Women and Islam Part 2: custom, religion and civil society

My article of last week discussed the challenges faced by the women of West Asia-North Africa upholding their rights and protecting themselves from violence. I explained that deficiencies in the legal protection framework, legal illiteracy and poor access to the justice system leave women vulnerable to specific forms of rights violations and contribute to their overall marginalisation. I argued that new, innovative strategies were needed to break the current impasse of gender discrimination and strengthen legislative protections. And I proffered that this strategy may actually be right in front of us: Islam. Many — not all — but many of the laws that operate to marginalise women directly abrogate fundamental principles of Islam including protection of the vulnerable, the proscription of violence and the best interests of the child. 

Now there are probably many protection-savvy readers who are well aware that law reform makes little difference in the lives of the disenfranchised who, for a complex set of reasons, are unable to access the justice system. Don’t worry. I wasn’t finished. I certainly believe that there is enormous scope for using gender sensitive interpretations of Islam to promote law reform. But when one examines the real issues that are making women vulnerable to rights violations, the real problem is not the law; nor is it religion. It is custom. Law, religion and culture also fuse in complex and dynamic ways, such as where discriminatory customs are presented as being condoned by or required under Islam. Domestic violence, for example, although punishable by law, is widespread and often perceived as being justified from a religious standpoint. Likewise, despite strict legal prerequisites on underage marriage, the phenomenon is both socially accepted and pervasive. This is indisputably connected to an understanding among Shari’a court judges, Imams and religious scholars that early marriage is an accepted Islamic practice. In other situations Islam is not a factor; instead it is the interplay of law and culture that results in women’s rights being compromised. The mitigating and exculpatory provisions in the Penal Code are examples of where patriarchal cultural norms, specifically the cultural value attached to female virginity and family honour, have evolved into law.

Against this backdrop, a reform agenda exclusively focussed on legislative reform is not the most effective or efficient means of protecting and empowering women. New modalities need to be examined and within such a process addressing discriminatory customs and traditions must be prioritised. Again, perhaps the most relevant tool is the one that is most often presented as part of the problem: Islam. Three areas of entry points are offered for consideration by policy-makers and practitioners.

1. The role of judges and other religious actors
Throughout the Muslim world, judicial discretion has traditionally played a major role in decision-making. This practice lingers, even in states with statutory law such as Jordan. The influence of a judge’s understanding of Shari'a has major implications for women’s rights protection. How then might judges be encouraged to use their discretion to play a more active role in women’s protection, for example, by disallowing marriages between perpetrators of rape and their victims on the basis that this contradicts the purpose of marriage in Islam. Lawyers play an essential role in encouraging a judge to embrace a specific interpretation of religious jurisprudence. Islam is rich with provisions that protect women, and lawyers need to arm themselves with a thorough understanding of such Qur’anic passages, hadith, fiqh and Sunna and have the skills to employ them strategically.

The role of other Islamic actors might also be capitalised upon. There is no better example than the fatwa issued by Egypt’s Grand Mufti, Nasr Farid Wasel, in 1999. This fatwa declared “reparatory marriage” between a rapist and his victim invalid. Furthermore, the fatwa described rape as “psychological murder for a woman”, and therefore forcing a victim to marry such is against the foundational principles of marriage required by Shari’a, which are love and compassion. This action and the debate that followed played a pivotal role in the repeal of the law that permitted marriage between a rapist and victim (the Egyptian equivalent of Jordan’s Penal Code article 308).

2. Legal literacy and the role of civil society
The law is an impotent tool unless women are aware of their rights and have the tools to realise them. Largely at the behest of donors, legal literacy programs generally focus on women’s rights under statute and international law. A major shortcoming of such programs is that, for the vast majority of women, law and international conventions are tools far beyond their socio-economic, educational and situational reach. Such campaigns would be strengthened if they adopted a duel-track approach that presented women’s rights as being protected under both law and Islam, the pivotal role of custom, and how many of the practices deleterious to women have no legal or religious justification. A clear entry point is women’s rights to inheritance. The Qur’an and hadith unambiguously set out such rights and emphasise that they are obligatory. Islam’s founding principles of equality and justice infer that these rules were revealed in order to guarantee women’s fair treatment, as well as their protection from violation and abuses. The focus message should be that pressuring or coercing women into waiving such rights directly violates Islam.

3. Extra-legal approaches
Women’s legal empowerment will be not be achieved unless the socio-cultural causes of violence against women and their marginalisation are eliminated. In Jordan, deficiencies in the legal protection framework are reinforced by traditional attitudes towards the roles and responsibilities of women and men in society. Violence against women is broadly considered a matter to be kept within the private sphere, because of its direct connection to a woman and her family's reputation. Moreover, cultural norms that support subservience and patriarchy normalise rights violations and place strong cultural disincentives upon women to refer the resolution of disputes outside of their immediate families. If women do refer cases to court, they can face harassment, discrimination, intimidation or lack of assistance by protection agents. Programs aimed at reversing gender stereotyping must be pursued, including through education curricula reform, broad community messaging and promoting women’s economic empowerment. Simultaneously, efforts must be made to eradicate specific discriminatory and violent cultural practices. Early marriage, marriage between a rapist and victim and denial of a women’s inheritance cannot be solved by either awareness raising or law reform alone. Social and family pressure to enter such marriages and social norms that require women to waive their salaries and inheritance rights need to be curtailed. Islam can be a source of protection in this regard, and jurists, scholars and civil society should all be encouraged to play a more active role in communicating the importance of respecting these principles.

While law reform may be a strong and viable basis for law reform in Jordan, it is not a panacea. We must look for solutions that give immediate, practical and meaningful relief to women. Moreover, donors should be sympathetic to programmes that — although not completely fixing the problem from a strict gender rights perspective — eliminate the extremes and reduce the vulnerability of the greatest number. An inter-sectoral and multi-disciplinary approach is far more likely to be more successful than law reform on its own.