studies, especially in the pre-Ottoman period, so that the material is limited and somewhat disjointed. I also try to confront the epistemological break in the law of the late nineteenth century and the entrance of the state as a central figure in modern legal systems: this was a watershed period that had far reaching effects, for better and worse, on women and gender issues. Finally, I endeavor to outline some of the most significant recent campaigns on the part of women activists, both at the level of practical reforms of legal practice and challenges being mounted inside doctrinal discourse. I am not trying to write an encyclopedic account of the topic: there will be many omissions of relevant facts, experiences, nuances, and approaches. But I am attempting to cover most of what I think is critical to understanding the breadth and depth of at least a good number of the key issues that surround the question of women,
gender, and Islamic law.
Related Content
No related content exists for this item.