Women Under Islam: Gender, Justice and the Politics of Islamic Law PDF
Preview Women Under Islam: Gender, Justice and the Politics of Islamic Law
CHRISTINA JONES-PAULY is an independent consultant on women and governance for various international agencies. She holds a Dr Phil in Comparative and Islamic Laws (London) and a Dr Jur in international law (Harvard). She was Human Rights Fellow at the Radcliffe Institute for Ad- vanced Study, Harvard University, taught Islamic Law at Harvard Law School, and was Associated Researcher at the Socio-Legal Studies Centre, Oxford University. Before this she headed the Human Rights and Devel- opment Unit at the University of Bonn. She has worked on numerous human rights projects for the UN. ABIR DAJANI TUQAN studied Islamic Law at SOAS, and is the first Arab woman to pass the Bar in Britain (Middle Temple), with First Class Hon- ours in Islamic Law. She has spoken at various international conferences and in the media on Islamic family law. CHRISTINA JONES-PAULY WITH ABIR DAJANI TUQAN WOMEN UNDER ISL AM Gender, Justice and the Politics of Islamic Law Foreword by The Rt. Hon. Justice Thorpe Published in 2011 by I.B.Tauris & Co Ltd 6 Salem Road, London W2 4BU 175 Fifth Avenue, New York NY 10010 www.ibtauris.com Distributed in the United States and Canada Exclusively by Palgrave Macmillan 175 Fifth Avenue, New York NY 10010 Copyright © 2011, Christina Jones-Pauly The right of Christina Jones-Pauly to be identified as the author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. Except for brief quotations in a review, this book, or any part thereof, may not be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. Library of Islamic Law: 3 ISBN: 978 1 84511 386 5 A full CIP record for this book is available from the British Library A full CIP record is available from the Library of Congress Library of Congress Catalog Card Number: available Typeset in Garamond by Artform, Oxfordshire Printed and bound in Great Britain by CPI Antony Rowe, Chippenham from camera-ready copy edited and supplied by the author This book is dedicated to the memory of mentor, friend and philanthropist Helen Maguire Muller for her generous support and above all friendship. CONTENTS Foreword by The Rt. Hon. Lord Justice Thorpe xi Acknowledgements xiii Introduction xvii 1 TUNISIA – THE IDEAL ISLAMIC REFORM 1 Introduction 1 Historical roots 3 Modernity 13 Modern intellectual reformers of Islamic law – Taalbi 18 Abusive practices against women: dar jawad (house of discipline) 28 Tahar Haddad – successor to Taalbi 35 Pre-Independence and reform of Sharia 70 Independence – equality before the law 72 Population law 86 Infanticide 96 Fundamentalism 100 2 EGYPT – CONSERVATIVE INCREMENTAL REFORM 103 Introduction 103 Arabization and Islamization of Egypt and class stratification 103 The modern state – arrival of the Europeans 106 Reform movements in the 19th century on women’s rights 107 Religious reformers: Muhammad Abduh 110 Reform movements: Salafiyya, Rashid Rida 111 Secular reform movements: Haykal 112 Islam and the state 113 viii WOMEN UNDER ISLAM Court systems 116 Political background since 1952 121 Efforts to codify and reform the law of personal status 124 Reforming the wife’s right to divorce – Law No. 1 of 2000 171 Women’s Council 193 Female circumcision 194 Conclusions 203 3 PAKISTAN – ORTHODOX MODERNITY 207 Historical background 207 The start of Independence 213 A Muslim ruler/state – in need of an Islamic law? 216 The 1973 Constitution – basis of applying Islamic law 220 Judicial review of Islamic laws 227 Judicial review of the Offence of Zina Ordinance 232 May a husband kill a wife or her partner for adultery? 277 Is an honour murder because of zina permissible under any circumstances? 288 Reforming Pakistani Islamic criminalization of laws: honour killings and zina 291 Conclusions 294 Postscript on the Protection of Women Act 2006 296 4 SOUTH AFRICA – CONSTITUTIONAL CHALLENGES FOR ISLAMIC LAW 301 Introduction 301 A brief history of the Muslim Malay community 302 Islamic law in South African jurisprudence – the ‘Malay’ Cape community 305 The Muslim Asian Indian community 317 The apartheid era and Islamic marriages 324 Summary of South African jurisprudence on the application of Islamic law 337 Judicial recognition of Muslim marriages in post-apartheid South Africa 339 Extra-judicial practices in South African Muslim communities 366 Extra-judicial interpretations in the Asian Muslim communities of Islamic marriage and divorce law 379 CONTENTS ix Inheritance inequality and the South African Constitution – a comparative view 394 Approaching Islamic succession/inheritance law in a new light 398 Theological and power disputes within the Muslim communities 410 Religious sects 414 Islamic dispute settlement – extra-judicial conflict resolution in the Muslim communities 420 Considerations for statutory recognition of Muslim marriages 429 Conclusions 444 5 CONCLUSIONS 447 Notes 469 Bibliography 509 Index 527
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