I S L A M , G E N D E R , A N D D E M O C R A C Y IN

C O M PA RA TI VE P ER S P E CT IV E
 Islam, Gender,
and Democracy in
Comparative Perspective

Edited by
J O C E L Y N E C E S A R I A N D JO S É C A S A N O V A

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Table of Contents

List of Figures and Tables vii

List of Contributors ix

Introduction 1
Jocelyne Cesari

P A R T I : T H E NE X U S O F R E L IG I O N ,
GENDER, AND DEMOCRACY
1. State, Islam, and Gender Politics 15
Jocelyne Cesari
2. Catholicism, Gender, Secularism, and Democracy:
Comparative Reflections 46
José Casanova
3. Secularism, Gender Inequality, and the French State 63
Joan W. Scott
4. Islamic Law and Muslim Women in Modern Indonesia 82
Robert W. Hefner
5. Islamic Feminism: National and Transnational Dimensions 113
Susanne Schröter

P A R T I I : L O C A L I Z IN G T HE I N TE RP L A Y S
B ETWE EN GEN D ER , L AW , AN D DE MO CR AC Y
I N D IF F E R E N T N A T I O N A L CO N T E X T S
6. Gender Roles and Political, Social, and Economic Change
in Bangladesh and Senegal 139
Katherine Marshall
7. Reforming Muslim Family Laws in Non-Muslim Democracies 160
Yüksel Sezgin
8. Law, Gender, and Nation: Muslim Women and the
Discontents of Legal Pluralism in India 188
Vrinda Narain
9. Islam, Gender, and Democracy in Iran 211
Ziba Mir-Hosseini
OUP CORRECTED PROOF – FINAL, 22/3/2017, SPi

vi Table of Contents

10. Women’s Rights and Democratization in Morocco and Tunisia 237

Valentine M. Moghadam
11. Making Spaces in Malaysia: Women’s Rights and New
Muslim Religiosities 266
Maila Stivens

Index 299
 List of Figures and Tables

Figures
1.1 Representation of women and men in parliament and ministerial
positions according to the Global Gender Gap Report 2014 22
1.2 The score on economic participation and opportunity in selected
countries according to the Global Gender Gap Report 2014 25
1.3 Wage equality between women and men for similar work converted
to a female-over-male ratio 26

Tables
6.1 Bangladesh and Senegal: Global Gender Gap Report 2015 141
7.1 Family Courts vs Shari‘a Courts: Spousal Maintenance and Child
Support Awards 171
10.1 Gender Indicators, Tunisia and Morocco, 2010–11 251
10.2 Principal Political Parties and Women Members in Tunisia’s National
Constituent Assembly (ANC), 2011–14 254
 List of Contributors

José Casanova is Professor in the Department of Sociology at Georgetown

University, and heads the Berkley Center’s Program on Globalization, Reli-
gion, and the Secular. He has published works on a broad range of subjects,
including religion and globalization, migration and religious pluralism, trans-
national religions, and sociological theory. He is the author of Public Religions
in the Modern World (1994).
Jocelyne Cesari is Professor of Religion and Politics at the University of
Birmingham and Senior Research Fellow at Georgetown University’s Berkley
Center, where she directs the Islam in World Politics Program. She is an
adjunct professor at the Harvard Divinity School and directs the interfaculty
Program on Islam in the West at Harvard University. Her publications include
The Awakening of Muslim Democracy: Religion, Modernity and the State
(2014) and Why the West Fears Islam: An Exploration of Islam in Western
Liberal Democracies (2013). She is also the editor of The Oxford Handbook of
European Islam (Oxford University Press, 2015).
Robert W. Hefner is Professor of Anthropology and Director of the Institute
on Culture, Religion, and World Affairs at Boston University. His research
focuses on responses to modernity in Christian and Muslim traditions. His
publications include Civil Islam: Muslims and Democratization in Indonesia
(2000), Shari‘a Politics: Islamic Law and Society in the Modern World (2012),
and The Routledge Handbook of Indonesia (forthcoming).
Katherine Marshall is a Senior Fellow at Georgetown University’s Berkley
Center for Religion, Peace, and World Affairs, where she leads the Center’s
Program on Religion and Global Development. She also serves as Professor of
Practice in Georgetown’s School of Foreign Service. She helped to create and
now serves as the Executive Director of the World Faiths Development
Dialogue (WFDD).
Ziba Mir-Hosseini is Professorial Research Associate at the Centre for Islamic
and Middle Eastern Law, University of London. In 2015 she received the
American Academy of Religion’s Martin E. Marty Award for the Public
Understanding of Religion. Her publications include Islam and Gender: The
Religious Debate in Contemporary Iran (1999), Marriage on Trial: A Study of
Islamic Family Law, Second Edition (2000), and Islam and Democracy in Iran:
Eshkevari and the Quest for Reform (2006). She has also co-directed two
award-winning feature-length documentary films on Iran: Divorce Iranian
Style (1998) and Runaway (2001).
x List of Contributors

Valentine M. Moghadam is Professor of Sociology and International Affairs and

the Director of the International Affairs Program at Northeastern University.
Her research focuses on gender, transnationalism, and the political sociology
of the Middle East and North Africa. Her publications include Globalization
and Social Movements: Islamism, Feminism, and the Global Justice Movement
(2013) and Globalizing Women: Transnational Feminist Networks (2005).
Vrinda Narain is Associate Professor in the Faculty of Law, McGill University
and Research Associate, International Studies Group, at the University of the
Free State, South Africa. Her research centers around constitutional law,
human rights, critical race theory, and feminist legal theory. Her publications
include Reclaiming the Nation: Muslim Women and the Law in India (2008)
and Gender and Community: Muslim Women’s Rights in India (2001).
Susanne Schröter is Professor of Anthropology of Colonial and Postcolonial
Orders at Goethe University and Adjunct Professor at the University of
Indonesia. Her research focuses on gender, political Islam, and the anthropol-
ogy of globalization. Her publications include Gender and Islam in Southeast
Asia: Negotiating Women’s Rights, Islamic Piety and Sexual Orders (2013) and
Christianity in Indonesia: Perspectives of Power (2010).
Joan W. Scott is Professor Emerita in the School of Social Science at the
Institute for Advanced Study. She is also Adjunct Professor of History at
the Graduate Center of the City University of New York. Her research focuses
on French politics and feminism. Her publications include The Politics of the
Veil (2007) and The Fantasy of Feminist History (2011).
Yüksel Sezgin is Professor of Political Science and the Director of the Middle
Eastern Studies Program at Syracuse University. His research focuses on legal
pluralism and comparative religious law (Islamic, Jewish, and Hindu), with a
special interest in human and women’s rights. He is the author of Human
Rights under State-Enforced Religious Family Laws in Israel, Egypt, and
India (2013).
Maila Stivens is Principal Research Fellow at the Asia Institute at the Univer-
sity of Melbourne. Previously, she was Director of Gender Studies at the
University of Melbourne, taught anthropology at University College, London,
and held visiting fellowships at the Asia Research Institute and in sociology at
the National University of Singapore and the Institute of Development Studies,
University of Sussex. Her publications include Malay Peasant Women and the
Land (co-author, 1994) and Matriliny and Modernity, Sexual Politics and Social
Change in Rural Malaysia (1996). She is the co-editor of Gender and Power in
Affluent Asia (1998) and Human Rights and Gender Politics: Asia-Pacific
Perspectives (2000).
 Introduction
Jocelyne Cesari

The relationship between secularism, democracy, religion, and gender equality

has been complex across Western democracies and still remains contested.
When we turn to Muslim countries, the situation is even more multifaceted.
In the view of many Western commentators, the question of women’s rights is
the litmus test for Muslim societies in the age of democracy and liberalism.
The Arab Awakening in particular, the issue is usually framed as the oppos-
ition between liberal advocates of secular democracy and religious opponents
of women’s full equality.
This book intends to critically re-engage this too simple binary opposition
by reframing the debate around Islam and women’s rights within a broader
comparative literature that examines the complex and contingent historical
relationships between religion, secularism, democracy, law, and gender equal-
ity. In fact, history tells us that there is no systematic connection between
secularism and democracy: secular authoritarian regimes such as Turkey
under Mustafa Kemal Atatürk or Iraq under Saddam Hussein have advanced
women’s rights, while curtailing democracy and civil rights. Post-secularist
Muslim democracies, in turn, may have expanded electoral rule and some civil
rights, while curtailing others, particularly on issues of sexual equality.

THE UNEXPLORED NEXUS OF WOMEN’S RIGHTS,

ISLAM, AND DEMOCRACY

The rights of women in Islam are the topic of an impressive body of literature.1
Simultaneously, the question of Islam and its compatibility with democracy

1
Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New
Haven, CT: Yale University Press, 1992); Margot Badran, Feminism in Islam: Secular and
2 Jocelyne Cesari

has also been the focus of a considerable amount of work. Interestingly, the
nexus of women’s rights, Islam, and democracy has been little analyzed, with
the notable exception of Steven Fish’s (2002) article, which considers the rights
granted to women in Muslim societies to be a predictor of democracy. Fish
argues that the status of women’s rights explains the lack of democracy in
Muslim societies, providing a provisional theory which links women’s rights
with regime type and therefore discards Islam as a cause of women’s oppres-
sion. This would be quite relevant except that the deficit of women’s rights in
Muslim countries is actually linked to religiously based legislation, especially
in the domain of civil law. Consequently, there is a need for a more nuanced
analysis that considers the correlation between secularization and gender
equality mediated by the rule of law and, when it comes to the influence
of Islam, differentiates between civil law, political rights, and social rights
(work/education).
In these circumstances, the aim of this collaborative project is to examine
the complex relationships between democracy, secularism, Islam, and women’s
rights in order to make a critical and more fruitful contribution to the current
debate on women and politics in Muslim countries. Our edited volume fills a
gap in the existing literature by: (a) bridging two currently distinct threads of
scholarly work: surrounding women’s rights and Islam on one hand and Islam
and democracy on the other; and (b) locating the current intersection of Islam,
gender, and democracy in the broader field of women’s rights, religion, and
democracy in other countries, such as India, Israel, Spain, Poland, and France.

SECULARITY, DEMOCRACY, CIVIL LIBERTIES,

AND WOMEN’S RIGHTS

The academic consensus is that modernization, democratization, and secular-

ization are inextricably linked in any process of political development, and
that the advancement of women’s rights is the “natural” outcome of these
intertwined processes.2 This consensus operates on the premises of the secu-
larization theory, whose core claims are twofold. First, the social significance
of religion in modern societies is weakening in comparison to previous

Religious Convergences (Oxford: One World Publications, 2009); Afsaneh Najmabendi, Women
with Mustaches and Men without Beards: Gender and Sexual Anxieties of Iranian Modernity
(Berkeley, CA: University of California Press, 2005); Valentine Moghadam, Modernizing
Women: Gender and Social Change in the Middle East, 3rd edn (Boulder, CO: Lynne Rienner
Publishers, 2013).
2
Yoshiko Ashiwa and David L. Wank, “Making Religion, Making the State in Modern China:
An Introductory Essay,” in Making Religion, Making the State: The Politics of Religion in Modern
China (Palo Alto, CA: Stanford University Press, 2009), pp. 1–21.
 Introduction 3

periods.3 Second, this decline of the social importance of religion is attributed

to diverse processes of modernization. Three pillars: separation of religion and
state, privatization, and decline of individuals’ religiosity are usually con-
sidered to be the main features of secularization.
Our volume builds on the rich body of literature that has critically ad-
dressed these core assertions of the secularization paradigm. Most of the
critique is aimed at the claim that religion is losing its significance in the
modern era. Alternative approaches of secularization focus on social differen-
tiation, which insists on the increased autonomy of social segments (econom-
ics, sciences, education, etc.) that were previously under the influence of
religious doctrines or organizations.4 Reduction of secularization to state–
church institutional relations has also been criticized and even proven
wrong.5 For example, recent sociological data shows that democratization is
not dependent on the separation of church and state—and that, in fact,
government involvement in religion often increases as democracy grows,
especially in Christian nations.6 In the same vein, it has been argued by
scholars such as Kaplan that the growth of democratization and secularization,
even in the West, was not actually as smooth and linear as the narrative wants
us to believe, and setbacks were inevitable.7 Others reject the idea of an
irreversible process of privatization of religious actors and institutions
(José Casanova).8 The most recent thread of these renewed approaches is
the focus on religious pluralism and egalitarian individualism (Steve Bruce,
Charles Taylor).9

3
Bryan Wilson, Religion and Sociological Perspective (Oxford: Oxford University Press,
1982).
4
Ibid.
5
Jonathan Fox, “World Separation of Religion and State in the 21st Century,” Comparative
Political Studies 39 (2006), 537–69.
6
Ibid.
7
Benjamin Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early
Modern Europe (Cambridge, MA: Harvard University Press, 2007), pp. 333–58. For example, the
European experience of democratization was part of a reaction to the religiously induced Thirty
Years’ War and to the rise of Enlightenment principles, which resulted in various forms of
church and state separation. In other words, the differentiation of church and state experienced
throughout Europe was the solution to end several decades of bloody religious wars during the
sixteenth and seventeenth centuries. Ultimately, the matrix of long-term ideas—such as the
necessity of separating religion and politics, the perception of religion as a disturbance in public
spaces, and the idea that intertwining politics and religion creates absolute power—shapes
political imaginary and cultures. This imaginary is continuously utilized by European political
actors to build ideological arguments that secularization goes hand in hand with a decline of
religion in the public space.
8
José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press,
1994).
9
Steve Bruce, “Modernisation, Religious Diversity and Rational Choice in Eastern Europe,”
Religion, State & Society 27:3 (1999), 265–75; Charles Taylor, The Secular Age (Cambridge, MA:
Harvard University Press, 2007).
4 Jocelyne Cesari

At the end, all these critiques are highly significant and have contributed to
address secularism as a political negotiation over the accepted role of religion
in public life rather than as an a priori category.10 Interestingly, these socio-
logical analyses of secularism have not yet been taken into account in political
science, especially not in the studies that address Islam and democracy. In
other words, when it comes to Islam and democracy, a quantitative/institu-
tional approach to secularization dominates, which dismisses historical evo-
lution and continuous struggle between political and religious actors over the
meaning and boundary between religion and politics.
It is not surprising then, that most non-Western experiences of seculariza-
tion have been measured and evaluated in comparison to secularism, which in
this book will refer to the Western model of secularity. In other words, we
consider secularism to be the Western political culture produced by multiple
and imperfect embodiments of two principles: protection by law of all reli-
gions, and equidistance of the state vis-à-vis all religions. These principles
are interpreted within specific political cultures that ultimately frame social
expectations about the status of religion in public space. In the case of the
West, these expectations are the separation of church and state, and privat-
ization of religion, leading to its social decline as well as the decline of personal
religiosity.
Consequentially, Turkey, Tunisia under Ben Ali, and Iraq under Saddam
have been defined as secular, with the implicit assumption that they are (or
were) aligning themselves on the Western principles described. These “secular”
states have certainly attempted to diminish the role of religion in the public
sphere. However, an irreversible decline of the social and political presence of
Islam did not occur in any of these countries. Moreover, none of these states
properly implemented a separation between Islam and the state, nor the
recognition or protection of religious diversity, which, more than separation,
is a critical factor in a secularization process. As described by Alfred Stepan, in
“The Twin Tolerations,” secularization entails a dual process of differenti-
ation, in which “the minimal boundaries of freedom of action must somehow
be crafted for political institutions vis-à-vis religious authorities, and for
religious individuals and groups vis-à-vis political institutions.”11 In other
words, states would not use religions for political purposes and grant equality
to all religions, while religious groups would refrain from capturing state

10
Jeffrey Hadden, “Toward Desacralizing Secularization Theory,” Social Forces 65:3 (1987),
587–611; Mark Chaves, “Secularization as Declining Religious Authority,” Social Forces 72:3
(1994), 749–74; Rodney Stark, “Secularization, R.I.P,” Sociology of Religion 60:3 (1999), 249–73;
William E. Connolly, Why I Am Not a Secularist (Minneapolis, MN: University of Minnesota
Press, 2009); Brian Goldstone, “Violence and the Profane: Islamism, Liberal Democracy, and the
Limits of Secular Discipline,” Anthropological Quarterly 81:1 (2007), 207–35.
11
Alfred Stepan, “Religion, Democracy and the ‘Twin Tolerations,’ ” Journal of Democracy
11:4 (2000), 37–57, at 37.
 Introduction 5

institutions and politics for their specific religious purposes. While such
equilibrium is never completely achieved, even in Western nations,12 it can
serve as a criterion to evaluate processes of secularization. In these conditions,
almost all Muslim countries, even the ones dubbed as secular, fail on both
accounts: that is, state equidistance vis-à-vis all religions and no encroachment
of religion upon politics. We are therefore in dire need of reconsidering or at
least broadening the existing approaches to regimes of secularity in order to
make sense of their particular political experiences.
In these conditions, secularism too often refers to the dominant and taken-
for-granted approach of the Western experience, which is a separation of state
and religion, and non-religious references in the legal system. In such a
classification, although some Muslim countries like Tunisia or Turkey are
defined as secular, the status of citizens, the family life, and the definition of
the nation involve a dominant religious element imposed on all members of
the political community. Furthermore, it can be argued that, in these coun-
tries, Islam was indeed confined into private spaces, but this is not a sufficient
condition to define them as secular because state actions did not translate into
the neutrality and equidistance of the state vis-à-vis all religions.
Thus, the use of Western terms or Western techniques or cultural styles
should not fool us into thinking that some of these countries went through a
differentiation between Islam and politics, as experienced in Western democ-
racies. Actually, quite the opposite occurred. The use of Western secular
techniques in the law and the constitutions created a strong connection
between Islam and politics, and contributed to the redefinition of Islam as a
political norm in ways unknown under the Muslim empires.13
In order to have a better grasp of the regimes of secularity of Muslim
countries, the different contributions in this book operate within an alternative
approach that distinguishes between political secularization and social secu-
larization. Political secularization refers to different forms of state–religion
arrangements that grant equal treatment of religion by the state. Separation is
only one of these arrangements and is not even the most common. Contrary to
the dominant perception, all states, including the democratic ones, are in-
volved in some form of regulation vis-à-vis religion (regulation/funding/

12
For instance, please see the current debates on the status of Islam in Europe or the ongoing
debate in the US on the First Amendment.
13
M. Hakan Yavuz, Islamic Political Identity in Turkey (Oxford: Oxford University Press,
2003), p. 52. Specifically in the Turkish case, Hakan Yavuz explains, “As a result of nation-
building and militant secularization, society came to be divided along the now familiar cleavages
of Turkish versus Kurdish and state versus society. In contrast, the caliphate, abolished in 1924,
had represented an Islamic sanctioned union of multi-ethnic groups and had recognized ethnic
diversity without assigning it any political role. In other words, the caliphate was the symbol of a
multi-ethnic polity and authority; it symbolized the unity of Muslims as a faith-based commu-
nity and allowed space for diverse loyalties and local autonomy for the periphery.”
6 Jocelyne Cesari

restrictions). In other words, what dominates are actually multiple ways of

accommodation between state and religion that are related to the history of the
state in each country and how the nation-state interacted with existing
religions. Accommodation is the way the state moved away from an historical
privileged relation with one church to the recognition of equal rights for all
religions, without automatically cutting off links with religions. Accommodation
takes multiple forms, from the equidistance of state and religions, to regulation of
religions by the state (authorized religions, state support of religions). In contrast,
hegemon refers to the situation where the state maintains exclusive privileges
with one church or religious organization and does not recognize others. More
specifically, hegemonic religion refers to lack of institutional separation, the
exclusive social role of one religion, and limited recognition of religious pluralism
at the individual level; this characterizes most Muslim countries, including ones,
like Turkey or Tunisia, dubbed as secular.
Sociological secularism entails all forms of social visibility of religion:
political debates based on religious claims (abortion, contraception, blas-
phemy, dress code, environment, welfare, political rights), social activism of
religious groups, and the presence of religious symbols in public discourses.
Degrees of privatization and social legitimacy of all religions in public spaces
define the status of social secularism.
No country is at the same point on each of these levels, making it impossible
to have a “one size fits all” model of secularity. For example, it can be said that
France and the United States share institutional secularity, but differ greatly on
the status of religion in society or at the level of individuals. The same is true
for the regimes of secularity specific to Muslim countries. Thus, we can say
that France and Turkey share a certain illegitimacy of religion in social life, but
do not provide the same legal and institutional status to religions. Finally,
there is certainly a stark difference between the French and Turks when it
comes to the importance of religion in their daily lives.
Women’s rights straddle both political and social secularization: when
religion and the state are connected institutionally, this translates into laws
that can limit women with regard to politics, employment, civil laws, and
reproductive rights. When religion is socially relevant, it also translates into a
gendered perception of public space that affects women’s mobility and social
interactions. Introducing these two levels of secularization and showing how
they interact sheds light on a more complex and contextualized approach to
secularity than simply the separation of religion from secular institutions in
public life. It is in this continuously evolving site of interactions between
institutional and social secularization that the relationship between women’s
rights and democracy will be analyzed. In this regard, José Casanova points
out, in Chapter 2, that the question of women’s rights did not arise during the
second and third wave of democratization in Catholic countries because
the state and the church had become “disentangled,” while Islam remains
 Introduction 7

hegemonic in most Muslim countries. In the same vein, the privatization of

religion, often seen as a condition for the advancement of women’s rights, does
not seem as clear or straightforward once the social dimension of seculariza-
tion is introduced. For example, Joan W. Scott shows that the private/public
divide introduced by the secularization of state–religion relations in France
actually favored women in the private space and therefore impacted on their
political and social rights. In Muslim countries, on the contrary, the secular-
ization process introduced by postcolonial nation-states led to the advance-
ment of political, economic, and social rights of women. This means that while
secular state actors gained control of religious organizations and personnel,
they also undermined the legitimacy of Islamic practices and signs in public
spaces, notably by unveiling women and granting them rights. Interestingly,
the promotion of women’s rights did not clash with traditional Islamic
interpretations or necessitate reinterpretations of the religious traditions to
justify it.14 That is why, contrary to the common perception, Saudi Arabia or
Afghanistan under the Taliban are actually not representative of the Islamic
tradition when it comes to women’s status. The contestation of these rights in
most Muslim countries has been a recent turn, brought by the growing Salafi
interpretation of Islam, embodied in transnational movements. At the same
time, in most countries, we witness a distinction: economic/political/social
rights being advanced while rights related to divorce and family retain gender
inequality and are often based on Islamic precepts. Iran is a case in point:
under the Islamic Republic, the education, economic, and political rights of
women have not been curtailed (quite the opposite in fact), but the rights to
marry and divorce are still constrained by Islamic rules, maintaining a gender
inequality in the family that does not match the social advancement of women.
Interestingly, in the non-Muslim countries, like India and Israel, presented in
this volume, the limitations on women’s rights when it comes to religion are
also at play in the laws about marriage, divorce, polygamy, and so on. In this
regard, it is important to identify which domains of rights are negatively
affected by religious prescriptions. Except extreme cases like Afghanistan or
Iraq under ISIS, it seems that individual rights about education, employment,
and politics have gradually been granted to women, while reproductive rights
as well as sexual rights remain under religious influence, even in democratic
countries. In other words, individual rights seem distinct from the rights
of the self.15 It is exactly on such issues that the Catholic Church is also
resisting complete equality between genders, even in advanced democracies.

14
After the 2011 Revolution, in an attempt to counter the Salafi political rise, Al-Azhar
University issued, in 2012, a Bill of Rights of Women, reminding Egyptians that, in the Islamic
tradition, women are allowed to work, be citizens, and receive an education.
15
Jocelyne Cesari, The Awakening of Muslim Democracy: Religion, Modernity and the State
(New York: Cambridge University Press, 2014).
8 Jocelyne Cesari

Additionally, while the implementation of these individual rights has been

problematic everywhere, it has been notably more difficult in Muslim-
majority countries because of the resilience of patriarchal cultures, especially
in rural areas.
Another interesting feature that clashes with the dominant view of secularism
is that these advancements were made by authoritarian regimes, contrasting with
the development of women’s rights in European countries that followed closely
the democratization process. Therefore, the political development in Muslim
countries brings a more complex and multilayered approach to democracy that
resonates with current debates in political science on hybrid regimes. Most
Muslim countries qualify as hybrid in the sense that some elements of democracy
are present (elections/judiciary), while others are missing or weak (separation of
power, rule of law). In this perspective, the distinction between procedural and
substantial democracy helps us to understand how the status of civil liberties
and human rights are critical to women’s rights. More specifically, accepting
elections, division of power, rule of law, and individual rights does not translate
into the acceptation of a complete formal equality between genders. In other
words, accepting democracy does not lead automatically to ideological liberalism
when it comes to women’s rights, religious minorities’ rights, and freedom of
speech. Therefore, the different contributions reveal the central role of the state,
not only in the modernization of women’s rights, but also in the reshaping of
religious norms on women’s status.

STATE, WOMEN, AND ISLAM

Since the 1960s, the state has become a central, if not the most important,
agent redefining Islamic law and religious orthodoxy, leading to a reshaping of
Islamic norms. Such a redefinition of Islamic norms is at odds with the
dominant perception of secularism as a disassociation between public behav-
ior and religious norms. The female body has become the main site of this
politicization of Islam, by state and non-state actors alike. The politicization of
the female body has been a general feature of Muslim societies from the
colonial to postcolonial periods. A consistent theme throughout has been
the idea that women are the symbolic embodiment of morality, and therefore
are the key to securing familial, national, and religious values in the uncertain
maelstrom of social change.
This political discipline imposed on women’s bodies has taken opposite
directions. As we will see in the examples of Turkey and Tunisia in Chapters 2
and 11, state intrusion led to an unveiling of women as citizens of the modern
nation. More recently, however, Islamic dress code has been imposed on
women as part of a redefinition of citizenship. Iran after the Islamic Revolution
 Introduction 9

of 1979 is a case in point, as morality police enforced strict Islamic dress codes,
including the hijab and the chador. In some ways, the chador was actually a
symbol of the success of Khomeini and the Islamic Revolution, and women
wore Islamic dress as a sign of support. At the same time, when women wanted
to express their individuality through Westernized clothes, this was also
interpreted as a political stand and was therefore repressed. Nowadays, the
ways Iranian women wear their headscarves reflect political positions from
“liberal” and “free” to conservative. Instead of wearing the black scarf as
traditionally instructed, women began to wear again the brightly colored
scarves that revealed more of their hair, especially in urban areas such as
Tehran. As a result, there have also been a growing number of reports of
arrests and citations for women wearing “bad hijab.”16
The same trend emerged in Afghanistan under the Taliban, or in Chechnya,
where women have been harassed and abused by individuals and law enforce-
ment agents, and some have even been shot at by paintball guns if they were
seen without the hijab.17 After the overthrow of former president Alu Alkha-
nov and the rise of Ramzan Kadyrov as “head” of the Chechen Republic in
2007, an Islamic “virtue campaign” has become a priority for the Chechen
state. Kadyrov has been known to support de facto “modesty laws” and
“headscarf rules” that prohibit women from working, going to school, and
going out in public if they do not wear headscarves. Furthermore, he
has openly acknowledged polygamy and honor killings as valid parts of
Chechen society.18
This political discipline of the body is far from being a specificity of
Muslim-majority countries. The legislation against the hijab and niqab in
European countries proceed from the same logic. The specificity lies in the
conflation between the moral hierarchy of gender roles and the legitimacy of
the national community; this connection has been severed in most Western
countries. In Chapter 2, we will show how, in Egypt and Pakistan, Islamic
prescriptions can be used to redefine the good citizen, particularly during
periods of political instability. As greater social mobility for both men and
women threatens existing governmental structures and power, the principles
of family are evoked in order to mitigate social change. These principles feed
into the dominant status of gender hierarchies, thus politicizing what had

16
Frances Harrison, “Crackdown in Iran over Dress Codes,” BBC News, April 27, 2007,
<[Link]
17
“You Dress According to their Rules,” Human Rights Watch (2011), available at: <https://
[Link]/report/2011/03/10/you-dress-according-their-rules/enforcement-islamic-dress-code-
women-chechnya> (accessed November 5, 2016).
18
It should be noted that these so-called laws are not actual legislation, but social and political
codes that were instated in 2007 by a public television announcement by Kadyrov. However,
Kadyrov has made enforcing these dress codes a matter of national duty and part of a new form
of citizenship, commending men who harass women for not wearing modest Islamic dress.
10 Jocelyne Cesari

been strictly the social sphere in premodern Muslim societies. As conceptions

of family are implicated in the political consciousness and the formation of
national identity, Islam becomes construed in a way that permits gender
inequality as a means of maintaining social harmony. The control of women
and maintenance of gendered moral hierarchies render a sense of national
security and authority over conditions of social change that cannot be easily
controlled. However, through this process, Islam becomes incorporated as a
means of political ideology to serve the state.
In sum, to restitute these complex social processes between the state, women’s
groups, and Islamic actors, this volume will pay particular attention to state
policies vis-à-vis women and draw comparisons with the situation of women’s
rights in some Western (Catholic countries) and non-Western democracies
(India, Israel). It will also highlight the influence of transnational movements
and feminist discourses, both Islamic and secular, on women’s rights debates
and policies in different national contexts.

OUTLINE OF CONTENT

Part I of the book will specifically address the nexus of religion, law, gender,
and democracy through different disciplinary perspectives (sociology, anthro-
pology, political science, law). The common point of all contributions in this
section will be to question the taken-for-granted religious/secular divide
across countries by addressing the two following questions:
(1) What are the dominant religious and secular conceptions of women’s
rights of both civil society and state actors and how do they interact with
different political forces and institutions to shape democracy?
As discussed in this Introduction, the state has been a central actor in the
shaping of women’s rights, advancing them by law in some domains (work/
education), curtailing them in others (civil law), often by using religious
references. This centrality of the state shapes women’s rights agendas for
both secular and feminist activists, as well as their relation to religious
discourses and figures, unlike the progressive dissociation between political
actors and religious authorities that characterizes the discourse and politics on
women’s rights in Western democracies. The chapters in Part I examine state
actions, including the rule of law and what kind of interactions and political
mobilizations it generates among religious movements and feminist activists
and how it contributes to the shaping of religious interpretations of women’s
rights. Looking at state actions vis-à-vis women’s rights, Joan W. Scott argues
in Chapter 3 that even in democracies like France, the secular state adopted a
gendered approach to justify the separation of church and state. In Chapter 1,
 Introduction 11

Jocelyne Cesari shows that the state has been the major agent in the evolution
of religious discourses about women’s rights in Muslim-majority countries
like Egypt, Turkey, and Pakistan. In Chapter 4, Robert W. Hefner emphasizes
the continuous tensions between the state actions vis-à-vis women’s rights
in Indonesia and hermeneutics or legal–religious communities, including
feminist ones that advocate an advancement of women’s rights within the
religious framework. In the same vein, in Chapter 7, Yüksel Sezgin argues that
the position of the religious group vis-à-vis the state is a major factor in the
changing interpretation of Islamic law and women’s rights.
(2) How do women’s rights activists shape international efforts to exert
pressure for human rights upon particular countries?
The last decade has seen a concerted effort by international organizations to
remove women’s rights from the sole jurisdiction of nation-states. In
Chapter 5, Susanne Schröter will explore the role of religious factors in the
strategies of states and international institutions around these questions, as
well as the pressures exercised by religious actors themselves. A key issue is
how transnational religious activism relates back to both religious approaches
to government policy and to the basic understandings of human rights in
general and women’s rights in particular. Another aspect is how this transi-
tional religious activism competes with transnational secular feminist groups
and what the respective political influence of these two trends is in different
national contexts and specifically on state actions and legal systems.
Part II will localize the implementation of this nexus between law, gender,
and democracy, and provide contextualized responses to the questions men-
tioned in different cultural and political settings: Iran, Malaysia, Tunisia,
Morocco, Senegal, and Bangladesh. It will also explore the situation of
Muslim women’s rights in minority conditions both in the West (USA/
Europe) and outside the West (India, Greece, and Israel). The common
denominator of Chapters 6–11, by, respectively, Katherine Marshall, Yüksel
Sezgin, Vrinda Narain, Ziba Mir-Hosseini, Valentine Moghadam, and Maila
Stivens, will be to shed light on the gender politics in the modernization of
the nation and to ponder over the role of Islam in gender inequality across
different Muslim countries.
 Part I
The Nexus of Religion, Gender,
and Democracy
 1

State, Islam, and Gender Politics

Jocelyne Cesari

INTRODUCTION

The commonly held picture of Muslim women is of the black-clad, secluded

women of Saudi Arabia. However, this is akin to looking at the condition of
Christian women through the lens of Amish communities in the United States.
The Saudi interpretation of Islam is a modern construction that deviates from
the tradition of Islam. It fails to take historical and cultural context into
consideration and pushes women back into the tribal condition that was the
norm during the time of the Prophet Mohammed. There is nothing in the
Islamic tradition that prevents women from working, getting an education, or
partaking in public social and political life. In fact, many times, the interpret-
ations within the religious traditions have been ahead of the cultural norms
and traditions common before Islam: for example, women cannot inherit
lands in the Berber zones of North Africa—while such a custom contradicts
Islamic rules. At the same time, the social and political advancement of
women lags behind in most of the Middle East and North African countries.
So how do we make sense of the diverse, and often contradictory, situation of
women across Muslim countries today?
There are countless responses to this question from scholars of Islam and of
feminism, mostly emphasizing the historical evolution of women’s rights since
the Qur’anic revelation. This scholarship argues that, at its foundation, Islam
advanced women’s rights in the context of premodern tribal societies, but the
evolution of Muslim polities from medieval to premodern times led to the
segregation and seclusion of women. These analyses focus on the theological
debates at these different historical moments or the variety of religious
practices of women in different contexts.1

1
Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject, 2nd edn
(Princeton, NJ: Princeton University Press, 2011); Lila Abu-Lughod, Do Muslim Women Need
16 Jocelyne Cesari

Another thread of scholarship explores the influence of Islam on the

political changes in Muslim countries but neglects the historicity of women’s
rights in Islam. This is, for example, the limitation of Steven Fish’s article,
which is one of the rare articles linking democracy, Islam, and women’s
rights.2 He contends that the lack of democracy in Muslim countries cannot
be attributed to Islam per se but to the deficit of women’s rights. This
explanation, however, ignores the fact that women’s rights have advanced in
some areas (formal equality in education and employment) and not in others
(family law) since the Second World War. This is because the resistance to
reform in domains like family law and sexuality directly relates to the influ-
ence of Islamic norms.
To avoid the strong dichotomy and somewhat contradictory ways of ana-
lyzing the interplay between women’s rights, Islam, and democracy, this
chapter will argue that Muslim women’s rights are shaped by: (1) the mod-
ernized forms of Islam linked to the emergence of the postcolonial state; and
(2) the overall theological discussions of women’s rights in Islam that take
place within this state framework, as shown in case studies from Algeria,
Egypt, Turkey, and Pakistan.
Such an approach is not without challenges because, as Elham argues,
within feminist tradition there is little to no analysis linking gender, politics,
and the state.3 Unless a researcher remains within conventional comparative
politics, creating a theoretical link between gender and the state is difficult.
According to Elham, feminist analyses portrayed the state as either a tool for
social progress or a tool of patriarchal oppression. To avoid such a drastic
dichotomy, some scholars have taken a different approach by developing
cross-country analyses and focusing on state policies toward women. Follow-
ing in the steps of scholars such as Georgina Waylen and Vicky Randall,4 I will
argue that the authoritarian postcolonial nation-state has been a central agent
of the redefinition of the Islamic tradition as well as of the advancement of
women’s rights. This gendered politics is the framework for current religious
debates on women’s rights and the debate on Islam and democracy. In other
words, any debate on the influence of Islam on democracy and women’s rights
must be situated in specific political, legal, and institutional contexts rather
than solely in an analysis of clerical debates around the Qur’an, the Hadith,
and women’s rights.

Saving? (Cambridge, MA: Harvard University Press, 2015); Lila Abu-Lughod, ed., Remaking
Women: Feminism and Modernity in the Middle East (Princeton, NJ: Princeton University
Press,1998).
2
M. Steven Fish, “Islam and Authoritarianism,” World Politics 55/1 (2002): 4–37.
3
Elham Manea, The Arab State and Women’s Rights: The Trap of Authoritarian Governance
(Abingdon and New York: Taylor & Francis, 2012), p. 236.
4
Vicky Randall and Georgina Waylen, eds., Gender, Politics and the State (London:
Routledge, 2012).
 State, Islam, and Gender Politics 17

STATE, RELIGION, AND GENDER POLITICS

The nexus of Islam, gender, and democracy has to be traced back to the
foundation of the postcolonial nation-state. This moment led to the state’s
appropriation of the interpretative role of the religious tradition, and subse-
quently solidified its influence on Islam and the women’s rights debate.

Modernization and Nationalization of Islam

Under the historical caliphates, clerics were independent of the political

power. They could of course be solicited or consulted by the caliphs, but
they retained intellectual and financial independence.5
In the same vein, the Ummah did not refer as of today to the global
community of Muslim believers. It used to describe the totality of territories
under the rule of the caliph, which at the time encompassed multiple lan-
guages, religions, and ethnicities.6
As the Ottoman Empire collapsed, the emergence of the state as the central
political institution correlated with the homogenization of different national
communities. That is, nation-building systematically omitted and sometimes
eradicated particular ethnic, religious, and linguistic groups in order to create
one nation defined by one religion and one language. This homogenization
process also led to a politicized narrative of religion, that is, political Islam. In
this regard, Muslim countries are not exceptional; with the advent of the
modern nation-state, the rules of engagement between religion and politics
have been redefined everywhere. Contrary to the dominant liberal narrative,
however, this does mean that, in Muslim countries, religion has not become
politically irrelevant.7
The emergence of new political norms tied to nationalism generally resulted
in state narratives that either referenced Islamic terminology or were deliber-
ately articulated within an Islamic framework. Localization of these norms
occurred as state actors employed strategies of entrepreneurship, reframing

5
Hamid Enayat, Modern Islamic Political Thought (London: I.B. Tauris, 2005); Ira
M. Lapidus, A History of Islamic Societies, 2nd edn (Cambridge: Cambridge University Press,
2002).
6
Richard DeAngelis and Riaz Hassan, Faithlines: Muslim Conceptions of Islam and Society
(Oxford: Oxford University Press, 2002), p. 94.
7
This dominant political narrative does not necessarily reflect the cultural and political
evolution even in the West. Modern secularism, as it is generally understood, has introduced
substitutes for theistic religion. These substitutes have taken a bewildering variety of forms; for
example, dedication to charismatic leaders, such as Mao and Stalin, resemble behavior exhibited
by religious movements. Eliade Mircea, Myths, Dreams and Mysteries: The Encounter between
Contemporary Faiths and Archaic Realities (New York: Harper & Row, 1961), pp. 205–6.
18 Jocelyne Cesari

these norms using local vocabulary.8 In other words, Islamic references and
norms were used to “localize” the nation-building process and legitimize state
actors and policies. The outcome of such localization was the redefinition of
Islam within the new state institutions.
The adoption of outside norms into local contexts also involved grafting
and pruning. These two tactics are frequently employed by local actors
to institutionalize external norms by associating them with pre-existing
ones. Here, proponents of new norms must carefully construct and articulate
links because these links are not always intuitive or natural. In Muslim countries,
pruning and grafting have primarily taken place through three mechanisms:
references to Islam in the constitution, nationalization of Islamic institutions, and
the incorporation of Islam in the legal system.
In most Muslim-majority countries, Islamic parties do not have a monopoly
on political Islam—Islam is a foundational element of the nation-states.
Although most of the founders of Muslim-majority countries were indeed
westernized, they nevertheless included Islam in the state apparatus, spurring
its politicization by turning it into a modern national ideology operating as a
common denominator for all political forces, secular or otherwise. As such,
political Islam should be understood in a broader context that goes beyond
Islamist political ideology or Islamic parties.
In my book, The Awakening of Muslim Democracy: Religion, Modernity and
the State, I argue that both the state and the Islamists have been instrumental
in politicizing Islam. In this broader sense, political Islam includes the nation-
alization of Islamic institutions and personnel under state ministries and the
use of Islamic references in law and national education. More specifically, the
adoption of the nation-state by Muslim-majority countries after the collapse of
the Ottoman Empire in 1918 has been the decisive political change leading to
the reshaping of Islamic values and institutions. These changes have translated
into a brand new status of the religion that I call the hegemonic status of Islam.
First, it is important to note the difference between a dominant religion, an
established religion, and a hegemonic religion. A religion is dominant when it
is the religion of the majority of a given country. In such cases, the dominant
religion continues to impart historical and cultural references considered
“natural” and “legitimate.” Religious symbols and rituals become embedded
in the public culture and the country. Examples of such dominant religions
include Protestantism in the United States or Catholicism in France and
Poland. An established religion is one recognized by law as the religion of
the country or the state and sometimes financially supported by the state, like
the Church of Denmark. The existence of an established church is not
necessarily incompatible with the legal protection of religious minorities and

8
Amitav Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and
Institutional Change in Asian Regionalism,” International Organization 58/2 (2004): 239–75.
 State, Islam, and Gender Politics 19

freedom of speech. A religion becomes hegemonic, however, when the state

grants a certain religious group exclusive legal, economic, or political rights
denied to other religions. In other words, religious hegemony refers to legal
and political privileges granted to a specific religious group, which in most, but
not all, cases is the dominant religion.
Second, hegemonic religion and states’ regulations of religion are not the
same. The latter may assume several forms, with legal neutrality on one end of
the spectrum, legal privilege on the other end, and many nuances in-between.
Legal neutrality, as understood and codified in most secular democracies,
entails recognition and legal protection of all religions. Separation of religion
and state is not a necessary prerequisite for legal neutrality, which can be
implemented even when there is state cooperation with religions (e.g. most
European democracies). It is worth noting that legal neutrality does not mean
that the practice of law is always neutral. Frequently, the dominant religious
group serves as an implicit standard for the legal work concerning other
religious groups. Most importantly, legal neutrality has been continuously
challenged throughout history by discriminatory political practices. One of
the most recent examples is the post-9/11 increase of restrictions on Muslim
minorities in Western European democracies.
The unexpected and often unseen consequences of legal privilege are state
restrictions and controls over the activities of the official religion. These
usually involve:
• A ministry of religious affairs and administration to manage the official
religion;
• government regulation of the use of religious symbols or activities;
• state laws and policies that limit freedom of expression (apostasy laws);
• penalties for the defamation of the official religion (blasphemy laws); and
• government interference with worship.
The other side of legal privilege is the tacit or explicit discrimination of
religious groups not recognized as the official religion.
To summarize, the hegemonic status of a religion is a combination of two or
more of the following characteristics: nationalization of institutions, clerics,
and places of worship of one religion; insertion of the doctrine of that religion
in the public school curriculum (beyond religious instruction, that is, in
history, civic education, and so forth); and legal restrictions on freedom of
speech and expression as well as women’s rights (including marriage, divorce,
and abortion) based on the prescriptions of that religion. Most Muslim-
majority countries, including Turkey, possess two or three of these features.
The only exceptions are Lebanon, Senegal, and Indonesia. Although discrim-
inatory practices do still exist in these countries, the three are, interestingly, the
only ones that qualify as democracies, according to the Freedom House index.
20 Jocelyne Cesari

The outcome of the homogenization process is a politicized narrative of

religion or political Islam. Under these conditions, the dominant Western
narrative of modernization cannot help explain this process because it con-
tains an inherent assumption that secularization leads to the decline of religion
in the political sphere. The invention of Islam as a modern religion is closely
associated with the building of the nation-state. The efforts by these “secular”
states to limit the social influence of religion actually led to a nationalization of
religious identities and, therefore, to their politicization, defying the expect-
ations of earlier modernization theories.9
From the time of nation-building, Islam has been acknowledged in most
constitutions and has often been inscribed into the constitutional foundations
as the religion of the country. In such countries, it has subsequently been
recognized as the state religion. Such recognition occurred even when the
founders of the state maintained a very secular orientation. What then fol-
lowed are the nationalization of Islamic institutions, state-ordained religious
education in public schools, and the enduring (albeit limited) legacies of
Shari‘a law in the legal system.
As a result, political and social modernization in Muslim countries stands in
stark opposition to the dominant Western narrative, in which individuals’
religious identities departed from their national identities, becoming increas-
ingly privatized with the expansion of political and civic rights. In other words,
there is often a correlation of national and religious identities in present-day
Muslim countries. This fusion produces a moral hierarchy in which the
national government intervenes in the personal lives of its citizens on topics
ranging from dress to social relations, and even culture.
As a result, the state policy vis-à-vis Islam and Shari‘a went hand in hand
with a modernization effort to provide gender equality in education, econom-
ic, and political rights.

Women’s Rights Advancement by Authoritarian Regimes

The gender equality policies adopted by most Muslim postcolonial states

certainly had positive consequences on the advancement of women’s educa-
tion and social conditions in general.
This advancement, under authoritarian rule, led to a dichotomy between
social and political rights on the one hand and reproductive rights on the
other. Islamist actors further exploited this dichotomy.

9
Hermann Landolt and Todd Lawson, Reason and Inspiration in Islam: Theology, Philosophy
and Mysticism in Muslim Thought (London: I.B. Tauris, 2005), pp. 1–2, 7, 12; Burgis, “Faith in
the State,” 76–7.
 State, Islam, and Gender Politics 21

Education and health rights

Gender gaps have significantly improved in the education and health domains
over the past decades, although women’s literacy rates still lag behind men’s in
many Muslim-majority countries. When gaining independence, countries
such as Morocco, Algeria, Tunisia, Turkey, Pakistan, and Egypt recognized
the relevance of women’s education and health for increased economic pros-
perity and controlled population growth. The education gap between sexes
narrowed significantly on all three levels of education. According to the
Global Gender Gap Report,10 for example, Algeria achieved gender parity in
tertiary education enrolment rates with countries such as France and the
United States. Considerable investments in human capital have improved
education and health, but have not substantially improved women’s economic
opportunities and participation.11 Furthermore, differences between rural and
urban areas are especially pronounced in education attainment levels. For
example, the Organisation for Economic Co-operation and Development
(OECD) gender index notes that,12 in Moroccan rural areas, girls are 33
percent less likely to attend school than boys, indicating an overall preference
toward educating sons over daughters. Additionally, educational attainment
in our case study countries is below average in comparison to countries with
similar income levels, except for Egypt. When it comes to health, according to
the Global Gender Gap Report, Egypt, Algeria, and Pakistan exceed the average
within their income group.

Political rights
As countries gained independence, the emergence of the nation-state brought,
in most Muslim countries, initial gains for women’s political rights—women
were granted the right to vote and to be elected. However, discrepancies
between liberalizing legal frameworks and actual women’s representation
reflect the dominance of traditional social norms and a prevailingly patriarchal
political system. When considering the political rights of women in Algeria,
Egypt, Pakistan, and Turkey, one has to keep in mind that both men and
women experienced restrictions to their civil and political rights. This is
a caveat for the evolution of women’s political rights at large. As the Arab

10
World Economic Forum (WEF), “The Global Gender Gap Report 2014,” July 14, 2015,
<[Link]
11
World Bank, “Opening Doors: Gender Equality and Development in the Middle East and
North Africa,” June 2, 2013, p. 7, <[Link]
Server/WDSP/IB/2013/02/07/000356161_20130207123902/Rendered/PDF/751810PUB0EPI0020
[Link]>.
12
“Country Profile: Morocco,” OECD Social Institutions and Gender Index, July 9, 2015,
<[Link]
22 Jocelyne Cesari
Political Empowerment Sub-Indicators 2014

120

100

80

60

40

20

0
India France United Algeria Tunisia Pakistan Morocco Turkey’ Egypt
States

Women in Parliament Men in Parliament

Women in Ministerial Positions Men in Ministerial Positions

Figure 1.1 Representation of women and men in parliament and ministerial positions
according to the Global Gender Gap Report 2014.
Source: World Economic Forum, Switzerland, 2014.

Human Development Report argued, appointments of women in governmen-

tal bodies should not be mistaken for structural improvements for women’s
political rights, because ruling regimes often appointed women from the elite
and as window dressing for the incumbent regime.13 Further, the low level of
women’s political empowerment is by no means a unique challenge to
Muslim-majority countries.
Although countries categorized as part of the Middle East and North Africa
by the World Economic Forum (WEF) have, on average, the largest gender
gaps and mostly rank in the bottom global quartile, Western countries like
the United States have similarly low scores in women’s representation in
governmental bodies. The Global Gender Gap Report depicts a political em-
powerment score where zero represents inequality and one indicates gender
parity. This report reveals almost equal levels of empowerment in the United
States and Algeria, which are nearly half the political empowerment scores of
France or India.
Turkey was one of the earliest Muslim-majority countries to extend the
suffrage to women for municipal elections, in 1930, seven years after the

13
United Nations Development Programme, Regional Bureau for Arab States, Arab Fund for
Economic & Social Development (UNDP, RBAS, AFESD), The Arab Human Development
Report 2005: Towards the Rise of Women in the Arab World, vol. 4 (Stanford, CA: Stanford
University Press, 2006).
 State, Islam, and Gender Politics 23

declaration of the Republic of Turkey. In 1934, Turkey granted full universal

suffrage on the national level. These reforms promoted women’s political
rights as part of a greater project of Turkish modernization under Atatürk’s
reforms.14
However, a greater voice for women in Turkey’s polity did not translate into
a comparable representation of women in political bodies. Turkey does not
have quotas for women in either their constitution or in political party laws. At
the same time, Turkish parties such as the Republican People’s Party (CHP)
and the Peace and Democracy Party (BDP) have a 33 percent and 40 percent
women’s quota, respectively. In 2013, women held 79 out of 550 seats in
parliament, highlighting an increasing trend of female representation in the
Turkish parliament since 2002. For example, the general elections of June 2015
led to the unprecedented number of ninety-six seats won by women. None-
theless, women’s political representation is far lower at the local level. Out of
2,921 mayors in the country, 27 are women. According to the Global Gender
Gap Report, the female-over-male ratio in ministerial positions is 0.04 and, in
parliament, 0.17.
In Pakistan, women gained the right to vote in 1947. Although the Global
Gender Gap Report indicates a trend toward increasing women’s political em-
powerment, Pakistan’s gender gap was ranked second to last overall in 2014.
Only Yemen has a greater gender gap than Pakistan. Against the backdrop of
this knowledge, legal advancements in women’s political rights, such as the
establishment of a quota in the National Assembly, provincial assemblies, and
the Senate, appear insufficient. As of 2014, there were sixty-seven women
serving in the National Assembly (20.7 percent) and seventeen (16.5 percent)
in the upper house. In 2014, there were no women in ministerial positions. In
comparison with other lower-middle-income countries, Pakistan’s political
empowerment score remains below average (see Figure 1.1). Pakistan’s scores
are similar to Tunisia’s, but Tunisia is considered one of the most progressive
countries in the region on issues of women’s political rights.
In 1956, Egypt became the next country in the region to pass a law
establishing universal suffrage. Under Nasser, equality of opportunity for
men and women was included in the 1956 constitution. In particular, legal
changes catalyzed women’s participation in the labor force. In contrast to the
rapid improvements of women’s economic rights and opportunities in the
1950s and 1960s, women’s participation in political life remains limited, while
equal rights with men in marriage, divorce, and custody of children is still a
struggle. The limited political liberalization under Sadat and Mubarak did not
significantly further women’s political rights; liberalizing decrees for women
were, rather, a reflection of the dominant political interest at the time and

14
Fatma Müge Göçek and Shiva Balaghi, eds., Reconstructing Gender in the Middle East:
Tradition, Identity, and Power (New York: Columbia University Press, 1994), p. 104.
24 Jocelyne Cesari

women’s organizational activity was often co-opted or constrained by the

political systems in place.15 The history of limited political participation of
women in Egypt is reflected in the global gender gap index on political
empowerment. Egypt ranks lowest as compared to the other selected countries
in Figure 1.1. It is also at the bottom of the range of lower-middle-income
countries. Although Egypt’s political empowerment score shows an upward
trend, it remains Egypt’s lowest performing indicator. This increase is related
to a 12.6 percent quota for women’s representation in the People’s Assembly,
introduced in 2009. In 2014, the quota was amended to raise women’s
representation in the houses of representatives and the amendment estab-
lished that 25 percent of local council seats must be allocated to women.
The history of women’s political rights continues to evolve in Algeria where,
in 1962, the year of national independence, women gained the right to vote.
In 2008, the Algerian constitution was amended to include equal civil and
political rights for women, granting them the status of full citizens. In 2012,
Algeria introduced a quota to promote women’s participation in political life
on the national and subnational level. That means about 20 percent and 50
percent of parliamentary candidates have to be female, depending upon the
number of seats in each electoral district. These legal changes are reflected
in Algeria’s political empowerment score, which jumped from 2011 to 2012
by a factor of four. In 2014, Algeria’s gender gap was minimally larger than
that of the United States and above the average in upper-middle-income
countries. Women represent 12 percent of ministerial and 32 percent of
parliamentary positions in Algeria. The United States has equally low levels of
representation, albeit reversed: 18 percent in parliamentary and 32 percent
in ministerial positions.

Economic rights
Over the last thirty years, equal economic opportunity advanced to a limited
degree in many Muslim-majority countries. Although improvements were
made in liberalizing laws, the rate of female labor participation remains the
lowest in the world. The 2006 Arab Human Development Report recognizes
that there is a true undervaluation of women in comparison to other lower-
middle-income countries.16 The report further acknowledges that the terms
and conditions of work are the most limiting factors for women to engage in
economic activity. Examples include inflexible parental leave regulations and
low levels of financial literacy among women. Furthermore, according to a
2015 study by the International Monetary Fund (IMF) on the impact of the

15
Mervat F. Hatem, “Economic and Political Liberation in Egypt and the Demise of State
Feminism,” International Journal of Middle East Studies 24/2 (1992): 243.
16
UNDP, RBAS, AFESD, The Arab Human Development Report, p. 6.
 State, Islam, and Gender Politics 25

gender gap on the economic development of a country,17 divorce risk is a

factor that influences women’s decisions on whether they participate in the
labor force.18 Legal provisions are influential because they can determine
incentives for women to work.
On a global scale, according to the World Bank Women, Business and Law
database,19 90 percent of the sampled economies have at least one gender-
based legal restriction in place, indicating that equality in economic oppor-
tunity is a worldwide challenge. For example, Egyptian non-pregnant and
non-nursing women cannot do the same jobs as men as they are not allowed
to work the same night hours as men (Labor law No. 12 of 2003, Arts. 89 and
90 and Decree No. 155/2003).20 Generally speaking, Muslim countries have
disproportionately high gender gaps in economic participation and opportun-
ity, as seen in their incessantly below-average WEF scores.21 An IMF study
finds that raising the female labor force participation rate to country-specific

Economic Participation and Opportunity Score 2014

0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
0.1
0
ce

ria
co
S

a
ia

n
yp

ke

di

ta
U

is
an

oc

ge
Eg

In

s
n

r
Tu

ki
Tu

or
Fr

Al

Pa
M

Figure 1.2 The score on economic participation and opportunity in selected countries
according to the Global Gender Gap Report 2014.
Source: World Economic Forum, Switzerland, 2014.

17
The economic development of a country is measured in GDP per capita percentage
increase.
18
Christian Gonzales, Sonali Jain-Chandra, Kalpana Kochhar, and Monique Newiak, Fair
Play: More Equal Laws Boost Female Labor Force Participation (New York: International
Monetary Fund, 2015), p. 12.
19
“Women, Business and the Law: Creating Economic Opportunity for Women,” World
Bank Group, July 14, 2015, <[Link]
20
“Women, Business and the Law: Creating Economic Opportunity for Women—Egypt, Arab
Rep,” World Bank Group, July 9, 2015, <[Link]
arab-rep/2013#getting-a-job>.
21
WEF, “Global Gender Gap Report 2014,” pp. 24–5.
26 Jocelyne Cesari
Wage Equality Score 2014
France
Pakistan
India
Morocco
Turkey
US
Tunisia
Egypt
Algeria

0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9

Figure 1.3 Wage equality between women and men for similar work converted to a
female-over-male ratio.
Source: World Economic Forum, Switzerland, 2014.

male levels would increase the GDP in Egypt by 34 percent and in the United
Arab Emirates by 12 percent.22 Figure 1.2 depicts the Global Gender Gap
Report’s score on economic participation and opportunity for a number of
selected countries. The figure shows that Western countries such as France
and the United States have significantly higher scores, closing 70 to 80 percent
of the gender gap, while in lower ranked countries such as Pakistan only 20
percent of the gender gap is completed.
The Global Gender Gap Report documents an interesting nuance with
regard to wage equality between the often better-performing Western coun-
tries and the lower-performing Muslim countries. Equal pay for equal work is
one of the dominant topics in Western countries’ political debates. Figure 1.3
shows that, in comparison to Muslim countries such as Algeria, Egypt, or
Pakistan, Western countries have greater gaps in paying women the same as
men for equal work. France completes just above 50 percent of the gender gap
and the United States ranks below Tunisia, Algeria, and Egypt in terms of
wage equality. An IMF report explains the relatively narrow wage gap in the
selected countries by the small share of women in wage employment who
are more highly educated than their male colleagues.23 Therefore, it is impos-
sible to infer that Muslim countries have better legal or policy frameworks in
place that regulate wage equality. Instead, it might rather be a symptom of the

22
Katrin Elborgh-Woytek, Monique Newiak, Kalpana Kochhar, Stefania Fabrizio, Kangni Kpodar,
Philippe Wingender, Benedict J. Clements, and Gerd Schwartz, Women, Work, and the Economy:
Macroeconomic Gains from Gender Equity (New York: International Monetary Fund, 2013), p. 4.
23
Elborgh-Woytek et al., Women, Work, and the Economy, p. 9.
 State, Islam, and Gender Politics 27

greater undergirding inequality in these countries with regard to poorer

education opportunities for females.
The Global Gender Gap Report also reveals that, despite the political
empowerment scores’ increase over the past five years, economic participation
and opportunity for women have decreased. For example, while Algeria
recorded one of its highest scores in political empowerment in 2013, its
economic participation and opportunity for women plummeted to an all-
time low. A similar paradoxical development occurred in Morocco in 2008,
Tunisia in 2011, and Pakistan in 2012. In contrast, countries such as France,
India, and the United States have recorded upward trends since 2006 for both
indicators. Access to property and land is granted to both women and men in all
countries represented in Figure 1.2; however, women’s access could be restricted
if inheritance, divorce, or marriage laws interfere, as discussed later in this
chapter. For example, in Egypt, if a couple divorces, the woman has no stake in
any of the couple’s marital assets, and has no right to retain ownership interest in
the marital home or any other property. Moreover, especially in rural areas, it is
not socially acceptable for women to inherit land. Generally, women’s land
ownership is low across these countries, with 7 percent in Morocco and 5 percent
in Egypt. Recent policy initiatives to reinvigorate rural development as a driver for
economic growth in Algeria and Morocco have been gender blind and do not
specifically target or support rural women. In sum, although legal reforms have
become more conducive to women’s activity in the economy, discriminatory
practices, traditional norms, and social values prevail in particular in rural areas.
Similarly, access to credit and loans is available to women and men without
legal restrictions in the selected countries in Figure 1.2. However, women often
lack capital, financial literacy, or face discriminatory conditions in obtaining
loans. For example, in Algeria women are legally permitted to access commer-
cial loans, but they often do not apply because they cannot secure credit. The
OECD social institution and gender index reports that, in Morocco and Egypt,
financial access has been limited because of unequal conditions. Furthermore, a
report of the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) notes that banks discriminate against women and
are reluctant to allow them to take out loans.24 Thus, women tend to find easier
access to loans through credit societies than through banks.
Therefore, it seems that the promotion of women’s rights by authoritarian
regimes, although significant, was reined in by patriarchal considerations as
well as legal restrictions stemming from gender-based differentiations of
family and civil law. State actors posited themselves as champions of

24
“Consideration of Reports submitted by States Parties under Article 18 of the Convention
on the Elimination of All Forms of Discrimination against Women: Egypt,” United Nations
CEDAW/C/EGY/4-5, March 30, 2000, <[Link]
[Link]>.
28 Jocelyne Cesari

individual rights to women as long as the latter did not threaten the stability of
the family and, therefore, the nation. In doing so, the women’s rights category
was fragmented into different sets of rights that I call individual rights
(education, work, and politics) and rights of the self (sexuality and family).
The latter are most at odds with Islamic norms and values, although they are
still subject to continuous interpretations by fundamentalist groups.
Additionally, the state’s patronization of women’s rights went hand in hand
with the disciplinization of Islam and its reform. By founding civil law on
Islamic prescriptions, the state has contributed to the redefinition of Islamic
law and its interpretations. Therefore, it has impacted the theological and
political debates on women’s rights. The work of Mounira M. Charrad, States
and Women’s Rights: The Making of Postcolonial Tunisia, Algeria, and
Morocco, Deniz Kandiyoti’s Women, Islam and the State, and Suad Joseph’s
Gender and Citizenship in the Middle East, have explored the relationship
between Islam, the nature of state projects, the position of women in the
modern nation-states, and, finally, kin-based communities’ impact on women.
They all show that the variation of women’s rights between countries is
explained by the institutional and political landscapes in which the advance-
ment of women’s rights is debated. We would like to go one step further and
argue that these political and institutional landscapes have also impacted the
nature and content of religious debates on women’s rights and other sensitive
questions concerning blasphemy, human rights, or tolerance.25

NATION-STATES AND SHARI‘A: OR

HOW SHARI‘A BECAME ISLAMIC LAW

Family law—also called personal status law—determines many aspects of a

woman’s life, including her right to inherit, work, marry, divorce, and retain
custody of her children. Western nations have reformed many of these laws
since women’s rights movements expanded at the end of the nineteenth and
start of the twentieth century. In State, Power, Religion, and Women’s Rights:
A Comparative Analysis of Family Law, Mala Htun and S. Laurel Weldon
discuss the implications of family laws for the lives of women worldwide and
how countries rank in their family law’s treatment of women. Overall, Muslim
countries follow the general trend of nations that have reformed their laws
to promote the equality and rights of women. Interestingly, at the time of
independence, Muslim-majority countries enshrined Shari‘a in their legal

25
Jocelyne Cesari, The Awakening of Muslim Democracy: Religion, Modernity, and the State
(Cambridge: Cambridge University Press, 2014).
 State, Islam, and Gender Politics 29

systems by redefining and reducing it mostly to family law, inspired by

traditional jurisprudence (or fiqh).26
Htun and Weldon conducted their survey in seventy countries at four
points in time: 1975, 1985, 1995, and 2005. The survey considers the multiple
ways a country’s laws can promote or prejudice a woman’s autonomy or
dignity. These include: minimum marriage age, her consent to marriage,
marriage ban between certain religious or cultural groups, spousal rights and
duties, guardianship, marital name requirement, marital property regime,
divorce, custody of children, adultery, property after divorce, and inheritance
and right to work.27 The countries with the lowest scores were Egypt and Saudi
Arabia. The version of Shari‘a law upheld in many nations is problematic as it
requires women to obey their husbands, allows for polygamy, states that
divorce via the husband’s repudiation of his wife is legal, sees the father as
the legal guardian of children even after divorce, and ensures husbands
administer common property during and after their marriage. Many of the
countries with low indexes, such as Egypt or Pakistan, have sought to change
these family laws over the years to make them more supportive of women’s
rights. However, many of these changes required a huge effort or were later
reversed, as happened as a result of the 1979 Iranian Revolution, which
overturned the liberation of family law that had occurred during the secular
rule of the Shah.
After independence in 1947, the national government in Pakistan instituted
a decade-long process of reforming family law, leading to the 1961 Muslim
Family Law Ordinance (MFLO). The MFLO created the “Nikah Registrar,”
with the aim of having a neutral third party that could provide unbiased
evidence in cases of marriage and divorce. It abolished unmitigated polygamy
by making consent of the current wife mandatory for a second marriage. It
also put in place procedures for regulating divorce by stating that a man has to
submit an official notice to the chairman of the court and a copy to his wife
once he pronounces a talaq divorce. Prior to this, a husband could unilaterally
divorce his wife by three verbal pronouncements of “talaq,” even in the
absence of witnesses. According to the same law, a wife has the right to
“claim and obtain” maintenance if the husband fails to do so, by referring
her case to the chairman of the Union Council (local government office). The
MFLO increased the legal age of marriage, 18 for males and 16 for females, and
put into effect penal sanctions for contracting underage unions. Additionally,

26
Mala Htun and S. Laurel Weldon, “Religious Power, the State, Women’s Rights, and Family
Law,” Conference Paper, November 2014, <[Link]
2015/01/[Link]>.
27
The study gives one point for each of the aforementioned categories that benefit women
and zero points for each that prejudices against women. Countries with lower scores have more
laws that prejudice women.
30 Jocelyne Cesari

it established that if a girl’s guardian married her off underage, she could
repudiate the marriage once she turned 16.
The strides of progress toward women’s rights were halted after Zia ul
Haq assumed power in 1977 in a military coup, overthrowing the government
of Zulfiqar Ali Bhutto. Under Zia’s rule, Pakistan underwent a rapid Islamization,
especially in criminal and civil law. The Hudood Ordinances, which criminalized
adultery and other sexual offenses and restored Islamic punishments such as
flogging, were the most detrimental to women’s rights. The discrimination of
women expanded further into jurisprudence as the legal testimony of women
was ruled to have half the weight of the testimony of men. More so, testimony
by women was made inadmissible in cases of “Hudood” crimes. These ordin-
ances increased the number of women in prison from 70 in 1980 to over
6,000 in 1988, the majority of them due to accusations of adultery.28 Human
rights organizations heavily criticized the Hudood Ordinances for these dis-
criminatory laws.29 For example, a rape victim has to provide four male
eyewitnesses to support her case or she might be charged with adultery. Over
twenty years later, Pervez Musharraf ’s government urged the Council of
Islamic Ideology to recommend amendments to the Hudood laws.30 The result
was the introduction of a Women’s Protection Bill in 2006 that sought to
amend the Hudood Ordinances by placing rape under the Pakistani penal code,
which is based on secular principles instead of Shari‘a law.
The reform of family law in Algeria has been one of the thorniest political
issues since independence. In contrast to other countries in the region, such as
Morocco and Tunisia, which rapidly codified family law, this did not happen
in Algeria until 1984. No consensus could be reached on the state legislation
on marriage, divorce, and polygamy, due to the antagonistic positions of
reformists (although still within the parameters of the traditional fiqh) and
Islamists. When Islamists started to gain social and political influence, the
government took on some of their demands and issued a family law in which
family was legalized as an agnatic kinship structure in which the patrilineal
male line has absolute power. The husband can marry up to four wives as long
as he simply informs his first, second, or third wife, even if she/they does/do
not consent to the decision. In other words, Algerian law on polygamy is more
regressive than in other countries where polygamy is allowed; for example, in
Pakistan the first wife has to consent to her husband marrying another wife.

28
Amina Jamal, Jamaat-e-Islami Women in Pakistan: Vanguard of a New Modernity?
(New York: Syracuse University Press, 2013), pp. 107–8.
29
“Pakistan: Reform Hudood Laws Now: Government Must Honor Pledge to Table
Women’s Protection Bill,” Human Rights Watch, November 14, 2006, <[Link]
news/2006/11/14/pakistan-reform-hudood-laws-now>.
30
Anita M. Weiss, “Moving Forward with the Legal Empowerment of Women in Pakistan,”
United States Institute of Peace Special Report, May 2012, <[Link]
files/[Link]>.
 State, Islam, and Gender Politics 31

Furthermore, the Algerian code establishes that women can be thrown out of
the house without any financial support as a result of repudiation. They can,
however, request a divorce under certain circumstances, such as sexual infi-
delity or the husband’s prolonged absence from home (which are already
acknowledged in classical Islamic jurisprudence). In 2005, some reforms
were introduced which render a marriage valid only when both spouses
have given their free consent.31
In contrast to Algeria and Pakistan, Turkey was more progressive in its
attempt to promote women’s rights through the reform of family law. As part
of his vision of a modern and secular nation, Atatürk initiated new laws to
promote women’s equality. In other words, empowering women was a vehicle
to build the secular polity, although it was neither democratic nor liberal.32
The decrees of the 1926 Turkish civil code included the abrogation of poly-
gamy, equal entitlement to divorce rights, and education for women and
girls.33 These laws borrowed from the Swiss civil code, but, at the same time,
were crafted so as to not drastically interfere with the patriarchal family
structure. A woman’s right to work outside the home was thus still contingent
on her husband’s permission.
In the case of Egypt, the debate on women’s rights is spearheaded by the
conflict between the state law, which tends to legitimize some religious
interpretation detrimental to women’s rights, and women’s groups’ activism.
For example, in 1926, the Egyptian cabinet approved controversial proposals
to restrict polygamy, which were not supported by King Fuad. Similarly, in
1943 and 1945, the attempts of the Ministry of Social Affairs to prohibit men
from taking a second wife were thwarted due to strong religious opposition.34
This unsuccessful attempt led women’s groups to realize that reform had to be
initiated by women themselves and that any change to the law had to be rooted
in Shari‘a and Islamic traditions. For these reasons, women created hermen-
eutic communities that challenged official interpretations of religious texts
and laws. They offered their own female-friendly readings of law, with the goal

31
However, ambiguities persist because the new law requires the consent of a woman’s
guardian before she can marry, thereby restricting her degree of freedom of marriage. “Country
Profile: Algeria,” OECD Social Institutions and Gender Index, July 9, 2015, <[Link]
org/country/algeria>.
32
Yesim Arat, “Women’s Movement of the 1980s in Turkey: Radical Outcome of Liberal
Kemalism?” in Reconstructing Gender in the Middle East: Tradition, Identity, and Power, ed.
Fatma Müge Göçek and Shiva Balaghi (New York: Columbia University Press, 1994),
pp. 100–12.
33
Seval Yildirim, “Aftermath of a Revolution: A Case Study of Turkish Family Law,” Pace
International Law Review 17 (2005): 347–71.
34
John L. Esposito and Natana J. DeLong-Bas, Women in Muslim Family Law (New York:
Syracuse University Press, 2001), pp. 57–9; Hanan Kholoussy, “The Nationalization of Marriage
in Monarchical Egypt,” in Re-Envisioning Egypt 1919–1952, ed. Arthur Goldschmidt, Amy
J. Johnson, and Barak A. Salmoni (Cairo: American University in Cairo Press, 2005), pp. 334–8.
32 Jocelyne Cesari

of advancing their rights and reforming the legal system internally. These
hermeneutic communities can lobby for judicial and legislative change and
educate the public.
As in other Muslim countries, Egyptian family law is based on traditional
Islamic jurisprudence, meaning that, prior to the 1985 and 2000 reforms, a
husband could divorce his wife simply by saying “talaq” three times, could
have a no-fault divorce, did not need to appear in court in order to divorce his
wife, and could marry four wives. In contrast, a woman must prove (darar)
injury in order to receive a divorce and it can take eight to ten years on average
to attain a judicial divorce. As a consequence of altering religious interpret-
ations to derive new legal statutes, women’s rights in Egypt have been
strengthened over the past three decades. In 2000, Law 10 stated that a
woman can have a no-fault divorce if she gives up money from her husband.
The 2014 constitution recognizes female-headed households and a duty for
the Egyptian state to protect them.
The evolution of Egypt’s legal code on the issue of maintenance law, from
1985 until its most recent reforms in 2012, exemplifies the dialectical relation
between the more rigid state law and flexible rendition of religion, and how
this can strengthen equality and rights of women. Under Egyptian law, a
woman is eligible to receive a “maintenance” fund from her ex-husband or
father similar to the MFLO in Pakistan in 1961, when women gained the right
to “claim and obtain” maintenance. However, while maintenance is protected
under Egyptian law, this fund comes with stipulations. Namely, in order for
the woman to receive her maintenance fund, she must continue to obey the
man who is giving her this fund.35 In 2002, Article 20 of the amended Egyptian
Personal Status Law allowed a woman, for the first time, to end her marriage
under the condition that she returns all of the money her husband has given
her. In 2004, Law 10 introduced a new court system to facilitate fair judgment
for wives by creating a panel of three judges assisted with two social and
psychology experts (one of whom has to be a woman). In 2004, Law 154
allowed Egyptian women who have children by a foreign man to transfer
Egyptian citizenship to their children. In 2005, Law 4 gave divorced women
the right to maintain custody over their children until they reach the age of 15.
Proposed amendments to personal status laws in Egypt in 2009 raised fervent
public debate because they contained restrictions on polygamy and required
the husband to provide a home for the wife who does not have children, or
who was divorced by a unilateral decision from the husband in cases where the
marriage lasted for over fifteen years. These amendments never reached the
floor of the Egyptian assembly before its dissolution in early 2011.

35
This is the product of the traditional Islamic view of marriage as being a contract between a
man who provides financially and a woman who pledges her obedience to him in return.
 State, Islam, and Gender Politics 33

The achievements of women’s groups in Egypt on issues of reforming

maintenance laws do not necessarily represent a generalizable trend toward
more progressive rights for women in Muslim countries, as attested by the
regressive evolution of women’s status in Pakistan or Iraq. Until the fall of
Saddam Hussein in 2003, the civil law in Iraq, although loosely inspired by
Islamic jurisprudence, prohibited polygamy and established the age for legal
marriage at 18. In 2014, the parliament introduced a new personal status law
(which has not been adopted) based on the traditional Shari‘a law, or Ja’fari
code, with the intention of setting the marriage age for girls at 9 and permit-
ting unconditional polygamy.
Women’s reproductive rights is another contentious topic falling within the
jurisdiction of family law. It is interpreted differently across countries, as a
result of competition between state actors, religious figures, and women’s
groups. According to Pew research,36 abortion is illegal in Egypt and Algeria,
except if it is done to save a woman’s life and is considered “necessary.” In
Turkey, abortion is legal if done within the first ten weeks. Furthermore,
contraception has been encouraged in Egypt in the past decades in order to
control the rapid population growth. Under President Mubarak, contraceptive
use doubled from 24 percent in 1980 to 50 percent in 2000.
In summary, when reflecting on the evolution of family law in the high-
lighted countries since independence, it becomes apparent that secular
national rulers—influenced and sometimes limited by kinship and rural groups—
built a hybrid family law, combining traditional religious views of family with
some concerns for gender equality. In this regard, the state capacity to
reform traditional family law depends on the political importance of kinship
and communal divisions, which are specific to each country. That is why
women in Egypt or Algeria do not have equal access to divorce as men, while
they do in Turkey, Tunisia, Indonesia, or Morocco.
The state has emerged as the major agent to redefine Islam and grant rights
to women. This creates, at the same time, a bifurcation between political,
economic, and social rights on one hand, and reproductive and sexual rights
on the other hand. The Islamic dimension was not an obstacle to the advance-
ment of the former, but it does affect the latter—especially concerning civil law
that emerged as a hybrid between secular (inherited from the colonial powers)
and Islamic provisions. For this reason, the state legislation on family law has
been central on the agenda of Islamist movements and their claim to an
Islamic state.

36
“Abortion Laws around the World,” Pew Research Center Religion & Public Life, September 30,
2008, <[Link]
34 Jocelyne Cesari

Reading Islamists’ Positions within

the State Policy Framework

In Egypt, ever since their inception, the Muslim Brothers have harbored a
traditional view of women’s rights concerning education, the right to work, and
the right to vote. This traditional view was expressed by Al-Azhar University,
which released a Bill of Rights for Women in 2013 that reasserts the consensus
of Sunni tradition on the status of women in the family vis-à-vis education,
work, personal security, and political participation.37 Women and men subse-
quently experience equality in spiritual and religious matters, as well as in
education, work, and political activities. At the same time, however, the man
has authority over a woman’s right to divorce and educate children in Islam.38
In the same vein, the electoral platform of the Freedom and Justice Party
(FJP) in 2011 reasserted the traditional views of the Muslim Brothers by
declaring “full freedom for the Egyptian people is a profound principle and
a fundamental right.”39 It prefaces that with a statement that ensuring
women’s access to all their rights shall be consistent with the values of Islamic
law, while maintaining the balance between their duties and rights. Overall,
the FJP program contained ambiguous formulations such as “We stress the
importance of social support to women to help them perform their roles in
society” and “We support their demands for fundamental free and dignified
life fit for their human and social status.”40 Moreover, most significantly, the
following assertion, “All citizens enjoy equal rights and duties guaranteed by
law in accordance with the principles of equality and equal opportunities
without discrimination of religion or race,”41 omits the protection of gender-
based discrimination.
Interestingly, in the 2012 constitution adopted by Mohammed Morsi’s
Islamist regime, the clause from the 1971 constitution recognizing equality
between women and men as long as it does not “violate the rules of Islamic
jurisprudence,” was removed.42 However, similar to the FJP elections
program, the 2012 constitution no longer included the provision that discrim-
ination based on gender is prohibited. Furthermore, Article 10 affirmed

37
Reem Leila, “Equal Opportunity,” Al-Ahram Weekly, June 20, 2013, <[Link]
[Link]/News/3054/17/[Link]>. “Al-Azhar under Pressure Not to Issue Women’s
Rights Document,” Egypt Independent, April 22, 2013, <[Link]
news/al-azhar-under-pressure-not-issue-women-s-rights-document>.
38
“Al Azhar Issues a Bill of Rights for Women,” Islamopedia online, June 17, 2013, <http://
[Link]/news/al-azhar-issues-bill-rights-women>.
39
“Election Program,” Freedom and Justice Party, July 9, 2015, <[Link]
files/2011/06/FJP_2011_English.pdf>.
40
“Election Program,” Freedom and Justice Party.
41
“Election Program,” Freedom and Justice Party.
42
“Egypt: New Constitution Mixed on Support of Rights,” Human Rights Watch, November 22,
2012, <[Link]
 State, Islam, and Gender Politics 35

Islamists’ views on the traditional family by asserting the state’s role to

“guarantee harmony between women’s duties to family and to work.”43
After the military coup that ended Morsi’s regime, the new constitution
asserted “The State shall ensure the achievement of equality between women
and men in all civil, political, economic, social and cultural rights” and that
“All citizens are equal before the Law. They are equal in rights, freedoms, and
general duties, without discrimination on religion, belief, sex, origin, race,
color, language, disability, social class, political, or geographical affiliation or
any other reason.”44
Differences between Islamists and Salafis have emerged, specifically on the
issues of women’s rights and freedoms of expression. For Salafis, restrictions
on women’s rights are much more far-reaching. They follow the Wahhabi
interpretation (as implemented in Saudi Arabia) and therefore advocate for
restrictions of women’s rights in the workplace, social life, and the political
sphere. The Muslim Brotherhood bars women from running for presidential
office, whereas Salafi groups go much further in restricting women’s roles. For
example, the al-Nour Party, one of the most prominent Salafi political parties,
bars women from presidential office in addition to limiting the role of women
in the economy, the public sphere, and at home. The al-Nour Party was the
most vocal opponent of references to gender equality during the preparation
of the 2012 constitution.45
While Salafi groups historically opposed democracy altogether, they
changed their position to capitalize on the political opportunities emerging
after 2011. This engendered some compromise on the political rights of women
as well. For example, during the 2011 electoral campaign, the al-Nour Party
included several female candidates on its list of nominees, causing uproar within
the different Salafi groups.
In Tunisia, the Ennahda Movement has spelled out the exact progress it
hopes to achieve with respect to improving women’s status in society. More
concretely, Ghannouchi, the leader of Ennahda, has publicly asserted the
compatibility of women’s rights and Islam and has called for women to play
a strong public role in society. This includes categories such as legal rights,
education, the right to work, civil and political rights, personal status in the
family, equality of salaries, and political participation. Ennahda, however, does
not stand unopposed. Similar to Egypt, Salafi groups have increased their

43
Mai El-Sadany, “Highlights from Egypt’s Draft Constitution (Part 2),” Atlantic Council,
December 3, 2013, <[Link]
s-draft-constitution-part-2>.
44
“Constitution of the Arab Republic of Egypt,” Unofficial Translation, 2014, <[Link]
[Link]/Newvr/[Link]>, pp. 7, 17.
45
“Nour Party Opposes Gender Equality in Egypt Constitution,” ahramonline, November 5,
2013, <[Link]/NewsContent/1/64/85660/Egypt/Politics-/Nour-Party-opposes-
[Link]>.
36 Jocelyne Cesari

social influence since 2011. For example, the Moderate Association for Aware-
ness and Reform Party has held a large public demonstration to call for the
implementation of Shari‘a law.
In the case of Pakistan, the demarcation between Salafis and Muslim
Brothers is not as clear as in Egypt or Tunisia. Most significantly, state policies
endorsed the Salafi conception of women’s rights early on. For example,
the Jamaat-i-Islami (JI) Party—founded by Maulana Abul Ala Maududi in
1941—was a strong supporter of General Zia Al Haq’s Islamic policies
between 1977 and 1988. At this time, JI party members gained positions in
the bureaucracy, judiciary, and public universities, and actively promoted the
Hudood Ordinances. They also strongly opposed the Women’s Protection Bill
of 2006. The ultra-conservative six-party alliance Muttahida Majlis-e-Amal
(MMA),46 which includes the JI Party, called the Women’s Protection Bill
“un-Islamic” and unconstitutional, referring to Article 227, which states, “No
laws will be passed which are repugnant to the Qur’an and Sunnah.”47 During
MMA’s five-year rule, from 2002 to 2007, it politically and ideologically
supported the Taliban, allowing them, for example, to consolidate their
power in the Swat region.48 The Taliban’s radical views on women’s rights
have led to spectacular attacks, like the shooting of Malala Yousafzai in a
school bus in 2012 because she was campaigning for girls’ right to education.
In Turkey, the polarization of secularists versus Islamists and, in its wake,
the contrasted interpretation of women’s rights, took another turn with the
rise of Islamic parties, who entered the public and political debates in Turkey
in the late 1980s. The Refah (Welfare) Party, in particular, started to develop a
counter discourse to the modernity advanced by the Kemalists.49 Necmettin
Erbakan—the leader of the Refah Party, who had close ties with Egypt’s
Muslim Brotherhood—supported a traditional role of women vis-à-vis their
public and private life.50 Despite recognizing the party’s strong women’s
grassroots network, Erbakan attempted to close shelters used for female
victims of sexual violence, propagated the view that the primary role of

46
The MMA alliance was born out of circumstance and convenience, with its members
divided along ideological lines, for example, between the Jamiat Ulema-e-Pakistan (JUP) and the
JI. Yet the MMA gained political power in the 2002 elections, most notably in the North West
Frontier Province (NWFP) and Balochistan. Later, tensions in the MMA increased over the
support for Musharraf to continue as president and the decision whether to contest the 2008
elections. Eventually, the alliance collapsed in 2008.
47
Syed Shoaib Hasan, “Strong Feelings over Pakistan Rape Laws,” BBC News, November 15,
2006, <[Link]
48
Magnus Norell, “The Taliban and the Muttahida Majlis-e-Amal (MMA),” China and
Eurasia Forum Quarterly 5/3 (2007): 61–82; Abubakar Siddique, The Pashtun Question: The
Unresolved Key to the Future of Pakistan and Afghanistan (London: Hurst, 2014), pp. 119–20.
49
Çınar, Alev. “Subversion and Subjugation in the Public Sphere: Secularism and the Islamic
Headscarf,” Signs 33/4 (2008): 891–913.
50
Taşpınar, Ömer. “Turkey: The New Model?” Brookings Institution, April 2012, <http://
[Link]/research/papers/2012/04/24-turkey-new-model-taspinar>.
 State, Islam, and Gender Politics 37

women was being a housewife and mother, and promoted the limitation of
women’s economic participation to only four hours on two days a week.51
Erbakan was a steadfast supporter of women wearing headscarves in public.52
The ban of the headscarf in 1986 made it a symbol of the divide between
secular and Islamic forces in Turkey. Underlying the prohibition of the
headscarf was the neutrality principle of public service, modeled on the French
understanding and initially inscribed in the Kemalist policies of the 1920s
and 1930s.53
The Justice and Development Party (AKP) under Recep Tayyip Erdoğan
tried to set itself apart from its predecessors by scaling down its religious
references. For example, the AKP was less outspoken on traditional Islamic
issues, such as the headscarf debate, in the 2002 elections and openly support-
ed the European Union (EU) accession process. Erdoğan crafted a label for his
party, calling it “conservative democratic,” which intentionally departed from
the Islamic references used before, yet upheld its Islamic roots.54 After the
AKP’s victory in the 2002 elections, the government significantly reformed its
civil code to strengthen women’s rights. For example, as part of this reform the
husband’s permission to work was repealed and sexism in the work place was
declared illegal. This can be partly attributed to the increasing pressure from
the EU to improve women’s status as Turkey moved closer to EU accession.55
Further amendments in 2004 criminalized sexual harassment and introduced
life imprisonment for so-called “honor killings.”56 At the same time, however,
Erdoğan attempted to criminalize adultery in 2004. In his campaign for the
anti-adultery bill, Erdoğan maintained “Outlawing marital infidelity is a vital
step towards preserving the family and human honor.”57 However, wide-
spread protest in Turkish civil society and pressure from the EU led to
proponents of the bill abandoning any further discussion on it.58

51
Zehra F. Kabasakal Arat, “Institutions and Women’s Rights: Religion, the State, and Family
in Turkey,” in Family, Gender, and Law in a Globalizing Middle East and South Asia, ed.
Kenneth M. Cuno and Manisha Desai (New York: Syracuse University Press, 2009), p. 294.
52
Stephen Kinzer, “Necmettin Erbakan, a Turkish Prime Minister, Dies at 84,” New York Times,
February 28, 2011, <[Link]
53
Under Atatürk’s People’s Republican Party there was no legal restriction on women’s dress,
because Atatürk believed that this did not endanger the modernization project.
54
Ayşe Gunes Ayata and Fatma Tütüncü, “Party Politics of the AKP (2002–2007) and the
Predicaments of Women at the Intersection of the Westernist, Islamist and Feminist Discourses
in Turkey 1,” British Journal of Middle Eastern Studies 35/3 (2008): 363–84.
55
Arat, “Institutions and Women’s Rights,” p. 98.
56
“Country Profile: Turkey,” OECD Social Institutions and Gender Index, July 9, 2015,
<[Link]
57
Smith, Helena. “Turkey Split by Plan to Criminalise Adultery,” The Guardian, September
5, 2004, <[Link]
58
Susan Sachs, “Adultery a Crime? The Turks Think Again and Say No,” New York Times,
September 15, 2004, <[Link]
html>; Gül Aldikaçti Marshall, Shaping Gender Policy in Turkey: Grassroots Women Activists,
the European Union, and the Turkish State (Albany, NY: SUNY Press, 2013), pp. 109–15.
38 Jocelyne Cesari

With EU accession moving further out of reach, and a landslide victory of

the AKP in the 2008 elections, Erdoğan gained momentum to take on the
controversial topic of women’s headscarves in public institutions. In 2010,
the AKP overrode the constitutional court’s ban on the headscarf, allowing
Muslim women who chose to veil to attend university. A Gallup Poll in 2008
reveals underlying complexities in Turkish society: while 73 percent of Turks
say that religion is an important part of their daily lives, only 7 percent say that
Shari‘a must be the only source of legislation.59 In contrast, over 60 percent of
Egyptians believe that Shari‘a should be the only legislative source. This
intricacy of religion’s role in Turkish public space is epitomized by the
headscarf debate. The Gallup Poll further showed that almost 50 percent of
women who wear a headscarf in public believe it is a religious obligation,
whereas 60 percent of women who chose not to veil in public say they believe it
is not a religious obligation.60
The AKP has increasingly utilized women’s reproductive rights as a topic to
appease Islamic conservatives and to set the agenda for national debates, as
seen since the general elections of 2015.61 For example, in 2014, Erdoğan
declared at an international summit on women and justice: “What is right is to
establish equality among women. What is right is to have equality among men.
You cannot put women into men’s work like the communist regimes did in
the past. […] That would go against women’s delicate bodies.” He further
asserted, “Our religion [Islam] has defined a position for women: mother-
hood.”62 In a similar vein, Erdoğan spoke out in 2013 about the lack of sex-
segregated dorms at universities. He promised to take action, saying “All kinds
of messy things are happening. Parents are crying out, ‘Where is the state?’
We have to show where the state is.”63 A year before that, in 2012, Turkey
was caught in a heated debate on an abortion law planned under AKP’s
government. Erdoğan described abortion as tantamount to murder, asserting

59
Magali Rheault, “Headscarves and Secularism: Voices from Turkish Women,” Gallup Poll,
January 8, 2008, <[Link]
[Link]>.
60
Rheault, “Headscarves and Secularism.”
61
In these general elections, the AKP lost the majority of seats in the parliament, which has
led to a coalition with more secular and feminist political groups.
62
Tulin Daloglu, “Erdoğan Rejects Women’s Equality,” Al Monitor, December 1, 2014,
<[Link]
html>; “Recep Tayyip Erdoğan: ‘women not equal to men’,” The Guardian, November 24, 2014,
<[Link]
women-not-equal-men>.
63
Orhan Kemal Cengiz, “Erdoğan’s ‘Morality Police’ Assumes Duty,” Al Monitor, November
6, 2013, <[Link]
html>.
 State, Islam, and Gender Politics 39

abortion “has no place in our values.”64 Although abortion remains legal in the
first ten weeks of pregnancy in Turkey, reports revealed that state hospitals no
longer perform the procedure, because funds for abortion were cut.65
Compared to other Muslim-majority countries like Egypt, Pakistan, or
Algeria, Turkey has one of the most progressive legal codes regarding women’s
rights. However, public culture remains strongly patriarchal. For example, the
rates of violence against women, especially intimate partner violence, have
surged in the past decade. A failure to adequately abide by the statutes of the
Turkish protection law reveals not just a missing level of expertise among
jurists and the police, but a societal neglect of the importance of women’s
protection. Human rights organizations report that 42 percent of women aged
15 to 60 have experienced physical or sexual violence by their husbands or
partners at some point in their lives.66 This equals 11 million women, of
whom only 3 percent told a police officer, public persecutor, or neighborhood
official.67 The reluctance of women to seek support against an abusive partner
reflects the strong patriarchal nature of Turkish society.
In the same vein, an unexpected consequence of the Arab Awakening has
been the surge of violence against women.68 In Tunisia, according to a survey
carried out by the National Board for Family and Population (ONFP) pub-
lished in 2012, about one in two women said they had been subjected to
violence during their life, 47.1 percent in urban areas and 48.7 percent in rural
areas. The study shows that the main perpetrators of such violence are
spouses, who are responsible for 47.2 percent of the physical violence cases,
68.5 percent of the psychological violence cases, 78.2 percent of the sexual
violence cases, and 77.9 percent of the economic violence cases.

64
Sebnem Arsu, “Premier of Turkey Seeks Limits on Abortions,” New York Times, May 29,
2012, <[Link]
[Link]?_r=0>; “Turkish Abortion Debate: The Council of Europe Criti-
cizes the Proposed Ban on Abortion,” CHP EU Representation, June 7, 2012, <http://
[Link]/2012/06/07/turkish-abortion-debate-the-council-of-europe-criticizes-the-
proposed-ban-on-abortion/>.
65
Pinar Tremblay, “Turkish Laws Fail to Protect Women’s Right to Choose,” Al Monitor,
March 14, 2014, <[Link]
[Link]#>.
66
“He Loves You, He Beats You: Family Violence in Turkey and Access to Protection,” Human
Rights Watch, 2011, <[Link]
67
“He Loves You, He Beats You.”
68
“Deeply Disturbed by Reports of Sexual Violence in Tahrir Square,” Tahrir Institute of
Middle East Policy, September 6, 2014, <[Link]
reports-sexual-violence-tahrir-square/>.
40 Jocelyne Cesari

CONCLUSION: ISLAM AS A CODE

OF PUBLIC MORALITY

With the nationalization of Islam, the state became a central—if not the most
important—agent redefining Islamic law and religious orthodoxy, leading to a
reshaping of Islamic norms.
Consequentially, a combination of culturally constructed values (adab) and
Islamic law create social customs, which emphasize the social over the indi-
vidual being. In other words, daily interactions reinforce the idea that the self
is subdued to social obligations. This standard extends to the very definition of
equality. Whereas in the West equality is defined by uniform sets of individual
rights, in the countries studied, equality is the equal obligation of individuals to
promote communal welfare. Hence, the moral obligation of the family allows
no room for the “promotion of self ” above the interests of the community.
Any conceptions of female emancipation, therefore, are regarded as dissonant
with the cultural values of the nation often defined in religious terms. A case in
point is the controversy created by Prime Minister Erdoğan in May 2012, when
he told a gathering of the women’s branches of his AKP that “each abortion is
one Uludere”—a reference to air strikes on a village on the Iraqi border that
killed thirty-four civilians in December. Abortions, said the PM, were “a sneaky
plan to wipe the country off the world stage.”69 The same rhetoric is also
present in Western democracies, as shown by the political agenda of Christian
fundamentalist groups in the United States. These claims, however, do not
operate (until now) within the same legal and political environment.
Generally speaking, gendered roles in the family reflect a hierarchy of social
positions and purposes that directly impact on women’s lives in both the
private and public spheres. For example, at the core of the nationalist ideology
of the countries surveyed, there is an element of self-preservation, in order to
secure moral capital in a rapidly westernizing world. Globalization and con-
sumerism both pose threats to the social composition of these respective
regions of the Muslim world, which, in their instability, regard this trend as
one of moral depravity. In this globalizing cultural setting, in which the terms
and values of social relations are mutating, the reflex in most Muslim coun-
tries is to subordinate the rights of individuals, frequently women, in favor of
general social cohesion and political welfare. Government officials, therefore,
have relied upon the pre-established moral capital of religion and familial
structure to control the social upheaval stirred by Western influences. Conse-
quentially, women’s behavior and sexuality often becomes restricted.

69
Abortions are currently legal in Turkey. Justin Vela, “‘Abortions are Like Air Strikes on Civilians’:
Turkish PM Recep Tayyip Erdogan’s Rant Sparks Women’s Rage,” The Independent, May 29, 2012.
 State, Islam, and Gender Politics 41

At the same time, religious norms and references cannot be completely

controlled by the state, especially at a time of facilitated global communication
and expedited circulation of ideas that increase the debate on Islamic orthodoxy.
In other words, state policies are increasingly challenged by transnational ideas
and agents which influence the national contexts of Islamic religiosity.
In this context, it is important to keep in mind that religious debates on
women’s rights in Muslim-majority countries take place within this state
framework. It is therefore misleading to evaluate the current religious discourse
based on the premodern status of the Islamic tradition, since the current
clerical positions are not derived from this past but are grounded in the state’s
legal provisions and readjustment to orthodoxy and interpretation. In this
regard, the state action has fixed the religious debate by imposing law as an
instrument of orthodoxy. It reduces the religious debate to a pro or contra
discussion on the existing status quo, which is based on a hybrid that is secular
and Islamic.

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 2

Catholicism, Gender, Secularism,

and Democracy
Comparative Reflections

José Casanova

This is not a detailed comparative historical study of the role of gender or

secularism in processes of democratization in Catholic countries in the so-called
Catholic “third wave” of democratization. It only aims to offer some comparative
reflections on some distinctive patterns that distinguish the relatively successful
processes of democratization in majoritarian Catholic countries from the still
more uncertain and contested processes of democratization in Muslim countries
which are the focus of this volume.1 In particular, it offers an interpretation as to
why issues of secularism and gender, which have become so contested and
entangled in processes of democratization in Muslim countries, did not play a
significant role in transitions from authoritarian to democratic regimes in Cath-
olic contexts. When highly divisive and politically contested issues of “gender,”
such as the legalization of divorce, abortion, or same-sex marriage, emerged on
the legislative agenda in most Catholic countries, democratic regimes had already
been consolidated. Certainly, as in the United States and in many other advanced
democracies, those divisive moral issues led to “culture wars” and to political
polarization, which, in some contexts, revived old clerical/anti-clerical and reli-
gious/secular cleavages. But those political conflicts took place within broadly
accepted constitutional and democratic rules of the game and those cleavages
within civil and political society did not endanger the stability of democratic
regimes nor present a serious threat of democratic breakdown.
The so-called “third wave” of democratization, which began in 1974/5 with
democratic transitions in Greece, Portugal, and Spain, continued throughout

1
Jocelyne Cesari, The Awakening of Muslim Democracy: Religion, Modernity, and the State
(New York: Cambridge University Press, 2014).
 Catholicism, Gender, Secularism, and Democracy 47

Latin America and some Asian countries in the 1980s, spread throughout
Eastern Europe after 1989, and culminated with South Africa’s transition to
democracy in 1994, has rightly been called a “Catholic” wave.2 Roughly two
thirds of the approximately thirty countries that underwent successful transi-
tions to democracy since the mid-1970s were majoritarian Catholic countries.
This in itself points to the fact that a majority of Catholic countries in the
1960s had authoritarian regimes, many of them initially supported by the
Catholic Church, by various forms of “political Catholicism,” or by Catholic
militant groups. Not all authoritarian regimes in majoritarian Catholic coun-
tries were supported by the Catholic Church. Some, such as the Soviet-type
regimes in Eastern Europe, espoused radical forms of secularism and were
openly anti-Catholic. What distinguished the third wave of democratization
from previous waves, however, was the fact that, for the first time in history,
the Catholic Church, Catholic movements, and lay as well as religious Catholic
elites played consistently proactive and positive roles in processes of democ-
ratization in most Catholic countries. It was, moreover, the first time histor-
ically that Catholicism itself had not been the source of religious/secular
cleavages of the kind that had often accompanied political transformations
in Catholic countries since the mid-1800s. Although such cleavages re-
appeared later in various electoral contexts, at least at the time of the transi-
tions they were significantly diminished.
In a sense, it is appropriate to call it a Catholic wave, not just because the
countries in which it occurred happened to be Catholic, but because the
transformation of Catholicism connected with the Vatican II aggiornamento
was itself an important independent factor in producing the wave. Indeed,
Catholic groups also played a prominent role, disproportionate to their size, in
the democratic transitions of countries such as South Korea and South Africa,
where Catholics comprised less than 10 percent of the population.3
As I have emphasized throughout my writings, the most important
historical consequence of the Vatican aggiornamento was the transformation
of the Catholic Church from a state-centered to a civil society-centered
institution.4 Two Vatican II Council documents, the Declaration on Reli-
gious Freedom, Dignitatis Humanae, and the Pastoral Constitution on the
Church in the Modern World, Gaudium et Spes, were particularly crucial in
this transformation.
The recognition of the inalienable right of every individual to freedom of
religion and freedom of conscience, based on the sacred dignity of the human

2
Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century
(Norman, OK: University of Oklahoma Press, 1991).
3
José Casanova, “Civil Society and Religion: Retrospective Reflections on Catholicism and
Prospective Reflections on Islam,” Social Research 68/4 (2001): 1041–80.
4
José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press,
1994).
48 José Casanova

person, means that the church abandons its compulsory character and
becomes a “free church.” Truth can no longer be imposed, nor is it permissible
to coerce individual consciences to follow external dictates. The old saying
“error has no rights” was abandoned. Not doctrines, but persons have rights.
Beginning with Pope John XXIII’s encyclical Mater et Magistra (1961), the
church appropriated the modern discourse of human rights, leaving behind
a long history of repeated categorical official condemnations of modern
human rights principles that goes back to Pius VI’s condemnation of the
French National Assembly’s Declaration of the Rights of Man in his Brief
Caritas (1791). Pius IX’s Syllabus of Errors (1864) reiterated most emphatically
the condemnation of the principle of religious freedom as well as the separ-
ation of church and state.5
The immediate historical consequences of the declaration on religious
freedom were: (a) the acceptance of the modern secular principle of disestab-
lishment and separation of church and state; (b) the contestability of any
Catholic party or political movement officially sponsored by the Catholic
Church; and (c) in the long run the incompatibility of a dogmatic conception
of authoritative tradition and the principle of freedom of conscience. In fact, a
comparative analysis of transitions to democracy and of processes of
constitution-making in Catholic countries during the third wave confirms
not only the church’s voluntary disestablishment from the state, but also its
disengagement from political society proper.6
Only in Poland was disestablishment at first not fully voluntary. In 1991,
Primate Cardinal Glemp presented an ambiguous public proposal to repeal
the constitutional separation of church and state inherited from the commun-
ist regime on the dubiously democratic grounds that the rule of the Catholic
majority would require the constitutional recognition of the religious confes-
sion of the majority of Polish citizens. But in the face of public resistance and,
apparently and more significantly, the disapproval of the Vatican and of the
Polish Pope, the church did not press the issue.7 In fact, while every other
branch of Christianity (Anglican, Presbyterian, Lutheran, Orthodox) still
maintains some kind of formal establishment in some European country,
the Catholic Church eschewed establishment in every (post-1974) transition
to democracy in Southern Europe (Portugal, Spain) and in Eastern Europe
(Poland, Hungary, Slovakia, Slovenia, Croatia).8

5
José Casanova, “The Sacralization of the Humanum: A Theology for a Global Age,”
International Journal of Politics, Culture, and Society 13/1 (1999): 21–40.
6
José Casanova, “Global Catholicism and the Politics of Civil Society,” Sociological Inquiry
66/3 (1996): 356–73.
7
Casanova, Public Religions, pp. 110–13.
8
José Casanova, “The Problem of Religion and the Anxieties of European Democracy,” in
Religion and Democracy in Contemporary Europe, ed. Gabriel Motzkin and Yochi Fischer
(London: Alliance Publishing Trust, 2008), pp. 63–74.
 Catholicism, Gender, Secularism, and Democracy 49

Indeed, the preamble to Poland’s constitution shows how a majoritarian

Catholic country was able to pragmatically solve the thorny question of any
reference to God, to the Christian heritage, or to the secular values of the
Enlightenment better than was the case with the rejected European constitu-
tion. The compromise wording suggested by ex-Prime Minister and Catholic
intellectual Tadeusz Mazowiecki offers a non-laicist consensual solution to the
constitution of a secular state:
We the people of Poland . . . all the Polish citizens, both those who believe in God,
who is the source of truth, justice, goodness and mercy, as well as those who do
not share this faith and derive the values they recognize from other sources, equal
in rights and obligations toward the common good . . . recognizing our responsi-
bility before God or one’s own conscience . . . pass this constitution.9
Respecting the dual principle of “no establishment” and “free exercise,” as well
as Alfred Stepan’s “twin tolerations,”10 Article 25 of the Polish constitution reads:
1. Churches and other religious organizations shall have equal rights.
2. Public authorities in the Republic of Poland shall be impartial in matters of
personal conviction, whether religious or philosophical, or in relation to outlooks
on life, and shall ensure their freedom of expression within public life.
3. The relations between the State and churches and other religious organizations
shall be based on the principle of respect for their autonomy and the mutual
independence of each in its own sphere.11
In this sense, there has not emerged in any constitution-making process in
Catholic countries an establishment clause controversy similar or equivalent to
the official declaration of Shari‘a as either a source or the source of legislation.
The Catholic Church has accepted generally the secularity of the state and of
state legislation, putting an end to long struggles over Catholic establishment
and secular disestablishment since the French Revolution. This does not mean
that the church accepts the principles of laïcité in the sense of “assertive” state
secularism or restriction of religion to the private sphere. On the contrary, the
relocation of the church from state to civil society and the adoption of the
discourse of human rights together with the final acceptance of the legitimacy of
the modern saeculum, as defined in the Pastoral Constitution on the Church in
the Modern World, Gaudium et Spes, is what grounds Catholicism as a modern
public religion in civil society.

9
Constitute, “Poland’s Constitution of 1997,” [Link], April 18, 2016, <http://
[Link]/constitution/Poland_1997.pdf> (accessed October 10, 2016), p. 3.
10
Alfred Stepan, “Religion, Democracy, and the ‘Twin Tolerations,’ ” Journal of Democracy
11/4 (2000): 37–57.
11
Constitute, “Poland’s Constitution of 1997,” p. 3.
50 José Casanova

In fact, the political engagement of the faithful, the religious as well as the
laity, in the transformation of the world and action on behalf of peace, social
justice, human rights, and liberation from any kind of oppression that under-
mines the dignity of the human person, will be defined from now on in the
Council documents, in papal encyclicals, and in the pastoral letters of episco-
pal conferences throughout the world as a constitutive dimension of the
People of God’s divine mission.
As remarkable as the voluntary disestablishment from the state was the
church’s disengagement from political society proper. From a political science
perspective, one of the most surprising outcomes of the third wave of dem-
ocratization was that, despite the prominent role played by Catholic elites,
groups, and social movements in so many transitions, and despite the influ-
ence and prestige the church gained thereby almost everywhere, not a single
major Catholic party emerged out of any of the transitions of the third wave:
not in Spain, not in Brazil, not in the Philippines, not in Poland.
Indeed, one can speak confidently of the end of the historical era of
“political Catholicism,” of the end of Catholic parties, and, in this sense, of
the end of Christian democracy (though some Christian democratic parties
may have survived with a much diminished Catholic identity in countries such
as Germany or Chile), and of the collapse of Catholic Action, the main form of
Catholic political mobilization throughout the twentieth century. The case of
Spain is instructive. Political Catholicism never made the transition to Christian
Democracy during the embattled politics of the Second Spanish Republic
in the 1930s. In fact, among all forms of political Catholicism one finds
throughout Europe and Latin America in the 1930s, only in Chile did a section
of the Chilean Falange, led by Eduardo Frei and following the democratic
principles of Jacques Maritain, make the transition from authoritarian “pol-
itical Catholicism” to Christian Democracy before the Second World War.
Some Catholic political movements in opposition to the Franco regime,
particularly sections of the Catalan and Basque nationalist movements, adopt-
ed Christian Democracy after the war. But no major Christian Democratic
party emerged out of the Spanish transition. Three separate Christian Demo-
cratic parties competed in the first general elections in 1977, but they failed
to meet the minimum electoral threshold of 5 percent of the vote. Unable to
gain parliamentary representation, none of the three parties survived the first
post-Franco democratic elections. Apparently, Spain had missed the era of
Christian Democracy. The Catholic parties of the 1930s were non-democratic
and the democratic parties after the transition had become non-confessional.
At first, during the transition and immediately after, one could find polit-
ically engaged Catholics across the Spanish political spectrum from the
extreme left to the extreme right. A genuine desire for religious peace after a
protracted modern history of civil wars in which Catholicism itself had served
as lightning rod; the realization that the Catholic community, the clergy
 Catholicism, Gender, Secularism, and Democracy 51

included, had become pluralistic politically and would not support any single
Catholic party; the fear that any officially church-sponsored party could have
become a minority party, thus undermining the church’s claim that Catholi-
cism was, at least sociologically, Spain’s national religion—all these factors
probably contributed to the church’s choice to remain politically neutral
during the transition. At the time, there seemed to be no major religious/
secular cleavage and no Catholic electorate susceptible to political mobiliza-
tion by the church, even if the church had been interested in political
mobilization.12
In the 1990s, deep religious/secular cleavages reemerged in Spanish pol-
itics, particularly around “education” and “gender” issues. The Catholic
hierarchy now allied itself openly with the conservative Partido Popular
(PP), while the Socialist Party adopted a much more assertive “secularist,”
that is, laicist, position. But the dramatic secularization of Spanish society
and the consolidation of democracy meant that the religious/secular cleav-
ages led to significant political polarization and to “culture wars.” However,
those took place within a constitutional democratic framework which never
endangered the democratic regime itself. Indeed, public opinion polls reveal
unmistakably that an overwhelming majority of the Spanish population
support not only the secularization of politics, but also the secularization
of sexual mores. In this respect, the attempt to turn moral confessionalism
around gender issues into a new basis for political mobilization served to
mobilize a conservative Catholic base which became associated with the PP,
but it could not revive mass political Catholicism and the PP did not become
a confessional Catholic party.
According to the most comprehensive recent survey of Spanish religiosity,
the 2008 Bertelsmann’s Religion Monitor, two thirds (67 percent) of Spaniards
claim that their religious beliefs have practically no influence on their political
opinions, while less than one fifth (18 percent) claim that they have significant
influence.13 Interestingly, while the survey reveals that there are significant
gender and age differences on practically every aspect of Spanish religiosity,
there are practically no gender and almost no age differences on this issue.
Even among the self-defined highly religious, who constitute only 5 percent of
the Spanish population, the proportion of those who claim that religion is
important for their political opinions is almost the same (40 percent) as the
proportion of those for whom their religious beliefs have no influence on their
political opinions.

12
Casanova, Public Religions, pp. 87–91.
13
José Casanova, “Spanish Religiosity: An Interpretative Reading of the Religion Monitor
Results for Spain,” in What the World Believes: Analyses and Commentary on the Religion Monitor
2008, ed. Bertelsmann Stiftung (Gütersloh: Verlag Bertelsmann Stiftung, 2009), pp. 223–55.
52 José Casanova

Considering the almost obsessive emphasis that the official teachings of the
Catholic hierarchy have recently placed on sexual and gender morality, even
more striking is the clear separation, indeed the growing dissociation, between
religion and sexual morality. Only 6 percent of Spaniards claim that religion
is of great importance when it comes to sexuality, and only an additional
12 percent claim that religion has some influence on their sexuality. By
contrast, a majority (51 percent) of Spaniards claim that religion has abso-
lutely no influence upon their attitudes toward sexuality, while an additional
13 percent claim that it does not have very much influence. Thus, it would
seem that Spanish sexual mores have become secularized and clearly differ-
entiated from religious morality. It is significant that there is no gender gap on
this issue, while there are still some differences between the three youngest
cohorts and the two oldest ones on “gender” issues. Even among the self-
defined highly religious, 26 percent claim that their religious beliefs have no
influence upon their sexual attitudes, while only 41 percent claim that they
wield significant influence. In fact, the figure is much lower than the propor-
tion of religious people who claim that their religion influences their work and
profession (58 percent) or their free time (53 percent).
Admittedly, since the 1970s, Spanish society has undergone a process of
secularization more drastic perhaps than that of any other post-authoritarian
Catholic society. Only Ireland has undergone a comparable process of drastic
secularization in the wake not only of rapid economic modernization, but also
as a consequence of the sexual abuse scandal.14 Nevertheless, recent public
opinion surveys show similar though less pronounced trends toward the
separation of religion and politics, and most significantly toward the dissoci-
ation of religion and sexual morality in Latin American Catholic societies,
such as Brazil or Mexico, which evince much less pronounced processes of
secularization.15
Even in highly religious Catholic Poland, along with the “deconfessionali-
zation” of the state, there has taken place a certain deconfessionalization of the
nation with the recognition of internal ideological and cultural pluralism.
Most significantly, there has been a pronounced liberalization and pluraliza-
tion of moral norms in the public sphere, particularly with respect to sexual
and gender norms as expressed in surveys of public opinion, in clear diver-
gence from the official moral doctrines of the Catholic hierarchy (<[Link]
pl/EN/home/[Link]>).

14
Malachi O’Doherty, Empty Pulpits: Ireland’s Retreat from Religion (Dublin: Gill & Mac-
millan, 2008).
15
Soledad Loaeza, “Cultural Change in Mexico at the Turn of the Century: The Secularization
of Women’s Identity and the Erosion of the Authority of the Catholic Church,” in Religious
Pluralism, Democracy, and the Catholic Church in Latin America, ed. Frances Hagopian (Notre
Dame, IN: University of Notre Dame Press, 2009), pp. 96–130.
 Catholicism, Gender, Secularism, and Democracy 53

One can observe, indeed, a clear historical trend among Catholic demo-
cratic societies to pass legislation on family and gender issues, which goes
against the publicly asserted official teachings of the church hierarchy, but is
supported increasingly by public opinion and even by a majority of the self-
defined Catholic population in those countries.16 In discussing gender policies,
however, as shown convincingly by Mala Htun in her study of state policies in
the Southern Cone, it is important to disaggregate those policies since they
tend to follow different dynamics.17 Traditional family law influenced by
Catholic teachings under the ancient regime, as well as modern civil laws
influenced by the Napoleonic Code, had shared similar patriarchal principles
of men’s marital power (puissance), women’s incapacity (incapacité), and
patria potestas. It is important to recognize that changes in legal civil codes
toward gender equality, which emerged at the beginning of the twentieth
century and have been spreading globally since the 1960s, have not been
opposed by the Catholic Church. On the contrary, with the adoption of the
modern discourse of human rights in the 1960s, Catholic doctrine has sup-
ported full legal equality for men and women in the family as well as in society.
As the chapters in this volume show, this is probably the most significant
divergence between contemporary Catholic and Muslim societies.
In this respect, one may assert that divisive gender issues had not yet
emerged publicly during the transitions to democracy in Catholic countries
in the 1970s. Indeed, the incipient women’s movements were part of the
general coalition of civil society movements against the various authoritarian
regimes and, as such, also fell under the general public protection of civil
society by the church.18 No religious/secular cleavages had emerged yet
around gender issues.
Cleavages around “gender” issues only emerged after democracy had been
consolidated, once socialist and leftist parties began to introduce legislation
legalizing divorce and the use of contraceptives against the adamant oppos-
ition of the Catholic Church.19 Despite its resistance, however, the Catholic
Church has been unable to resist the general trend toward liberalization
of divorce laws and the state’s promotion of the use of contraceptives as
part of reproductive health policies in most Catholic countries. In a sense,

16
Mala Htun and Laurel Weldon, “State Power, Religion, and Women’s Rights:
A Comparative Analysis of Family Law,” Indiana Journal of Global Legal Studies 18/1 (2011):
145–65.
17
Mala Htun, Sex and the State: Abortion, Divorce and the Family under Latin American
Dictatorships and Democracies (New York: Cambridge University Press, 2003).
18
Sonia Alvarez, Engendering Democracy in Brazil (Princeton, NJ: Princeton University
Press, 1990).
19
Mala Htun, “Life, Liberty, and Family Values: Church and State in the Struggle over Latin
America’s Social Agenda,” in Religious Pluralism, Democracy, and the Catholic Church in Latin
America, ed. Frances Hagopian (Notre Dame, IN: Notre Dame University Press, 2009),
pp. 335–64.
54 José Casanova

developments in Italy foreshadowed what was to emerge later throughout the

Catholic world. Divorce was first introduced in Italy in 1970. The Vatican and
Catholic organizations began to mobilize for a referendum to abrogate the
divorce law, but the Catholic coalition was soundly defeated in the 1974 Italian
referendum.
In Spain, the ban on the sale of contraceptives was lifted in 1978, the same
year in which the democratic constitution was approved in a referendum. In
1981, a divorce law was passed by the Chamber of Deputies with the support
of thirty representatives from the ruling Unión de Centro Democrático
(UCD), who broke ranks with the conservative party leadership. This was a
year before the electoral victory of the Spanish Socialist Party (PSOE) in
October 1982. Brazil introduced a divorce law in 1977, still under an authori-
tarian regime. Argentina introduced a divorce law in 1987 under democratic
President Alfonsín. In Ireland, the referendum of 1986 upheld the prohibition
of divorce. But a decade later, in the 1995 referendum, the Irish electorate
repealed the prohibition, despite the opposition of the Catholic Church. Even
deeply Catholic Malta introduced divorce legislation following a referendum
in 2011. As of today, every Catholic state in the world, with the exception of
the Philippines and Vatican City, has passed some kind of divorce legislation,
despite the resistance of the Catholic Church.20 Yet even in the Philippines,
arguably the most religious Catholic country in the world, the Catholic
Church was unable to defeat the passage of the controversial 2013 Reproduct-
ive Health Law.21
The legalization of abortion in Catholic countries has followed a more
complex and ambiguous path. In Spain, the PSOE introduced an abortion law
in 1985 making induced abortion legal but restricted to the three cases of: serious
risk to the physical or mental health of the pregnant woman, rape, and malfor-
mations or defects in the fetus. The abortion law was liberalized further in 2010
under socialist Prime Minister Zapatero, basically allowing abortion on demand
during the first trimester of pregnancy. In December 2012, the ruling conser-
vative Popular Party, in close alliance with the Catholic Church, drafted a law to
ban abortion except in cases of rape and serious health risks to the mother. But
two years later, in September 2014, Prime Minister Mariano Rajoy announced
that the government was withdrawing the draft law due to lack of consensus
within his own party in the face of massive popular opposition.
In Latin America, with the exception of the special cases of Cuba and Puerto
Rico, only highly secular Uruguay passed an unrestricted law legalizing

20
Htun and Weldon, “State Power.”
21
David T. Buckley, “Catholicism’s Democratic Dilemma: Varieties of Public Religion in the
Philippines,” Philippine Studies: Historical and Ethnographic Viewpoints 62/2–3 (2014): 313–39;
David T. Buckley, Faithful to Secularism: The Religious Politics of Democracy in Ireland, Senegal,
and the Philippines (New York: Columbia University Press, 2016).
 Catholicism, Gender, Secularism, and Democracy 55

abortion in 2012. Some other Latin American countries (Argentina, Colombia,

Peru, Ecuador, Bolivia) have passed more restrictive laws allowing abortion for
health reasons. Most Latin American countries still ban abortion or permit it
only in order to save the woman’s life.22
In her comprehensive review of legislative changes on gender-related issues
in Latin America, Mala Htun asks the poignant question: “Why were Latin
American countries able to legalize divorce, adopt programs to prevent HIV/
AIDS, and distribute contraceptives but not liberalize abortion and offer
homosexuals greater rights?”.23 Latin American public opinion polls actually
offer a plausible answer to this question, which is in line with Htun’s own
advice to disaggregate issues which, under a feminist liberal agenda, may
appear as part and parcel of the same expansion of progressive women’s and
gender rights. People in Latin America seem to disaggregate and evaluate
those issues differently, contradicting both feminist discourses, which tend to
lump all of them together as positive developments enhancing women’s rights,
as well as Catholic moral doctrine, which also lumps them all together in the
opposite direction as immoral practices.
The comprehensive 2014 Pew survey of Religion in Latin America, that
includes social attitudes toward gender issues, clearly shows that the Latin
American public tends to hold significantly different moral evaluations of
divorce, contraception, sex outside of marriage, abortion, and same-sex mar-
riage to those held by the church.24 Only minorities of Catholics in most Latin
American countries, from 10 percent in Chile to 39 percent in Peru, hold the
opinion that divorce is morally wrong. Clearly, on this issue, a majority of
Catholics disagree with the official teaching of the Catholic Church. Similarly,
a majority of Catholics tend to accept the liberalization of sexual mores as a
positive development. Those who hold that sex outside marriage is morally
wrong have become minorities in most countries, from 17 percent in Uruguay
to 45 percent in Mexico. Most strikingly, attitudes toward same-sex marriage
are changing dramatically. In several Latin American countries the proportion
of those who approve of same-sex marriage are already significantly larger
than those against it: 62 percent vs 31 percent in Uruguay, 52 percent vs
40 percent in Argentina, 49 percent vs 43 percent in Mexico, 46 percent vs
42 percent in Chile. In Brazil, by contrast, the proportion of those who are
against same-sex marriage is still slightly larger, 48 percent, than those who
accept it, 45 percent. Most significantly, however, there is a growing gener-
ational gap and the younger generation, between 18 and 34 years old, tends
to support same-sex marriage to a much larger extent than those who are

22
Htun and Weldon, “State Power.” 23
Htun, “Life, Liberty,” p. 351.
24
Pew Research Center, “Religion in Latin America: Widespread Change in a Historically
Catholic Region,” November 13, 2014, <[Link]
america/> (accessed November 23, 2016), pp. 69–86.
56 José Casanova

35 years old or older: the gap is 75 percent vs 56 percent in Uruguay, 65

percent vs 44 percent in Argentina, 63 percent vs 38 percent in Mexico, and
56 percent vs 36 percent in Brazil.
By contrast, majorities of the Catholic population in every Latin American
country, with the exception of Uruguay, maintain the view that abortion is
morally wrong. In Uruguay, 49 percent of Catholics hold the view that
abortion is morally wrong, although many of them clearly support the de-
criminalization of abortion. The proportion of Catholics who think that
abortion is morally wrong is 57 percent in Chile, 64 percent in Argentina,
and 71 percent in Mexico. In the rest of Latin America, those who consider
that abortion is morally wrong is either over 80 percent or over 90 percent.
Interestingly, women are almost as likely as men to say that abortion is
morally unacceptable. Most significantly, younger Latin Americans are almost
as likely as older Latin Americans to say that abortion is morally wrong.
Only in the case of abortion do Latin American Catholics tend to agree with
the teaching of the Catholic hierarchy. On most other sexual moral and gender
issues, Latin American Catholics tend to disagree with the official teachings of
the Catholic Church, adopting an attitude that could be called “faithful
dissent.” They agree to disagree with the clerical hierarchy on this particular
issue without assuming an attitude of sinful disobedience. They follow their
own conscience in good faith. The Pew survey also shows that Protestants
across Latin America maintain much more traditional or “fundamentalist”
positions on gender and sexual norms.
The gender question is arguably the most serious and complex challenge
facing the Catholic Church today.25 One could argue that, until very recently,
indeed until the arrival of Pope Francis, the response of the hierarchy had been
mostly inadequate in so far as it tended to view and officially depict the very
discourse on “gender” as a dangerous ideology produced by feminism, in the
process turning feminism into an ideological foe, indeed into a specter not
unlike communism in the nineteenth century. The modern moral principles
of life, liberty, equality, and the pursuit of happiness are converging
most dramatically throughout the world around issues of gender equality
and sexual morality.
The “gender question” is, in many respects, the fundamental moral question
of our times in the same way that “the social question” was the fundamental
moral question from the middle of the nineteenth century. The Catholic
Church, pressed by Catholic dynamics emerging from the grassroots of social
Catholic movements, eventually developed a commendable track record of

25
José Casanova, “The Contemporary Disjunction between Societal and Church Morality,”
in Church and People: Disjunctions in a Secular Age, ed. Charles Taylor, José Casanova, and
George F. McLean (Washington, DC: Council for Research in Values and Philosophy, 2012),
pp. 127–35.
 Catholicism, Gender, Secularism, and Democracy 57

addressing the social question. But regarding the gender question, the Catholic
Church, at least the hierarchy and the magisterium, have mainly failed to
address theologically the new challenge, contenting themselves with reaffirm-
ing traditional teachings which fail to come to terms with the radical social
transformation and scrutinize prophetically the signs of the times.
The radical change in circumstances produced by the modern democratic
and sexual revolutions, and the fundamental transformations in gender rela-
tions and gender roles which both entail, present particularly difficult chal-
lenges to the sacred claims of all religious traditions. Not surprisingly, the
politics of gender and gender equality are central to politics everywhere and
religion is thoroughly and intimately implicated in the politics of gender.
Indeed, many analysts have been tempted to interpret what they view as the
global emergence of religious “fundamentalism” in all religious traditions as
primarily a patriarchal reaction against the common global threat of gender
equality, the emancipation of women, and feminism.26
The discourses of feminism and secularism have become intertwined today
in the same way that communism and atheism became intertwined in the
nineteenth century. “Gender” has become, in this respect, the preeminently
contested “social question,” while “religion” has been thrown, willingly or
unwillingly, into the vortex of the global contestation. Traditional religious
establishments tend to view feminist agendas, and particularly the very notion
of gender, as a historically contingent, socially constructed, and therefore
changeable reality; as the greatest threat not only to their religious traditions
and their moral authoritative claims, but to the very idea of a sacred or divinely
ordained natural order, inscribed either in natural law, Shari’a, or some “right
way” universally valid for all times.
At the Second Vatican Council, the Catholic Church embraced theological
developmental principles grounded in the historicity of divine revelation,
incarnation, and continuous historical unfolding of the divine plans of salva-
tion for humanity that require the church’s careful discernment of “the signs
of the times.” The Catholic aggiornamento represented, in this respect, recog-
nition of the fundamental moral principles of secular modernity. The human
dignity of each and every person emerges as the guiding principle of the three
most consequential documents of the Second Vatican Council, Gaudium et
Spes, Dignitatis Humanae, and Nostra Aetate. All three documents share,
moreover, the explicit reference to “the signs of the times” and the historicist
recognition that we are entering a new age in the history of humanity with
important repercussions for our understanding of the unfolding of the mys-
tery of salvation.

26
Martin Riesebrodt, Pious Passion: The Emergence of Modern Fundamentalism in the United
States and Iran (Berkeley, CA: University of California Press, 1998).
58 José Casanova

Actually, the same historicist and developmental recognition appears most

poignantly in the section directed to women in the closing speech of the
Council, when Pope Paul VI asserted that:
at this moment when the human race is undergoing so deep a transformation . . .
The hour is coming, in fact has come, when the vocation of woman is being
achieved in its fullness, the hour in which woman acquires in the world an
influence, an effect and a power never hitherto achieved. (<[Link]
content/paul-vi/en/speeches/1965/documents/hf_p-vi_spe_19651208_epilogo-
[Link]>)
Yet this prophetic vision of the unprecedented transformation in gender
relations which humanity was experiencing did not have the transformative
consequences one should have expected in the life of the church after the
council.
Indeed, on issues of gender and sexual moral theology, the Catholic hierarchy,
since the publication of the encyclical Humanae Vitae in 1968, has reasserted a
traditionalist ontological conception of human nature and of human biology
based on the essentialist conception of an ahistorical, unchanging, and univer-
sally valid natural law. Such a traditional ontological conception is increasingly
in tension with the historicist conception of human moral development upheld
by the social sciences as well as with the conception of a changing biological–
historical nature informed by the new evolutionary life sciences.
Confronted with the radical character of the gender and sexual revolution of
the late sixties, the post-conciliar church seemed to be backpedaling and
abandoning the historicist, prophetic, and forward-looking discernment of
“the sign of the times,” reverting to the defense of an unchanging and un-
changeable tradition grounded in eternal and divine natural law. The issue here
is not one of moral relativism, as a matter of arbitrary individual choice or
preference, but that of the clash between fundamental “sacred” moral values.
Theologically, any religious community has the right and the duty to uphold
what it considers a divinely ordained sacred injunction or moral norm. Socio-
logically, however, the question is how long any religious tradition, particularly
a “catholic” one, can resist the adoption of a new moral value when a near
universal consensus concerning the sacred character of such a value emerges in
society. To denounce modern moral developments as a reversion to paganism
or rampant relativism is to misunderstand modern historical developments.
Sociologically, in reaction to the Catholic Church’s official defense of a
“traditionalist” position on gender issues and a singularly obsessive focus on
“sexual” moral issues, one can observe throughout the Catholic world a dual
process of female secularization and erosion of the church’s authority on
sexual morality. Perhaps for the first time in the accumulative waves of
modern secularization women have left the church in large numbers, most
dramatically throughout Europe, but increasingly also throughout North
America and incipiently in Latin America. Female secularization is probably
 Catholicism, Gender, Secularism, and Democracy 59

the most significant factor in the drastic secularization of Western European

societies since the 1960s27 and in the radical rupture of European Christian
“religion as a chain of memory”.28
Equally crucial, and of grave societal relevance, is the drastic secularization
of sexual morality. Increasing numbers of practicing Catholics are disobeying
the injunctions of the Catholic hierarchy and following their own conscience
on most issues related to sexual morality. Moreover, there is increasing
evidence from public opinion polls in Europe, North America, and Latin
America that young Catholic adults are explicitly dissociating their sexuality
and their religiosity, claiming that religion has absolutely no influence upon
their attitudes toward sexuality.
We are witnessing, on the one hand, a church hierarchy which evinces an
almost obsessive focus in defending traditional sexual morality, and, on the
other, a majority of Catholic faithful in the secular world who not only ignore
the moral injunctions of the hierarchy, but feel increasingly comfortable
dissociating their religion and their sexuality. One must wonder how far this
radical dissociation of private sexuality from religion and even from morality
can go and where it may lead. In my view, it is leading to a radical secular-
ization of the private sphere of individual consciousness that parallels the
secularization of politics and of the public sphere.
But suddenly, the unexpected election of Pope Francis changed dramatically
the nature of the debate, the official discourse coming from the hierarchy, and
what appeared to be an acrimonious and growing disjunction between church
and secular world on issues of gender. His election brought a surprising sense
of renewal and hope to the Catholic Church. Most encouraging and welcome
was the change in tone from an inward and institutionally self-absorbed
preoccupation with a self-referential church to one of concern and service
for every person, with a preferential option for the poor and needy, embracing
all of humanity, believers and non-believers.
From the start, Francis has found it natural to speak urbi et orbi, to the city
and to the globe, in a direct and unassuming language that everyone can
understand and appreciate. Equally important has been what was left unsaid.
For a long time there was no mention of any of the issues that, for several years
if not decades, had been at the center of magisterial and episcopal pronounce-
ments and which served to define Catholic moral confessionalism to insiders
and outsiders. There was no mention of contraception, abortion, same-sex
marriage, and related gender issues, no critical mention of feminism, the
ideology of gender, or the culture of death.

27
Callum G. Brown, The Death of Christian Britain: Understanding Secularization,
1800–2000 (New York: Routledge, 2009).
28
Danièle Hervieu-Léger, Religion as a Chain of Memory (New Brunswick, NJ: Rutgers
University Press, 2000).
60 José Casanova

The pope himself has repeatedly mentioned that one should not expect
any change in doctrine or teaching from his pontificate. But the change in tone,
the relegation of issues of gender and sexual morality from the core to the periphery
of church teaching, and the foregrounding of the Sermon on the Mount were in
themselves most relevant. A temporary moratorium, for the time being at least, on
very divisive sexual and gender moral issues actually served as a welcome respite.
But issues of gender are not going to go away, and the growing gap between
church and secular morality on sex and gender will need to be addressed
eventually, hopefully in a new spirit and with a new tone. A renewed Catholic
Church less self-absorbed in its own clericalism and embracing the poorest
and the weakest must perforce pay greater attention to women, who remain
the poorest, the weakest, and the least respected peoples in every society and
every organization, including “the People of God.”
The convocation of the Synod on the Family has finally begun the process
and the possibility that the church, the entire People of God, may discern,
critically and faithfully, the various aspects of the profound gender revolution
is one of the most dramatic in the whole history of humanity. The process
began actually with a call to the bishops to discover the sense of the faithful, of
Catholics the world over, on issues related to marriage and the family. The
synod itself began with the papal insistence on real frank debate with a spirit of
authentic readiness to listen to each other, reopening the conciliar dynamics of
catholicity. What the frank debates actually evinced was that the Catholic
Church is deeply divided on those issues and that much more open conversa-
tion, debate, and dialogue at all levels of the church will be necessary to discern
which elements of the moral teachings on gender are essential, so on which
there can be no disunity; which within the hierarchy of truths are disciplinary
and thus left better to the discernment of the local churches; and which should
be left to the moral responsibility of the individual conscience.
But above all, what the papacy of Francis has made amply evident is that the
Catholic Church throughout the Global South continues to be actively engaged
in movements for social justice and peace, in defense of the rights and the human
dignity of immigrants and refugees, of landless peasants and indigenous people,
of the jobless and the underemployed, and in ecological movements for sustain-
able development and to protect our common home, the Earth. The Church of
Francis continues to be, in many respects, “the voice of the voiceless,” accom-
panying all those on the margins and the peripheries who are the victims of
hegemonic processes of globalization. A global Catholic Church in our global age
has found its mission in helping global humanity move, in the words of Pope
Francis, “from a globalization of indifference to a globalization of fraternity.”29

29
Austen Ivereigh, The Great Reformer: Francis and the Making of a Radical Pope (New York:
Henry Holt & Company, 2014), p. 310–11.
 Catholicism, Gender, Secularism, and Democracy 61

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Religion in the Philippines,” Philippine Studies: Historical and Ethnographic View-
points 62/2–3: 313–39.
Buckley, David T. 2016. Faithful to Secularism: The Religious Politics of Democracy in
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logical Inquiry 66/3: 356–73.
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American Dictatorships and Democracies. New York: Cambridge University Press.
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Century. Norman, OK: University of Oklahoma Press.
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 3

Secularism, Gender Inequality,

and the French State
Joan W. Scott

The standard account of secularization has had three aspects: the separation of
church and state; the privatization of religion; and the decline of religion as a
prominent feature of social and personal commitments. These three aspects
led to the conclusion that secularization was one of the marks of modernity, of
the evolution from so-called traditional society, steeped in superstition, to
modern society, founded on rational belief and scientific mastery. In recent
years, social scientists have qualified these blanket characterizations in a
number of ways. The separation of church and state is now thought to involve
not so much strict separation, as to be a matter of regulation: the subsuming of
religious institutions and authority to state control. The privatizing of religion
(making it entirely a matter of individual conscience) has also been recast to
include the public role majority religions have been allowed or encouraged to
play (as guardians of morality, for instance) in secular states. And the expected
decline of religion as an important factor in daily life has been challenged by
the resurgence of religious affiliation and practice in many parts of the West.1
Despite these qualifications, based on many years of research across the
social sciences (including history), the old account persists. Or perhaps it is
more accurate to say that it has had a resurgence as the question of Islam and
the “clash of civilizations” has arisen as a result of the Iranian Revolution of
1979; the increased presence of Muslims in the countries of Western Europe
(many of them former colonial subjects); and the attacks on the Trade Towers

1
There is a vast literature on this that includes Talal Asad, Formations of the Secular:
Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Janet Jakobsen
and Ann Pellegrini, eds., Secularisms (Durham, NC: Duke University Press, 2008); Charles
Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007); Tomoko Masuzawa,
The Invention of World Religions (Chicago: University of Chicago Press, 2005). See also the many
postings on the Social Science Research Council network blog: The Immanent Frame, <http://
[Link]/tif/>.
64 Joan W. Scott

in New York in 2001. In the wake of these events, there is now a new discourse
of secularism—itself a polemical term coined in the second half of the nine-
teenth century by the followers of George Holyoake in England, who sought to
remove religion from practical policy concerns, and anti-clericals in France,
who were defending the Third Republic from the parties of Throne and Altar.
Unlike the nineteenth-century discourse of secularism, twentieth- and twenty-
first-century discourse is framed almost entirely in opposition to Islam and
makes gender equality one of its central claims. Islam, it is said, is synonymous
with the oppression of women, while “secularism” guarantees equality be-
tween women and men. Indeed, some argue that gender equality is a primor-
dial value of secular nation-states.2
My work and that of many other second-wave feminist historians chal-
lenges this characterization of the process of secularization. Postcolonial
scholars, too, call into question the idea that the status of women necessarily
improved under secular imperial rule. Instead, this work suggests the opposite
of secularism’s current polemical, civilizational claim: gender inequality was
a constitutive dimension of secularizing Western nation-states. The case of
France is exemplary. There women did not win the vote until 1944—over 150
years after the democratic revolution of 1789. And even then, women con-
tinued to occupy a decidedly inferior place in politics, economics, and society.
Admittedly, new jobs opened for women, but usually in sex-segregated labor
markets, and wage differentials persisted between women and men. Marriage
bars were enforced in most professions, making it impossible for women to
combine family and work. And laws remained on the books well into the
twentieth century that restricted the autonomy of married women as wage
earners and as parental authorities. Citizenship granted women the vote, but
did not guarantee access to political office. Even after the law on parité passed
in 2000, the representation of women in parliaments and regional and city
councils remained strikingly low—testimony to the intention of male politi-
cians to retain exclusive power despite the law.3

2
For examples, see the comments cited in Dominic McGoldrick, Human Rights and
Religion: The Islamic Headscarf Debate in Europe (Portland, OR: Hart Publishing, 2006),
p. 89; and “L’alternative à l’UMPS ne peut qu’être islamophobie,” Ripostes Laïques, November
26, 2012.
3
For a few examples among many more see: Geneviève Fraisse, Reason’s Muse: Sexual
Difference and the Birth of Democracy, tr. Jane Marie Todd (Chicago: University of Chicago
Press, 1994); Armelle Le Bas-Chopard and Janine Mossuz-Lavau, Les Femmes et la Politique
(Paris: L’Harmattan, 1997); Christine Delphy, Un universalisme si particulier: Féminisme et
exception française (Paris: Syllepse, 2010). See also volumes four and five of Georges Duby and
Michelle Perrot, eds., A History of Women (Cambridge, MA: Harvard University Press, 1994);
and Christine Fauré, Democracy without Women: Feminism and the Rise of Liberal Individualism
in France, tr. Claudia Gorbman and John Berks (Bloomington, IN: Indiana University Press,
1991). On parité, see Joan Wallach Scott, Parité: Sexual Equality and the Crisis of French
Universalism (Chicago: University of Chicago Press, 2005).
 Secularism, Gender Inequality, the French State 65

Notwithstanding persisting empirical inequalities, French politicians and

some public intellectuals insist that laïcité—a uniquely French version of
secularism—is a guarantee of gender equality. In the current debates about
Muslim religious practices, much is being made of sexual emancipation, as if
the free choice of lovers by French women (and not issues of wages, access to
politics, domestic violence, and other such matters) was the only true measure
of equality between women and men.

THE NEW LAÏCITÉ

Laïcité, the French notion of secularism, is very much at issue these days in
debates about the status of Muslims, debates that have only intensified in the
current immigration crisis affecting all of Europe. Scholars have taken varying
positions on the concept. In Le sens de la République, the historian and
political theorist Patrick Weil stresses the importance of assimilation for
constructing a unified national community.4 And he justifies the 2004 law
prohibiting Islamic headscarves in public schools in the name of protecting the
liberty of conscience of those young women who want to resist family and
communal pressure to wear them. Weil’s idea of the place of religion in the
republic is very much an Enlightenment one—there must, of course, be
tolerance of religious conscience (preferably privately and individually held),
but always subordinated to a secular mandate. The state is not merely neutral
in matters of religion, it must be proactive, protecting the young from inher-
ently repressive practices imposed by families and religious communities.
In contrast, historian Jean Baubérot argues for a literal reading of the
meaning of laïcité in the context of the law of 1905. In a book written in
2011 with Micheline Michot, Baubérot distinguishes between laïcité (secular-
ism) and secularization. Whereas, he says, secularization refers to a sociocul-
tural process that replaces spiritual belief with rationality and individualism
(the “disenchantment” referred to by Max Weber),5 laïcité is a preeminently
political and juridical concept that contains four principles: freedom of indi-
vidual conscience; equality and non-discrimination for believers of whatever
faith and for non-believers as well; the separation of religion and politics;
and the neutrality of the state in relation to diverse religions.6 When the two
words—laïcité and secularization—are used as synonyms, he points out, “any

4
Patrick Weil, Le sens de la République (Paris: Grasset, 2015).
5
Max Weber, “The Social Psychology of the World Religions,” in From Max Weber, ed.
H. H. Gerth and C. Wright Mills (Oxford: Routledge, 1998), p. 282.
6
Jean Baubérot and Micheline Milot, Laïcités sans frontières (Paris: Seuil 2011), p. 307.
66 Joan W. Scott

reflection on the relationship between politics and religion is short-circuited

by a sociocultural process. This confusion is particularly troublesome when it
concerns Islam.”7 If laïcité is taken as a political concept referring to state
neutrality, Baubérot says, it follows that the state exceeds its mandate when it
sets limits to the forms religious practice and individual conscience can take; it
violates rather than implements the principles that the architects of the law of
1905 had in mind. I would add that the current insistence that laïcité carries
with it a promise of gender equality introduces a novel idea into the concept,
which historically had nothing to say about discrimination and the political
exclusion of women.8
Gender equality is not the only novel use to which laïcité is being put these
days. Baubérot is writing against the emergence of the official articulation of
what is called la nouvelle laïcité, presented in a report of that name by François
Baroin in 2003. Baroin was asked by the then prime minister, Jean-Pierre
Raffarin, to offer ways of addressing the threats of what seemed an increasing
communalism and a turn to fundamentalism among Muslim populations.
Baroin reminded the legislators who read his report that freedom of expres-
sion must be counterbalanced by the values of the republic. He recommended
a series of measures to achieve that end, one he associated with the need to
(these are his words, echoing those of many others then and since) “reconquer
the lost territories of the Republic.”9
In the years that followed, la nouvelle laïcité took form in a number of
legislative and judicial actions. The first was the law of 2004 banning con-
spicuous signs of religious affiliation in public schools—known unofficially as
the headscarf ban.10 The next was a ministerial memorandum reminding
public servants of their (long-standing) obligation of neutrality on the job—
no sign of religious affiliation was permitted. In 2008, a woman in a niqab
(a total face and bodily covering) was denied naturalization on the grounds
of a “failure of assimilation” to French society. In 2010, any facial covering
worn in public space was outlawed on the grounds both of national security
and because women covered this way were “placed in a situation of exclusion
and inferiority incompatible with the constitutional principles of liberty and
equality.” That same year, a woman working in a private crèche was fired

7
Ibid., p. 15.
8
Stéphanie Hennette Vauchez, “L’autre/l’étrangèr(e), figure rhétorique centrale des ‘guerres
du droit’ livrées dans le débat française sur la laïcité (2004–2013),” unpublished paper. See also
Florence Rochefort, “Laïcité et droits des femmes: Quelques jalons pour une réflexion histor-
ique,” Archives de philosophie du droit 48 (2005): 95–107.
9
For Baroin’s report, see <[Link] The sec-
tion of the report on the “lost territories” is cited in “La Nouvelle Laïcité, machine de guerre
contre l’Islam,” <[Link]
10
Joan Wallach Scott, The Politics of the Veil (Princeton, NJ: Princeton University Press,
2007).
 Secularism, Gender Inequality, the French State 67

for wearing a headscarf on the grounds that, though the childcare center that
employed her was private, she was performing a “public service.” (In that
case, known as the Baby Loup affair, a higher court eventually ruled that the
principle of laïcité did not apply to a private establishment.)11 In 2015,
the Guardian ran a story recounting the most recent controversy about the
application of the French notion of laïcité. “The battle over national identity is
being played out on children’s lunch plates,” the article began. “Is scrapping a
pork-free option a victory for secularism—or just an example of religious
intolerance?” The article referred to the fact that, in a number of municipal-
ities headed by right-wing mayors, Muslim and Jewish children would no
longer be offered a pork-free alternative at lunchtime. The mayor of one of
these towns claimed that, in accord with the 1905 law on the separation of
church and state, he was preserving the neutrality of the public sector
by refusing to recognize the claims of a religious minority (his target was
Muslims); his goal, he insisted, was to protect the integrity of the French
national identity. Nicolas Sarkozy, campaigning for the presidency in 2017,
supported these mayors in the name of laïcité: “if you want your children to
have eating habits based on religion,” he said on TV, “go to a private faith
school.” Critics of the policy have condemned the politicization of school
lunches and the use of laïcité to justify it. The sociologist François Dubet writes
that “talking about secularism has [now] become a way to claim a white
Christian France, where everyone shares the same values and traditions, a
way to say we don’t want Muslims.”12
It’s not only lunches, of course, that are at issue. The National Front party
leader, Marine Le Pen, referred to Muslims praying in the street (when their
neighborhood mosques were overflowing or, as is sometimes the case, non-
existent because of zoning laws that prohibit construction) as “occupiers”—
evoking the German occupation of France during the Second World War and
thus associating Muslims with Nazis.13 And the Collective against Islamopho-
bia in France reported over a hundred incidents in 2014 in which teachers
denied girls entry to classrooms because their long skirts were taken to be
unacceptably “conspicuous” religious signs—signs that, like the headscarves
outlawed in 2004, were taken to signify the subordination of women. It was in

11
Stéphanie Hennette Vauchez and Vincent Valentin, L’Affaire Baby Loup ou la Nouvelle
Laïcité (Issy-les Moulineaux: Textenso Editions, 2014); this cites all of the cases mentioned in
this paragraph.
12
Angelique Chrisafis, “Pork or Nothing: How School Dinners are Dividing France,” The
Guardian, October 13, 2015, <[Link]
dinners-france-secularism-children-religious-intolerance>.
13
Angelique Chrisafis, “Marine Le Pen Goes on Trial Charged with Anti-Muslim Hate Speech,”
The Guardian, October 20, 2015, <[Link]
le-pen-trial-charged-anti-muslims-hate-speech>.
68 Joan W. Scott

the name of the “primordial” republican value of gender equality that the
clothing of these girls had to be regulated.14
In her important work on this topic, the legal scholar Stéphanie Hennette
Vauchez describes the changed conception of laïcité as having two aspects.
The first is that the injunction for state neutrality in matters of religion has
been extended to include private citizens. Thus, for example, while schools
were long thought to be the place where “peasants were turned into French-
men,” where children would be indoctrinated into republican citizenship, now
adherence to the republic’s secular ideals is a prerequisite for entry into public
school.15 The second aspect of the new laïcité is that the neutrality of the state
has been enlarged to encompass all public space, so that not only schools and
government offices, but the street itself are public spaces that require those
who enter it to respect the mandate of neutrality. These are major deviations
from the 1905 understanding of the separation of church and state (as
Baubérot described it). It’s as if the very sight of Muslim difference must
be eradicated from public view and thus from any perception of Frenchness or
of France.
Hennette Vauchez points out as well that while Muslims in general have
been targeted by this legislation, it is Muslim women who have borne the brunt
of attention. Their clothing is the object of regulation, the visibility of their
faces and bodies a matter of grave concern, the question of their equality
(often measured by Western standards of sexual liberation) a primary consid-
eration for legislators, journalists, some feminists, and many public intellec-
tuals. Interestingly, if the new laïcité focuses on the dangers embodied by
Muslim women, the old laïcité worried a great deal about the religious pro-
pensities of French women. That is because the discourse of secularists—those
who sought to replace the authority of the Catholic Church with Enlighten-
ment values of science and reason—rested on a set of distinctions between
public and private, politics and religion, political and domestic, reason and
affect, men and women. Secularism recognized liberty of private religious
conscience as long as it was held privately; it also defined the family, with
women at its center, as a private institution. The privatizing of religion and of a
woman’s domain led to the equation of women with religion in eighteenth-
and nineteenth-century France.16

14
Le Monde, “Nouvelle polémique sur une jupe longue du lycée,” May 5, 2015, <http://
[Link]/religions/article/2015/05/06/nouvelle-polemique-sur-une-jupe-longue-au-
lycee_4628972_1653130.html>.
15
Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France, 1870–1914
(Stanford, CA: Stanford University Press, 1976).
16
Joan Wallach Scott, “Sexularism: On Secularism and Gender Equality,” in Scott, The
Fantasy of Feminist History (Durham, NC: Duke University Press, 2011), pp. 91–116.
 Secularism, Gender Inequality, the French State 69

THE OLD LAÏCITÉ

The French Revolution was a critical moment in the reordering of the rela-
tionship between church and state. The role of the Catholic Church in
legitimating the monarchy meant that a stark opposition between the religious
and the secular structured revolutionary discourse and institutions. When it
was permitted, religious practice was regulated by the state, which paid wages
to priests who swore allegiance to the new regime. Although the association of
women and unreason was evident much earlier, it was the Revolution of 1789
that established the link in republican political discourse between women and
religion. Writes historian Paul Seeley, “the Revolution’s embodiment of the
citizen as a rights-bearing and confessionally neutral male depended on a
derogatory identification of religion with the female.”17
Historian Olwen Hufton noted that the actions of counterrevolutionary
women in peasant villages, those who defended non-juring priests and clan-
destinely practiced Catholic rituals for baptisms and burials, “provided the
evidence for the politicians of the Third Republic [almost a century later] to
withhold the vote from women.”18 During the dechristianizing campaign in
Year II of the French Revolution, the example of resistant village women
became synonymous with women in general. So, while one comment from a
représentant en mission was directed at a specific group of women (“And you,
you bloody bitches, you are their [the priests’] whores, particularly those who
attend their bloody masses and listen to their mumbo-jumbo”19), another
extended the condemnation to women as a whole (“Remember, it is fanaticism
and superstition that we will be fighting against; lying priests whose dogma is
falsehood . . . whose empire is founded upon the credulity of women. These are
the enemy”20). In this view of things, women were the knowing consorts or the

17
Paul Seeley, “O Sainte Mère: Liberalism and the Socialization of Catholic Men in
Nineteenth-Century France,” Journal of Modern History 70/4 (1998): 866. See also Dorinda
Outram, “Le langage mâle de la vertu: Women and the Discourse of the French Revolution,” in
The Social History of Language, ed. Peter Burke and Roy Porter (Cambridge: Cambridge
University Press, 1987), pp. 120–35.
18
Olwen Hufton, “Women in Revolution,” French Politics and Society 7:3 (1989), 66. This is
not to say that women were not already (during the ancien régime) identified as evincing greater
religiosity than men, only that in the discourses of anti-clericalism in the nineteenth and
twentieth centuries, the Revolution of 1789 was taken to be an originary moment. On this, see
Robert Kreiser, “Enthusiasm in Early Eighteenth-Century Paris: The Convulsionaries of Saint-
Médard,” Catholic Historical Review 61/3 (July 1975): 353–85; Frank Tallet and Nicholas Atkin,
eds., Religion, Society and Politics in France since 1789 (London: Hambledon Press, 1991); and
Keith Thomas, “Women and the Civil War Sects,” Past and Present 13/1 (1958): 42–62.
19
Cited in Richard Cobb, Les armées révolutionnaires: instrument de la terreur dans les
départements, avril 1793-Floréal an II, vol. 1 (Paris: Mouton, 1961–3), p. 450.
20
Frank Tallet, “ Dechristianizing France: The Year II and the Revolutionary Experience,” in
Religion, Society and Politics in France since 1789, ed. Tallet and Atkin, p. 26.
70 Joan W. Scott

inevitable dupes of treasonous clerics. In either case, it was the greater

emotional vulnerability of their sex that accounted for their actions. The
opinion of a Dr. Moreau, writing in 1803, was widely shared: “Women are
more disposed than men to believe in spirits and ghosts; . . . they adopt all
superstitious practice more readily; . . . their prejudices are more numerous.”21
Throughout the nineteenth century and into the twentieth, there was in
France an intensifying struggle between clericals and anti-clericals in which
the question of women figured prominently. Secular republicans adorned their
city halls with busts of Marianne (an idealized classical feminine figure)22 in
the same years that church authorities revived the cult of the Virgin Mary;
historians of the Middle Ages produced what Zrinka Stahuljak calls “porno-
graphic archaeology”23—accounts of the perverted sexual escapades of sup-
posedly celibate priests and nuns—even as the Catholic recruitment of
religious women grew by leaps and bounds. The opposition between rational
patriotic republican men and their unreliable, unreasonable women usually
invoked statistical evidence on its behalf. And it is certainly true that the
French Catholic Church drew increasing numbers of women to religious
congregations and lay charitable activities over the course of the century.
The ratio of men religious to women religious changed dramatically, from
3:2 in 1803 to 2:3 by 1878; and the number of nuns increased tenfold from
about 13,000 in 1808 to 130,000 by the end of the century. Well after the
removal of clerical teachers from public schools in the 1880s, the religious
education of young children, particularly girls, remained in the hands of
Catholic sisters. And the church recruited large numbers of married bour-
geoises to its philanthropic associations, making (in the estimation of one
historian) the “charitable lady . . . among the most ubiquitous public figures in
the 19th century city [Paris] that most epitomized the modern age.”24
Voluntary charitable activity, although performed in public, was considered
an extension of women’s familial and domestic role. The recruitment of
women for this work was, to be sure, the result of a concerted effort on the
part of church authorities to undermine the secularists, but it succeeded by

21
Cited in Michelle Perrot, “Introduction,” in A History of Private Life, ed. Philippe Ariès and
Georges Duby (Cambridge, MA: Harvard University Press, 1991), vol. 4, p. 44.
22
Maurice Agulhon, Marianne into Battle: Republican Imagery and Symbolism in France,
1789–1880, tr. Janet Lloyd (Cambridge: Cambridge University Press, 1981).
23
Zrinka Stahuljak, Pornographic Archaeology: Medicine, Medievalism, and the Invention of
the French Nation (Philadelphia, PA: University of Pennsylvania Press, 2013).
24
Sarah Curtis, “Charitable Ladies: Gender, Class and Religion in Mid-Nineteenth-Century
Paris,” Past and Present 177 (2002): 121–56. The information on women and the Catholic
Church can be found in: Michele de Giorgio, “The Catholic Model,” in A History of Women, ed.
Duby and Perrot, vol. 4, pp. 166–97; Ralph Gibson, “Le catholicisme et les femmes en France au
XIXe siècle,” Revue de l’histoire de l’Eglise de France 79/202 (1993): 63–93; and Claude Langlois,
“Catholics and Seculars,” in Realms of Memory, ed. Pierre Nora and tr. Arthur Goldhammer
(New York: Columbia University Press, 1996), pp. 109–44.
 Secularism, Gender Inequality, the French State 71

appealing to exactly the image of women the secularists endorsed—one that

emphasized their subordination to male authority, their role as agents and
reproducers of morality, their self-sacrificing, caring maternal instincts, and
their intuitive spirituality. It was in those terms that nineteenth-century
bourgeois Catholic men described their faith—as inspired by the women in
their lives. Devout Catholic men and skeptical republicans, Seeley writes, both
“affirmed their political and religious identities by tying Catholic faith and
ritual to a private female sphere.”25 In an odd inversion of causality, the
stereotyping provided by republicans may well have helped to produce
the very alliance they most feared. At the very least, it did little to counter
the terms of the church’s appeal to women. But that may have been beside the
point. Importantly, the anti-clerical portrayals of the religious inclinations of
women worked to equate masculine identity with republicanism. On the one
hand, anti-clericals called upon republican husbands to turn their wives away
from priestly influence; on the other hand, the depiction of women as inher-
ently superstitious confirmed the natural division of labor between the sexes
and justified the inequality that followed from it.
Nowhere is this more evident than in the writings of Jules Michelet, the
great historian of the French nation and an ardent anti-clerical. Michelet was
born in 1798, in the waning days of the French Revolution; he died in 1874,
in the early years of the Third Republic. In addition to vivid histories of the
lives of kings and courtiers, revolutionaries and their enemies, he wrote
inflammatory moralizing treatises on love, women, and the family, as well
as denunciations of the perversities and evils of priests, confessors, bishops,
and other representatives of the Catholic Church. His writings on these
topics drew criticism as well as praise and I do not offer them as evidence
that all of France shared his opinions.26 What they do illustrate is the way in
which a great historian associated women and religion in secularism’s
polemical campaign.
Michelet’s writings on women, the family, and the church were directed
at husbands. Du Prêtre, de la Femme, de la Famille opens with a shocking
announcement. “It was generally thought that two people were sufficient for a
marriage, but that has changed. The new system . . . has three constituent
elements.” These are “the man, strong and violent; the woman, a creature weak
by nature; the priest, born a man and strong, but who wants to make himself
weak so as to resemble a woman . . . and so interpose himself between them.”27
As result of this invasion, “our wives and our daughters are raised and

25
Seeley, “O Sainte Mère,” 891.
26
Jules Michelet, Oeuvres Complètes (Paris: Flammarion, 1971–). See vol. 18 (1985),
pp. 655–747, for critical reviews and comments on his work.
27
Jules Michelet, Du Prêtre, de la Femme, de la Famille (Paris: Hachette, 1845), p. vi.
Numbers in parenthesis in the text refer to this text.
72 Joan W. Scott

governed by our enemies” (14). These enemies are at once political—they

represent the past and so are obstacles to progress—and personal—they are
adept at the art of seduction, in effect cuckolding husbands whose distractions
at work have made them strangers to their wives and children (309).
Most of the book is devoted to accounts of the machinations of priests,
starting with Jesuit confessors in the sixteenth century, tracking the “ardent”
letters exchanged between these men and the women they counseled, and
ending in the nineteenth century, when the sons of peasants replaced the
learned men of the religious orders of the past. If, in the seventeenth century,
the likes of Fénelon and Bossuet charmed and seduced with their cultured
intellects, the curés of the nineteenth century practiced the cunning and
perseverance of the peasant cultures from which they came. In both cases,
confessors manipulated the “soft and fluid natures of women,” appealing to
their passion, love of children, and need for affection. Intoning the language
of devotion, they, in effect, became lovers: “you can’t always tell who is
speaking, the lover or the confessor” (69). In Michelet’s fantasized scene of
seduction, the two achieve an intimacy denied the rightful husband. In a dark
corner chapel of the church, “this emotionally agitated man, this trembling
woman, sitting so close to one another, talk in hushed voices of the love of
God” (214). She is “on her knees,” with head bowed before the priest as he
listens to her confession. Learning her most intimate secrets, those unknown
even to her husband, he achieves mastery, and thereby “recovers his man-
hood . . . and while she is weak and disarmed, he lays upon her the heavy
hand of a man” (228). The relationship deepens and, inevitably, “for the soul
to be truly yours, one thing is lacking . . . the body” (271). But the “voice of
concupiscence” (270) is seemingly deflected by the priest onto love for God:
“How fight against a man who disposes of paradise, and beyond that, hell,
to make himself loved?” (279). How, in other words, claim power from this
man who will go to any lengths to dispossess the republican husband of
his wife? And by extension, how rescue the secular state from the authority of
the church?
What can be done to reclaim women for their husbands? How can the
secular men to whom Michelet appeals turn their wives away from the lure of
the church? The reasons for their inaction are clear: “victims of the division
of labor, often condemned to a narrow specialization,” modern men have
become strangers to their wives and children, leaving the affective terrain to
the Jesuits (301). But it is imperative that they now take heed: “Secularists, as we
all are—magistrates, politicians, writers, solitary thinkers—today we must
do what we haven’t yet done: take in hand the cause of women” (xxiv). The
“cause of women” is not their emancipation in political terms, rather, it has to
do with acquiring intimate knowledge of the kind science offers. This knowledge
reveals that woman is weak: she “is a sick person . . . a person wounded each
 Secularism, Gender Inequality, the French State 73

month, and who suffers almost continually from the wound and its scar.”28
Effectively and repeatedly castrated, she is the victim of a cyclical biology that
men are spared.
Men’s time, for Michelet, is the linear time of history; women’s, the time of
eternal repetition: “History, which we so stupidly decline in the feminine, is a
rude and savage male, a sunburnt, dusty traveler, Nature is a woman.”29 To
rescue women from the lure of the church was not to alter their nature, but to
bring their difference into line with the needs of the republican state. Michelet
appealed to husbands to change things by regaining control of the private side
of their lives, studying their wives to better manage them. This control would
be aided by laws against the clergy (which he consistently advocated), but also
by implementing laws already in place—civil laws (based in France and
elsewhere in Europe on the Code Napoléon), which made the family, and
the father’s supremacy within it, the cornerstone of secularizing nation-states.
In this way, the superiority of state regulation was established as natural and,
reciprocally, the subordination of women to men was naturalized.
Michelet’s call to action required concrete changes, but it also firmly
secured the representation of women’s leanings to religion as a persistent
danger to the republic. This representation was evident well into the twentieth
century, in socialist and syndicalist as well as parliamentary rhetoric. Repub-
lican legislatures repeatedly rejected bills for women’s suffrage on the grounds
that the female vote would inevitably enhance the power of the church. In
1907, the Radical Party leader, Georges Clemenceau, warned that “if the right
to vote were given to women tomorrow, France would suddenly jump back-
wards into the middle ages.”30 But at the same time, educational authorities
debated the wisdom of removing religion entirely from girls’ training.
Françoise Mayeur reports that the 1880 law named for its sponsor, Camille
Sée—a law aimed at replacing convent educations with public schools—called
for including in the new curriculum the advice to teach girls their “duties
toward God,” presumably to provide them with the moral instruction they
would transmit as mothers. The provision remained in place until 1923,
Mayeur tells us, and then was only briefly rescinded.31 We don’t know how
closely the new generations of republican teachers adhered to this advice, but
it is telling nonetheless. In the eyes of some legislators and academics, lessons
about God were apparently acceptable when transmitted by lay teachers,

28
Jules Michelet, L’Amour (1858), cited in Roland Barthes, Michelet, tr. Richard Howard
(New York: Hill and Wang, 1987), pp. 165–6.
29
Cited in Barthes, Michelet, p. 148.
30
Cited in Steven C. Hause, with Anne R. Kenny, Women’s Suffrage and Social Politics in the
French Third Republic (Princeton, NJ: Princeton University Press, 1984), p. 16.
31
Françoise Mayeur, “The Secular Model of Girls’ Education,” in A History of Women, ed.
Duby and Perrot, vol. 4, p. 245.
74 Joan W. Scott

unacceptable when they came from the clergy.32 Indeed, belief in the comple-
mentarity of the sexes was included in the curriculum with or without
reference to God; women must be prepared to offer the moral and spiritual
guidance that was the vocation of their sex. All of this suggests that the
attribution of (dangerous or benign) religiosity to women was firmly in
place in the discourses of republican France.
Writing in 1908, the French suffragist Hubertine Auclert refused the idea—
regularly used to deny women the vote—that enfranchising women would
mean more votes for the church party. The idea that religious sentiments
disqualified women was “a bogeyman, as imaginary as the ones used to scare
little children”:
Why are believing women treated more strictly than believing men? Men aren’t
asked for their philosophical ideas when they are given a ballot: priests, pastors,
rabbis are treated no differently than free-thinkers.33
The attribution of innate religious sensibility to women as a group, she argued,
was a pretext. Religious men were allowed to vote because they were men;
women were denied the vote because they were considered inferior beings.
The hypocrisy of secularists on this issue infuriated her: they were perpetuat-
ing religious teachings about women’s inferiority even as they refused the
suffrage to women because of their supposed religious attachments. Auclert
insisted that the hypocrisy of secularizers extended to their toleration of forms
of religion even more oppressive to women than Christianity. In Algeria, she
wrote in her 1900 book Les Femmes arabes en Algérie, the recognition of
Qur’anic law for matters concerning the family, marriage, and sexuality
perpetuated the degradation of native womanhood. If French women were
to be allowed to participate in the “civilizing mission” as fully enfranchised
citizens, they would bring enlightenment to French administrators and so to
Algeria. As it was, the denial of the vote to “cultivated white women” while it
was granted to “savage blacks” undermined the secular mission.34 “To secu-
larize France is not only to cease paying for the teaching of religious dogmas, it
is to reject the clerical law that follows from these dogmas and that treats
women as inferior.”35 But it was not religious dogma that informed repub-
licans; theirs was a fully secular notion of the way in which the differences of
sex that they attributed to nature explained the different sensibilities and so
the necessarily asymmetric social roles of women and men.

32
J. P. Daughton, An Empire Divided: Religion, Republicanism, and the Making of French
Colonialism, 1880–1914 (Oxford: Oxford University Press, 2006), p. 124.
33
Hubertine Auclert, Le Vote des Femmes (Paris: V. Giard & E. Briere, 1908), pp. 56–7.
34
Hubertine Auclert, Les Femmes arabes en Algérie (Paris: Société d’Editions Littéraires,
1900), p. 63.
35
Auclert, Le Vote des Femmes, pp. 56–7.
 Secularism, Gender Inequality, the French State 75

WOMEN AND THE “CIVILIZING MISSION”

France was a colonial power in the nineteenth century and there were strong
contrasts offered between the “liberated” situation of French women and that
of the oppressed females in conquered Arab lands. The contrast rested not on
the equality between women and men for such things as citizenship, standing
in civil law (on matters of family and divorce), or access to employment and
education, but on the liberal notion of individual consent. Alexis de Tocque-
ville is a good example of this; he attributed the inequality he observed
between marital partners in America to women’s exercise of choice. In a
chapter entitled “How Americans understand equality between men and
women,” he explained the hierarchical and unequal divisions of labor between
them in his own way: “In the small society of husband and wife, as in the larger
political society, the object of democracy is to regulate and justify necessary
exercises of power.” In the family, this power belonged to “the natural head
of the conjugal association . . . the husband.” Women, he noted, “glorify them-
selves by voluntarily abandoning their will and they gain status by submitting
to the yoke . . . ”36 This notion of complementarity denied an apparent in-
equality by defining gender asymmetry as (what a recent commentator
dubbed) “a particular form of equality.”37
Carole Pateman has written at length about this in her classic Sexual
Contract.38 But the liberal concept of voluntarism is not an outdated notion.
It continues today in the idealization of “seduction” and of women’s “loving
consent” as a trait of French national character. According to Mona Ozouf,
“the destiny of the two sexes is not symmetrical . . . love is never the triumph of
the ego: to love another is to wish for his well-being, even if it means
submitting one’s personal needs to his . . . this relation is not servitude, but
amorous consent, a fruit of natural attraction.”39
The asymmetry of the gender relationship was normalized in the nineteenth
century (and is still) by a contrast with populations—Arab/Muslim for the
most part—said to be “savage” and uncivilized. The liberal agency attributed
to French women was deemed absent in societies where women were said to
be oppressed by Islamic laws and customs, sexually exploited, and cloistered in
their homes.40 Even as she denounced French women’s exclusion from

36
Alexis de Tocqueville, Oeuvres complètes, vol. 1: De la Démocratie en Amérique, Troisième
partie, ch. XII (Paris: Michel Lèvy Frères, 1866), p. 220.
37
Philippe Raynaud, “Les femmes et la civilité: aristocratie et passions révolutionnaires,”
Le Débat 57 (novembre–décembre 1989): 182.
38
Carole Pateman, The Sexual Contract (Stanford, CA: Stanford University Press, 1988).
39
Mona Ozouf, “A Propos du ‘Consentement Amoureux’: les douces lois de l’attraction,”
Le Nouvel Observateur, November 26, 1998.
40
Julia Clancy-Smith “La Femme Arabe: Women and Sexuality in France’s North African
Empire,” in Women, the Family, and Divorce Laws in Islamic History, ed. Amira El Azhary
76 Joan W. Scott

citizenship, Auclert offered a contrast between her situation and the degraded
plight of native Algerian women. She referred to “these women buried alive
who can be strangled by their husbands with impunity,” and to the ways in
which promiscuous sexual practices followed from Islamic family law.41
The point is that there is a long-standing tradition that associates agency
with French women—even if it is the agency that leads to “voluntary sacrifice
of their will”—and lack of agency with Muslim women. It is what led the wives
of colonial administrators in Algeria to stage an unveiling ceremony for Muslim
women in 1958 in order to demonstrate the emancipatory promise of the
civilizing mission.42 It is what led Claude Habib in 2006 to contrast the open
sexuality of the French with the repressed sexuality of Islam. The veil, she says,
flouts “an implicit norm of the relations between the sexes—the powerful
influence of feminine beauty and of men’s allegiance to it.”43 The veil covers
what ought to be seen. As a socialist deputy put it in the Assemblée Nationale
in 2010,
if there is an image that comes to mind to illustrate the gulf that separates the
wearing of the niqab from the Republic, it is Marianne: the woman who wears
the cap of liberty, who walks with a proud face, shoulders high, her breast bared
[la gorge offerte]. This woman exposes herself, she displays herself.44
Marianne incarnates the secular woman, she “exposes herself, she displays
herself.” She is ready to play the game of seduction as Habib and others have
celebrated it. In the debates about headscarves and niqab, the importance of
women’s sexual display is paramount. As anthropologist Mayanthi Fernando
has shown, “natural” femininity is equated with the wearing of short skirts and
make-up. She describes the testimony of a leader of the Franco-Maghrebi
organization, Ni Putes, Ni Soumises, before the National Assembly Commis-
sion (the Gerin Commission) studying the banning of the niqab. Sihem
Habchi favored the ban and declared that, unlike veiled Muslim women, she
was not ashamed of her body:
She removed her jacket to reveal her bare shoulders. The commission members
applauded, presumably appreciative of the embrace of secularity that her bare
shoulders represented. Indeed, Habchi, Amara [another leader of NPNS] and the
Gerin Commission voice their criticism of veiling as a defense of secularism,

Sonbol (Syracuse, NY: Syracuse University Press, 1996), pp. 52–63; Paul Silverstein, Algeria in
France: Transpolitics, Race and Nation (Bloomington, IN: Indiana University Press, 2004).
41
Auclert, Les Femmes arabes, p. 24.
42
Todd Shepard, The Invention of Decolonization: The Algerian War and the Remaking of
France (Ithaca, NY: Cornell University Press, 2006).
43
Claude Habib, Galanterie française (Paris: Gallimard, 2006), p. 413.
44
D. Hoffman Rispal, available at: <[Link]
hoffman-rispal/tag/port> (accessed November 21, 2016). Quoted by Vauchez, “L’autre/l’étran-
gèr(e),” p. 15.
 Secularism, Gender Inequality, the French State 77
linking secular values like individual autonomy and sexual equality to a particular
mode of hetero-femininity and to particular sexual protocols.45
In this there persists the idea that liberal subjects enjoy a voluntarism
denied to Muslims because of their religion, even when women in hijab or
niqab insist that they have chosen to wear these garments.
A tenet of secularism, past and present, is that free choice and religion are
antithetical. There is thus only one objective interpretation of the veil for these
legislators, despite its disputed and varied interpretations among Muslims. So
insists Deputy André Gerin: “the only meaning of the niqab [le voile intégral]
is voluntary servitude.”46 There is no such thing as being free to choose the veil.
The Conseil Constitutionnel agrees: “women who cover their faces, voluntarily
or not, place themselves in a situation of exclusion and inferiority manifestly
incompatible with the constitutional principles of liberty and equality.”47 The
certainty about the meaning of their dress meant that women wearing veils and
niqabs weren’t consulted when laws outlawing them were under consideration;
presumed to be victims of their fathers, husbands, brothers, or more generally,
their religion, they were rendered voiceless and so unheard. Instead, the state
acted on their behalf to protect them from the oppression to which they
are presumably subject, ironically, by punishing them for holding beliefs or
engaging in practices considered antithetical to republican culture.
What is at stake is the desire to impose a certain nationalist vision of a
homogeneous state. This is what Elisabeth Badinter meant when she insisted
that the niqab violated “the duty of fraternity,”48 and what the court meant
when it ruled that a woman wearing one evinced “a failure of assimilation.”49
Political theorist Eoin Daly suggests that the “new laïcité” “speaks to a con-
ceptualization of laïcité as an instrument of stability, which denies religions
public recognition and thus affirms a republican ideal of citizenship by check-
ing the political force of infra-state identities. In practice, this . . . conception
often tends to be deployed as a form of tacit ethno-nationalism.”50

45
Jennifer S. Selby and Mayanthi L. Fernando, “Short Skirts and Niqab Bans: On Sexuality
and the Secular Body,” blog post on The Immanent Frame: <[Link]
04/short-skirts-and-niqab-bans>. See also Mayanthi L. Fernando, The Republic Unsettled: Mus-
lim French and the Contradictions of Secularism (Durham, NC: Duke University Press, 2014).
46
Assemblée Nationale, “Rapport d’Information no. 2262,” p. 43. Cited in Vauchez, “L’autre/
l’étrangèr(e),” p. 11.
47
Conseil Constitutionnel, 2010-613DC, October 7, 2010. Cited in Hennette Vauchez and
Valentin, L’Affaire Baby Loup ou la Nouvelle Laïcité, p. 41.
48
Cited in Eoin Daly, “Laïcité, Gender Equality and the Politics of Non-Domination,”
European Journal of Political Theory 11/3 (2012): 303.
49
Conseil d’Etat, L’arrêt Machbour, 27 juin 2008, #286798.
50
Eoin Daly, “Public Funding of Religions in French Law: The Role of the Council of State in
the Politics of Constitutional Secularism,” Oxford Journal of Law and Religion (2013), p. 24.
78 Joan W. Scott

WOMEN AND RELIGION

The old laïcité portrayed women as a danger to the republic because of their
religious sensibilities. And it contrasted the more “civilized” situation of
French women with the barbarous treatment of Arab/Muslim women in the
colonies. French women got to exercise free will (even if it meant “loving
consent” to subordination), but their sexuality was contained within the
marital relation and directed to the exigencies of familial, racial, and national
reproduction. The sociologist Emile Durkheim noted that differentiation
(sexual and social) was a mark of modernity. As civilization evolved, he
wrote, woman “retired from warfare and public affairs and consecrated her
entire life to her family.”51 Muslim women, in contrast, were represented as
promiscuous, especially if hidden behind impenetrable veils. The fantasies of
the colonists projected all manner of erotic practices on to them, while
feminists like Auclert found public displays of sexuality abhorrent.
Today the representations are reversed. Muslim women are portrayed as
sexually repressed, their “natural” femininity covered over and denied. It is
“uncovered” French women who are depicted as sexually emancipated, free to
have affairs outside of marriage and to sleep with whomever they choose. Sex
has become the new bottom line for defining the human, and sexual liberation
is touted as the highest achievement of secularism. The formal political
equality of abstract individuals (historically coded as masculine) has been
replaced by the equality of sexually active individuals (represented by a
feminine or feminized figure); agency is located not in the reasoning mind,
but in the desiring body.52 When equality is defined in this way, it obscures
other dimensions of gender inequality in France—in markets, politics,
jobs, and law.
French women are no longer seen as a religious threat; the religious threat is
now embodied in veiled Muslim women. But the association of women and
religion, inherited from an earlier anti-clerical moment, remains. And laïcité
continues to secure the meaning of its vision of gender equality with a contrast
between a liberal notion of individual free choice (women’s subordination in
marriage in the nineteenth century; their sexual emancipation in the twenty-
first century) and the apparent lack of such freedom (forced promiscuity in the
nineteenth century; repressed sexuality in the twenty-first century) on the part
of Muslim women.
The evidence from France suggests that we have to treat secularism not as
an accurate description of institutions and policies, but as a polemical term
whose meaning changes in the different contexts in which it is deployed.

51
Emile Durkheim, The Division of Labor in Society, tr. George Simpson (New York: Free
Press, 1964), p. 60.
52
Joan W. Scott, “The Vexed Relationship of Emancipation and Equality,” History of the
Present 2/2 (2012): 148–68.
 Secularism, Gender Inequality, the French State 79

The question historians and others must ask is not what has secularism always
meant, but what work does it do in historically specific circumstances, how
does it organize our perception, with what effects and to what ends?

BIBLIOGRAPHY
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 4

Islamic Law and Muslim Women

in Modern Indonesia
Robert W. Hefner

In recent years many Muslim-majority countries have undergone troubled

and sometimes tragic political transitions. However varied the precise course
of events, one feature of all of these transitions has been heightened debate
over the place of women in public life, and the role of Shari‘a and Islamic
ethical traditions in defining women’s roles.
In this chapter, I examine the pervasiveness of Shari‘a appeals in today’s
transitions, in particular with regard to the Southeast Asian nation of Indo-
nesia. My discussion begins with a few general reflections on Islamic ethics
and law, building on recent anthropological and Muslim feminist approaches
to both. Having presented this general framework, I turn in the second part of
the chapter to examine Islamic ethico-legal traditions and gender realities in
Indonesia. Indonesia is the largest Muslim-majority country in the world,
and—notwithstanding some deeply disturbing incidents with regards to reli-
gious tolerance and women’s rights1—it is the most open and vibrant of the
Muslim world’s democracies. No less intriguing with regard to this book’s
concerns, Indonesia also has one of the Muslim world’s more influential
Islamic women’s movements.2 After making legislative gains in the early

1
Melissa Crouch, Law and Religion in Indonesia: Conflict and the Courts in West Java
(London and New York: Routledge, 2014); Human Rights Watch (HRW), In Religion’s Name:
Abuses against Religious Minorities in Indonesia (New York: Human Rights Watch, 2013);
International Crisis Group, “Indonesia: Implications of the Ahmadiyah Decree” (Jakarta and
Brussels: Asia Briefing No. 78, 2008).
2
Susan Blackburn, “Indonesian Women and Political Islam,” Journal of Southeast Asian
Studies, 39/1 (2008): 83–105, at 95; R. Rinaldo, Mobilizing Piety: Islam and Feminism in
Indonesia (New York: Oxford University Press, 2013), pp. 1–31; Kathryn Robinson, Gender,
Islam and Democracy in Indonesia (London and New York: Routledge, 2009), pp. 165–93;
Susanne Schröter, “Gender and Islam in Southeast Asia: An Overview,” in Gender and Islam
in Southeast Asia: Women’s Rights Movements, Religious Resurgence and Local Traditions, ed.
Susanne Schröter (Leiden and Boston, MA: Brill, 2013), pp. 7–52.
 Islamic Law and Muslim Women in Modern Indonesia 83

years of the post-Soeharto Reformasi period (Ind., “reformation”; 1998–), the

Islamic women’s movement faced growing opposition from conservative
Islamist groups, a few of whom backed up their opinions with militia vigi-
lantism. In 2004, the Islamic women’s movement failed in its effort to intro-
duce far-reaching gender reforms into the codified body of Islamic personal
status law used since 1991 in Indonesia’s Islamic courts, and known as the
Compilation of Islamic Law (Kompilasi Hukum Islam).3
That setback offers lessons on the peculiar political dynamics of Islamic
ethico-legal traditions with regard to women’s issues in Indonesia and beyond.
In particular, it underscores a key theme in the analysis of Islamic ethico-legal
traditions and gender politics: that, in our efforts to understand the varied
meanings and performances of the former, we must attend both to the
interpretations to which they are subject and to the social networks, admin-
istrations, and powers that “scale up” otherwise specialized exegeses into
authoritative discursive forms.4 As the editors of this volume emphasize in
their Introduction, with the globalization of the nation-state as the instrument
of modern macro-political organization par excellence, some of the most
decisive scalings have to do with efforts by actors in state and society to
ground their preferred ethical discourses in the policies and governance of
the state.

ISLAMIC LAW AMONG A PLURALITY

OF MORAL REGISTERS

To understand the politics of religious ethics and law in today’s Muslim world,
we must put aside the idea that Islamic legal traditions are a fixed and finished
body of normative knowledge, derived from sacred texts in a singular and
unchanging manner. Rather than viewing Islamic law and ethical ideals as
unitary and finished, we come closer to their social reality when we recognize
that they are always mediated through an array of state and societal author-
ities, popular and elite ethical imaginaries, and media of representation,

3
Mark Cammack, “Indonesia’s 1989 Religious Judicature Act: Islamization of Indonesia or
Indonesianization of Islam?” Indonesia 63 (1997): 143–68; Tim Lindsey, Islam, Law and the State
in Southeast Asia, vol. 1: Indonesia (London and New York: I.B. Tauris, 2012), pp. 69–101;
Ahmad Imam Mawardi, “The Political Backdrop of the Enactment of the Compilation of Islamic
Laws in Indonesia,” in Shari‘a and Politics in Modern Indonesia, ed. Arskal Salim and Azyumardi
Azra (Singapore: Institute for Southeast Asian Studies, 2003), pp. 125–47.
4
On the concept of scaling, see Peter Evans, “Government Action, Social Capital and
Development: Reviewing the Evidence on Synergy,” World Development 24/6 (1996): 1119–32,
and Robert W. Hefner, Civil Islam: Muslims and Democratization in Indonesia (Princeton, NJ:
Princeton University Press, 2000), p. 226 n.32.
84 Robert W. Hefner

transmission, and performance. Borrowing a phrase from Fredrik Barth’s

anthropology of knowledge, the interplay of these elements may bring about
“criteria of validity” with sufficient internal consistency, social resonance, and
public authority to allow a relatively stable understanding and practice of what
are deemed Islamic ethico-legal traditions in a given time and place.5 Precisely
because understandings and practices of Islamic legal traditions emerge from
this interplay, however, the specific corpus of assertions inspired by what is
called Shari‘a or Islamic law can vary, sometimes in highly contradictory ways.
The fact that in today’s world distinguished Muslim democrats cite the “higher
aims” of the Shari‘a (Ar., maqasid al-shariah)6 to justify democracy, while
totalitarian groups like the Islamic State in Iraq and Syria invoke Shari‘a to
condemn democracy and justify mass killing, is but one contemporary illus-
tration of this fact.
While recognizing its situated and contingent nature, we must take care not
to deconstruct Islamic law so thoroughly as to assume that it has always been
infinitely variable from one setting to another. An abiding concern for public
ethics and divine law has been central to Islamic civilization from the begin-
ning. One of the great achievements of that tradition in its third to fifth
centuries (10–12th c. CE) was to put in place institutions for the enduring
study, production, and reproduction of the legal and ethical knowledge that
came to be regarded as Islamic law. Until the great political transformations of
the nineteenth and twentieth centuries, the institution at the center of this
ethico-legal assembly was the madrasa, a boarding school for intermediate and
advanced study in the Islamic sciences.7 Madrasas varied, and in some times
and places their curriculum included training in Islamic mysticism, mathem-
atics, and astronomy, or even the Greek-influenced “sciences of the ancients,”
with their natural science and humanistic philosophy. In most pre-twentieth-
century Muslim lands, however, the subject matter at the heart of madrasa
curricula was fiqh or jurisprudence.

5
Fredrik Barth, Balinese Worlds (Princeton, NJ: Princeton University Press, 1993),
pp. 177–236.
6
See Ebrahim Moosa, “The Poetics and Politics of Law after Empire: Reading Women’s
Rights in the Contestation of Law,” UCLA Journal of Islamic and Near Eastern Law 1 (2001):
1–46; Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford and New York:
Oxford University Press, 2009); Khaled Abou El Fadl, Islam and the Challenge of Democracy, ed.
Joshua Cohen and Deborah Chasman (Princeton, NJ, and Oxford: Princeton University Press,
2004).
7
See Jonathan Berkey, The Transmission of Knowledge in Medieval Cairo: A Social History of
Islamic Education (Princeton, NJ: Princeton University Press, 1992); George Makdisi, The Rise of
Colleges: Institutions of Learning in Islam and the West (Edinburgh: University of Edinburgh
Press, 1981); Robert W. Hefner, “Introduction: The Culture, Politics, and Future of Muslim
Education,” in Schooling Islam: The Culture and Politics of Modern Muslim Education, ed. Robert
W. Hefner and Muhammad Qasim Zaman (Princeton, NJ: Princeton University Press, 2007),
pp. 1–39.
 Islamic Law and Muslim Women in Modern Indonesia 85

Meaning, literally, “understanding,” and referring to the efforts of religious

scholars to understand God’s commands, fiqh was the scholarly specialty most
directly involved in the derivation of legal and ethical “rules” (Ar., ahkam)
from Shari‘a. In the premodern period, fiqh was neither codified nor rendered
as positive statutory law.8 From the ninth century onward, there were different
schools of Islamic jurisprudence (four major Sunni schools, and three Shi‘a),
and each had a measure of “ijtihadic plurality”9 that allowed scholars some
leeway in legal interpretation. Notwithstanding this flexibility, the main cur-
rents of Muslim jurisprudence displayed striking continuity over time, at least
until the great political and epistemological upheavals of the nineteenth and
twentieth centuries.
Indeed, contemporary academic commentators on Islamic legal texts have
been so deeply impressed by what is, from a comparative legal studies per-
spective, the textual tradition’s richness, that a few have assumed that the fiqh
tradition was the fount from which all Islamic ethical knowledge flowed. In so
doing, these scholars have unwittingly reproduced a textualist and homogen-
izing bias in the study of Islamic law and ethics, overlooking the myriad ways
in which these traditions coexisted with, and at times were even overridden by,
other ethico-legal registers.
In trying to understand the scale and dynamics of this normative plurality, it
is important to recognize, first of all, that in the pre-colonial and pre-nation-
state period, the fiqh as a tradition of learning remained a specialized and elite-
managed affair, one exclusively developed by male scholars. The great majority
of Muslims in the premodern Middle East—indeed, by some estimates, upward
of 98 percent of the population in North Africa and the Levant10—were
functionally illiterate. As the celebrated historian of Muslim society, Ibn Khal-
dun (d. 1406), reminded us, across the vast expanse of the Middle East and
North Africa one saw urban, multi-ethnic communities living alongside large
peasant communities and powerful pastoralist tribes, each with its own customs,
political hierarchy, and ethical cultures. Even where a community identified as
Muslim and claimed allegiance to what it called Shari‘a, its members’ under-
standing of the law bore the imprint of diverse moral registers, including deeply
gendered tribal traditions of honor and shame.
In culturally diverse settings like these, Muslims from outside the ranks of
the scholarly class were exposed to diverse ethical practices and socializations.

8
See Colin Imber, Ebu’s Su’ud: The Islamic Legal Tradition (Stanford, CA: Stanford Uni-
versity Press, 1997), p. 244; Knut S. Vikor, Between God and the Sultan: A History of Islamic Law
(Oxford: Oxford University Press, 2005), pp. 207–9.
9
The phrase is from Wael B. Hallaq, Sharî’a: Theory, Practice, Transformations (Cambridge:
Cambridge University Press, 2009), p. 449.
10
See Carter Vaughn Findley, “Knowledge and Education in the Modern Middle East:
A Comparative View,” in The Modern Economic and Social History of the Middle East in Its
World Context, ed. Georges Sabagh (Cambridge: Cambridge University Press, 1989), pp. 130–54.
86 Robert W. Hefner

Learning encounters most explicitly identified as “Islamic” centered on, not

the study of law, but daily prayer; state, calendrical, and life-cycle rituals; and
the Sufi orders so influential in popular society.11 The tension between a fiqh-
based or legalistic ethics and popular Sufi normativity has at times been
overstated in studies of Islamic ethical history. Nonetheless, and especially
prior to the rise of the modern state and modern movements of Islamic
reform, many popular varieties of Sufism took a decidedly eclectic approach
to textual fiqh. These mystical groups were inspired by an equally religious but
far less legalistic register, one related to extant traditions of shrine pilgrimage,
saint veneration, and divine power.12 As a result of these and other cultural
engagements, non-scholars, even including rulers and certain popular reli-
gious leaders, brought significantly different epistemologies and aspirational
projects to their moral understandings and actions. The plurality of ethical
currents influenced how different actors understood Islamic Shari‘a, and how
central they made the law in their ethical lives.
In the nineteenth and twentieth centuries, the state-supported legal systems
in most Muslim-majority societies underwent unprecedented change. The
most important feature of that change was a great narrowing of the jurisdic-
tional scope and influence of Islamic legal traditions. Challenged by the
European powers, Egyptian and Ottoman rulers concluded that they needed,
not more Islamic law, but a centralized and state-authorized legal code similar
to that of the Europeans.13 Where European powers intervened directly in
Muslim societies, the new rulers found the scope of Islamic legal traditions
an obstacle to their imperial ambitions. In the aftermath of colonial rule, many
Muslim-majority states extended these restrictive policies. In one of the
boldest of state-mandated secularizations, in 1956 the Egyptian president,
Gamal Abdel Nasser (1918–1970), did away with most of the country’s Islamic
legal institutions.14 In other countries, ruling elites took similar measures,
retaining only those elements of Islamic law concerned with domestic affairs

11
For studies of the values at play in popular religious activities, see Jonathan Berkey, The
Formation of Islam (Cambridge: Cambridge University Press, 2003); Paula Sanders, Ritual,
Politics, and the City in Fatimid Cairo (Albany, NY: State University of New York Press,
1994); and Boaz Shoshan, Popular Culture in Medieval Cairo (Cambridge: Cambridge University
Press, 1993), pp. 67–78.
12
See Ahmet T. Karamustafa, Sufism: The Formative Period (Berkeley and Los Angeles, CA:
University of California Press, 2007); Frederick De Jong and Bernd Radtke, eds., Islamic
Mysticism Contested: Thirteen Centuries of Controversies and Polemics (Leiden and Boston,
MA: Brill, 2013).
13
Vikor, Between God, 230.
14
Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf
(Cambridge: Cambridge University Press, 1997), p. 85; Clark B. Lombardi, State Law as Islamic
Law in Modern Egypt: The Incorporation of the Sharî‘a into Egyptian Constitutional Law (Leiden:
Brill, 2006), pp. 110–16.
 Islamic Law and Muslim Women in Modern Indonesia 87

(marriage, divorce, inheritance) and such specialized religious matters as pious

endowments (Ar. awqaf ).
The nationalist heyday was not the end, however, of the Shari‘a story. In the
1970s and 1980s, Muslim lands witnessed the emergence of new social move-
ments calling for the state to implement what its proponents called Shari‘a.
The Islamic awakening had multiple motives and ideological orientations. But
some among its enthusiasts were convinced that the only guarantee of justice
and an end to tyranny was state implementation of Shari‘a. It is important to
recognize that the “Shari‘a” promoted by these movements—enacted by state
legislatures, codified as positive statutes, and enforced by modern state
administrations—was unlike any previously seen in Islamic history. In their
classical form, Islamic legal traditions were neither codified nor the exclusive
preserve of the state; they were “placed between state and civil society.”15
As Sami Zubaida has remarked, the étatization and codification of Islamic
legal traditions amounted to nothing less than a “triumph of European models”
over classical Islamic legal traditions.16
In the face of Islamist demands for greater conformity to ostensibly divine
regulations, many proponents of received, localized, or otherwise ordinary
varieties of Islam, including customary gender norms long regarded as Islamic,
found themselves unable to legitimate their traditions in religiously authori-
tative terms. “Repertoires of public reasoning”17 once sufficient to defend local
practices as Islamic lost their credibility in the face of state authorities and
well-organized movements that pressed for what they claimed was a more
authentic profession of Islam. However, the contest over the forms and
meanings of Islamic law and ethics did not end there. Although many activists
insisted that Shari‘a is singular, straightforward, and easily understood, the
very force with which activists promoted their ideas unleashed fierce debates
over just what Islamic law and ethics are and who has the right to decide their
meanings.
Over time, and in the most diverse social settings, this ethico-legal conten-
tion has come to center on several key questions. Who has the right to define
Islamic ethics and legal traditions?18 By what method and authorities are these

15
Vikor, Between God, 254.
16
Sami Zubaida, Law and Power in the Muslim World (London: I.B. Tauris, 2003), p. 135; see
also Aharon Layish, “The Transformation of the Sharîa‘a from Jurists’ Law to Statutory Law in
the Contemporary Muslim World,” Die Welt des Islams 44/1 (2004): 85–113.
17
On repertoires of public reasoning, see John R. Bowen, Islam, Law and Equality in
Indonesia: An Anthropology of Public Reasoning (Cambridge: Cambridge University Press,
2003).
18
For examples of such public challenges, see Zainah Anwar, “What Islam, Whose Islam?
Sisters in Islam and the Struggle for Women’s Rights,” in The Politics of Multiculturalism:
Pluralism and Citizenship in Malaysia, Singapore, and Indonesia, ed. Robert W. Hefner (Hono-
lulu, HI: University of Hawaii Press), pp. 227–52; John L. Esposito and Dalia Mogahed, Who
Speaks for Islam? What a Billion Muslims Really Think (New York: Gallup Press, 2007).
88 Robert W. Hefner

traditions to be enforced? And last but not least, are Shari‘a regulations really
simple, positive, law-like, and finished in their form? Or, as Tariq Ramadan,
Mohammad Hashim Kamali, and Muhammad Khalid Masud assert, referencing
Abu Ishaq al-Shatibi’s (d. 1388) scholarship; or as Muslim feminists like Kecia
Ali and Ziba Mir-Hosseini have also argued, does a proper derivation of Shari‘a
norms require a holistic determination of the “spirit of God’s law” or the law’s
“higher aims” (maqasid al-shari‘a)?19 These potent questions remind us that,
rather than reducing the ethical diversity of the contemporary Muslim world,
movements for the “Islamization” of state and society have only deepened it.
Today, the struggle over Islamic ethics and law rages no more fiercely than
with regard to the rights and standing of Muslim women. The reasons for this
are familiar enough. Although they offered few precise details on how the state
should be organized, classical jurists had much to say about women and the
family. Legal scholars (fuqaha) touched most extensively on issues of concern
to women in matters of family law, especially as regards marriage, divorce,
property, and inheritance. Scholars also provided rulings on affairs beyond the
home, including women’s testimony in court and their participation in public
life. In all these spheres, classical fiqh reached less-than-equitable conclusions
with regard to women.20
In actual practice, however, Islamic traditions could appear more plural
than these textualist treatments imply. Drawing on normative registers more
varied than the letter of the law alone, judges in Islamic courts sometimes
ruled in ways more favorable to women than the text of the law specified.
Indeed, recent ethnographic studies have shown that court rulings on matters
of gender and family are often still today informed by gender registers more
equitable than the principles affirmed in textual fiqh.21 However, as Kecia
Ali has shown in her study of marriage and slavery in classical fiqh, the
co-imbrication of ethical registers could go in a contrary direction as well:

19
Ramadan, Radical Reform; Mohammad Hasim Kamali, Shari‘ah Law: An Introduction
(Oxford: Oneworld, 2008); Muhammad Khalid Masud, Shâtibî’s Philosophy of Islamic Law
(Kuala Lumpur: Islamic Book Trust, 2005); Kecia Ali, Sexual Ethics and Islam: Feminist
Reflections on Qur’an, Hadith, and Jurisprudence (Oxford: One World, 2006); and Ziba Mir-
Hosseini, “The Construction of Gender in Islamic Legal Thought and Strategies for Reform,”
Hawwa: Journal of Women of the Middle East and the Islamic World 1/1 (2003): 1–28, and
“Towards Gender Equality: Muslim Family Laws and the Shari‘ah,” in Wanted: Equality and
Justice in the Muslim Family, ed. Zainah Anwar (Petaling Jaya, Malaysia: Musawah, 2012),
pp. 22–63.
20
See Judith Tucker, Women, Family, and Gender in Islamic Law (Cambridge: Cambridge
University Press, 2008), pp. 25–7.
21
For examples, see Michael G. Peletz, Islamic Modern: Religious Courts and Cultural Politics
in Malaysia (Princeton, NJ: Princeton University Press, 2002), pp. 84–97; Susan Hirsch, Pro-
nouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court
(Chicago: University of Chicago Press, 1998); Judith Tucker, In the House of the Law: Gender and
Islamic Law in Ottoman Syria and Palestine (Berkeley and Los Angeles, CA: University of
California Press, 1998).
 Islamic Law and Muslim Women in Modern Indonesia 89

locally embedded patriarchies could shape rulings deeply contrary to what a

holistic reading of scripture might otherwise imply.22
It is contentions like these that give such urgency to the questions at
the heart of this chapter. What social and ethical imbrications might favor the
emergence of gender-equitable understandings of Islamic ethico-legal tradi-
tions? On these points, the example of modern Indonesia offers several striking
lessons.

ISLAM AND ETHICAL PLURALITY IN INDONESIA

Muslim Southeast Asia offers a powerful example of just how Islamic ethical
and legal traditions can vary across time and space. The variation reflects the
authorities and media through which Muslim ethical knowledge is produced,
reproduced, and scaled up in state and society, and through which that
knowledge co-imbricates with other ethical imaginaries and aspirational pro-
jects, including but not limited to those that involve the state.
The co-imbrications at work in premodern Indonesia were significantly
different from those in the premodern Arab Middle East. Although Arab
Muslim traders had sailed through the Indonesian archipelago as early as
the late seventh century, the first mass conversion to Islam only began six
centuries later. Rather than armies of horse-mounted warriors sweeping in
from across the steppe, the primary vector for conversion to Islam in this
region was the Muslim-dominated Indian Ocean trade, linking southern
Arabia and India with the Indonesian archipelago and southern China. As
the trade reached its apogee from the fifteenth to seventeenth centuries, Islam
spread to most (but not all) coastal and interior kingdoms in the central and
western archipelago, displacing once-dominant Hindu–Buddhist kingdoms.23
Although military conflicts broke out in the course of conversion, the
broader process was relatively peaceful. No less important, Islamization’s
primary promoters were not ethnically foreign, but local rulers who shared
language, culture, and gender norms with the subjects they brought to the new
faith. The elite-mediated and co-ethnic nature of the Islamization process
meant that, until the rise of Middle Eastern-influenced movements of Islamic
reform in the nineteenth and twentieth centuries, there was considerable
cultural continuity from the old religion to the new, including in matters of

22
Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, MA: Harvard University Press,
2010).
23
Anthony Reid, Southeast Asia in the Age of Commerce, 1450–1680, vol. 2: Expansion and
Crisis (New Haven, CT: Yale University Press, 1993), pp. 3–12; M. C. Ricklefs, Polarising
Javanese Society: Islamic and Other Visions (c. 1830–1930). (Honolulu, HI: University of Hawaii
Press, 2007).
90 Robert W. Hefner

kinship and gender. Court arts of broadly Indic nature, including shadow
theater and Indian-influenced dance traditions in which bare shoulders and
tight bodices were the female norm, remained widespread across the central
kingdoms until well into the twentieth century.
Muslim Southeast Asia did have transregional networks conveying a nor-
mative vision closer to that of the Muslim Middle East.24 However, one
institution so important to the Middle Eastern landscape was notable by its
absence: the madrasa. As noted earlier, the madrasa is a boarding school for
intermediate and advanced study in the Islamic sciences in general, and fiqh in
particular. By the twelfth century CE, the madrasa had become “perhaps the
most characteristic religious institution of the medieval Near Eastern urban
landscape.”25 Little of the madrasa’s ethical assemblage was put in place in
premodern Southeast Asia. As a result, prior to the twentieth century, fiqh had
a limited place in local ethical registers. Certainly, Muslim Southeast Asia had
its share of Islamic study circles and boarding residences where young men
(and, more rarely, young women) came together to study Islamic traditions.
However, these institutions dedicated their pedagogical energies to Qur’an
memorization, Prophetic biographies, tasawwuf spirituality, and moral edifi-
cation of a non-jurisprudential sort. As a result, Islamic moral registers had
much less to do with scholarly fiqh than they did with lessons from the life of
the Prophet and a Sufi-informed concern with moving closer to God under the
guidance of some miracle-working saint.
For the purposes of this volume, the most significant consequence of
Southeast Asia’s non-fiqh normativity had to do with women. Many of the
gendered categories and presuppositions of fiqh discourse in Middle East lands
were absent or only partially recognized in Muslim Southeast Asia, at least
until the rise of Islamic reform in the late nineteenth century; even then they
remained significantly quarantined until well into the twentieth century.
Although some women wore loose-fitting headscarves, the hijab was rare.26
With the exception of a few aristocrats, female seclusion was unknown.27
Women were the dominant actors in local markets; men predominated only in
long-distance trade. In daily life, women were free to move about villages and
towns unescorted. Divorce for women (at least prior to bearing children)

24
For examples, see Azyumardi Azra, “The Transmission of Islamic Reformism to Indonesia:
Networks of Middle Eastern and Malay Indonesian Ulama in the Seventeenth and Eighteenth
Centuries” (PhD Dissertation, Department of History, Columbia University, 1992); Ronit Ricci,
Islam Translated: Literature, Conversion, and the Arabic Cosmopolis of South and Southeast Asia
(Chicago: University of Chicago Press, 2011), pp. 262–7.
25
Berkey, The Formation, p. 187.
26
See Nancy J. Smith-Hefner, “Javanese Women and the Veil in Post-Soeharto Indonesia,”
Journal of Asian Studies 66/2 (2007): 389–420.
27
Barbara Watson Andaya, The Flaming Womb: Repositioning Women in Early Modern
Southeast Asia (Honolulu, HI: University of Hawaii Press, 2006).
 Islamic Law and Muslim Women in Modern Indonesia 91

entailed little stigma. In some parts of Southeast Asia, including among groups
like south Sulawesi’s Bugis (known for their strong self-identification as
Muslim), local sexual cultures acknowledged the reality of a third sex and
transgenderism.28 Most revealing of all with regard to the limited influence of
classical fiqh in local gender registers, most Muslim-majority communities
ignored the law’s rules on succession stipulating that a daughter’s share in
inheritance should be half her brother’s. In much of the region, daughters’ and
sons’ shares were treated as equal. In these and other regards, Muslim South-
east Asia maintained an Islamic ethical register that, on matters of gender, was
strikingly different from the Arab Middle East.

A NEW REFORM

It goes without saying that Southeast Asian Islam was never an island unto
itself, and in the late nineteenth century a growing interaction with centers of
pilgrimage and learning in the Middle East brought about a heightened
exposure to fiqh-based normativity. From the middle decades of the nine-
teenth century onward, the Indonesian and Malaysian equivalent of the
Middle Eastern madrasa, known as a pondok or pesantren, became a promin-
ent feature of the social landscape and a major influence on Muslim ethical
imaginaries.29 In the last years of the nineteenth century, the rapid establish-
ment of pesantren across central and western portions of the Indonesian
archipelago insured that a well-organized if at first minority wing of the Muslim
community developed a lettered familiarity with fiqh. By the first decades of the
twentieth century, this development had converged with anti-colonial ferment
to spur the rise of organized movements for the implementation of Shari‘a. The
growing influence of fiqh-derived normativity in pesantren-linked circles led to
appeals for a Shari‘a-inspired reconfiguration of rules with regards to women’s
dress, divorce, and inheritance.
This was but the beginning of more than a century of public-ethical
contention in Indonesia, in which questions of gender and nation have figured

28
See Sharyn Graham Davies, Gender Diversity in Indonesia: Sexuality, Islam and Queer
Selves (London and New York: Routledge, 2010); Michael G. Peletz, Gender Pluralism: Southeast
Asia since Early Modern Times (London and New York: Routledge, 2009).
29
See Zamakhsyari Dhofier, The Pesantren Tradition: The Role of the Kyai in the Mainten-
ance of Traditional Islam in Java (Tempe, AZ: Monograph Series, Program for Southeast Asian
Studies, Arizona State University, 1999); Azyumardi Azra, Dina Afrianty, and Robert W. Hefner,
“Pesantren and Madrasa: Muslim Schools and National Ideals in Indonesia,” in Schooling Islam:
The Culture and Politics of Modern Muslim Education, ed. Robert W. Hefner and Muhammad
Qasim Zaman (Princeton, NJ: Princeton University Press, 2007), pp. 172–98; Martin van
Bruinessen, “Shari‘a Court, Tarekat and Pesantren: Religious Institutions in the Banten Sultanate,”
Archipel 50 (1995): 165–200; Ricklefs, Polarising, pp. 52–72.
92 Robert W. Hefner

prominently. Although, during the middle decades of the twentieth century,

Indonesia developed a sizable nationalist movement of a broadly “secularist”
nature, some of the most important ethical contentions had to do, not
with contests between Muslims and non- or nominally Muslim secularists,
but with opposing Muslim understandings of Islamic legal and ethical
traditions. In particular, no sooner had the new, fiqh-informed normativity
become a point of ethical orientation for some pesantren-based Muslims
than, for other observant Muslims, the hope for a more authentic profession
of the faith imbricated with aspirational projects less exclusively grounded
on fiqh.
Two developments contributed to this unusual and rapid permutation of
Islamic ethical registers. First, not long after the network of pesantren board-
ing schools had been put in place and the conditions were created for what
might have appeared to be a new fiqh hegemony, the movement of Islamic
reform known in Indonesia as Islamic “modernism” (Ind., kaum modernis)
arose in urban areas across the region.30 Faced with the challenge of European
colonialism, modernists like those in the Muhammadiyah (established in
Yogyakarta, Java, in 1912)31 concluded that the most effective educational
instrument for the improvement of the Muslim community was, not the
pesantren with its fiqh-centered curriculum, but the “Islamic day school”
(Ind., sekolah Islam). With its classrooms, blackboards, and mix of general
and religious instruction, the latter institution was modeled on Protestant and,
especially, Catholic schools; the latter had been introduced by European mis-
sionaries in the early years of the twentieth century.
Although Indonesia’s modernists publicly affirmed the importance of
Shari‘a, they differed from their traditionalist rivals in insisting that proper
understanding of the law required believers to put aside medieval fiqh and
return to the Qur’an and Sunna for legal rulings. The Muhammadiyah’s
founder, Ahmad Dahlan (1868–1923), had studied in Mecca and there devel-
oped an interest in reformist ideas, including those of the well-known Egyp-
tian modernist, Muhammad ‘Abduh (1849–1905). Like ‘Abduh, Dahlan and
his followers stressed the importance of ijtihad (lit., independent “striving”;
but here, the effort by religious scholars to infer the rules of Islamic law) over
pious conformity (taqlid) to classical jurisprudence. The Muhammadiyah
leadership also insisted that, in modern times, the most effective way to

30
See Taufik Abdullah, Schools and Politics: The Kaum Muda Movement in West Sumatra
(1927–1933) (Ithaca, NY: Modern Indonesia Project, SEAP, Cornell University, 1971), and
D. Noer, The Modernist Muslim Movement in Indonesia, 1900–1942 (Kuala Lumpur: Oxford
University Press, 1993).
31
See Alfian, Muhammadiyah: The Political Behavior of a Muslim Modernist Organization
under Dutch Colonialism (Yogyakarta: Gadjah Mada Press, 1989); and Mitsuo Nakamura, The
Crescent Arises over the Banyan Tree: A Study of the Muhammadiyah Movement in a Central
Javanese Town, c. 1910s–2010, 2nd enlarged edn. (Singapore: ISEAS Press, 2012), pp. 51–77.
 Islamic Law and Muslim Women in Modern Indonesia 93

perform ijtihad was collectively (ijtihad jama‘i), so as to ensure judgments

drew on a balanced array of scholarly and practical expertise.32
It is important not to view Muhammadiyah initiatives with regard to
education and legal traditions as mere technical matters. They were in fact
key ingredients in a broader although not yet fully articulate effort to develop a
new Islamic ethical register, one capable of guiding a new kind of moral action
in a new kind of world. The reformists’ understanding of the place of Islamic
legal traditions in politics and gender life were to have significant implications
for public debates over women and Islam in Indonesia in decades to come.

NATIONALISM AND MUSLIM WOMEN’S ACTIVISM

One historical fact stands out in any assessment of Muslim women and the
nationalist movement in Indonesia: that, as in the Arab Middle East, the
aspiration for a new and more equitable arrangement for women originated,
not in the aftermath of the national awakening, but with its very inception.33
The first movements for Indonesian national awakening arose in the 1910s. By
the end of the decade, and fueled by growing anti-colonial resentment, the
new movements had mobilized hundreds of thousands of followers across
the central archipelago. Groups like the Association of Muslim Merchants
(Sarekat Dagang Islam, est. 1911) and its larger and more radical successor,
the Islamic Association (Sarekat Islam, est. 1918), were among the first
movements to develop a mass base.34 The latter movement quickly split
along ideological lines, however, with those committed to a socialist or Marxist
vision of nationhood separating from Muslim nationalists. This contest be-
tween Muslim nationalists committed to some version of Islamic law and
nationalists (including many Muslims) of a broadly “secular” or “multiconfes-
sional” orientation was to remain one of the defining divides of Indonesian
politics for the rest of the twentieth century.35 At its heart, too, lay debates over
the rights and standing of women.

32
Fathurrahman Djamil, “The Muhammadiyah and the Theory of Maqasid al-Shari‘ah,”
Studia Islamika 2/1 (1995): 53–67, p. 59 citation.
33
See Margot Badran, Feminism in Islam: Secular and Religious Convergences (Oxford: One
World, 2009); Robinson, Gender, p. 34.
34
See Ricklefs, Polarising; Takashi Shiraishi, An Age in Motion: Popular Radicalism in Java,
1912–1926 (Ithaca, NY, and London: Cornell University Press, 1990).
35
Scholars of Indonesian politics have long hesitated to describe the non-Islamist wing of the
nationalist movement as “secular” or “secular nationalist.” Statistically speaking, the majority of
these nationalists were of Muslim background. Most “secular” nationalists have also long agreed
on the importance of allowing religion in public life. Hence, many Indonesianists prefer to call
these actors “multiconfessional” rather than “secular” nationalists. See Noer, The Modernist.
94 Robert W. Hefner

During these early years, education, colonial subjection, and new emanci-
patory aspirations combined to give rise to the “consciousness of the political
category of ‘woman’.”36 Here again, rather than standing in polar opposition,
Islamic and secularly oriented women’s movements agreed on many issues,
not least those related to women’s education and family welfare. However, on
the question of whether the state should be used to reform private family life,
the two groups parted ways. Although in 1930 a splinter group in the Muslim
wing of the women’s movement briefly joined with its secular nationalist
counterparts in calling for reform to religious laws on marriage, divorce,
polygyny, and inheritance, most Muslim women’s groups rejected such pro-
posals.37 However, the ethical imbrications in play here were more compli-
cated than first meets the eye, as illustrated once again in the experience of the
Muhammadiyah.
Muhammadiyah’s founder, Ahmad Dahlan, established a women’s section
shortly after the organization’s founding, the leadership of which he gave to
his wife. The section’s initial aim was to make da‘wa appeals to women,
promoting a more pious profession of the faith. In 1917, the department’s
name was changed to Aisyiyah. In the 1920s, the women’s wing expanded its
range of activities to include women’s education and family health. However,
Aisyiyah steered clear of calls for reforms to marriage laws. Indeed, Aisyiyah’s
public pronouncements on marriage made clear its two priorities with regard
to gender ethics: first, that a woman’s primary place lies in the home and with
child-rearing; and second, that Muslim women cannot join with secular
nationalists in any campaign to ban polygyny or rewrite laws on marriage
and divorce.38
Public statements aside, there were signs of deep ethical tensions within
Aisyiyah on just these questions. The feminist writer, Saskia Wieringa, reports
that, although Aisyiyah leaders refused to join in anti-polygyny campaigns
“because the Qur’an accepted it, in private leaders were often unhappy about
this.”39 One elderly Aisyiyah leader recalled in an interview with Wieringa that,
“Personally I have never agreed with polygyny. I would never have allowed it.
But it is a religious rule, so what can we say against it?” The point here is that,
whether in the 1920s or later, most Aisyiyah women and some Muhammadiyah
men recognized that Islamic legal traditions allowed polygyny, but many
activists invoked other gender registers to qualify the rule’s application. In
this, as in so many other examples, a discursivized religious rule (polygyny’s

36
Robinson, Gender, p. 34. 37
Blackburn, “Indonesian Women,” 87–8.
38
Saskia Wieringa, Sexual Politics in Indonesia (New York: Palgrave Macmillan, 2002),
pp. 67, 124; Kathryn Robinson, “Islamic Cosmopolitics, Human Rights and Anti-Violence
Strategies in Indonesia,” in Anthropology and the New Cosmopolitanism: Rooted, Feminist and
Vernacular Perspectives, ed. Pnina Werbner (Oxford and New York: Berg, 2008), pp. 111–33.
39
Wieringa, Sexual Politics, p. 67.
 Islamic Law and Muslim Women in Modern Indonesia 95

legality according to divine law) is rethought in the light of a less formally

discursivized but widely held moral register. However, the fact that gender
reformists in groups like the Muhammadiyah were unable to perform the
normative work and scaling required to take these ethical views one step further
by promoting a new fiqh consensus on polygyny meant that this largely tacit
consensus would remain vulnerable to later challenge.
During the middle decades of the twentieth century, the reform of family
law took a backseat to a growing and ultimately catastrophic dispute over the
place of religion in the new nation. During the 1950s and 1960s, calls again
grew for a more extensive implementation of what its proponents called
Shari‘a. Party competition pitted Muslims committed to the establishment of
an Islamic state against parties of the secular left, including most notably the
Indonesian Nationalist Party (PNI) and the Indonesian Communist Party
(PKI). By the early 1960s, Indonesia was the second most populous Muslim-
majority country in the world (after greater Pakistan’s break up in 1971,
Indonesia would be the most populous). The world’s two largest Muslim
social welfare associations, the Muhammadiyah and Nahdlatul Ulama (NU),
also emerged in Indonesia. By this same period, however, Indonesia had an
even more unusual claim to fame: it was home to the largest communist party
outside of the communist bloc.40
During these years, the Communist Party’s women’s organization, known
by its acronym as Gerwani (Gerakan Wanita Indonesia, Indonesian Woman’s
Movement), grew steadily larger than its Muslim rivals; in the early 1960s, it
was estimated to have 4 million members. Ironically, however, as the PKI grew
and the Muslim-communist rivalry intensified, Gerwani’s commitment to
women’s issues slackened. In the 1950s, Gerwani had aligned itself with
non-communist nationalists to oppose child marriage and polygyny; it had
also called for legislation that would restrict a husband’s right to unilateral
divorce. However, “opposition to polygyny brought Gerwani into conflict with
the male PKI leadership, many of whom were polygamous.”41 The same
opposition also affected Gerwani’s relationship with President Sukarno, who
by this time was marxisant–socialist in orientation. In 1954, the president
offended many women in his own party by taking a second wife, over the very
public objections of his first wife. During these same years, the president
publicly dismissed feminism as divisive, insisting that socialist revolution
was the only way to do away with gender inequalities. For these and other
reasons, any hope of reforming Indonesian marriage laws faded.
The escalating conflict between Muslim and communist organizations took
a violent turn in the aftermath of an attempted left-wing officers’ coup, which

40
On the PKI’s rise, see Rex Mortimer, Indonesian Communism under Sukarno: Ideology and
Politics, 1959–1965 (Ithaca, NY: Cornell University Press, 1974).
41
Robinson, Gender, p. 56; see also Wieringa, Sexual Politics, p. 238.
96 Robert W. Hefner

seems to have had the backing of some in the communist leadership, on the night
of September 30, 1965. The coup collapsed in just a few days, but it set in motion
a much larger and more violent countercoup.42 Over the weeks that followed,
anti-communist army generals purged their ranks of communist sympathizers,
mounted a propaganda campaign against the communist leadership, and set out,
with civilian vigilantes, to round up and execute communist activists. The largest
civilian militias on whom army officials relied were those associated with the NU
and Muhammadiyah. By the time the killing was over, some 500,000 commun-
ists had perished, and tens of thousands more had been imprisoned.43
Drawing on fabricated reports that elite communist women had played
a role in the torture and killing of six army generals on the first night of the
coup attempt, the new regime demonized the Gerwani and other left-wing
women’s groups. Over the next few years, the New Order regime put in place
an authoritarian gender ideology that defined a woman’s place as in the home
and as subordinate to her husband. The regime justified the gender ideology
with reference to kodrat—or (in the Indonesian understanding of this Arabic-
derived term) women’s “biological” nature.44 This conservative gender register
was supposed to serve as a hegemonic ideological referent for the entire New
Order. But the register was to prove incapable of containing the complex
changes in women’s roles and self-understandings set in motion, ironically
enough, by the New Order’s developmental programs.

MUSLIM FEMINISM REBORN

Notwithstanding these earlier setbacks, a generation after these regime assaults

on women’s activism, Indonesia had developed one of the world’s largest
Muslim feminist movements as well as the world’s largest Muslim-dominated
pro-democracy movement. Needless to say, there was no sweeping Muslim
democrat triumph. Indonesia had always had, and still has, a variety of radical
Islamist groupings, the largest of which campaign in support of an étatized
and harsh variety of Islamic law.45 Notwithstanding the complexity of the

42
Robert Cribb, The Indonesia Killings, 1965–1966: Studies from Java and Bali. Monash
Papers on Southeast Asia, No. 21 (Clayton, Victoria: Centre of Southeast Asian Studies, Monash
University, 1990).
43
For a contemporary re-analysis of the anti-communist killings, see John Roosa, Pretext for
Mass Murder: The September 30th Movement and Suharto’s Coup D’état in Indonesia (Madison,
WI: University of Wisconsin Press, 2006).
44
On kodrat and gender ideology in New Order Indonesia, see Suzanne Brenner, “Private
Moralities in the Public Sphere: Democratization, Islam, and Gender in Indonesia,” American
Anthropologist 113/3 (2011): 478–90; Wieringa, Sexual Politics, p. 22.
45
See Tim Lindsey and Jeremy Kingsley, “Talking in Code: Legal Islamisation in Indonesia
and the MMI Shari‘a Criminal Code,” in The Law Applied: Contextualizing the Islamic Shari‘a,
 Islamic Law and Muslim Women in Modern Indonesia 97

Muslim political scene, however, a new Muslim women’s movement emerged.

No less remarkable, far more than was the case for first-generation women’s
activists in the 1920s and 1930s, the new generation took aim squarely at the
reformation of Islamic ethico-legal traditions on matters relevant to women
and the family.
What circumstances made this dramatic course of events possible? A key
influence on the new Muslim women’s movement had to do with broad
changes in education, gender, and social class unleashed by New Order
development programs. Between 1965 and 1990, the percentage of literate
Indonesians jumped from 40 percent to 90 percent of the total population. The
increase in the percentage of people completing senior high school in the same
period was equally dramatic, rising from approximately 4 percent in 1970 to
over 30 percent. There was also a steady growth in private and public Islamic
schooling, which today educates about 15 percent of the student population.
No less remarkably, by the late 1990s, the proportion of young women
comprising the madrasa student body had grown to over one-half of the
total enrollment.46 Young women’s enrollment in the country’s prestigious
state Islamic University system (known by the acronym, UIN-IAIN) at first
lagged behind that in higher education generally. In the early 1980s, women
made up about 30 percent of the student body at these colleges and univer-
sities; by the 2000s, however, they were just under a half.
The 1980s and 1990s also witnessed an unprecedented Islamic revival (Ind.,
kebangkitan), a key portion of which involved conservative activists’ promotion
of what they regarded as greater Shari‘a compliance in matters of gender. Some
among the newer normative currents had roots in transnational Islamist move-
ments, especially the Muslim Brotherhood. Brotherhood ideas were particularly
popular among Indonesian students returning from study in Egypt, Syria, and
Saudi Arabia in the 1980s and 1990s. Referred to in Indonesia as the tarbiyah
(“cultivation,” “education”) movement, the Brotherhood-influenced wing of the
revival went on, in the 2000s, to develop the most successful of the new Islamist
parties, known today as the Prosperous Justice Party (PKS). The party has
consistently secured 7 percent of the vote in national elections, although its
long-awaited breakout beyond that figure has not materialized.47

ed. Peri Bearman, Wolfhart Heirichs, and Bernard G. Weiss (London and New York: I.B. Tauris,
2008), pp. 295–320; Masdar Hilmy, Islamism and Democracy in Indonesia: Piety and Pragma-
tism (Singapore: ISEAS Press, 2010), pp. 99–134; M. B. Hooker, Indonesian Syariah: Defining
a National School of Islamic Law (Singapore: Institute of Southeast Asian Studies, 2008),
pp. 277–81.
46
Fuad Jabali, and Jamhari, eds., IAIN and Modernisasi Islam di Indonesia [The State Islamic
Institutes and the Modernization of Islam in Indonesia] (Jakarta: Logos Wacana Ilmu, 2002),
pp. 68–9.
47
On the origins and growth of Muslim Brotherhood-influenced movements in Indonesia,
see Anthony Bubalo, Greg Fealy, and Whit Mason, Zealous Democrats: Islamism and Democracy
98 Robert W. Hefner

Although the tarbiyah movement has been supportive of women’s educa-

tion and participation in parliamentary politics, its transnational ties have
made many among the membership less inclined to ground their normative
imaginaries on Indonesia’s own Islamic ethical legacies. Indeed, the party’s
conservative wing has at times seemed to deny that Indonesia has any
legitimately Islamic normative legacies at all. In its first years, PKS activists
claimed that “Islamic shari‘a entails a set of values and laws that must be
implemented in daily life.”48 They interpreted Islamic legal traditions as
stipulating that a woman’s primary role lies in the home raising children,
and as precluding women’s leadership in mixed-gender groupings.
However, there were other transnational influences at work in late and
post-Soeharto Indonesia as well. From the late 1980s on, a new and theo-
logically savvy generation of Muslim feminists arrived on the national scene.
As in much of the Muslim world,49 the social profile of the new Muslim
feminism differed from that of the first generation of women activists in the
1920s and 1930s. The latter had emerged in the context of the anti-colonial
struggle and was tied to mass-based social activism. As with the PKI’s Gerwani
or the Muhammadiyah’s Aisyiyah, however, the interests of these women’s
organizations were often subordinated to those of a male-led, mass organiza-
tion. No less important was the fact that, although some Muslim women
activists expressed personal reservations about Islamic rules on polygyny or
divorce, most lacked the legal training to publicly challenge these rules on
scholarly grounds.
This was the critical difference with the Muslim feminists of the 1990s. The
latter had both the training and the interest in taking on gendered aspects of
Islamic legal traditions. Many of the second-generation activists had personal
ties to mass-based Muslim organizations. But the critical spark for the new
Muslim feminism did not originate in these mainline organizations. The main
pathway to the new Muslim feminism was by way of small study circles and
non-governmental organizations (NGOs) engaged with new international
currents of Islamic feminist thought, and preoccupied with formulating a
scripturally defensible reform of Islamic law and ethics on matters related
to women.

in Egypt, Indonesia, and Turkey (Double Bay, Australia: Lowy Institute for International Policy,
2008), pp. 49–74; Kikue Hamayotsu, “The End of Political Islam? A Comparative Analysis of
Religious Parties in the Muslim Democracy of Indonesia,” Journal of Current Southeast Asian
Affairs 30/3 (2011): 133–59; Yon Machmudi, “Islamizing Indonesia: The Rise of Jemaah
Tarbiyah and the Prosperous Justice Party (PKS)” (PhD Dissertation, Faculty of Asian Studies,
Australian National University, 2006).
48
Lanny Octavia, “Islamism and Democracy: A Gender Analysis on PKS’s Application of
Democratic Principles and Values,” Al-Jami‘ah 50/1 (2012): 1–21.
49
See, for example, Badran, Feminism; Ziba Mir-Hosseini, Islam and Gender: The Religious
Debate in Contemporary Iran (Princeton, NJ: Princeton University Press, 1999).
 Islamic Law and Muslim Women in Modern Indonesia 99

The fact that second-generation Muslim feminism emerged from study

circles and NGOs preoccupied with questions of Islamic normativity is, of
course, not unique to Indonesia. The situation was similar in much of the
Arab Middle East and in nearby Malaysia.50 What was distinctive about
Indonesia’s Muslim feminists was that so many of them emerged from
institutions of higher Islamic learning supported by the very same New
Order state that had promoted conservative models of female domesticity.
As the Muhammadiyah feminist scholar, Siti Syamsiyatun, has observed, the
state Islamic educational system (UIN-IAIN) “has become a major source for
women’s religious empowerment.”51 Indeed, in the 1990s, the ranks of both
Muslim and secular feminist organizations were disproportionately filled by
graduates from the UIN-IAIN.52
These educational trends were complemented by important shifts in the
country’s two main mass-based organizations—adding to the hope that some
of the normative work done by the new Muslim feminists might be scaled up
into national legislation. In the 1980s, the NU had come under the leadership
of Abdurrahman Wahid, the charismatic grandson of one of early twentieth-
century Indonesia’s most distinguished traditionalist scholars. In the mid-
1990s, Wahid had become a leader in the growing democracy movement.
Seventeen months after Soeharto’s overthrow, in October 1999, Wahid was
elected president. Wahid was a well-known supporter of women’s rights,
and his wife, Sinta Nuriyah Abdurrahman, was a Muslim feminist in her
own right; Sinta Nuriyah played a pivotal role in a campaign to introduce anti-
violence and gender-equity programs into the Islamic boarding school
(pesantren) curriculum.53 A network of NU-linked NGOs was also active in
the development of a gender-equitable fiqh, which drew on jurisprudential
traditions to provide critical arguments in support of reproductive rights and
gender equality.
Despite these impressive gains, the gender-reform coalition of which many
Indonesians had dreamed ultimately faltered. After Wahid’s departure from
the organization in 1999, the new NU leadership—pressed by conservative
scholars in the provinces—hesitated to push forward with programs of
gender “mainstreaming.” The NU has always been a complex federation of

50
See Anwar, “What Islam?”; Stephanie Latte Abdallah, “Introduction: Féminismes Islami-
que,” Revue des mondes musulmans et de la Méditerranéee 128 (2010): 13–31.
51
Siti Syamsiyatun, “Women Negotiating Feminism and Islamism: The Experience of
Nasyiatul Aisyiyah, 1985–2005,” in Susan Blackburn, Bianca J. Smith, and Siti Syamsiyatun,
eds., Indonesian Islam in a New Era: How Women Negotiate their Muslim Identities (Clayton,
Victoria: Monash University Press, 2008), pp. 139–65, 144.
52
See Rinaldo, Mobilising; Robinson, Gender.
53
See Nelly van Doorn-Harder, “Reconsidering Authority: Indonesian Fiqh Texts about
Women,” in Islamic Law in Contemporary Indonesia: Ideas and Institutions, ed. R. Michael Feener
and Mark E. Cammack (Cambridge, MA: Harvard University Press, 2007), pp. 27–43, p. 37 citation.
100 Robert W. Hefner

pesantren-based ulama, and even in the heyday of the democracy movement

in the 1990s a significant wing of the organization had been skeptical of
reformist efforts with regards to gender. From 2001 onward, an anti-reform
faction in NU organized a successful campaign to take the national organization
in a more conservative, albeit not at all extreme, direction.54
The situation within Indonesia’s other mass-based Muslim organization,
the Muhammadiyah, showed a similar pattern of gender and pluralist pro-
gressivism on the part of the leadership in the 1990s, followed by provincial
pushback in the 2000s. From 1995 to 1998, the Muhammadiyah had been
under the leadership of Amien Rais (b. 1944), an outspoken critic of the
Soeharto regime who played a pivotal role in the 1997–8 democracy move-
ment. Although he was (and is still today) seen as mildly conservative on
matters of Muslim–Christian relations, Rais oversaw the appointment of
outspoken theological reformists to Muhammadiyah’s Majlis Tarjih, in alli-
ance with such leading democratic pluralists as Syafii Maarif and Amin
Abdullah. Most remarkable was the appointment of a leading Muhamma-
diyah feminist, Siti Ruhaini Dzuhayatin, to the Tarjih council.55 Over the next
few years, she and Amin Abdullah were unceasing in their efforts to encourage
the Muhammadiyah to develop gender-equitable policies, and to support
efforts to rewrite the Compilation of Law used in Indonesia’s Islamic courts.
As with the NU, however, the freewheeling atmosphere of the early Refor-
masi era soon gave rise to an anti-reformist backlash. The first hints of this
turmoil became visible in the Muhammadiyah in the early 2000s, when regional
branches signaled their unhappiness with the national leadership’s mandating
of gender-based affirmative action programs. At the 45th national congress in
2005, officials from several districts defied the Muhammadiyah Executive Board
by refusing to send at least one woman representative from each district, as the
board—at the urging of the Aisyiyah leadership—had requested.56 Ruhaini and
several other Muhammadiyah women were all eventually removed from office,
along with the most prominent male supporters of gender reform.57

54
On the political logic of the “conservative turn,” see Martin van Bruinessen, ed. Contem-
porary Developments in Indonesian Islam: Explaining the “Conservative Turn” (Singapore:
ISEAS, 2013).
55
See Siti Ruhaini Dzuhayatin, “Gender and Pluralism in Indonesia,” in Robert W. Hefner,
ed., The Politics of Multiculturalism: Pluralism and Citizenship in Malaysia, Singapore, and
Indonesia (Honolulu, HI: University of Hawaii Press, 2001), pp. 253–67.
56
For a first-hand account of the purge, see Kurniawati Hastuti Dewi, “Perspective versus
Practice: Women’s Leadership in Muhammadiyah,” Journal of Social Issues in Southeast Asia
23/2 (2008): 161–85.
57
On the “conservative turn” in Muhammadiyah, see Syamsiyatun, “Women Negotiating,”
pp. 158–60; and Ahmad Najib Burhani, “Liberal and Conservative Discourses in the Muham-
madiyah: The Struggle for the Face of Reformist Islam in Indonesia,” in Contemporary Deve-
lopments in Indonesian Islam: Explaining the “Conservative Turn”, ed. Martin van Bruinessen
(Singapore: ISEAS, 2013), pp. 105–44.
 Islamic Law and Muslim Women in Modern Indonesia 101

Analysts differ on the reasons for this “conservative turn” in Indonesia’s

two mainstream Muslim organizations. Political observers note that, unlike
the situation in several Middle Eastern countries, the results of Indonesian
national elections have not seen any surge whatsoever in favor of Islamist
parties.58 Indeed, one of the most striking features of electoral politics in the
post-Soeharto era has been that Muslim parties committed to the state-
enforced implementation of “Shari‘a law” have seen their share of the vote
decline. Similarly, in the course of debates over constitutional reforms during
2001–2, efforts to insert a clause into the constitution requiring the state to
enforce “Shari‘a” were repeatedly rebuffed, with mainstream Muslims joining
secular nationalist parties to oppose the amendment.59
In the aftermath of these setbacks, however, Islamist parties and move-
ments launched campaigns to compensate for their failures in the capital
by building up their influence in the provinces. Among other things, they
sought to implement “regional bylaws” (peraturan daerah), many of which
addressed issues broadly seen as Shari‘a inspired. The most common by-
laws dealt with matters of broad public concern, including prostitution and
the easy availability of drugs and alcohol. But others have taken aim
squarely at girls and women: requiring the wearing of the hijab in schools
and public spaces, and limiting the movement of unescorted women after
dark. Although the bulk of this morals legislation was concentrated in
regions long regarded as bases for Islamist movements, some of the most
ardent supporters of the regulations were politicians from broadly secular
nationalist parties.60
Although the heyday of Shari‘a bylaws seems to have passed, the trend was
indicative of a broader populist turn to Indonesian politics in the new demo-
cratic era. In the more open environment of the 2000s, politics has taken on a
far more rough-and-tumble air, one less favorable to the scaling up of initia-
tives for a gender-equitable reformation of religious and state law. In short,

58
See, for example, Edward Aspinall, “Elections and the Normalization of Politics in Indo-
nesia,” South East Asia Research, 13/2 (2005): 117–56; Marcus Mietzner, “Comparing Indonesia’s
Party Systems of the 1950s and the Post-Soeharto Era: From Centrifugal to Centripetal Inter-Party
Competition,” Journal of Southeast Asian Studies, 39/3 (2008): 431–53; Andreas Ufen, “From
Aliran to Dealignment: Political Parties in Post-Suharto Indonesia,” South East Asia Research 16/1
(2008): 5–41.
59
Nadirsyah Hosen, Shari’a and Constitutional Reform in Indonesia (Singapore: ISEAS Press,
2007); Arskal Salim, Challenging the Secular State: The Islamization of Law in Modern Indonesia
(Honolulu, HI: University of Hawaii Press, 2008), pp. 79–107.
60
On the broader political context for the bylaws, see Robin Bush, “Regional Sharia Regula-
tions in Indonesia: Anomaly or Symptom?” in Expressing Islam: Religious Life and Politics in
Indonesia, ed. Greg Fealy and Sally White (Singapore: Institute of Southeast Asian Studies, 2008),
pp. 174–91; Michael Buehler, “The Rise of Shari’a Bylaws in Indonesian Districts: An Indication
for Changing Patterns of Power Accumulation and Political Corruption,” South East Asia
Research 16/2 (2008): 255–85.
102 Robert W. Hefner

the post-Soeharto era’s openness has allowed conservatives and militants to

exercise an influence on public debate greater than their actual representation
in society—or than their share of the vote in national elections.

FAMILY LAW REFORM REBUFFED

It was in the rough-and-tumble atmosphere of a democratic opening and a

coarsening of public contention that Muslim feminists launched their boldest
attempt at legal reform—only to see the proposal decisively rebuffed. The
initiative was the release in October 2004 of a draft bill known as the Counter
Legal Draft (CLD), which was put forward to revise sections of the Compilation
of Islamic Law used in the country’s Islamic courts for matters of marriage,
divorce, and inheritance.61 The CLD was prepared by a seven-member team of
Islamic legal scholars under the leadership of Siti Musdah Mulia, a professor
at the Hidayatullah State Islamic University in Jakarta and a special assistant
to the Minister of Religion. The recipient of numerous international awards
(including the US government’s International Women of Courage Award),
Mulia had been born into a conservative Muslim family, and received her
early training in a pesantren. Known for her staunch support of women’s
rights, freedom for religious minorities, and (in recent years) gay rights,
Mulia was recruited by the Ministry of Religion in 2001 to lead a “Working
Group for Gender Mainstreaming.”
At first, the timing seemed right. The years 2000–2 were peak years for both
Muslim democratic and feminist activism in Indonesia. Conservative Islam-
ists, including those in militia groups like the Islamic Defenders Front,62 had
not yet finished their work of putting in place a national network, a project
they would largely complete by 2005. A renowned Muslim democrat, Abdur-
rahman Wahid, was president (through August 2001). Under Wahid’s lead-
ership, the Ministry for the Empowerment of Women moved to implement a
series of bold gender reforms. In 2001, in particular, the Ministry announced a
national policy of “zero tolerance” for violence against women. The policy’s
action plan singled out several provisions from the Compilation of Islamic
Law used in Islamic courts as discriminatory. Mulia’s team of legal scholars

61
On the CLD, see Siti Musdah Mulia and Mark E. Cammack, “Toward a Just Marriage Law:
Empowering Indonesian Women through a Counter Legal Draft to the Indonesian Compilation
of Islamic Law,” in Islamic Law in Contemporary Indonesia: Ideas and Institutions, ed.
R. Michael Feener and Mark E. Cammack (Cambridge, MA: Harvard University Press, 2007),
pp. 128–45; Lindsey, Islam, Law, pp. 69–101.
62
Ian Douglas Wilson, “ ‘As Long as It’s Halal’: Islamic Preman in Jakarta,” in Expressing
Islam: Religious Life and Politics in Indonesia, ed. Greg Fealy and Sally White (Singapore:
Institute of Southeast Asian Studies, 2008), pp. 192–210.
 Islamic Law and Muslim Women in Modern Indonesia 103

also argued that some clauses in the Compilation were in violation of inter-
national agreements with regard to girls and women to which Indonesia was a
signatory.63
At first, the CLD seemed to enjoy the support of officials in the Ministry
of Religion. Even Western scholars of Islamic law, however, were surprised
by the boldness of the CLD reforms. The senior Australia-based scholar of
Indonesian fiqh, M.B. Hooker, described the CLD as “a surprising document
which . . . absolutely rejects the established principles of fiqh in favour of a
purely secular scheme of family law.”64 Mulia and her team, however, rejected
such characterizations, insisting that the CLD “embraces the . . . Qur’anic
commitment to equality and freedom in a thoroughgoing and uncompro-
mising way.”65 In this and other statements, Mulia justified the draft with
explicit reference to the principle of legal reasoning long popular among
modernist reformists: citing the higher aims of the Shari‘a (maqasid al-
shariah) to relativize and displace long-established fiqh rulings. More specif-
ically, Mulia argued that “the principle of the equality of human beings before
God” flows from the core Islamic principle of God’s unicity (tawhid).66
Five of the CLD’s proposals proved especially controversial in conservative
and even mainstream Islamic circles. These were the draft’s proposal to ban
polygyny outright; to allow interreligious marriages; to do away with the
requirement that a woman be represented by a male guardian (wali nikah)
in the marriage ceremony; to equalize inheritance shares for sons and daugh-
ters; and to make disobedience (nusyuz) a moral failing for which husbands as
well as wives can be faulted. All of these provisions were at variance with the
Compilation of Islamic Law used in Indonesia since 1991. The reforms
amounted to a high-stakes gamble to replace existing fiqh traditions with a
contextual program premised on the notion that “the purpose and goal of
Qur’anic text . . . is the eventual emancipation of humanity from all forms of
bondage and oppression.”67
In the end, however, the strategic gamble proved ill-timed. Between 2001
and 2004, the circumstances of Indonesian democracy changed. After a bitter
dispute with former allies, President Wahid was ousted from office in August
2001. At first startled by the boldness of Muslim democrats and feminists in
the early years of the post-Soeharto era, by 2002 conservative Islamists had
rebounded and begun to stage well-coordinated campaigns against both
groups. The largest militant organizations, including the Islamic Defenders
Front, the Hizbut Tahrir Indonesia, and the Council of Indonesian Mujahidin

63
On these legal tensions, see Mulia and Cammack, “Toward a Just,” p. 133.
64
Hooker, Indonesian Syariah, p. 25.
65
Mulia and Cammack, “Toward a Just,” p. 128.
66
Mulia and Cammack, “Toward a Just,” p. 137.
67
Mulia and Cammack, “Toward a Just,” p. 138.
104 Robert W. Hefner

(MMI), established media-savvy networks for countering liberal reform ini-

tiatives, combining social media blitzes with sometimes violent demonstra-
tions.68 Although the militants were unable to translate their protests into
electoral gains, their ability to intimidate officials and disseminate their mes-
sage through a network of mosque preachers proved brilliantly effective at
shifting public opinion just enough to impede efforts at far-reaching reforms.
Two weeks after its introduction, the Minister of Religion withdrew the
CLD from legislative discussion. Muslim intellectuals whom I interviewed
over the next two years lamented that they had not realized that the CLD
draft had poured fuel on the fire of a neo-conservative backlash, not least in
semi-governmental bodies like the Council of Indonesian Ulama (Majelis
Ulama Indonesia, MUI). In 2005, just a year after the CLD controversy, the
MUI issued a fatwa declaring that “secularism, pluralism, and liberalism” were
contrary to Islam.69 Over the months that followed, conservative Islamist
vigilantes cited the fatwa to justify attacks on liberal Muslims and Muslim
non-conformists.70 It seemed that the heyday of pluralist and feminist activ-
ism in Indonesia had passed.
Although the situation of Muslim gender reformists seemed to have dark-
ened in 2004, subsequent developments have not proved as dire as first feared.
Although it remains a regular target of neo-conservative criticisms, the UIN-
IAIN continues its programs of “gender mainstreaming.” In the face of a rash
of terrorist bombings in the early 2000s, many of them targeting the Christian
minority, the Indonesian state launched one of the most even-handed and
successful anti-terrorism campaigns in the entire world.71 In 2014, Indonesia
elected a new president, Joko Widodo, a pluralist Muslim who, though not an
intellectual, has long shown a generous hand on matters of interreligious

68
On the varieties and tactics of anti-liberal militants, see Robert W. Hefner, “Civic Pluralism
Denied? The New Media and Jihadi Violence in Indonesia,” in New Media in the Muslim World:
The Emerging Public Sphere, ed. Dale F. Eickelman and Jon W. Anderson (Bloomington, IN:
Indiana University Press, 2003), pp. 158–79; Robert W. Hefner, “Islamic Radicalism in a
Democratizing Indonesia,” in Routledge Handbook of Political Islam, ed. Shahram Akbarzaden
(New York and London: Routledge, 2012), pp. 105–18. Hilmy, “Islamism”; Wilson, “As Long.”
69
See Piers Gillespie, “Current Issues in Indonesian Islam: Analysing the 2005 Council of
Indonesian Ulama Fatwa No. 7 Opposing Pluralism, Liberalism, and Secularism,” Journal of
Islamic Studies 18/2 (2007): 202–40; Moch Nur Ichwan, “Towards a Puritanical Moderate Islam:
The Majelis Ulama Indonesia and the Politics of Religious Orthodoxy,” in Contemporary
Developments in Indonesian Islam: Explaining the “Conservative Turn”, ed. Martin van Bruines-
sen (Singapore: ISEAS, 2013), pp. 60–104; John Olle, “The Majelis Ulama Indonesia versus
‘Heresy’: The Resurgence of Authoritarian Islam,” in State of Authority: The State in Society in
Indonesia, ed. Gerry van Klinken and Joshua Barker (Ithaca, NY: Cornell Southeast Program
Publications, 2009), pp. 95–116.
70
See HRW, “In Religion’s Name.”
71
On the course and achievements of the government campaign, see Sidney Jones,
“Indonesian Government Approaches to Radical Islam since 1998,” in Democracy and
Islam in Indonesia, ed. Mirjam Künkler and Alfred Stepan (New York: Columbia University
Press, 2013), pp. 109–25.
 Islamic Law and Muslim Women in Modern Indonesia 105

relations, women’s issues, and, above all, the rights and dignity of ordinary
citizens.
Although there seems little possibility any time soon of bold reform of
family laws, Muslim feminist ideas on sexual trafficking, violence against
women, and male abuse of talaq divorce not only continue to get a public
hearing, but make significant legislative headway. The long hoped-for reform
of Indonesian marriage laws remains a distant dream. But Indonesian demo-
cracy has defied its skeptics. The movement of Indonesian women into higher
education, employment, and the Islamic sciences also shows no signs of
abating. The alternative ethical sensibilities to which the latter changes give
rise are, it seems, still powerfully alive.

CONCLUSION: ISLAMIC LAW AND

NEW GENDER ETHICS

The Indonesian example has parallels in other Muslim societies. In many

national settings, more open politics allows conservative militants to use
demonstrations and threats of violence to intimidate party and government
officials, and mobilize sufficient public opinion as to make the costs of
liberalizing reforms greater than most politicians are willing to pay. If this
situation applies to post-Soeharto Indonesia, it applies all the more to coun-
tries where the political transition moved from simple regime change to
violent social upheaval, as in Libya, Egypt, Syria, and Iraq.
Together these examples indicate that, in the aftermath of the Muslim
world’s varied transitions, there will be no one-size-fits-all model for gender-
sensitive legislative reform. But the examples also demonstrate that there are
some common prerequisites. First, where, as in so much of today’s Muslim
world, some variety of Islamic awakening has given rise to calls for the
implementation of an essentialized and state-based variety of Shari‘a law,
successful reform will require leaders with the intellectual wherewithal to
engage Islamic legal traditions on their own terms. Second, after having
engaged these traditions, the leadership will have to work to organize a
coalition willing and able to turn the fruits of such efforts into some kind of
state-enforced legislation.
A third and final prerequisite for sustainable gender reform concerns
changes in popular and scholarly understandings of Shari‘a. Where main-
stream Muslims equate the historical fiqh with an unchanging and unques-
tionable Shari‘a, gender reformists proposing changes to fiqh-based legislation
risk being smeared with the accusation of apostasy. Seen from this angle, the
rise of campaigns for the implementation of an unreformed Shari‘a may well
put the proponents of gender reform on the defensive.
106 Robert W. Hefner

However, as one looks across the twenty-first-century Muslim world, it is

clear that the Islamic Awakening and movements for the implementation of
Islamic legal traditions have unintentionally created something of a civiliza-
tional learning curve. The earliest proponents of state-imposed Shari‘a pro-
moted an unreformed variety of fiqh they claimed was divine Shari‘a. What
these proponents did not anticipate was that many Muslim publics brought a
more expansive and contemporary set of moral registers to bear on their
understanding of and hopes for Islamic ethics and law. The resulting social
“disconnect” has been so great that it has led growing numbers of believers to
ask: Is what they call the Shari‘a really God’s law?
Although often overlooked in accounts of contemporary Muslim politics,
the expectation that Islamic legal and ethical traditions can be forces for
equality and social justice is a powerful one. The ethical vision of which this
expectation is part reflects, not the long shadow of ancient legal traditions,
but the bright hopes of new Islamic moral registers, including, very import-
antly, those that have emerged from social and educational experiences that
are becoming more rather than less widespread in our age. In these uniquely
late modern circumstances, today’s proponents of gender reforms seek to
work within the framework of Islamic ethico-legal traditions. The aspiration
reminds us that, as Badran has noted for the Middle East, the ethical imaginary
at work here is not a simple derivative of Western feminism.72 But the new
Muslim feminism also finds moral inspiration in life experiences beyond
Islamic traditions alone. Far-reaching changes in education and society lead
many believers to imagine Islamic gender ethics in new and more equitable
ways. The resulting hope for a new gender justice has become a powerful global
force. However great its current challenges and setbacks, it will remain one of
the driving forces for Islamic ethical reform in our age.

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 5

Islamic Feminism
National and Transnational Dimensions

Susanne Schröter

WOMEN’S RIGHTS, STATE FEMINISM,

AND ISLAMIC REVITALIZATIONS

Since the end of the eighteenth century, the dynamics for the formation of new
gender orders have quickened and become delocalized. Both in Europe and
the US, as well as in the countries of the Islamic world, reform-oriented men
and women questioned the dominant gender orders and asked for women’s
rights, especially the right to education, equality in social participation, and
reforms in family law. The activists focused not merely on transforming
gender relations, but saw their efforts as part of a larger project of anti-
colonial reforms, linking the emancipation of women to demands for national
independence and democracy. One of the centers of such efforts was Cairo,
where, during the nineteenth century in the salons and private circles of
writers and intellectuals, models for a modern postcolonial society were
discussed. Islamic reformists such as Muhammad ‘Abduh (1842–1905) and
the Iranian-born Jamal ad-Din al-Afghani (1838–1897) engaged with Euro-
pean intellectual currents and began to reinterpret Islamic sources. The legal
scholar Qasim Amin (1863–1908), who was influenced by ‘Abduh, published a
book in 1899 with the programmatic title The Liberation of Women (Tahrir
al-Mar’ah) and a second book in 1901 entitled The New Woman (Al-Mar’ah
al-Jadidah). Social reforms and women’s emancipation were thus intrinsically
linked to the achievement of national independence. In March 1919, a group
of veiled women demonstrated in the streets of Cairo against British rule.
Women’s rights activists formed political organizations that also demanded
the end of colonialism. In 1914, the activist Huda Sha‘arawi established the
Women’s Refinement Union (al-Ittihad al-Nisa’I al-Tahdibi), and in 1920,
when the nationalist Wafd Party established its women’s wing, Sha‘arawi was
114 Susanne Schröter

selected to lead it. These movements were subsequently challenged in the

1930s by the Islamist Muslim Brotherhood (Ikhwan al-Muslimun), which, to
this day, is supported by broad sections of the population, as the results of the
2011 elections made evident. To this day, the competition between secular,
Islamist, and moderate Islamic groups over who has the authority to interpret
religious sources and the legitimacy to define the political agenda continues to
shape the political landscapes in many Muslim states. One of the most
important arguments against women’s equality was that it supposedly mim-
icked Western values, or, rather, was a symbol of having succumbed to Western
imperial dominance. In Iran, this tendency was designated “Gharbzadegi,”
a term first coined by the philosopher Ahmad Fardid. It is commonly translated
as “Westoxification,” or as “Occidentosis,” and refers to the poisoning or destruc-
tion of autochthonous culture by Western influences.
The critique of supposedly Western models of emancipation, however, is
not simply an expression of traditionalist patriarchy, but also the outcome of
authoritarian politics. Rulers, such as Kemal Pasha in Turkey,1 Reza Pahlavi in
Iran,2 or Ben Ali in Tunisia,3 all undertook top-down measures to secularize
societies and to forcefully impose a gender order they regarded to be modern.
This so-called state feminism met with resistance from Muslim clerics, but
also from poorer segments of the population who did not profit from the
regimes’ modernization politics to the same degree as elites or the upper
middle classes.4 In Iran, these developments were brought to an abrupt halt
in 1970. The Shi‘ite clerics under the leadership of Ayatollah Khomeini took
power and established the Islamic Republic, which also espoused an Islamic
gender order. His victory over the Shah, and over the US and the West, with
which he was intimately associated, had a profound effect on Muslims all over
the world. Keddie analyzes the developments in Iran, as well as Islamic
revivalist movements in general, as variants of Third Worldism,5 an ideology
originally inspired by Marxism that views Third World underdevelopment to

1
Cf. Jenny B. White, “State Feminism, Modernization, and the Turkish Republican Woman,”
National Women’s Studies Association Journal 15/3 (2003): 145–59.
2
Parvin Paydar, Women and the Political Process in Twentieth-Century Iran (Cambridge:
Cambridge University Press, 1995); Eliz Sanasarian, The Women’s Rights Movement in Iran
(New York: Praeger, 1982).
3
Cf. Mounira Charrad, States and Women’s Rights: The Making of Postcolonial Tunisia,
Algeria and Morocco (Berkeley, CA: University of California Press, 2001); Ingrid El Masry,
“Women’s Movements and Counter Movements in Tunisia,” in Women’s Movements and
Counter Movements: The Quest for Gender Equality in Southeast Asia and the Middle East, ed.
Claudia Derichs (Cambridge: Cambridge Scholars Publishers, 2014), pp. 107–36.
4
Cf. Hamideh Sedghi, Women and Politics in Iran: Veiling, Unveiling, and Reveiling
(Cambridge and New York: Cambridge University Press, 2007), p. 220.
5
Cf. Nikki R. Keddie, Iran and the Muslim World: Resistance and Revolution (Basingstoke:
Macmillan, 1995), pp. 212–19.
 Islamic Feminism 115

be the result of Western exploitation.6 Unlike socialist or secular–nationalist

models of postcolonial nationhood, Islamism won the hearts and minds of
supporters with its cultural radicalism. It not only resisted political paternal-
ism and economic privilege, but also the destruction of indigenous (in this case
Islamic) culture.7 Materialism and sexual liberalism were denounced as mis-
guided developments from which society had to be shielded. The emphasis on
the moral superiority of religiously organized societies over Western ones also
had an exonerative effect. Although Islamic countries were underdeveloped
from an economic perspective, they were not so with regard to their moral
development, so that in the eyes of God they were actually the more civilized
nations. Students and young academics, in particular, were quite enthusiastic
about the Iranian model and began to acquire religious knowledge. They
studied at the theological seminaries in Cairo or Saudi Arabia and returned
home to criticize the older generation for having lost touch with the “true
faith.” They gathered for religious meetings to read the Qur’an and to study
the ahadith; they established Islamic organizations, schools, and political
parties; and they began to influence society at large. Many women participated
in these movements and formed their own groups.8 More so than their male
counterparts, they demonstrated their piety by wearing “Islamic dress,” which
included the veil. In several countries they were regarded critically, but soon
they achieved broad-based acceptance for this kind of public display of
religious and moral values. In many countries, such as in Indonesia and in
Turkey, the prohibition of the veil was gradually lifted, and the legal restric-
tions eliminated. However, nowhere did such liberalizations bring about
greater plurality or more social freedom—quite the contrary. Everywhere
where Islamism gained ground, immoral dress was forbidden, the wearing of
the veil made compulsory, and an Islamic legal order codified.
These disappointments with secular authoritarianism and the consequences
of Islamic revivalism inspired women intellectuals in the 1980s to embark on a
third way between Islamic orthodoxy and secular emancipation. In academic
terms, this middle path has come to be known as Islamic feminism; it plays a

6
This is the case with regard to dependency theory as postulated by Andre Gunder Frank and
Samir Amin, as well as for Wallerstein’s world systems theory.
7
On the connection between Western dominance and the emergence of Islamic fundamen-
talism, see also Bassam Tibi, Islam between Culture and Politics (Basingstoke: Palgrave, 2001).
8
Anthropological research on Islamist women’s associations has been conducted, for
example, by Saba Mahmood, Pious Formations: The Islamic Revival and the Subject of Feminism
(Princeton, NJ: Princeton University Press, 2004), and Karin Werner, Between Westernization
and the Veil: Contemporary Lifestyles of Women in Cairo (Bielefeld: Transcript, 1997), in Egypt,
and by Wazir Jahan Karim, Women and Culture: Between Malay Adat and Islam (Boulder, CO:
Westview Press 1992), and Sylva Frisk, Submitting to God: Women’s Islamization in Urban
Malaysia (Gothenburg: Gothenburg University Press, 2009), in Malaysia.
116 Susanne Schröter

role (although not always explicitly under this term) in the works of Nayereh
Tohidi,9 Ziba Mir-Hosseini,10 Afsaneh Najmabadi,11 Riffat Hassan,12 Raja
Rhouni,13 and Miriam Cooke,14 and became known especially through the
work of the American historian Margot Badran.15

THE FOUNDATIONS OF ISLAMIC FEMINISM

One of the cornerstones of Islamic feminism is modern reformist Islam, which

emerged in the nineteenth century. Theologically, reform-oriented interpret-
ations of written Islamic sources are grounded in the principle of ijtihad, a
process of logical reasoning that exists in contradistinction to taqlid, which
designates the imitation of established tradition. Among the most important
recent proponents of such a progressive Islam are Khaled Abou el-Fadl,

9
Cf. Nayereh Tohidi, “Guardians of the Nation: Women, Islam, and the Soviet Legacy of
Modernization in Azerbaijan,” in Women in Muslim Societies, ed. Herbert L. Bodman and Nayereh
Tohidi (Boulder, CO: Lynne Rienner Publishers, 1998), pp. 137–62. In this chapter, she argues that
Islamic feminism emerged largely due to the disappointing experiences of Muslim activists, who
were confronted with sexism in leftist, religious, and nationalist political organizations.
10
Cf. Ziba Mir-Hosseini, “Stretching the Limits: A Feminist Reading of the Shari‘a in Post-
Khomeini Iran,” in Feminism and Islam: Legal and Literary Perspectives, ed. Mai Yamani (New
York: New York University Press, 1996), pp. 285–320; Islam and Gender: Religious Debates in
Contemporary Iran (Princeton, NJ: Princeton University Press, 1999), pp. 6–7; “Women in
Search of Common Ground: Between Islamic and International Human Rights Law,” in Islamic
Law and International Human Rights Law: Searching for Common Ground?, ed. Anver M. Emon,
Mark S. Ellis, and Benjamin Glahn (Oxford: Oxford University Press, 2012), pp. 291–303.
11
Najmabadi defined Islamic feminism in a speech given at the London School of Economics
in 1994. Cf. Ayca Tomac, Debating “Islamic Feminism”: Between Turkish Secular Feminists and
North American Academic Critiques. Kingston, Ontario: Queen’s University, <[Link]
[Link]/bitstream/1974/6736/1/Tomac_Ayca_201109_MA.pdf> (accessed April 3,
2012>, p. 11.
12
Cf. Riffat Hassan, “Equal before Allah? Woman–Man Equality in the Islamic Tradition,”
Women Living under Muslim Laws (1989), available at: <[Link]
(accessed April 12, 2013); “Religious Conservatism: Feminist Theology as a Means of Combating
Injustice towards Women in Muslim Communities/Culture,” DAWN, Review, November 7,
2002 (2004), available at: <[Link]
htm> (accessed December 28, 2011).
13
In 2010, Rhouni presented a monograph, in the introduction to which she discusses the
conceptual history of Islamic feminism. Cf. Roja Rhouni, Secular and Islamic Feminist Critiques
in the Work of Fatima Mernissi (Leiden: Brill, 2010), pp. 22–37.
14
Cooke focuses especially on Muslim women authors. Cf. Miriam Cooke, Women Claim
Islam: Creating Islamic Feminism through Literature (New York: Routledge, 2001).
15
Cf. Margot Badran, “Towards Islamic Feminisms: A Look at the Middle East,” in Hermen-
eutics and Honour: Negotiating Female “Public” Space in Islamic/ate Societies, ed. Asma Afsaruddin
(Cambridge, MA: Harvard University Press, 1999), pp. 159–88; “Understanding Islam, Islamism
and Islamic Feminism,” Journal of Women’s History 13 (2001): 47–52; Feminism in Islam: Secular
and Religious Convergences (Oxford: Oneworld Press, 2009).
 Islamic Feminism 117

Abdullahi Ahmed An-Na’im, and Fazlur Rahman (1919–1988), who taught/

teach at American universities; the Algerian Mohammed Arkoun (1928–2010);
Syrian-born Mohammad Shahrur; Mohamed Talbi, from Tunisia; and
Abdolkarim Sorush, from Iran. These reformers emphasize the need to con-
textualize the Qur’an historically, the importance of distinguishing between
text and context, and accord an important role to free will and the power
of human reason. In the view of the Egyptian Islamic scholar Nasr Hamid
Abu Zaid, the Qur’an is written in such a way that it was easily understood by
seventh-century Arabs. However, if present-day Muslims interpret the histor-
ical aspects of the Qur’an as if they were universally valid and immutable, then
they distort the divine message that exists beyond historical contexts.16 Many
well-known Muslim reform theologians, progressive philosophers, and social
scientists work and teach in Western countries as, in their home countries,
Muslim authorities and authoritarian rulers have responded to their efforts
with repression. One such prominent victim of religious–political violence is
the Sudanese scholar Mahmoud Mohammed Taha, whose reformist work The
Second Message of Islam (Risalat al-Islam ath-Thaniya) argued that equality
between men and women is a goal of Islamic justice. Mohammed Taha was
found guilty of apostasy and was sentenced to death and executed in 1980. Abu
Zaid was also accused of apostasy because his critical Qur’an exegesis differed
from conservative interpretations of the religious sources.17 A court declared
him a non-Muslim and annulled his marriage on the grounds that, according to
the dominant consensus in Islamic family law, a Muslim woman may not be
married to a non-Muslim man. This repression and death threats forced Abu
Zaid to emigrate to the Netherlands in 1995, where he occupied the Ibn-Rushd
Chair for Humanism and Islam.
A second cornerstone of modern Islamic feminism is second-wave femin-
ism,18 which, in the late 1960s, emerged internationally from the student
movement and, in the US, also from the Civil Rights Movement, after which
it subsequently became globalized and overcame the dominance of Western
feminists. The most remarkable consequence of this transnationalized move-
ment was the ratification of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) by the United Nations General
Assembly in 1979. For the first time in the history of humankind, the equality
of the sexes was formally inscribed as a broadly shared goal of political and
economic development. CEDAW is the most radical application possible of

16
Nasr Hamid Abu Zaid, Ein Leben mit dem Islam (Freiburg: Herder, 2006), p. 155.
17
Cf. Nasr Hamid Abu Zaid, Rethinking the Qur’an: Towards a Humanistic Hermeneutics
(Utrecht: Humanistics University Press, 2004).
18
The designation “second wave” distinguishes this manifestation of feminism from its
predecessor in the nineteenth and early twentieth centuries, which has come to be referred to
as the first women’s movement.
118 Susanne Schröter

the principle of equality with regard to gender relations,19 a program that

would foster far-reaching transformations in the countries where it was
implemented and that would, moreover, challenge conservative notions
of the presumed natural differences between men and women. What is
surprising is that the document has also been signed by almost all Muslim
or Muslim-majority countries.20 At the same time, considerable reservations
persist. Conservatives criticize CEDAW for its radical feminist agenda and
have expressed fears that the implementation of the document would destroy
family relationships. It is for this reason that in the US, following its signing by
the president, the document was never ratified by the Senate. And, as might
be expected, in many Muslim countries the gender model propagated
by the convention met with much resistance. Orthodox clerics, fundamentalist
revivalists, and cultural traditionalist all agreed that the convention’s prin-
ciples contradicted Islamic ones and that it amounted to little more than the
imposition of Western values on the Islamic world in the good old imperialist
fashion.21 The resistance to CEDAW was ultimately not unlike that which had
once met the Universal Declaration of Human Rights. An Islamic response to
the latter, the Cairo Declaration of Human Rights in Islam, which was passed
in 1990 by the Organization of the Islamic Conference (OIC),22 relativized
precisely those parts of the Universal Declaration that questioned male dom-
inance. Instead, it asserted that the Shari‘a was the foundation of all human
rights.23 The fact that the majority of OIC member states ratified CEDAW—
even if with reservations—constitutes something of a puzzling paradox.24

19
Other political, social, and economic asymmetries that are intimately linked to gender
relations are also mentioned. The general text states that the elimination of apartheid, any form
of racism, racial discrimination, colonialism, neocolonialism, aggression, foreign occupation,
and foreign rule, as well as interference in the internal affairs of other nation-states are necessary
for the full realization of men’s and women’s rights.
20
The exceptions are Iran, Nauru, Niue, Somalia, Sudan, Tonga, and Vatican City.
21
Cf. Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Equal
before Allah, Unequal before Man (The Hague: Kluwer Law International, 2000), p. 239; Michele
Brandt and Jeffrey A. Kaplan, “The Tension between Women’s Rights and Religious Rights:
Reservations to CEDAW by Egypt, Bangladesh and Tunisia,” Journal of Law and Religion 12/1
(1995): 105–42; Benjamin Stachursky, The Promise and Perils of Transnationalization: NGO
Activism and the Socialization of Women’s Human Rights in Egypt and Iran (New York:
Routledge, 2013); Liv Tønnessen, “Feminist Legacies and Gender Justice in Sudan: The Debate
on CEDAW and Islam,” Religion and Human Rights 6/1 (2011): 25–39.
22
It was signed by the foreign ministers of the forty-five member states of the Organization of
the Islamic Conference. The vast majority of these states also signed the anti-discrimination
declaration, which represents something of a paradox.
23
The declaration is non-binding, but makes clear that the universal validity of the model of
state and society underlying human rights is not shared by all.
24
For example, the following OIC member states have signed CEDAW: Afghanistan (2003),
Algeria (2006), Egypt (1981), Bahrain (2002), Bangladesh (1984), Brunei (2006), Indonesia
(1984), Iraq (1986), Jordan (1992), Kuwait (1994), Lebanon (1997), Libya (1989), Malaysia
(1995), Morocco (1993), Saudi Arabia, (2000), Syria (2003), Tunisia (1985), United Arab
Emirates (2004).
 Islamic Feminism 119

AMINA WADUD: METHOD AND IMPACT

The success of modern Islamic feminism is inextricably linked with the work
of the American Muslim feminist scholar Amina Wadud. Her approach to a
gender-just hermeneutic Qur’an exegesis is truly pioneering, and her writings
are the most important references for Muslim women’s rights activists. For
thirty years she has been striving to achieve a reading of the Qur’an that would
make it a manifesto for women’s liberation, and allows her readers to share in
this often precarious endeavor.
However, Wadud’s positive relationship with God jarred with her experi-
ences as a woman in the Muslim community, with what she saw as the
differences between Islam and what Muslims actually do,25 as well as with
patriarchal interpretations of the Qur’an. The traditional interpretations,
Wadud points out, had been exclusively written by men and were based
exclusively on male experiences and perspectives.26 Her desire for justice
made it impossible for Wadud to accept the discrimination and exclusion of
women. The fact that her conversion took place at a time during which the
women’s movement was at its peak further motivated her to undertake the
endeavor she would later call a “gender jihad,” a struggle for the recognition
and implementation of gender justice within the Muslim community.27
As a student at the University of Michigan, Amina Wadud had the oppor-
tunity to bolster her efforts toward her political goal by acquiring academic
training, which focused on Qur’anic exegesis. Her motivations for studying the
Qur’an resulted from her observations that, in Muslim communities, women
did not enjoy the same status as men. She wanted to know whether this was in
fact justified by the Qur’an, or whether the arguments commonly presented
simply rested on male prejudices. To find out, she turned to the writings of
liberal reformist Islam, especially the work of Fazlur Rahman, which was
concerned with contextualizing the Qur’an, while at the same time identifying
universal Islamic principles such as social justice and the equality of all
humans.28 However, Wadud also found inspiration in the traditions of secular
feminist text exegesis.29 She refers to her method as a hermeneutic one. It is
based on three components, the first of which is the contextualization of
the Qur’an and the distinction between particular and universal statements.

25
Cf. Amina Wadud, Inside the Gender Jihad: Women’s Reform in Islam (Oxford: Oneworld,
2006), p. 21.
26
Cf. Amina Wadud, Qur’an and Woman: Re-Reading the Sacred Text from a Woman’s
Perspective (Oxford: Oxford University Press, 1999), p. 2.
27
Cf. Wadud, Inside the Gender Jihad, p. 10.
28
Cf. Tamra Sonn, “Fazlur Rahman and Islamic Feminism,” in The Shaping of an American
Islamic Discourse: A Memorial to Fazlur Rahman, ed. Earle H. Waugh and Frederic M. Denny
(Atlanta, GA: Scholars Press, 1998), pp. 123–45.
29
The confrontation of the male gaze with the feminine and the empowerment of the
excluded feminine other are key to academic feminism, while the rereading of religious texts is
an established method of Christian, and to some extent Jewish, feminist critique.
120 Susanne Schröter

The second component of her method aims at examining the “grammatical

composition of the text,”30 which includes studying definitions of key terms
and engaging with problems of translation from the Arabic. The third part of
her method entails attempts to grasp the “Weltanschauung or world-view”31
that is present in the Qur’an. The most important method is a particular form
of hermeneutics that is explained most fully in her book Inside the Gender
Jihad. The foundation of the Qur’an, she argues, is tawhid, the principle of the
unity of God, and “the operating principle of equilibrium and cosmic har-
mony.”32 As an ethical principle, it is connected to social and political spheres
and emphasizes “the unity of all human creatures beneath one creator.”33 If it
were to become reality, then mankind would become a single community of
equals without distinctions based on race, class, gender, religious traditions,
nationality, sexual orientation, or other arbitrary aspects.34 Allah himself is
neither male nor female, she insists, and only the limitations of the Arabic
language and the historical context had left the false impression of a male God.
Wadud expresses God’s gender neutrality, or rather gender indeterminateness,
by constantly changing the gender pronouns used to refer to him/her. Some-
times she uses “he,” then she refers to Allah as “she” or “it,” as she did in her
Friday sermon in 2005 in New York City.35
In 1989, Wadud completed her dissertation and received her PhD in Arabic
and Islamic Sciences. Shortly thereafter, she took up a position as Assistant
Professor at the Islamic University of Malaysia. Here, in 1992, she published
her thesis in English under the title “Qur’an and Woman: Re-reading the
Sacred Text from a Woman’s Perspective” and in Malay under the title
“Wanita di dalam al-Qur’an.”
Amina Wadud is a political visionary. In Gender Jihad, she writes: “I have
an idea about Islam without patriarchy.”36 This utopian vision is a source of
considerable conflict with her peers, both in the academic community as well
as within the Muslim ummah, not least because she criticizes all forms of
domination and oppression and because she often portrays herself as a victim
of various forms of discrimination. Looking back, she admitted that it had
been naive to convert under the impression that it would improve her status as
a woman. The longer she lived as a Muslim woman, she recounted, the more
inequality she discovered to exist between men and women.37 Time and again
she bemoans that it is primarily men who are accorded the authority to
interpret the Qur’an and that their interpretations disadvantage women.
In fact, they were being denied the status given by God in the Qur’an as

30 31
Wadud, Qur’an and Woman, p. 3. Wadud, Qur’an and Woman, p. 3.
32 33
Wadud, Inside the Gender Jihad, p. 28. Wadud, Inside the Gender Jihad, p. 28.
34
Cf. Wadud, Inside the Gender Jihad, p. 28.
35
The full text of the sermon is reproduced in Wadud, Inside the Gender Jihad, pp. 249–53.
36 37
Wadud, Inside the Gender Jihad, p. 91. Cf. Wadud, Inside the Gender Jihad, p. 21.
 Islamic Feminism 121

full-fledged human beings. Muslim women generally lacked the knowledge to

read and interpret the Qur’an on their own, and so they accepted hypocrisy
and discrimination, even if there were alternatives. Wadud shows this to be so
by pointing to the example of family ideologies. Full-time mothers are glori-
fied, and it was assumed that these mothers were respected and financially
supported by their husbands. But in fact, in Muslim communities this ideal
situation was never achieved, nor were women recognized for their efforts.
Instead, many Muslim women are forced to support themselves and their
children, especially if they are African-American women or single mothers,
Wadud says reflecting on her own situation as a divorced woman and mother
of five. Single mothers were most often treated as inferior to women with the
status of wives and their lives were made even more difficult by religiously
justified regulations. One such regulation, Wadud points out, is Islamic family
law, according to which, in the case of divorce, child custody is awarded to the
father, even if he takes no responsibility for them. Although, in the US,
Muslim women could have their cases decided within the US legal system,
and so quite easily win custody of their children, in practice they often chose
not to do so, since they regarded this to be unIslamic. “The magical expect-
ation that children are provided for and women are pampered and protected
mothers, with paradise at their feet,” she writes, “is a negative fantasy afflicting
the single mother’s reality of survival.”38

NATIONAL AND INTERNATIONAL IMPACT

The Islamic world must be transformed from the ground up, Wadud insists, if
one is to achieve the goal of ridding Islam of all forms of oppression. Although
she repeatedly asserts that efforts ought to focus on eliminating differences in
race and class, she primarily focuses her efforts on the discrimination of
women. The gender justice model she strives for is, in its simplest form,
basically gender mainstreaming, and entails making women present in all
spheres of Muslim life, as well as including them in political and religious
leadership positions.39 It is precisely such inclusion that is highly controversial
in the Islamic world, especially women’s equality in the religious sphere, and a
particularly delicate issue in this regard is allowing women to lead in mixed-
sex prayer sessions. Amina Wadud has transgressed this prohibition twice and
owes her wide renown precisely for having broken this taboo. The first time,
she led the khutba at the invitation of the Islamic Da’wah Movement in
August 1994 in Cape Town at the Claremont Main Road Mosque. The second

38
Wadud, Inside the Gender Jihad, p. 151.
39
Cf. Wadud, Inside the Gender Jihad, p. 10.
122 Susanne Schröter

time was eleven years later in the US at the invitation of the Progressive
Muslim Union of North America. The second event was anticipated in
advance, since Wadud had announced it at a press conference. As a result,
she was, as expected, confronted with threats, which made finding a suitable
venue rather difficult. Three mosque communities were asked, but could not
be convinced to undertake the risk of hosting the event, and an art gallery
rescinded its offer to serve as the venue following a bomb threat. Finally, an
Anglican church agreed to host Wadud, and state security forces ensured the
event transpired peacefully. The reactions that ensued were largely expected,
as conservative clerics in particular denounced the event as an act of heresy.
The popular theologian Yusuf al-Qaradawi dedicated an entire hour of his
television program to criticizing Wadud. One of his arguments was that she
had broken with Islamic tradition, while another was that the male sexual
drive required the systematic elimination of all things feminine from the
public sphere. In his own words:
It is established that leadership in Prayer in Islam is for men only . . . Prayer in
Islam is an act that involves different movements of the body . . . Hence, it does
not befit a woman, whose physique naturally arouses instincts in men, to lead
them in Prayer and stand in front of them, as this might divert their attention and
concentration, and disturb the required spiritual atmosphere.40
The Grand Mufti of Saudi Arabia, Abdul Aziz al-Sheikh, called Wadud an
enemy of Islam, and a number of Arab newspapers denounced her as mentally
unstable.41 At Al-Azhar University, Suad Saleh, the head of the women’s
section of Islamic Studies, who also has her own television show Women’s
Fatwa and who is considered to be an Islamic feminist herself,42 condemned
Wadud’s presumptuousness.

MUSLIM PROGRESSIVE AND FEMINIST ACTIVISM

More interesting than the fact that the act provoked worldwide controversy,
was that it had taken place at all, and that in the US Muslim organizations had
felt the time was ripe to initiate a new sort of Islam that was commensurate
with the principles of gender justice. Who were the organizers who had
supported Amina Wadud, or rather, who had asked her to publicly back
their shared endeavor? The Progressive Muslim Union, mentioned in the

40
<[Link]
wadud/>.
41
Cf. <[Link]
42
Cf. Sharon Ottermann, n.d., Fatwas and Feminism: Women, Religious Authority, and Islam
TV, <[Link] (accessed January 3, 2012).
 Islamic Feminism 123

section “National and International Impact,” was established in 2004 in

Manhattan and dissolved in December 2006. Some of its members, however,
continued to be active in a successor organization established in 2007 that goes
by the name Muslims for Progressive Values. This association strives for the
participation of women in all social spheres and is active in promoting the
rights of homosexuals, transgender persons, and queers within the Muslim
community. It has connections to other progressive Muslim associations in
North America, such as the Muslim Reform Movement Organization of New
York and the Network of Spiritual Progressives in Berkeley, and also to
organizations outside the US. Until 2009, members of the Progressive Muslim
Union ran a website by the name of Muslim Wake-Up that propagated their
ideas. The third organization involved in the New York event referred to itself
as the Muslim Women’s Freedom Tour, and was an initiative set up by the
South Asian-American journalist Asra Nomani, who had already made a
name for herself as a feminist Muslim.
The involvement of so many organizations and initiatives shows that in the
US a Muslim subculture had emerged whose views were diametrically opposed
to the majority opinion of the ummah in the rest of the world. Amina Wadud
embodies this new religious impulse so perfectly because she so clearly stands
in a tradition of Western identity politics and attempts to link these to new
Islamic concepts. She stands for a Western Islam that is as much against
sexism as it is against racism and anti-Islamic prejudice, and which ultimately
strives for a general egalitarian utopia. On numerous occasions the media
pointed out that Wadud’s provocative activities could only have taken place in
a liberal Western society, in a society where non-Muslims provide the venue
for a Muslim Friday sermon and non-Muslim security forces maintain the
public order. This is certainly true. In no Islamic country and in no country
with an Islamic legal order could a woman have led Friday prayers before a
mixed-sex audience.
It is therefore not surprising that Islamic feminism, in both its academic
form as a new approach to Qur’anic exegesis as well as in its social activist
guise, emerged primarily in the US. The US is not only the point of origin of
Islamic feminism, but also the country in which women reformist theologians,
authors, journalists, and activists find the ideal environment to develop and
publish their ideas. There is a critical mass of supporters that can join together
to form associations; liberal Muslim scholars teach at the universities and
develop new approaches to make Islam compatible with democratic modern-
ity; the press responds positively to such new, democratic approaches; and
Islamist hardliners, who potentially represent a threat, are kept in check by the
police. In the academic context in particular, there are plenty of opportunities
to combine theological–political interests with professional ambitions.
Asma Barlas, Professor of Political Science at Ithaca College, who, until
2006, ran the Center for the Study of Culture, Race and Ethnicity, and Riffat
124 Susanne Schröter

Hassan, who received tenure as Professor of Religious Studies at the University

of Louisville, are two scholars who have undertaken the project of reinterpreting
the Qur’an and Islamic traditions.43 In her writings and lectures, Hassan sets out
two basic aims. First, she seeks to overcome the patriarchy that continues to be
enshrined in Islamic traditions. Second, she aims to overcome the undue focus
on secular humanism and show that positive ethical values, such as those set out
in the Universal Declaration of Human Rights, have a place in religions, and
especially within Islam. Riffat Hassan and Asma Barlas represent an academic
Islamic feminism that has taken hold primarily in universities and major
international non-governmental organizations (NGOs).
In the US, women use the freedoms of Western society and the protection of
the state security forces to spread their versions of a new Islam. Since Amina
Wadud, several women have led Friday prayers, and the same holds true for
Canada, where the Pakistani-Canadian Raheel Raza led Friday prayers as early
as 2005.44 In South Africa, too, where Amina Wadud delivered her first Friday
sermon, progressive Muslims are continuing along the path she set out.45 It
even seems that there, under the influence of a particularly engaged progres-
sive Muslim activist group, a certain degree of normalcy has set in, and that
women imams no longer provoke much controversy. If we compare the US
and Canada with Europe, we have to say that feminist Islam is still rather
marginal and certainly is not of the same sort of quality; it is simply more or
less reproducing the theoretical and methodological guidelines produced by
North American women theologians. For a long time Europe simply lacked
the critical mass of educated Muslims who would be in a position to take on a
role akin to that of Amina Wadud, Asma Barlas, or Riffat Hassan. Recently,
things are beginning to change. In 2012, the group Homosexuels Musulmans
de France was established in Paris and opened its own small mosque in which
women and men pray side by side; and in Germany, in the spring of 2010 the
Liberal Muslim Association (Liberal-Islamische Bund) was established
in Cologne, members of which, Lamya Kaddor and Rabeya Müller, had
already received widespread attention for their publications on a progressive

43
Cf. Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the
Qur’an (Austin, TX: University of Texas Press, 2002); Text, Tradition, and Reason: Qur’anic
Hermeneutics and Sexual Politics (New York: Yeshiva University, 2004); “Four Stages of Denial,
or, My On-Again, Off-Again Affair with Feminism: Response to Margot Badran,” Ithaca College,
2006, <[Link] (accessed November 21, 2016);
Hassan, “Equal before Allah?”; “Religious Conservatism”.
44
Raheel Raza is active in the fostering of interreligious dialogue and the author of a popular
book. See Raheel Raza, Their Jihad—Not My Jihad: A Muslim Canadian Woman Speaks Out
(Ingersoll: Basileia Books, 2005).
45
Cf. Farid Esack, Quran, Liberation and Pluralism: An Islamic Perspective of Interreligious
Solidarity against Oppression (Oxford: Oneworld, 1997).
 Islamic Feminism 125

interpretation of Islamic sources.46 Yet other centers of Islamic feminism

are Iran47 and South and Southeast Asia, mainly Indonesia.48 In India, Asghar
Ali Engineer was probably the most well-known proponent of a feminist-
inspired reformist Islam. Engineer was born in 1939 in Rajasthan to a Bohra
cleric, in a subsect of Shi‘a Islam that is linked to Isma’ilism. His father taught
him Islamic theology and the Arabic language. Later, he studied engineering
and spent twenty years working in Bombay before he joined Progressive
Dawoodi Bohras. In countless publications he discussed the Qur’an, develop-
ments in Islam, and contemporary problems in Indian society. Among the
many prizes he won was the 2004 Alternative Nobel Prize, which he shared
with Swami Agnivesh. Engineer was lauded for his efforts to promote the
rights of religious and ethnic minorities as well as for gender-just interpret-
ations of Islam.49
Ideas from within Islamic feminism also spread to Southeast Asia, where
they were further developed and made the foundation of political campaigns.
In Malaysia, these Islamic feminist ideas are associated with the group
Sisters in Islam (SIS).50 In the Philippines, such ideas are linked to the name
Amina Rasul-Bernardo. Rasul-Bernardo, a journalist, politician, and activist,
has committed herself to the struggle for women’s rights, peace, and the rights
of the Muslim minority in Mindanao. She is president of the Philippine Center
for Islam and Democracy.

FIGHTING FOR GENDER JUSTICE IN INDONESIA

Yet the most remarkable practical development in Islamic feminism is to be

found in Indonesia. The Indonesian women’s movement emerged during the
colonial era, when political organizations established their women’s wings.
This was true for the two largest Muslim organizations, the Muhammadiyah
(founded in 1912) and the Nahdlatul Ulama (NU) (founded in 1926). In
accordance with Indonesian custom that incorporates age-specific categories
into its social structures, each group established organizations for both younger
and older women. Today, the organizations for younger women, Nasyiatul
Aisyiyah and Fatayat Nahdlatul Ulama (Fatayat NU), in particular, have taken

46
Lamya Kaddor, Muslimisch–weiblich–deutsch. Mein Weg zu einem zeitgemäßen Islam
(Munich: Beck, 2010).
47
Cf. Chapter 9, this volume; Valentine M. Moghadam, “Islamic Feminism and its Discon-
tents: Towards a Resolution of the Debate,” Signs: Journal of Women in Culture and Society 27/4
(2002): 1135–71.
48
Cf. Susanne Schröter, ed., Gender and Islam in Southeast Asia: Women’s Rights Move-
ments, Religious Resurgence and Local Traditions (Leiden: Brill, 2013).
49
Cf. Asghar Ali Engineer, Islam, Women and Gender Justice (New Delhi: Gyan Publishing
House, 2001).
50
See Chapter 11, this volume.
126 Susanne Schröter

on leading roles in the further development and localization of ideas taken

from Islamic feminism. Fatayat NU was established in 1950 on the initiative of
the NU leader Kyai Dahlan. From the outset, Fatayat NU activists worked
toward educating women in Islamic teachings, and they preached and
carried out Islamic rituals. Apart from their religious activities, they also
played a central role in promoting education in general, birth control, and
access to healthcare for mothers and their children. The activists organized
literacy campaigns and worked toward spreading the Indonesian language.
The reproductive rights of women was an issue that corresponded perfectly to
what the conservative members of the NU considered to be an appropriate
field for women’s political activity. However, the Fatayat activists were not
content to simply busy themselves providing instructions for improved
hygiene and healthier nutrition. In their view, other problems were far more
pressing: child marriage, polygyny, inequality between men and women in
divorce law, and domestic violence between married couples. In the late 1990s,
Fatayat NU started a program to further women’s rights (Penguatan Hak-hak
Perempuan), and in the year 2000 they established a consultancy for the
empowerment of women (Lembaga Konsultasi dan Pemberdayaan Perem-
puan) that was comprised of twenty-six decentralized divisions. An increasing
number of activists came out as having themselves been victims of domestic
violence, and the organization began to provide not only outside assistance to
domestic violence victims, but also educate women in self-help. In order to
make this extensive program of reforms compatible with the tenets of Islam,
the women activists had to undertake their own exegesis of the Qur’an.
Women scholars at centers for women’s studies at the various Indonesian
universities, but also at a number of independent educational institutions,
began to work on reinterpreting problematic verses in the Qur’an and Sunnah
in ways that were in line with principles of gender justice, and in the past
few years they have published innumerable brochures, leaflets, and monographs
arguing that Islamic principles of justice also necessarily include gender
equality.51 Indonesian Muslim feminists such as Siti Musdah Mulia,52 Neng

51
Cf. Nelly van Doorn-Harder, Women Shaping Islam: Reading the Qur’an in Indonesia
(Chicago: University of Illinois Press, 2006); Lies Marcoes-Natsir, “Women’s Grassroots Move-
ments in Indonesia: A Case Study of the PKK and Islamic Women’s Organisations,” in Women
in Indonesia: Gender, Equity and Development, ed. Kathryn Robinson and Sharon Bessell
(Singapore: ISEAS, 2002), pp. 187–97; K. H. Husein Muhammad et al., Dawrah fiqh perempuan.
Modul kursus Islam dan gender (Cirebon: Fahima Institute, 2007); Susanne Schröter, “Progres-
sive and Conservative Women’s Movements in Indonesia,” in Women’s Movements and Counter
Movements: The Quest for Gender Equality in Southeast Asia and the Middle East, ed. Claudia
Derichs (Cambridge: Cambridge Scholars Publishers, 2014), pp. 79–106.
52
Cf. Siti Musdah Mulia, Counter Legal Draft: The Compilation of Indonesian Islamic Law
(Jakarta: Ministry for Religious Affairs of the Republic of Indonesia, 2004); Muslimah reformis.
Perempuan pembaru keagamaan (Bandung, Mizan, 2005); Islam dan inspirasi. Kesetaraan
gender (Yogyakarta: Kibar Press, 2006).
 Islamic Feminism 127

Dara Affiah,53 and Lily Zakiyah Munir,54 who passed away in 2011, work hand
in hand with secular feminists to address problems in the areas of family law,55
reproductive health, and domestic violence. Furthermore, unique to Indonesia is
not only the enormous numbers of women’s rights NGOs, but the existence of a
men’s movement, the Alliance of New Men (Aliansi Laki-laki Baru), which
works toward establishing non-patriarchal images of masculinity and partici-
pates in campaigns to fight domestic violence.

INTERNATIONAL ORGANIZATIONS
AND MOVEMENTS

The majority of Muslim feminist organizations are active at the national level,
and to some extent, depending on the issue, transregionally, such as in the
context of Muslim Southeast Asia. A number of organizations have also estab-
lished an international presence. One of these is Women Living Under Muslim
Laws (WLUML). The group was established in 1984 by nine women from
Algeria, Morocco, Sudan, Iran, Mauritius, Tanzania, Bangladesh, and Pakistan,
and soon found support in other countries. Today it is comprised of individuals
and organizations in seventy nations, and promotes the struggle for women’s
rights both in countries with Muslim majorities and in those with Muslim
minorities. The spectrum of activities they support is broad and includes
campaigns against stoning, fighting for the release of women’s rights activists
from prison, as well as promoting awareness for lesbian, gay, bisexual, trans,
and/or intersex (LGBTI) rights. WLUML’s agenda is oriented along the lines of
the Universal Declaration of Human Rights and various supplementary declar-
ations, like CEDAW. Although they do not have a specifically religious focus,
they have in the past organized “Qur’anic interpretation meetings.”
Decidedly more religious in orientation is Musawah, a network founded in
2007 on the initiative of the Malaysian NGO SIS, which decided to expand its
activities beyond Malaysia to work toward reforms in Islamic family and
personal law internationally. Today, by its own account, it has members in
fifty countries. To communicate and disseminate information, they have a
homepage on which they post videos of important events and on which they
offer a quarterly journal for downloading. Musawah regularly publishes

53
Cf. Neng Dara Affiah, Muslimah feminis. Penjelajahan multi identitas (Yakarta: Nalar,
2009).
54
Cf. Lily Zakiyah Munir, “Islam, Gender, and Formal Shari‘a in Indonesia,” (2004a),
available at: <[Link]
[Link]> (accessed April 12, 2010).
55
Cf. Nina Nurmila, Women, Islam and Everyday Life: Renegotiating Polygamy in Indonesia
(London: Routledge, 2009).
128 Susanne Schröter

country reports that inform about the situation of women and the progress
made by activists, as well as essays and statements pertaining to key questions
of feminist Islam, questions that to some extent go beyond issues pertaining to
family law, such as the issue of female preachers. While SIS publishes in Malay
and English, Musawah makes their material available in English, French, and
Arabic, thus reaching educated women from all Muslim regions. Forty-nine
women’s organizations are linked to the Musawah homepage, and the insti-
tutions providing funding are also listed.
The aim, to implement legal reforms, or to at least raise awareness that such
reforms are needed, is to be achieved through workshops and other educa-
tional events and training sessions, much like SIS. Musawah defines itself as a
“global movement for justice and equality” and is also organized as an NGO
that is run by professional activists. Moreover, it brings together a considerable
number of academically trained Muslim activists who are striving for reforms
in the gender order in Islamic countries. If one were to ask about the impact of
Islamic feminism, then Musawah would undoubtedly stand as an effective
example of the theoretical concept. Musawah disseminates the ideas that
otherwise would have been limited to national or regional circles, and facili-
tates the establishment of networks. It is the only transnational Muslim
organization that is explicitly founded on the principles of Islamic feminism,
even though its activists never use the term themselves.56 What also makes
Musawah stand out is the attempt to bring together universal human rights,
national guarantees to protect women’s rights, and the foundations of Islam.57

ISLAMIC FEMINISM: A CONTESTED CONCEPT

Islamic feminism is a controversial concept and, for some feminists, a contra-

diction in terms. Particularly among Iranian women, before the experiences of
the Islamic Revolution, it was extremely controversial.58 Fundamental cri-
tiques of Islamic feminism were thus formulated by scholars such as Haideh
Moghissi,59 Shahrzad Mojab,60 and Hammed Shahidian.61 For Moghissi,
moreover, it is a concept originating exclusively from the Muslim diaspora.

56
Personal statement, Zainah Anwar, April 30, 2011, in Berlin.
57
Cf. Zainah Anwar, “Introduction. Why Equality and Justice Now?,” in Wanted: Equality
and Justice in the Muslim Family, ed. Zainah Anwar (Petaling Jaya: Sisters in Islam, 2009), p. 8.
58
Cf. Moghadam, “Islamic Feminism,” pp. 1148–52.
59
Cf. Haideh Moghissi, Feminism and Islamic Fundamentalism: The Limits of Postmodern
Analysis (London: Zed Books, 2005).
60
Cf. Shahrzad Mojab, “Theorizing the Politics of ‘Islamic Feminism’,” in “The Realm of the
Possible: Middle Eastern Women in Political and Social Spaces,” special issue, Feminist Review
69 (2001): 124–46.
61
Cf. Hammed Shahidian, “Islamic Feminism Encounters Western Feminism: An Indigen-
ous Alternative?” Paper presented to Globalization, Gender, and Pedagogy: Proceedings of the
 Islamic Feminism 129

For many Muslim women, however, Islamic feminism offers a chance to

reconcile religion and emancipation. “For most Muslim women,” Zainah
Anwar from SIS writes, “rejecting religion is not an option. We are believers,
and, as believers, we want to find liberation, truth and justice from within our
faith.”62 This is not simply a question of piousness, but also of identity. Many
Muslim women feel patronized by secular “Western” women and feel that
they are misrepresented. This rejection of the pretentions of Western super-
iority is something they share with other women from the Global South, and it
is a stance that has its origins in the postcolonial discourses of second-wave
feminism. In a much discussed article, Gayatri Chakravorty Spivak criticized
the attempts of British colonial officials to ban the South Asian practice of
widow burning, on the grounds that such attempts were such a pretention to
superiority; she denied the right of “white men” to save “brown women from
brown men.”63 A similar critique was voiced by Leila Ahmed with regard to
Lord Cromer’s negative views of Egyptian society.64 The representation of
non-Western women, so the criticism runs, is distorted and imagines them to
be the oppressed Other to an ostensibly emancipated woman in Western
society. Both types of women thus become symbols of their respective cultures:
the unfree women of colonized societies served to expose the latter as under-
developed and barbaric, while the liberated Western woman stood for a higher
civilization. Precursors of this postcolonial critique can be identified in
black feminism in the US,65 as well as in Third World feminisms elsewhere.66

Joint Women’s Studies and Southwest Asian Global Studies Seminar, Illinois State University,
February 12, 1998.
62
Zainah Anwar, “What Islam, Whose Islam? Sisters in Islam and the Struggle for Women’s
Rights,” in The Politics of Multiculturalism: Pluralism and Citizenship in Malaysia, Singapore, and
Indonesia, ed. Robert W. Hefner (Honolulu, HI: University of Hawaii Press, 1991), pp. 227–52.
63
Chakravorty Gayatri Spivak, “Can the Subaltern Speak?,” in Marxism and the Interpret-
ation of Culture, ed. Cary Nelson and Lawrence Grossberg (Basingstoke: Macmillan Education,
1998), pp. 271–313.
64
Cf. Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New
Haven, CT: Yale University Press, 1992), pp. 153.
65
Cf. Patricia H. Collins, “The Social Construction of Black Feminist Thought,” Signs: Journal
of Women in Culture and Society 14/4 (1989): 745–73; Angela Davis, Women, Race, and Class
(New York: Random House, 1981); Bell Hooks, Ain’t I a Woman: Black Women and Feminism
(Boston, MA: South End Press, 1982); Talking Back: Thinking Feminist, Thinking Black (Boston,
MA: South End Press, 1989); Yearning: Race, Gender and Cultural Politics (Boston, MA: South
End Press, 1990); Black Looks: Race, Gender and Representation (Boston, MA: South End Press,
1992). Initial articulations of a separate black feminism emerged parallel to “white” feminism in
the late 1960s. Today, parts of the movement have moved away from the term “feminism,”
instead preferring to refer to their approach as “womanism.” Womanism, much like black
feminism, claims to analyze within a single framework the various interrelated dimensions of
injustice, especially the discrimination of women, racism, and the oppression of the economically
underprivileged. Cf. Stacey Floyd-Thomas, ed., Deeper Shades of Womanism in Religion and
Society (New York: New York University Press, 2006).
66
Cf. Chandra T. Mohanty, Ann Russo, and Lourdes Torres, Third World Women and the
Politics of Feminism (Bloomington, IN: Indiana University Press, 1991); Chandra T. Mohanty,
“Under Western Eyes: Feminist Scholarship and Colonial Discourses,” in Postcolonialism:
130 Susanne Schröter

In all cases, assertions of universal sisterhood that had been articulated by white
feminists were rejected as being racist, since they ostensibly reproduced claims
of white, Western superiority. Black, poor, non-Western women were not
helpless victims that needed to be saved by white, middle-class feminists, but
were, in fact, perfectly capable of fighting their own battles. Such battles
comprised several dimensions that were mutually constitutive: class, race, and
gender. In the early 1990s, Kimberlé Crenshaw refashioned this into the concept
of “intersectionality,”67 which analyses the various dimensions of inequality,
discrimination, and marginalization as part of an interdependent whole.
When Muslim feminists at the turn of the twenty-first century began to take
interest in CEDAW, the postcolonial critique, as well as the mentioned facets
of non-Western feminism, were already well established as part of the univer-
sity mainstream. Many representatives of these currents of thought had
become tenured faculty members and comprised the avant-garde of a new
critical theory. When Muslim women scholars began to articulate their own
critiques of the reigning state of affairs, the basic framework of thinking was
basically set; and so it is hardly surprising that they too thought in much the
same terms. Key here is the emphasis on the polarity between the West and a
Muslim non-West. Riffat Hassan devotes one of her essays to precisely this
dilemma.68 Human rights discourse is a secular discourse, she writes, and
many Western activists believe that human rights can only be implemented
within a secular framework and that such rights are particularly incompatible
with Islam. Moreover, Islam tends to be discussed only in the context of
human rights violations. In her view, this is extremely one-sided and only
promotes anti-Islamic/anti-Muslim stereotypes.
The postcolonial critique of the West also feeds into the skepticism of
Islamic feminists with regard to the term Islamic feminism. One can see this
in a debate between Asma Barlas and Margot Badran on the definition of
Islamic feminism. For Badran, Islamic feminism is an inclusive term; Barlas
disagrees categorically and considers Badran’s embrace to be an act of aggres-
sion. She asks: “How can people call me a feminist when I’m calling myself a
believing woman?”69 Initially, she admitted to being offended that Badran,

Critical Concepts in Literary and Cultural Studies, ed. Diana Brydon (London: Routledge, 2000),
pp. 1183–2309.
67
Cf. Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine,” in The Politics of Law: A Progressive Critique,
ed. David Kairys (New York: Pantheon, 1990), pp. 195–217; “Mapping the Margins: Intersec-
tionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43
(1991): 1241–99.
68
Cf. Riffat Hassan, “Der Qur’an setzt auf Gleichberechtigung” (2008), available at: <http://
[Link]/1207285890591/Interview-Koran-setzt-auf-Gleichberechtigung> (accessed
September 25, 2014).
69
Barlas, “Four Stages of Denial,” p. 1.
 Islamic Feminism 131

an American Catholic, would dare presume to know who she was as a Muslim
woman and what she ought to do. She regarded her Muslim identity to be
irreconcilable with her ideas of what feminists stood for, although this was
not so much for epistemological reasons, but rather for reasons to do with
the politics of representation. “Do feminists think that they discovered equality
and patriarchy,” she asks, and continues, “I derive my understanding of
equality and patriarchy from the Qur’an, not from any feminist text.”70 In
time, she calmed down and even came to agree with Badran’s arguments,
which proved particularly useful to her calls for a desecularization of feminism
and its localization in the Qur’an. “If my reading of the Qur’an is feminist,” she
writes, “because it is based in and on the Qur’an, then, clearly I’m an Islamic
feminist!”71 And yet, at the end of her text she once again distances herself from
Western feminism, writing “I still seek to protect my sense of self from parts of
the West by refusing to speak some common languages.”72 Ultimately, she still
regarded feminism as an ideology of Western imperialism, and this, in and of
itself, constituted its opposition to Islam.
Two years later, she attended the International Congress of Islamic Feminism
in Barcelona and wrote in an online edition of the Guardian rather positively of
the opportunities presented by this approach. Other Islamic feminists see no
reason to distance themselves from the feminist movement. In an interview with
the Austrian newspaper Der Standard, Riffat Hassan, for example, referred to
herself expressly as a “feminist theologian.”73 She is also rather skeptical of the
term “westernization,” since in her view it tends to be used to denunciate women.
Amina Wadud, too, sees things rather more generously and finds no reason
for the polarization of Western and non-Western movements. On the con-
trary, in Gender Jihad she points out that the origins of the contemporary
Muslim women’s movement for empowerment and inclusion were profoundly
impacted by Western theorizations of women’s rights and social justice.74
Yet, she also points out there are differences between the two and insists on
the necessity of developing a specifically Islamic conception of human rights.
Unlike Barlas, Wadud sees herself less in the tradition of a non-Western
postcolonial discourse and more as part of an oppressed black minority. As
an African-American, she experienced, even within the Muslim community,
discrimination and racism. “When I wear a hijab, I don’t look African and my
words are measured with politeness; however, when my hijab is not covering
my hair, I become Black and my words lose all value.”75 Identity discourses

70
Barlas, “Four Stages of Denial,” p. 2.
71
Barlas, “Four Stages of Denial,” p. 3. 72
Barlas, “Four Stages of Denial,” p. 4.
73
Hassan, “Der Qur’an.” 74
Wadud, Inside the Gender Jihad, p. 8.
75
As quoted in Tarik Fatah, “I’m a Nigger and You Will Just Have to Put Up with My
Blackness”: Professor Amina Wadud Confronts Her Hecklers in Toronto (2005), available at:
<[Link] (accessed
November 8, 2010).
132 Susanne Schröter

like these reflect the specific cultural and regional contexts in which the
struggles of Muslim women in Western countries take place, where, as in
Wadud’s case, they constitute a marginal group in US society confronted by a
racism that had been experienced since early childhood. In Indonesia, the
world’s largest Muslim country, this is irrelevant. Islamic feminism is not a
means to eliminate postcolonial differences, but rather part of an open-ended
debate. This potential for conflict, however, is not relevant to all parts of the
world. In those places where the most important conflicts for women’s rights
activists are those with religious hardliners, as in Indonesia, Islamic feminism
constitutes a suitable means to raise awareness of women’s rights, a goal that
pious Muslim women share with secular women’s rights activists.

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 Part II
Localizing the Interplays between
Gender, Law, and Democracy
in Different National Contexts
 [Link]
CSS/PMS Books

Gender Roles and Political, Social,

and Economic Change in Bangladesh
and Senegal
Katherine Marshall

INTRODUCTION: A COMPARATIVE FRAMEWORK

Bangladesh and Senegal are almost 6,800 miles apart, and they are part of very
different world regions (South Asia and West Africa). However, they share some
significant common features. Both countries are renowned as Muslim countries
with viable, if complex, democratic institutions and quite proudly held demo-
cratic principles. Both countries, although with vastly different population sizes
(Bangladesh at 159 million versus Senegal at 14 million), have large Muslim
majorities and significant minorities of other religious traditions. The constitu-
tions of both countries affirm that their state and government are secular, and
religious tolerance and non-discrimination are professed national values. Both
Bangladesh and Senegal take pride in their Muslim heritage and traditions and
these are, in various ways, reflected in law, society, and politics.
The political trajectories of both Bangladesh and Senegal reflect complex
histories. These include established pre-colonial traditions and a heritage that
have a continuing influence on approaches to state and society, colonization
and decolonization (respectively British then Pakistani for Bangladesh, and
French for Senegal), and periods of turbulence as well as stability in the post-
independence period. The two countries share predominantly Sunni Muslim
traditions, with Sufi institutions and culture as strong shaping forces. And
both countries have experienced the forces of modernization that have, inter
alia, led to major shifts from historically rural and agricultural economies
toward urbanization, and, respectively, manufacturing (especially ready-made
garments) and services as major drivers. Economic performance has varied
over time, with Bangladesh currently outpacing Senegal in terms of GDP per
capita and rates of growth, while natural disasters and economic crises have
140 Katherine Marshall

left their mark on society and institutions. Both countries send significant
numbers of migrants overseas: Bangladesh (nearly 5 million), largely to the
Gulf Cooperation countries (GCC), and Senegal (above 500,000) to neighbor-
ing West African countries, Europe, and North America. Both this diaspora
tradition and broader forces of globalization (especially changes in commu-
nications) influence social, political, and religious institutions and practices.
Bangladesh and Senegal both came to independence (in 1971 and 1960,
respectively) with strongly traditional societies in which women played clearly
subordinate roles, in law and in practice, although in both countries there were
well-educated and articulate elite women who advocated for women’s equal
rights well before independence. The Bengali and Sahelian (West African)
cultures, however, had significant pre-Islamic traditions where women had
significant if generally subordinate roles. In both countries women have
played prominent political roles over a period of decades. More tellingly,
there has been substantial social progress for women, in terms of most key
indicators (school enrollment, health, engagement in public life). A rich array
of women’s organizations work as part of lively civil societies to advance
women’s rights, though in both countries the thrust of their activism has
been linked explicitly and strongly to secular as opposed to religious values.
Bangladeshi and Senegalese women are prominent in international organiza-
tions and settings and Bangladesh has two women who have alternated, with
considerable attendant tensions, in holding the position of prime minister
over an extended period.
Notwithstanding important progress in advancing women’s rights and
roles, there are still large gender gaps in both countries. The summary of the
World Economic Forum Gender Gap Report for 2015 (Table 6.1) shows
the ranking of Bangladesh and Senegal among 145 countries, in comparison
to the top ranked Iceland, and bottom ranked Yemen.1
Progress and gaps reflect both deliberate government policies, often bol-
stered and supported by international partners, and areas where policies and
their implementation have fallen short of expectations, often despite consid-
erable investment of effort and resources. In Bangladesh, its position as one of
the world’s countries with the highest child marriage rate and substantial
violence and discrimination against women contrasts with success in its family
planning program, rapid if mixed progress in girls’ education,2 and the
transformational role of the garment industry that employs over 3 million
women. For Senegal, again, progress in education (albeit less impressive in

1
World Economic Forum, Global Gender Gap Report 2015, <[Link]
global-gender-gap-report-2015/rankings/>.
2
Faheem Hussain and Fabiha Naumi, “Female Education in Bangladesh: Promising Present,
Challenging Future,” Asian University for Women, Bangladesh, 2010, <[Link]
ocww/volume39_2/[Link]>.
 Gender Roles in Bangladesh and Senegal 141
Table 6.1 Bangladesh and Senegal: Global Gender Gap Report 2015.
Measure Overall Economic Educational Health and Political
(rank among Rank Participation Attainment Survival Empowerment
142 countries) and Opportunity

Iceland 1 5 1 n/a 1
Bangladesh 64 130 109 95 8
Senegal 72 65 133 124 27
Yemen 145 145 122 123 140

Source: World Economic Forum, Switzerland, 2016.

terms of achievement than in access) stands as an important indicator of change,

as does action to assure parity in political representation, while high maternal
mortality, very low contraceptive prevalence, and low labor force participation
are indicators that lag behind other countries at similar income levels.
In both Bangladesh and Senegal, religious beliefs and institutions have
played significant if complex roles in the political, social, and economic
landscapes. Development and political strategies have, from the time of
independence, been set against the backdrop of avowed secular values. In
both instances the constitutional and political roles of religious institutions
and traditions were actively debated at the time of independence. Both then
and subsequently the respective roles of secular and religious values and
institutions have been contested. Governance decisions reflect, in a stated or
unstated backdrop, keen concern about how religious leaders and communi-
ties will react (positively or negatively) to change. At different stages, various
policies, notably those most closely related to personal status and family law,
have, in both countries, encountered religious opposition or simply fear that it
might arise. Important policies, notably family planning, bear the clear mark
of religious approaches, some positive, some less so.
Both Bangladesh and Senegal pride themselves on distinctive Islamic his-
tories and cultures, in both instances marked especially by Sufi influence. This
conscious distinctiveness has, in practice, provided significant support to the
democratic political models pursued over the decades, especially in traditions
of interreligious tolerance. The Muslim heritage has shaped understandings of
national identity from the outset, but so have secular traditions that were the
product of history: in Bangladesh, the bitter independence struggle which
involved opposition to the Pakistani Islamic rule and the legacy of Partition,
and in Senegal, strong respect for the French traditions of laïcité. The Bangla-
deshi and Senegalese democratic models have experienced tension in signifi-
cant ways, at different times, with secular principles and approaches, in large
measure around the roles of religious beliefs and, above all, religious actors in
contemporary politics and social policies. Nowhere has this been more sig-
nificant than with respect to women’s rights and roles.
142 Katherine Marshall

This chapter explores several issues where religious traditions and institu-
tions have shaped historical developments in both Bangladesh and Senegal,
focusing on areas where there have been tensions or noteworthy synergy.
These issues have contemporary significance because, in both countries,
changes in the religious landscape present new challenges. In Bangladesh,
the rise of fundamentalist Islamic movements and discourse is a significant
political and social force, expressed notably in the media and political outlets,
but also in many local communities. In Senegal, the changing nature of
religious authority in a rapidly urbanizing society unsettles the implicit “social
contract” on which Senegal’s democratic institutions are grounded. The in-
fluence of more extreme Islamist discourse and political pressures are less
apparent in Senegal than in Bangladesh, but there is evidence of a backlash
against social change and concerns, in part sparked by violent religious
extremism in neighboring countries, but also as part of broader trends emer-
ging in Muslim-majority countries.
Many challenges turn on issues that are particularly important for women’s
rights. In Bangladesh, the legacy of the violence against women during the
Independence War of 1971, the (positive) experience of family planning and
its impact on family dynamics, questions around child marriage, and current
evidence of a backlash from extremist Muslim groups against women’s rights
and women’s changing social and economic roles are the focus. In Senegal,
contests over aspects of the family code, approaches to family planning, and
efforts to advance women’s rights generally and to combat harmful practices
(notably female genital cutting—FGC) are a nagging undertone in a period
where relationships between the government and civil society, and thus
elements of the democratic political settlement, are at issue.

CONSTITUTIONS, INTERNATIONAL AGREEMENTS,

AND OTHER LEGAL TUSSLES

Bangladesh: The Legal and Political Thickets around

Secular versus Religious Principles

Four legacies, notably dating back to the formation of the Bangladeshi nation,
have particular importance for gender relations: constitutional provisions and
tensions regarding the nature of the secular state, approaches to family law
with respect to religion, the violence against women and women’s active roles
during the independence struggle (and thereafter), and debates around the
ratification of the Convention on the Elimination of All Forms of Discrimin-
ation against Women (CEDAW).
 Gender Roles in Bangladesh and Senegal 143

Bangladesh became independent in 1971 and the 1972 constitution high-

lights the new nation’s guiding, foundational principles:
We, the people of Bangladesh, having proclaimed our independence on the 26th
day of March, 1971 and through a historic struggle for national liberation,
established the independent, sovereign People's Republic of Bangladesh . . . Pledg-
ing that the high ideals of nationalism, socialism, democracy and secularism,
which inspired our heroic people to dedicate themselves to, and our brave
martyrs to sacrifice their lives in, the national liberation struggle, shall be the
fundamental principles of the Constitution.3
On the principle of secularism, the constitution details that it is to be realized
by the elimination of: “(a) communalism in all its forms; (b) the granting by
the State of political status in favour of any religion; (c) the abuse of religion
for political purposes; and (d) any discrimination against, or persecution of,
persons practicing a particular religion.” A persisting complexity is that, in its
constitution and public discourse, Bangladesh highlights both secular prin-
ciples and Islam. This has been most evident following the 1988 eighth
amendment to the constitution that affirms that: “The state religion of the
Republic is Islam, but the State shall ensure equal status and equal right in the
practice of the Hindu, Buddhist, Christian and other religions.”4
Bangladeshi religious institutions operate quite independently of the state,
with limited direct intervention or controls. Today, the Ministry of Religious
Affairs has a supervisory and coordinating role (this has changed over time;
following independence, first the Ministry of Education and then the Ministry
of Sports, Culture, and Religion had this role). The Ministry’s stated role is
to “improve religious affairs. It works to contribute [to] the national develop-
ment through human resource development and working in encouragement
of brotherhood, values, [and] religious belief [at] both [the] national and
international level.”5 Financial support for the four major religious traditions
(Islam, Buddhism, Hinduism, and Christianity) is provided through public
trusts. The Islamic trust is the longest established, and is run through the Islamic
Foundation. Among its activities, it publishes Islamic literature, sponsors Islamic
scholarship, and trains imams through the Imam Training Academy. Mosques
and imams operate independently but the government provides meager
financial support to mosques that request it. Blasphemy is illegal and there
have been some high-profile blasphemy cases. Family law falls entirely
within the jurisdiction of religious family courts (separate for each tradition,

3
Ministry of Law, Justice, and Parliamentary Affairs, Bangladesh, “The Constitution of the
People’s Republic of Bangladesh,” 2010, <[Link]
4
Ibid.
5
Ministry of Religious Affairs, Bangladesh, “Introduction,” modified January 13, 2016,
<[Link]
144 Katherine Marshall

though Buddhists fall under Hindu family law). Islamic political parties, which
have played significant roles in different periods, and have held parliamentary
seats, are currently outlawed. They have, however, exercised an influence out
of proportion to their direct electoral success. Finally, the madrasa school
system operates in a complex relationship with the government. Bangladesh’s
Alia madrasas are a unique institution among Muslim countries in that they
are run and financed entirely by the government. In contrast, the Quomi
institutions have rejected government funding and government attempts to
reform curriculum and teaching methods.
Since independence in 1971, the bulk of Bangladesh’s laws have applied to
all citizens without discrimination based on sex or religious belief. The major
exception (that applies in many Muslim-majority countries) relates to issues
around the family. Personal status laws on marriage, separation, and divorce
set separate rules for Muslims, Hindus, and Christians. Some of these laws
date to the nineteenth century; they remain largely frozen in time and have not
been revised in decades. The separate personal status laws for Bangladesh’s
Muslims, Hindus, and Christians discriminate in overlapping but distinct
ways. They all grant men greater powers than women in marriage and
accessing divorce. Each erects barriers to divorce and economic equality
during marriage and after, and none of the laws provide for women’s equal
right to marital property.
In sum, Muslim personal status laws in Bangladesh are discriminatory in
their embrace of polygamy for men, greater barriers to divorce for women, and
their limited provisions on maintenance. Women have no right to mainten-
ance beyond ninety days after the notice of divorce (or birth of a child, if the
woman is pregnant at the time of divorce). Human Rights Watch observes that
even the limited procedural protections for women under the Muslim Family
Laws Ordinance (MFLO), 1961, are often not implemented. These issues also
apply for other religious traditions.
The Hindu personal status law discriminates against women, recognizing
polygamy for men, and upholding significant barriers in place for women in
accessing maintenance payments. The law does not recognize divorce, so it is
impossible for Hindu women to separate legally from their husbands. A May
2012 bill provided Hindus with the option of registering marriages but fell
short of many demands of women’s rights activists, notably in failing to
include a prohibition on polygamy, in not allowing divorce, and in not
providing for compulsory marriage registration.6
The central issues for women, of course, lie in how principles of secularism
and equality before the law are applied in daily practice. One analysis describes

6
Human Rights Watch, “ ‘Will I Get My Dues . . . Before I Die?’ Harm to Women from
Bangladesh’s Discriminatory Laws on Marriage, Separation, and Divorce,” 2012, <[Link]
[Link]/sites/default/files/reports/[Link]>.
 Gender Roles in Bangladesh and Senegal 145

the constitution as “a playground in which the two main parties fight over a
largely imaginary line in the sand between secularism and Islam,”7 reflecting a
common assertion that much religious debate involves a battle of political
interests rather than deeply held beliefs. The rich political history bolsters such
assumptions. The constitutional principle of secularism in important ways
reflects a response to the explicit and violent “Islamizing” aspect of the Paki-
stani military strategy during the 1971 Independence War and what is often
described as a genocide directed against Bangladeshi citizens. Tensions be-
tween secularism and religious approaches in Bangladesh have a longer, com-
plex history beyond the independence struggle. Efforts to end or avoid religious
tensions and pride in a tolerant form of religion have resulted in a framing of
issues geared to assure religious neutrality, or dharmo niropekkhota. The focus
on secularism has, despite the complexities and debates, opened space for both
government and civil society initiatives that aim deliberately to transform social
norms for women, for example, in girls’ education and microcredit programs
(notably advanced by Grameen Bank and Building Resources Across Commu-
nities (BRAC)) that favor women.
In practice, the lines between public and personal life are blurred most
significantly in certain areas of personal law, especially in the context of
citizenship and property rights.8 Most women’s rights activists in Bangladesh
have promoted secularism as a means of attaining women’s equality, especially
in personal laws. A prevailing perception among such activists is that opening
the door of religion leaves women’s rights open to discriminatory interpret-
ations of Islam. Family law, in particular, has presented complexities from the
outset. Whether secularism or Islam dominates depends on interpretation,
and thus judges play important roles in the ways in which family law influ-
ences Muslims, with similar implications for minorities of different faith
traditions.9 Prominent activist and international relations analyst Meghna
Guhathakurta has suggested that, while women’s rights in the economic and
political sphere have tended to be “most heavily determined by the flows of the
political economy than by Islamist ideology . . . Islamization has tended to
influence restrictions on women’s rights in the legal arena.”10
The Bangladesh government has recently (2011) elaborated a National
Women’s Development Policy (NWDP),11 despite criticism from a section of
Muslim clerics and some Islamic political parties. The latter groups contend that
equal rights for women in terms of earned property would violate Shari‘a law on

7
Tahrat Naushaba Shahid, “Islam and Women in the Constitution of Bangladesh: The
Impact on Family Laws for Muslim Women,” Foundation for Law, Justice, and Society, Univer-
sity of Oxford, 2013, 3, <[Link]
8 9 10
Ibid. Ibid. Ibid.
11
Ministry of Women and Children Affairs, Bangladesh, “National Women Development
Policy 2011,” March 2011, <[Link]
bd/policies/64238d39_0ecd_4a56_b00c_b834cc54f88d/[Link]>.
146 Katherine Marshall

inheritance, which stipulates that a woman should inherit only half of what her
brother would get. Rasheda Choudhury, an adviser to the Ministry of Women
and Children’s Affairs, has argued that such criticism is misplaced: the new
policy ensures the equal rights of women only with regard to property they have
earned themselves, not with regard to what they inherited. The issue has obliged
legal experts to consider not only Muslim women, but also those of other
religions. Key features of the policy include reserving one-third of parliamentary
seats for women and their direct election (women in reserved seats are seen to
play largely ornamental functions), as well as new laws to ensure equal oppor-
tunity for women in terms of control of their earned property.
An interesting manifestion of the tensions within Bangladesh is a political
struggle related to Bangladesh’s stance on the international norms reflected in
CEDAW and on its ratification. This reflects a broader set of international
issues: since women’s rights first appeared on the agenda of the United Nations,
there has been a running tension between the expression and codification of
those rights and the implications of the right to freedom of religion. This
tension is seen in uneasy relationships between UN instruments touching on
religious rights and UN instruments on women’s rights. The former are mute
with respect to the relationship between women’s rights and religion. The latter
are encumbered with substantial reservations by countries concerned with
safeguarding their religious tenets and traditions.12 Thus, the Bangladeshi
government ratified CEDAW with reservations that stressed Islamic, Shari‘a
principles. Women’s groups and organizations argued actively against these
reservations, demanding that the government of Bangladesh withdraw them.
The heated political debates resulted in Bangladesh withdrawing its reservations.
An important backdrop to these tensions and developments is broad-based
unequal treatment of women that reflects deep-seated gender-based discrim-
ination in mainstream society. In marriages and separations, for example,
women’s right of choice is more determined by social obligation than personal
choice and is rarely influenced by law and formal policies. There is evidence
that this is changing, spurred by education of girls and women’s employment
outside the home, but data and anecdotes also suggest that, especially in rural
areas, change is slow in coming.

Senegal: Constitution, Politics, Family Code, and Parity

Senegal’s rather complex constitutional history (new constitutions in 1959,

1960, 1963, and 2001, respectively) reflects a consistent commitment to secular

12
Michele Brandt and Jeffrey A. Kaplan, “The Tension between Women’s Rights and
Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia,” Journal of Law
and Religion 12/1 (1995–6): 105–42.
 Gender Roles in Bangladesh and Senegal 147

principles and to non-discrimination. The 2001 constitution, for example,

states that “any discrimination between men and women regarding employment,
salary and taxation shall be prohibited” and (Article 15) that “men and women
shall have equal rights to gain possession of and own land subject to condi-
tions determined by the law.” Article 17 sets out that “The state guarantees
families in general and those living in rural areas in particular access to health
and welfare services. It also guarantees women in general and those living
in rural areas in particular the right to improve their living conditions.” In
2010, Senegal passed a Law on Parity centered on elected institutions, and in
2013, it ranked sixth in the world in terms of number of women in parliament
(though as of 2014 there were only 13 women mayors out of a total of 557
municipalities).13
The Senegalese constitution of 1963 proclaimed respect for freedom and
liberties and provided for their protection. It protects political liberties, the
right to form trade unions, rights of the individual, freedom of worship, right
to property, and other economic and social rights. Senegal has ratified or
acceded to ten international human rights covenants and conventions without
any reservations. It also ratified the African Charter on Human and Peoples’
Rights in 1982. The constitution specifically defines the country as a secular
state and provides for the free practice of religious beliefs, provided public
order is maintained, as well as self-governance by religious groups, free from
state interference. The constitution prohibits political parties from identifying
with a specific religion.
In legal and practical terms, the government’s direct involvement with
religious institutions is quite limited, but there are numerous and complex
informal links and relationships. For some years (under President Abdoulaye
Wade) there was a separate Ministry of Religious Affairs, but it now no longer
operates; the Ministry of the Interior and the Ministry of Women, Family, and
Social Development share various responsibilities. These include approving and
overseeing the many religiously linked associations (as well as those that are not
religious); all domestic associations, including religious groups and non-
governmental organizations (NGOs) affiliated with them, must obtain author-
ization to operate. Foreign NGOs must obtain authorization from the Ministry
of Foreign Affairs and register with the Ministry of the Interior. Many oper-
ational ministries (for example, education and health) have relationships with
religious communities and leaders. Mosque or church construction does not
require formal government approval. Neither does the appointment of imams,
much less of the khalifas and other confrèrie leaders; there is no official system
for imam training or certification and imams are supported financially by their

13
Fatou Sarr, “Evolution des normes de genre et stéréotypes de genre au Sénégal et l’impact sur
transformation des relations de pouvoir,” March 4–15, 2013, <[Link]
daw/csw/csw57/panels/[Link]>.
148 Katherine Marshall

communities. There is limited control over religious media. The government

supports the hadj, for example, providing airline tickets to many pilgrims. This
also applies to Christians. There is an official government delegation to religious
pilgrimages in Senegal. The government provides direct financial and material
assistance to religious groups, primarily to maintain or rehabilitate places of
worship or to underwrite special events, but there is no formal procedure for
applying for assistance. All religious groups have access to these funds and often
compete for them on an ad hoc basis.
Women and their roles have been present at many stages and from different
perspectives in debates in Senegal on modernization and the significance of
democracy. The major proxy has been debates around aspects of the family
code, though recently the highly politicized debates around parity of repre-
sentation in democratic institutions have been central. A key aspect of the
latter has been the position of Touba, the Mouride city and spiritual center,
where Mouride authorities have rejected national legislation requiring specific
percentages of women on electoral lists and the government has tacitly
accepted the position.
Since it attained independence in 1960, Senegal has functioned with a liberal
democratic, constitutional system of government. A multiparty system has
been the norm of the Senegalese polity. One legacy of the country’s colonial
history is that Senegal has produced one of Africa’s most active and sophis-
ticated intelligentsia, with a notably cosmopolitan outlook. Traditions of
pluralism are embodied in a highly organized civil society that includes
trade unionists, students, academics, women’s groups, and other professionals.
There is a lively, albeit often elitist, discourse reflected in print and other
media. Senegal has relatively strong legal and political institutions.
Behind this narrative, however, has been a continuing dialogue (and con-
siderable tension) around new ways of creating a distinctively Senegalese
modernity, which scholar Mamadou Diouf describes as related to “behaving,
speaking, dressing, perfuming and exchanging in public or private spaces.”14
This was particularly evident following independence, when the issue of
religious roles in political systems and institutions divided the political elite.
One faction favored the total exclusion of the Sufi leaders, who were so
influential during the colonial era, from the political sphere, and (in parallel)
the total modernization of Islam. Others sought a more pragmatic blend that
would recognize but constrain religious authority. In practice, under Senegal’s
first president, Léopold Senghor, ethnic and religious leaders were incorporated
into the political apparatus as ideological, political, administrative, and econom-
ic allies,15 a settlement that, in evolving forms, persists to the present. In contrast
to Bangladesh, Senegal has never had explicitly religious political parties.

14
Mamadou Diouf, ed., Tolerance, Democracy, and Sufis in Senegal (New York: Columbia
University Press, 2013).
15
Ibid.
 Gender Roles in Bangladesh and Senegal 149

Of particular importance for women is the family code, a topic of lively

debate before and since independence. Scholar Alfred Stepan highlights the
debates and eventually progressive laws reflected in the 1972 family code
(revised under President Diouf in 1981) that enhanced women’s rights in
divorce and inheritance as a reflection of the strength of Senegal’s democracy
and inclusion of religious actors in constructive ways.16 But the code remains
controversial to this day, referred to sometimes by its opponents as a “Women’s
Code.” It is not applied in the Mouride holy city of Touba (officially) and
implementation elsewhere is spotty. Scholar Leonardo Villalon argues that in
today’s political environment, such a code would simply not pass.17 Indeed, an
effort in 2002 to bring the 1972 family code “into line with Islamic law”
sparked an extraordinary reaction, with active religious mobilization in
favor. President Wade saw a Pandora’s box being opened and cut off debate.
The issue is on the back burner but not dead.18 The conservative Islamic
groups known as Sunnites, for example, contest the code as an unhealthy
compromise between local Islamic traditions and secular French statutes, their
argument being that the Qur’an provides adequate protection of women’s
rights.19 The role of polygamy remains an especially contentious issue but
some Sunnite women’s groups also argue for a legalization of FGC and
reinstating divorce by repudiation.20
Observers of the Senegalese scene argue that, in some respects, there is
backsliding and a backlash regarding commitment to women’s rights and
equality (as well as to other aspects of the nation’s democratic institutions).
Human Rights Watch reports have contended that, since 1988, the Senegalese
state has been sliding gradually into a type of “democratic authoritarianism.”
Some sectors of the society challenged the election results of 1988 as rigged,
and considerable violence ensued, with the government curtailing rights to
assemble and demonstrate.
Many debates around human and especially women’s rights reflect tensions
within Islamic teachings and their interpreters as well as between avowed
secularists and others who argue for stronger adherence to religiously grounded
traditions. The debates have long roots that involve cultural as well as religious
beliefs and practices. In pre-Islamic and pre-colonial history, the current terri-
tory of Senegal had different systems alongside one another—matrilineal and

16
Alfred Stepan, “Stateness, Democracy, and Respect: Senegal in Comparative Perspective,”
in Diouf, ed., Tolerance, Democracy, and Sufis in Senegal, p. 225.
17
Leonardo Villalon, “Negotiating Islam in the Era of Democracy,” in Diouf, ed., Tolerance,
Democracy, and Sufis in Senegal, pp. 253–4. See also Marie Brossier, “Les débats sur la reforme de
la Code de la Famille au Senegal: la rédefinition de la laicite comme enjeu du processus de
democratization” (thesis for DEA in African Studies, Université Paris 1, 2004).
18
Villalon, “Negotiating Islam.”
19
Erin Augis, “Dakar’s Sunnite Women: The Dialectic of Submission and Defiance in a
Globalizing City,” in Diouf, ed., Tolerance, Democracy, and Sufis in Senegal, pp. 85–6.
20
Ibid.
150 Katherine Marshall

patrilineal—that implied different patterns of power and roles. Another long-

standing issue has been the limited formal religious education for women in the
Sufi orders that dominate Senegalese Islam, again with different patterns (some
orders have long emphasized women’s education, though with household
responsibilities a priority). Marriage traditions have differed, with certain orders
having symbolic marriage virtually from birth (the Layenes). Some religious
authorities have dozens of wives. Motherhood is widely valued, as is the family.
Polygamy has often been seen as a positive practice, encouraging a sharing of
work and offering security for the unmarried and widows, since women trad-
itionally are seen to need a guardian, a tuteur. In urban settings, insecurity is a
more common feature, and polygamy can become a curse, though a new fashion
is said to encourage polygamy even in elite circles because of the stigma
attached to unmarried women. Well-educated women have argued that it is
better to be a second wife with a chance of being left largely alone than to
be single.21
In times of transition and especially crisis, Senegal has seen a tendency to
return to sources of African tradition, and has also witnessed the emergence of
stronger religious fundamentalism. With rapid social change, pressures to put
some brake on such change have arisen, and sacred texts are often invoked. In
order to combat this backlash, groups of women have engaged in Qur’anic
exegesis to find arguments that support equal rights. Is it possible from the
texts, for example, to combat polygamy and support parental authority?
Under what circumstances do the texts support contraception and abortion
without contradicting one’s faith? Scholar and activist Penda Mbow argues
that, overall, Senegalese women have been successful in navigating the
perceived tension between the forces of modernization and, for better or for
worse, westernization and a conservatism that is at its base Muslim; the
tensions, she says, are overblown, what she calls a “collective psychology.”22

HARMFUL PRACTICES AND THEIR IMPACT

ON WOMEN: THE NATURE OF BACKLASH

Bangladesh: Harmful Practices, Patterns of Violence,

and Child Marriage

Looking at areas where issues arise in relation to human rights, Islamic

teachings, democratic principles, and women’s specific concerns, the most
prominent is the nagging persistence of various forms of violence that affect

21
Personal communications.
22
Penda Mbow, “L’Islam et la Femme Sénégalaise,” Ethiopiques: Revue négro-africaine de
littérature et de philosophie 66–7 (2001), <[Link]
1287&var_recherche=femmes>.
 Gender Roles in Bangladesh and Senegal 151

women, ranging from child marriage to honor killings to acid attacks. Two
major events have shaped thinking and approaches: the Independence War,
where between 200,000 and 400,000 women were raped, and the emergence of
the garment industry, which has transformed women’s situations because the
majority of its workers are women. But practices like the tradition of women’s
seclusion (purdah), and more modern issues like human trafficking and child
labor, have deep historical and modern roots in economic and social structures.
The legacy of wartime violence includes both heroism and women as
victims. Birangona, meaning “brave woman,” was a term of honor applied
in the euphoria after independence, highlighting the nominal celebration of
women’s heroism both as fighters and as victims of rape during the Independ-
ence War. However, promises made then were not fulfilled; virtually nothing
was done even to provide basic help to the women who suffered. That gap in
translating promise into action is a lingering legacy. An obvious factor was
the deep-seated traditions of denigrating women and of “honor” that led to the
ostracizing of victims of rape and their children. Another aspect was that
officers of West Pakistan who were involved in combat in East Pakistan were
from a Commonwealth country, and trained in England, so their conduct was
hideously embarrassing for the British government: yet “The West Pakistani
officials didn’t get why there was so much fuss about that.”23 Both the new
government and its international partners maintained silence and inaction.
Religious leaders, if anything, accentuated ostracization and continuing stigma.
Bangladesh has one of the highest rates of child marriage in the world.
Human Rights Watch reports that 29 percent of girls are married by age 15,24
and some 65 percent of 18-year-old girls are married. Two percent of girls
marry by age 11. A law prohibits child marriage (the Child Marriage Restraint
Act—CMRA, first passed in 1929 and subsequently amended several times),
and it is a criminal offense to marry or facilitate the marriage of a girl under
18, or a man or boy under 21. However, the law has rarely been enforced and is
widely ignored. The CMRA is “flawed, outdated, and cursory.” It violates
international law by setting different ages of marriage for women and
men (18 for women; 21 for men). It sets penalties that are outdated; for
example, a fine of 1,000 taka ($13) for arranging or conducting a child
marriage. It provides only for punishment, with no attention to preventive

23
See more at: Sue Tapply, “The Stories of Bangladesh’s Brave Women,” Women’s Views on
News, April 16, 2014, <[Link]
brave-women/>; and Naimul Haq, “Violence against Women Persists in Bangladesh,” Inter Press
Service, October 17, 2012, <[Link]
bangladesh/>.
24
Human Rights Watch, “Marry before Your House is Swept Away: Child Marriage in
Bangladesh,” June 9, 2015, <[Link]
away/child-marriage-bangladesh>.
152 Katherine Marshall

measures, or legal and social assistance to people who have been victims of
child marriage.25
The stubborn persistence of child marriage is due to tradition, the
circumstances of poverty, and tacit support by religious leaders. An import-
ant contributing factor is the practice of dowry, which is illegal but widely
practiced. Government action has had little effect, and has been contradict-
ory: although the government has pledged to end child marriage by 2041, in
2015 the prime minister supported the lowering of the marriage age for girls
to 16 (rather than the internationally accepted age of 18). Another factor is
the pattern of land ownership. An Economist article puts the situation
starkly: “Yet look at distribution of land by gender and you might be
surprised. There is a very short answer to the question ‘Who owns Bangla-
desh?’ Men do.”26
Domestic violence is another persisting issue that affects women. Bangla-
desh enacted the Domestic Violence (Prevention and Protection) Act, 2010,
that provided new forms of recourse and assistance for women and children
who are victims of abuse within their families. The law includes a broad
definition of domestic violence, including physical, psychological, sexual,
and economic abuse, and grants magistrates the power to issue orders pro-
viding victims with protection, housing arrangements, maintenance, compen-
sation, and child custody. Perpetrators of domestic violence can be jailed and/
or fined for violations of court orders under the Act. However, the law is rarely
enforced and domestic violence is accepted by a significant percentage of
the population: in the 2011 DHS survey, 32.5 percent of women said that a
husband is justified in hitting or beating his wife for specific reasons (the most
common reason given was if the wife “argues with him”—at 22.4 percent).
Interestingly, the percentage of women who accept domestic violence is lower
in Bangladesh than in other countries from South Asia, such as India and
Afghanistan. Religious justifications of, or opposition to, domestic violence
remains more potential than actual.

Senegal: Sociocultural Barriers

Senegal is also witness to a gap between legal protections and day-to-day life
for women, and lofty principles of equality and equal rights. Several were
starkly highlighted during an April 2015 visit by the chairperson of the UN
working group on the issue of discrimination against women in law and in

25
Ibid.
26
“Who Owns Bangladesh?” The Economist, August 20, 2013, <[Link]
blogs/banyan/2013/08/women-and-property-rights>.
 Gender Roles in Bangladesh and Senegal 153

practice, Emna Aouij.27 She focused on the sociocultural and legal barriers that
prevent Senegalese women from fully realizing their rights: “It is unacceptable
that under the guise of tradition, customs or poverty, girls and women have
their basic rights violated, are assaulted, abused and live in unworthy condi-
tions.” She focused in particular on family code provisions that stipulate
marital and paternal authority, and she expressed alarm at the level of violence
against women, perpetuated by patriarchal attitudes and conservative values—
high levels of rapes, incest, sexual harassment, and domestic violence. In
practice, there are many obstacles to women’s economic participation; for
example, over 80 percent of active women work in the informal sector, without
benefits or basic social services. Women have very limited access to land,
although they account for the vast majority of agricultural production. With
regard to education, dropout rates for girls are high, and early marriages and
early pregnancies are factors in school failure.
Women’s health exemplifies the impact of various barriers. The most
obvious is limited access to contraceptives, which contributes, inter alia, to
high maternal mortality and morbidity. FGC is a persistent practice in some
parts of the country (and ethnic groups), despite Senegal’s reputation as a
global leader in approaches to ending the practice.28 A quarter of women aged
between 15 and 49 are reported as having been cut. Among women’s health
problems are: (i) poor hygienic conditions, including constraints to accessing
water, especially drinking water; (ii) lack of information and lack of control
over their sexual and reproductive rights and health resulting in pregnancies at
an early age; (iii) HIV and AIDS prevalence rates that are higher among
women; and (iv) harmful practices and traditions. Senegal has one of the
most restrictive abortion laws in Africa, which particularly penalizes women
in precarious socioeconomic situations and contributes to the practice of
infanticide, which is widely discussed if not well documented in Senegal.
Unmarried mothers are among the society’s most stigmatized groups.

RELIGIOUS BACKLASH AGAINST WOMEN’S

RIGHTS, AND IN SUPPORT OF SUCH RIGHTS

Against a history of and national pride in religious tolerance and an inclusive

practice of Islam, Bangladesh is witnessing a tendency toward greater extrem-
ism that is evident both in communal violence and in a backlash against

27
United Nations Office of the High Commissioner on Human Rights (OHCHR), “Women
in Senegal: Breaking the Chains of Silence and Inequality,” April 17, 2015, <[Link]
EN/NewsEvents/Pages/[Link]?NewsID=15857&LangID=E#[Link]>.
28
The NGO Tostan was founded in and is based in Senegal, and has pioneered a rights-based
approach to addressing FGC and other harmful practices. See <[Link]
154 Katherine Marshall

various forms of modernization, notably in the area of women’s rights. This

pattern is related to domestic, highly contentious political engagement, where
religious discourse can be seen as largely a proxy for power struggles, but also to
broader issues linked to migration (largely to GCC countries) and the closer ties
and rapid communications that are a facet of globalization. Changes within
religious communities are another factor. Sharper voices have spoken out
against women’s rights and empowerment in recent years. The rising practice
of veiling in Bangladesh is not fully explained. Women are compared in public
discourse to fruits, needing cover for various reasons. The following is a graphic
illustration: an imam, Shah Ahmed Shafi, cited in 2013 newspaper articles:
You women should stay within the four walls of your houses . . . Sitting inside
your husband’s home you should take care of your husband’s furniture and raise
your children, your male kids. These are your jobs. Why do you have to go
outside?
The imam compares women with a tamarind, “a fruit that any man would like
to taste.” He asks, “Why are you sending your daughters to work in garment
factories?” Girls should stop school after four or five years, just enough to
allow them to keep their husband’s accounts.29
The discourse of backlash in Senegal is less stark than in Bangladesh, but is
nonetheless reflected in the media (especially radio, but also social media).
Human Rights Watch, for example, reports that women’s rights organizations
have been alarmed at the emerging fundamentalism. The government itself has
been sufficiently concerned by the activities of one sect to proscribe it. The Sufi
orders face competition, above all in terms of ideology, from fundamentalist
movements linked to Saudi Arabia and even Iran, that, it is feared, could have
consequences in the long and medium term for the status of women. The
emergence of a female elite within Muslim Sufi orders, as teachers or informal
leaders within the hierarchies, is, in contrast, a trend that could improve the image
of women within Islam and lead to their taking on increasingly important roles,
though there are also highly conservative women speaking as religious believers,
advocating a return to what they describe as traditional and “pure” Islamic ways.

ENGAGING WITH RELIGIOUS ACTORS ON

ISSUES AND ON WOMEN’S RIGHTS

In Bangladesh, the religious leadership (clerics and scholars) is almost exclu-

sively male. Secular women’s organizations in the past have seldom engaged
with these religious leaders. This has been accentuated by the active political

29
Monu Gupta, “How Shafi Respects His Mother,” World Pulse, July 15, 2013, <[Link]
[Link]/fr/node/27411>.
 Gender Roles in Bangladesh and Senegal 155

roles currently played by religious groups and the politicization of religion

(and the “religionization of politics”) that are characteristic of contemporary
Bangladesh. There are, however, several significant areas of engagement on
specific issues. As in other countries (for example, Indonesia), the resurgence
of religious extremism has encouraged a new process of reflection and en-
couraged new efforts to engage in dialogue and cooperation between religious
and secular groups.30
A first constructive initiative is the effort by significant groups of Muslim
women to “take back” the Qur’an, meaning, along the lines of groups like
Musawah, to read the texts directly and to focus on those passages that
underscore equality.31 This is occurring both in Bangladesh and Senegal.
A second is an ambitious Bangladeshi program known as Leaders of Influence,
which has involved United States Agency for International Development
(USAID) and the Asia Foundation as external partners, and the Islamic
Foundation within the Bangladeshi government. It has focused on training
imams in topics related to development. This has also extended to the wives of
imams. A third initiative, also in Bangladesh, supported by BRAC University
and the World Faiths Development Dialogue (WFDD), encourages public
discussion about the tensions around women’s rights and the relationship
between women’s changing roles and religious teachings and practice.
A forum in September 2015 clearly showed the different narratives at work,
but also a willingness to engage in a deeper dialogue on the issues.32
An example of long-standing and generally positive engagement between
religious and secular actors in Bangladesh is family planning. The government
and its partners reached out to religious authorities early in the ambitious
family planning program and secured at least their acceptance.33 As a result,
Bangladesh is viewed as a world leader in family planning practice.
In Senegal, the formal engagement of religious leaders, and notably the Sufi
order hierarchies, on issues related to women, has focused on the family code.
However, within the context of the government of Senegal’s family planning

30
World Faiths Development Dialogue (WFDD), “Bangladesh: Event Summary: Secularism
and Faith-inspired Development—Understanding Contestation and Collaboration,” November 22,
2014, <[Link]
understanding-contestation-and-collaboration>.
31
Samia Huq, “Defining Self and Other: Bangladesh’s Secular Aspirations and its Writing of
Islam” Economic and Political Weekly 68/50 (2013). See more at: <[Link]
about/people/samia-huq#[Link]>.
32
WFDD, “Event Summary: Women’s Empowerment, Gender Justice, and Religion in Bangla-
desh,” May 16, 2015, <[Link]
s-empowerment-gender-justice-and-religion-in-bangladesh>.
33
Katherine Marshall, “Religious Engagement in Family Planning Policies: Experience in
Six Muslim-Majority Countries,” WFDD, 2015, <[Link]
blications/religious-engagement-in-family-planning-policies>.
156 Katherine Marshall

program, active efforts to engage religious leaders are currently underway.34

These involve elaborate consultations that include visits to relevant countries
(notably Morocco), preparation of a thorough-going document about Islamic
teachings relevant to family planning (including those of Senegalese religious
leaders), and active media campaigns. Senegal’s family planning programs
have in the past been slow to take off, in part because of fear of a religious
backlash. The topic was, for long periods, essentially taboo. Current efforts to
engage religious actors, including deliberate steps to engage religious women,
are an important new development.

CONCLUSIONS

The Bangladeshi and Senegalese experience with democracy, Islamic institu-

tions and beliefs, and women’s rights in some respects run parallel to each
other. The social and economic developments that are transforming societies
are at the same time transforming both religious institutions and women’s
roles and positions. The interactions and intersections are thus dynamic and
complex. The rapid expansion of education (especially for girls), the pace of
urbanization, and greater integration into the world economy are key drivers
of change. For women, the changes came to societies that were deeply trad-
itional and very poor, subject to upheavals resulting from disasters of floods
and droughts and periodic violence. There should be no ambiguity in appre-
ciating that in both countries girls and women were perceived as having lesser
value, destined for limited roles outside the family. Gender discrimination
across the board started from birth and continued throughout life. Despite
important changes, this remains at least partly true in large parts of both
Bangladeshi and Senegalese society, where the perceived lesser value and
limited roles of girls and women are embedded in socioeconomic systems.
With the exception of small and vocal elites, women were generally subordin-
ate to men, subject to violence, and accorded limited rights. Girls’ education,
very broadly defined, is playing a fundamental part in changing these norms
and practices, but patterns of unequal treatment must be addressed both
within schools and in the broader society, starting from early childhood and
continuing through adolescence and adulthood.
But in contrast to this sobering picture, dramatic changes are in the works.
The processes of decolonization and democratization have revolutionized

34
WFDD, “Senegal’s Reproductive Health Challenge: Religious Dimensions and Engage-
ment,” 2014, <[Link]
challenge-religious-dimensions-and-engagement>.
 Gender Roles in Bangladesh and Senegal 157

women’s roles, in theory and, to a lesser degree, in practice. The secular

discourse in both countries has highlighted women’s equality and this is
reflected in legislation. Implementation lags behind law and rhetoric but it is
striking that in both Bangladesh and Senegal gender inequalities are subject to
open and lively discussion.
The religious landscape in both Bangladesh and Senegal is subject to the
same forces of change. In Bangladesh, religious institutions are affected by a
historical pattern of decentralization, pride in religious tolerance but also a
history of religiously linked violence, and complex relationships between
political Islam and an avowedly secular state and society. The changes both
in society and in religious institutions generate tensions that are evident in
domains like education, traditionally a religious province. They are very
apparent today in relation to the transformation of women’s roles—in almost
universal girls’ education; microcredit and small business where women are
prominent; widespread family planning, and thus smaller, different family
units as a norm; and women working, above all in the garment industry, but
also across the economy. As religious institutions have changed, they have in
some respects become more complex, more decentralized, and more diverse.
They are thus difficult to engage systematically. Nonetheless, they are an
important presence, both at the national level through intensive political
mobilization, in education and communities, and in an active religious
media. While some religious authorities accept and support the new realities,
including the changing roles of women, others see them as a fundamental
challenge to their beliefs and authority. This gives rise to tensions and back-
lash, with a small group engaging in violent action justified in the name of
religion. The diversity of religious voices and the increasingly vocal and active
extremist minority are a feature of the contemporary Bangladeshi landscape. It
is striking how far resistance to reform in domains like family law and
sexuality is directly related to the influence of Islamic norms.
In Senegal, the post-independence political, social, and economic trans-
formations are set against a different pattern of religious organization: a more
hierarchical leadership tradition that has given rise to intensive and explicit
interactions between secular and religious authorities. The power of religious
leaders to influence votes in elections and as economic forces has shaped
politics and the evolution of democratic institutions in different ways at
different points in Senegal’s history. But, throughout, religious actors have
been a consistent and active part of Senegal’s democracy and economy.
Sometimes the active support of religious leaders is sought, as is currently
the case for family planning. At other times, a tacit acceptance or non-
intervention has been the goal. The backdrop here is a progressive diffusion
of religious authority and proliferation of actors as new, large generations of
Sufi order leadership are less cohesive than their predecessors and as their
structures are challenged and changed by modernization, including rapid
158 Katherine Marshall

urbanization of a traditionally rural society and the active roles of the signifi-
cant religious diasporas.
A common, often tacitly accepted view of the complex relationships be-
tween democracy, Islam, and gender in the two successful Muslim democra-
cies of Bangladesh and Senegal is that progress has come largely despite Islam.
Complacent views that downplay religious roles are challenged, however, both
by complex religious and gender realities and by the vocal backlash of some
religious leaders and communities, generally on an extremist end of the
spectrum, but also more toward the center. The remarkable progress women
have made in important spheres (notably education and politics) should not
obscure the important challenges that remain in translating theoretical equal
rights into practice and addressing stubborn harmful practices and beliefs. To
this end, intelligent and continuing engagement between women’s groups and
religious institutions is essential. A matter for concern and dialogue is the
often rather tepid response of religious (and often political) leadership in both
countries to several traditional practices with negative impact on women that
are often justified in religious terms. Examples include child marriage in
Bangladesh, FGC in Senegal, and violence against women in both countries.
These factors combined point to challenging agendas ahead.

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 7

Reforming Muslim Family Laws

in Non-Muslim Democracies
Yüksel Sezgin

Whether in the Middle East, or elsewhere, reform in family law has always
generated resistance and controversy among those who share competing visions
of state–religion, family–nation relations, and of the place and responsibilities of
women in society. Resistance to reforming family laws, especially when they are
religiously inspired, has been most pronounced within ethno-religious commu-
nities that hold a minority position vis-à-vis the state whose institutional ethos
visibly reflects the majority community’s ethno-religious values and culture.
This is particularly true in the context of Muslim minorities in Israel and Greece.
Both countries have a long tradition of formally recognizing and applying
Muslim Family Laws (MFLs) that they inherited from the Ottoman Empire
within their legal systems. Despite this long tradition of accommodation of
“Shari‘a,” however, both countries have refrained from “reforming” or directly
interfering with religious laws of the minority through executive or legislative
means—due mostly to fear of antagonizing nationalist elements within minority
communities. This hesitation has caused MFLs in Israel and Greece to lag
considerably behind those of neighboring Muslim nations in terms of both
human and women’s rights-friendliness—even though these two nations are
among the few liberal democracies in the “Shari‘a-applying” world.1
In the absence of direct intervention through executive or legislative means
into MFLs, both governments have instead empowered their civil judiciaries to
deal with questions concerning substantive and procedural aspects of Shari‘a
law and courts.2 Over the years, civil courts in both countries have been

1
Yüksel Sezgin, “How Non-Muslim Democracies Engage Shari‘a: Lessons for Democratizing
Muslim Nations.” Meeting of the American Political Science Association, August 30, 2014.
2
Yüksel Sezgin and Mirjam Künkler, “Regulation of ‘Religion’ and the ‘Religious’: The
Politics of Judicialization and Bureaucratization in India and Indonesia,” Comparative Studies
in Society and History 56/2 (2014): 1–31.
 Reforming Muslim Family Laws 161

increasingly asked by plaintiffs, governments, and women’s and human rights

groups to intervene in the jurisdiction of religious courts in order to uphold
constitutional rights such as gender equality, fairness of trials, freedom of
religion, the rights of children, and so forth. At this point, the question is how
Israel and Greece balance the accommodation of Islamic laws, which many
consider a “fundamentally illiberal”3 legal system, with basic human and
women’s rights, and what role did the civil courts play in this process? Did
they serve as viable agents of systemic change in MFLs? This is the main
question that the present chapter will seek to answer. The study relies primar-
ily on analysis of Israeli and Greek religious and civil court decisions (in
Hebrew, Arabic, Greek, and Ottoman Turkish) as well as primary data
collected by the author through participatory observations and interviews
with judges, lawyers, litigants, and experts in Israel proper and Western
Thrace, Greece, during multiple field trips in 2004–15.

THE MFL ESTABLISHMENTS IN ISRAEL AND GREECE

Both Israel and Greece have sizeable Muslim minorities (18 percent in Israel,
5 percent in Greece4) and formally recognize and apply MFLs within their
legal systems. Both countries have inherited their respective MFL systems
from the Ottoman Empire. MFLs are applied by specialized Shari‘a courts in
Israel, and by muftis in Greece.
There are currently eight regional Shari‘a courts and a Shari‘a Court of
Appeals (SCA) (Mahkamah al-Isti’naf al-Shar’iyya) within Israel’s pre-June 5,
1967 borders. The courts are staffed with Muslim qadis who are appointed and
salaried by the Israeli government. Shari‘a courts have exclusive jurisdiction
over marriage and divorce and concurrent jurisdiction with civil family courts
over all other matters of personal status of Muslim citizens. Since the enact-
ment of the Law of Family Courts (Amendment No. 5) in 2001, Muslim
litigants can choose between civil family and Shari‘a courts for such matters
as custody and maintenance. Both qadis and civil judges apply the same
material laws, which include both Islamic and relevant secular laws. However,
it is not unheard of them to deliver diverging interpretations due to important
normative and structural differences.5

3
Anna C. Korteweg and Jennifer A. Selby, Debating Sharia: Islam, Gender Politics, and
Family Law Arbitration (Toronto: University of Toronto Press, 2012).
4
Only about one-fifth of these people live in Western Thrace. See: PEW Research Center, The
Future of the Global Muslim Population (Washington, DC: Pew Research Center, 2011).
5
Moussa Abou Ramadan, “Notes on the Anomaly of the ‘Shari`a’ Field in Israel,” Islamic Law
and Society 15/1 (2008b): 84–111.
162 Yüksel Sezgin

The main source of the MFL that Israeli Shari‘a courts (and civil family
courts) apply is the Ottoman Law of Family Rights (OLFR) of 1917. For
matters not covered by the Ottoman Law (e.g. custody), qadis often resort
to Egyptian jurist Qadri Pasha’s nineteenth-century compilation of Islamic
personal status law, and other commentaries on Hanafi jurisprudence. There
is also a body of civil legislation that Shari‘a courts must take into consider-
ation while making their decisions. These laws include the Women’s Equal
Rights Law (1951), Penal Law Amendment (Bigamy) Law (1959), and the
Law of Legal Capacity and Guardianship (1962), among others. These secular
laws, at least in principle, place certain penal sanctions and limitations on
the interpretation of substantive MFLs. For instance, even though the OLFR
allows it, a man cannot unilaterally divorce his wife against her will (talaq);
neither can he contract a second marriage while still legally married. The
Supreme Court of Israel (Beit Ha-Mishpat Ha-Elyon), sitting in its capacity
as the High Court of Justice (HCJ) (Beit Mishpat Gavoah Le-Tzedek), is
authorized to hear petitions regarding the competence and jurisdiction of
Shari‘a courts. It reviews whether Shari‘a courts have correctly interpreted
and applied relevant statutory laws, and overturns their decisions if found
ultra vires.6
As a result of bilateral treaties signed between the Greek and Ottoman (later
Turkish) governments in the late nineteenth and early twentieth centuries,
Greece, to this day, continues to officially recognize the jurisdiction of three
Muslim muftis in the Thrace region (one in Komotini, one in Xanthi, and a
deputy mufti in Didymoteicho) to adjudicate family matters among Muslims
in accordance with local usage and customs. Muftis are appointed and salaried
by the Greek government and accorded adjudicative functions without neces-
sarily establishing a hierarchical network of Shari‘a courts—à la Israel. There
are no standardized or codified material, procedural laws, or rules of evidence
that Greek muftis apply. Neither are any appeals permitted against decisions
of the mufti.
The jurisdiction of the muftiate has long been deemed exclusive for Thracian
Muslims. However, some Greek judges and legal scholars argue that Islamic
jurisdiction should be considered optional or concurrent with civil courts—
meaning that Muslims may (or should be able to) choose between civil courts

6
Yehiel S. Kaplan, “Enforcement of Divorce Judgments in Jewish Courts in Israel: The
Interaction between Religious and Constitutional Law,” Middle East Law and Governance 4/1
(2012): 1–68; Ahmad Natour, “The Role of the Shari‘a Court of Appeals in Promoting the Status
of Women in Islamic Law in a Non-Muslim State (Israel),” (JSD thesis, American University
Washington College of Law, 2009); Moussa Abou Ramadan, “Islamic Legal Hybridity and
Patriarchal Liberalism in the Shari‘a Courts in Israel,” Journal of Levantine Studies 4/2 (2015):
39–67; Anat Scolnicov, “Religious Law, Religious Courts and Human Rights within Israeli
Constitutional Structure,” International Journal of Constitutional Law 4/4 (2006): 732–40.
 Reforming Muslim Family Laws 163

and a mufti’s jurisdiction with respect to their family matters.7 Muftis’ deci-
sions cannot be implemented without an accompanying enforceability decree
issued by the competent Court of First Instance (CoFI) (Monomeles Proto-
dikeio). Technically speaking, the CoFI is authorized to review whether a
mufti’s decisions have been rendered within the limits of his jurisdiction and
whether they have contravened the constitution.
The practice of MFL in both Israel and Greece is historically connected to
the Ottoman millet system. In both cases, respective governments have largely
retained MFLs for various political considerations post-independence. For
instance, Israel has preserved a modified version of the old millet system
(including Shari‘a courts) and utilized it as an instrument of vertical segmen-
tation between Jews and non-Jews, and horizontal homogenization among the
Jews.8 Similarly, Greece retained the muftis’ jurisdiction in Thrace to strengthen
the Islamic identity of the Turkish-speaking population in the border region
and insulate the minority against secular nationalist ideology of the Kemalist
regime in neighboring Turkey.9
The preservation of Shari‘a rule was a strategic decision for both govern-
ments, and they have continuously maintained this outlook. For instance, even
though they have enacted legislation restricting the jurisdiction of MFLs,
regulating the appointment of qadis and muftis, or placing various restrictions
(through penal sanctions) on Islamic divorce (talaq) and underage or poly-
gynous marriages, they have refrained—particularly through executive or
legislative means—from directly intervening in substantive MFLs. The reasons
for this rather cautious approach to reforming Islamic law are threefold. First,
given the history of thorny relations with their respective neighbors and
internal ethno-religious tensions (Greek vs Turkish, Jewish vs Arab), both
the Israeli and the Greek governments may have refrained from direct inter-
ventions in MFLs in order to avoid unnecessarily provoking domestic Muslim
minorities and antagonizing the broader Muslim world (a serious concern for
Greece in particular). Second, since the question of whether a non-Muslim
government could legislate reform in MFLs is a controversial one, Israeli and
Greek governments, lacking the necessary moral authority to confidently do
so, may have simply decided against such a move.10 Third, as many critics

7
Kōnstantinos Tsitselikis, “Me Aphormē Tēn Apophasē 405/2000 Tou Monomelous Prō-
todikeiou Thēbōn,” Nomiko Vima 49 (2001): 583–93.
8
Yüksel Sezgin, “The Israeli Millet System: Examining Legal Pluralism through Lenses of
Nation-Building and Human Rights,” Israel Law Review 43/3 (2010): 631–54.
9
Yannis Ktistakis, Hieros Nomos Tou Islam Kai Mousoulmanoi Hellēnes Polites: Metaxy
Koinotismou Kai Phileleutherismou (Athens and Thessalonica: Ekdoseis Sakkoula, 2006).
10
Muhammad Khalid Masud, “Apostasy and Judicial Separation in British India,” in Islamic
Legal Interpretation: Muftis and their Fatwas, ed. Muhammad Khalid Masud, Brinkley Morris
Messick, and David Stephan Powers (Cambridge, MA: Harvard University Press, 1996),
pp. 193–203.
164 Yüksel Sezgin

suggest, perhaps neither the Israeli nor the Greek government was ever truly
interested in social reform among their Muslim populations. As one Muslim
female lawyer in Greece put it, rather cynically: “Why should the Greek
government care about gender inequality in the Muslim community . . . Why
would they bother reforming this archaic system? We are not equal citizens.
We are not the state’s concern!”11
Despite penal sanctions and prohibitions indirectly placed on application
of MFLs by secular legislation in both countries, such practices as polygyny
(albeit limited), talaq (unilateral, extrajudicial divorce), child marriages, proxy
marriages, and gender-unequal inheritance, custody, and maintenance laws
continue to exist and undermine the constitutionally and internationally
protected fundamental rights and liberties of Muslim citizens (especially
women and children).12 In both countries it is not uncommon for a Muslim
wife to be denied maintenance because she is deemed a “disobedient” wife, or
for a divorced woman to lose custody of her minor-aged children when she
remarries, or for a daughter to receive only half of her brother’s share from her
parents’ inheritance.
When people encounter such systemic inequalities and come to view a
particular forum as “unjust” or “unfavorable,” they often start shopping
between competing jurisdictions and legal regimes. Both the Israeli and the
Greek legal systems allow Muslim litigants to choose between civil and
religious laws and courts with respect to certain personal status matters.
Moreover, Muslim litigants can also ask civil courts, when possible, to review
and overturn the rulings of religious courts and authorities if they believe the
religious authority violated the constitution, misinterpreted the law, or over-
stepped its jurisdiction. As a result, in both countries, the use of civil law and
courts by Muslim litigants for family matters that historically fell under the
purview of religious courts is on the rise. For instance, the secretary general of
the Muftiate of Komotini reports that while the mufti issued about 185
inheritance (faraiz) fatwas per annum between 1964 and 1985, and 20 be-
tween 1985 and 2005, that yearly average has now fallen to 3–5.13 This decline
indicates that the majority of Thracian Muslims nowadays prefer to use civil
law and courts for inheritance matters. Although there are no official statistics
available, anecdotal evidence, and my interviews with various stakeholders,14

11
Personal interview. Subject declined to be identified, Komotini, Greece, March 2015.
12
CEDAW, “Concluding Comments of the Committee on the Elimination of Discrimination
against Women: Greece,” 2007, <[Link]
comments_OHE.pdf>; Thomas Hammarberg, “Report by Commissioner for Human Rights of
the Council of Europe,” 2009, <[Link] Yüksel Sez-
gin, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India
(Cambridge: Cambridge University Press, 2013).
13
Personal interview with Mustafa Imamoglu, Komotini, Greece, March 2015.
14
Phone interview with Heba Yazbak, April 2010.
 Reforming Muslim Family Laws 165

suggest that the number of Israeli Muslims using civil family courts is also
increasing—especially considering that, prior to 2001, the civil court option was
not available to Muslims. For instance, during 2006–10, 66 percent of child
custody cases, 22 percent of alimony cases, and 39 percent of child support cases
lodged by Kayan, a feminist legal aid organization serving predominantly Arab
women in Israel, were filed at civil family courts (Kayan 2011). In brief, in both
countries, civil courts have become more involved with everyday regulation and
application of MFLs, especially over the last decade.
In the remainder, I will trace the impact of the increased involvement of
Israeli and Greek civil courts in the regulation of MFLs by looking at the
respective Shari‘a jurisprudence delivered in each over the last three decades,
and inquire whether such courts have functioned as viable agents of systemic
legal change in Muslim laws by rendering these laws more compliant with the
basic human and women’s rights standards which lie at foundation of
democratic rule.

ISRAELI CIVIL COURTS AND THEIR

SHARI‘A JURISPRUDENCE

The High Court of Justice

As noted in the section “The MFL Establishments in Israel and Greece,”

decisions of Israeli Shari‘a courts are subject to review by the HCJ. In cases
dealing with Shari‘a law, justices of the HCJ note in almost every judgment
that their intervention is limited to cases involving ultra vires, infringement of
the principles of natural justice (‘ekronot tsedek tiv‘i), and disregard for
binding statutory rules aimed at religious courts.15 For instance, as early as
1955, in a Muslim custody case, the HCJ ruled that if a Shari‘a court confined
itself to the religious law alone and disregarded the secular legislation that it
was legally bound to apply, it would be acting ultra vires, and thereby its
decision would have no effect under the law.16 In the following decades, the
HCJ continued holding Shari‘a courts responsible for the application of
secular laws, and reminded them that it would strike down their rulings if
statutory laws were ignored.17 The first two generations of Israeli qadis had
embraced a somewhat pragmatic approach toward the HCJ, often complying
with secular laws to avoid any direct conflict with the civil judiciary.18

15
For example, see: HCJ 8906/04, HCJ 1318/11, HCJ 11230/05, HCJ 5912/06, HCJ 473/09.
16 17
HCJ 187/54. For instance, see: HCJ 5227/97.
18
Aharon Layish, “The Transformation of the Shari‘a from Jurists’ Law to Statutory Law in
the Contemporary Muslim World,” Die Welt des Islams 44/1 (2004): 85–113; Natour, “The Role
166 Yüksel Sezgin

However, the nature of the relationship between the HCJ and Islamic courts
began to change in the 1990s. In the early 1990s, Israel experienced a “con-
stitutional revolution.” In 1992, the Knesset (Israeli parliament) enacted two
Basic Laws dealing with fundamental rights and liberties.19 Three years later,
the HCJ, in a landmark ruling,20 established its authority to conduct judicial
reviews of any unconstitutional law enacted by the Knesset.21 In this new era,
the court began making increasing use of its entrenched powers to chal-
lenge the authority of religious courts and require them to apply the newly
enacted Basic Law of Human Dignity and Liberty (1992) in order to ensure
that individuals appearing before religious courts continue to enjoy their
basic rights.22
Historically, in contrast to its review of rabbinical court decisions, the HCJ’s
review of Shari‘a rulings have been more deferential.23 The court, not feeling at
ease in its role as “high interpreter of shari‘a,” had usually refrained from
interfering with substantive aspects of Islamic law, particularly with respect to
marriage and divorce.24 In the post-1994 era, however, the court, while largely
maintaining its policy of non-interference in marriage and divorce, began to
take a more activist stance with respect to such matters as custody, paternity,
and maintenance to promote and protect the rights of women and children.
For instance, in a landmark case in 1995,25 the HCJ granted a Muslim child

of the Shari‘a Court of Appeals”; Yitzhak Reiter, “Qadis and the Implementation of Islamic Law
in Present Day Israel,” in Islamic Law: Theory and Practice, ed. R. Gleave and E. Kermeli
(London: I.B. Tauris. 1997), pp. 205–31.
19
Basic Law: Human Dignity and Liberty; Basic Law: Freedom of Occupation.
20
HCJ C.A. 6892/93.
21
Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitution-
alism (Cambridge, MA: Harvard University Press, 2004); Gary Jeffrey Jacobsohn, “After the
Revolution,” Israel Law Review 34/2 (2000): 139–69; Gideon Sapir, “Constitutional Revolutions:
Israel as a Case-Study,” International Journal of Law in Context 5/4 (2009): 355–78.
22
For instance, see: HCJ 3914/92, HCJ 1000/92. Also see: Ruth Halperin-Kaddari, “Expres-
sions of Legal Pluralism in Israel: The Interaction between the High Court of Justice and
Rabbinical Courts in Family Matters and Beyond,” in Jewish Family Law in the State of Israel,
ed. M. D. A. Freeman (Binghamton, NY: Global Publications, 2002), pp. 185–244.; Ran Hirschl,
Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2010); Kaplan, “Enforce-
ment of Divorce Judgments in Jewish Courts in Israel”; Hanna Lerner, Making Constitutions in
Deeply Divided Societies (Cambridge and New York: Cambridge University Press, 2011); Moussa
Abou Ramadan, “The Transition from Tradition to Reform: The Shari‘a Appeals Court Rulings
on Child Custody (1992–2001),” Fordham International Law Journal 26 (2003): 595–655;
Patricia J. Woods, Judicial Power and National Politics: Courts and Gender in the Religious–
Secular Conflict in Israel (Albany, NY: SUNY Press, 2008).
23
Josh Goodman, “Divine Judgment: Judicial Review of Religious Legal Systems in India and
Israel,” Hastings International and Comparative Law Review 32/2 (2009): 477–528.
24
Alisa Rubin Peled, “Shari’a under Challenge: The Political History of Islamic Legal Insti-
tutions in Israel,” Middle East Journal 63/2 (2009): 241–59; Moussa Abou Ramadan, “The Shari‘a
in Israel: Islamization, Israelization and the Invented Islamic Law,” UCLA Journal of Islamic and
Near Eastern Law 5 (2005–6): 81–129.
25
For instance, see: HCJ C.A. 3077/90.
 Reforming Muslim Family Laws 167

born out of wedlock civil paternity by bypassing the jurisdiction of Shari‘a courts,
which had refused to grant the child religious paternity. The HCJ reasoned that
the Basic Law of Human Dignity was the supreme law of the land (i.e. binding
upon religious courts), and bestowed upon the child a fundamental right to know
her filiation in order to fully enjoy her property, family, and human rights.
Likewise, in a similar decision in 2013, the court declared that gender equality
was an integral aspect of human dignity that was protected under the 1992 Basic
Law, and that all state agencies, including Shari‘a courts, were obliged to abide by
the principle of equality. This created a further obligation for qadis, justices
argued, to seek more flexible and liberal interpretations of Shari‘a with an eye
on gender equality: “If there is a school of thought [e.g. Hanafi, Hanbali, Shafi‘i,
Maliki] that accepts the principle of equality, then religious courts should prefer
it over schools of religious law that are inconsistent with this principle.”26
The HCJ’s increasing activism provoked a strong defensive reaction from
the Shari‘a courts. For instance, Qadi Ahmad Natour, who served as the
president of the SCA in 1994–2013, strongly opposed the HCJ’s interventions
and the implementation of secular legislations by Shari‘a courts. Upon his
appointment in 1994, Qadi Natour swiftly moved to ban the application of all
secular non-Shari‘a-based laws (including the Basic Laws)27 by the Shari‘a
courts.28 Although on the surface the relations between the HCJ and Shari‘a
courts have turned increasingly adversarial following the ban, the rhetoric and
practice of confrontation gradually gave way to a new phase of dialectical
transformations at Shari‘a courts, and of a symbiotic relationship between the
civil and Islamic judiciaries.
In the face of the HCJ’s growing interventions, the SCA embraced a defensive
strategy in order to protect the jurisdiction of the Islamic judiciary. The new
strategy, which may be called “subtle compliance,” was to comply with the
spirit of the secular law while publicly refusing to recognize it. In essence,
the court has internalized and Islamicized the concepts derived from
secular legislations to prevent future interventions into Shari‘a by the HCJ.29

26
HCJ 3856/11. The HCJ repealed SCA 2011/28.
27
In an interview that I conducted with him in January 2005 in Jerusalem, Qadi Natour
expressed his objection to the implementation of the Knesset-passed laws by Shari‘a courts in the
following words: “As shariʿa judges, I think that one of the most important duties that we have is
to apply the shariʿa law, and try to make it pure shariʿa . . . not be involved with any particular
Israeli law. . . . Shariʿa is part of our identity, character, our belonging, our root . . . If we apply the
Israeli law . . . all of these will be [lost].”
28
Layish, “The Transformation of the Shari‘a”; Natour, “The Role of the Shari`a Court of
Appeals”; Ramadan, “The Shari‘a in Israel”; Ramadan, “Islamic Legal Hybridity; Iyad Zahalka,
Shari`ah Ba-`Idan Ha-Moderni: Ha-Halakhah La-Mi`Utim Ha-Muslemiyim (Tel Aviv: Resling,
2014).
29
Layish, “The Transformation of the Shari‘a”; Iyad Zahalka, “The Challenge of Adminis-
tering Justice to an Islamic Minority Living in a Non-Moslem State: The Shari‘a Courts in Israel,”
Journal of Levantine Studies 2/2 (2012): 151–73.
168 Yüksel Sezgin

From this point of view, principles such as “human dignity” and so on were no
longer treated as secular impositions but as concepts integral to the Islamic
tradition.30 The subtle compliance was most visible in child custody cases.
The Legal Capacity and Guardianship Law of 1962 established “the best
interests of the child principle” (maslahat al-sagheer) as the sole criterion in
custody cases. Although the first two generations of qadis often based their
custody (hadana) decisions on the 1962 law, the post-1994 leadership of
Shari‘a courts prohibited—just like other secular laws—the application of
said law by the Islamic judiciary. The SCA has repeatedly indicated in its
judgments that the 1962 law was inferior to “noble” Shari‘a, hence it was not to
be implemented by Islamic courts.31 Despite its refusal to recognize the 1962
law, however, the court also claimed that, having “originated” in Islamic law,
the principle of “the best interest of the child” was to be considered the guiding
principle in custody cases.32 By internalizing secular frames and references
such as “the best interest of the child,” the court mainly aimed to restrict the
HCJ’s interventions in its jurisdiction.33
Did the new strategy succeed in fending off further interventions by the
HCJ? The answer is equivocal. It ultimately depends on whether, in a given
case, the Shari‘a courts correctly interpreted, for instance, the best interest of
the child principle, and whether they followed the procedure outlined in the
civil law. According to Shari‘a law, apostasy results in a parent’s loss of his or
her children’s custody. In two custody cases where the mothers reportedly
converted from Islam to Christianity, the regional Shari‘a court in Haifa,
claiming that the best interests of the children were to be raised in a Muslim
environment, revoked the custody rights of the two mothers. Although the
SCA upheld the Haifa court’s rulings in both cases, the HCJ reversed both
decisions, arguing that in both cases the religious court had failed to take into
consideration the welfare officers’ reports about the children’s well-being, but
instead based its decision solely on religious considerations.34 In other words,
even though the Shari‘a court employed the principle of the best interests of

30
Natour, “The Role of the Shari‘a Court of Appeals”; Moussa Abou Ramadan, “Hitpahteh-
hoiut Ahronot Be-achzaqat Yeladim Be-Batei Ha-Din Ha-Sharayim; Be‘iqvoth Bagatz 9740/05
Plonit n. Beit Ha-Din Ha-Sharai Le-Ir‘uriom, Bagatz 1129/06 Plonit ve-Ahi n. Ha-Din Ha-Sharai
Le-Ir‘uriom,” Mishpacha Be’Mishpat 2 (2008a): 69–105; Iyad Zahalka, Al-Murshid fi Al-Qada’
Al-Shar’i (Tel Aviv: Israel Bar Association, 2008).
31
For instance, see: SCA 63/1994, SCA 135/1996, and SCA 127/1997.
32
For instance, see: SCA 63/1994, SCA 15/1998, and SCA 56/1999.
33
Moussa Abou Ramadan, “Hitpahtehhoiut Ahronot Be-achzaqat Yeladim Be-Batei Ha-Din
Ha-Sharayim; Be‘iqvoth Bagatz 9740/05 Plonit n. Beit Ha-Din Ha-Sharai Le-Ir‘uriom, Bagatz
1129/06 Plonit ve-Ahi n. Ha-Din Ha-Sharai Le-Ir‘uriom,” Mishpacha Be’Mishpat 2 (2008a):
69–105; Moussa Abou Ramadan, “The Recent Developments in Custody Law for Muslims in
Israel: Gender and Religion,” Journal of Women of the Middle East and the Islamic World 8
(2010): 274–316.
34
HCJ 9740/05 and HCJ 1129/06.
 Reforming Muslim Family Laws 169

the child, the HCJ rejected the court’s religion-based interpretation of the
principle, particularly in the absence of corresponding professional (read this
as “secular”) justification.35
Although the HCJ often reminds and orders religious courts to make
custody decisions on secular considerations (rather than the religion or marital
status of the parent) in accordance with the 1962 law, it also allows religious
courts to invoke religious justification for their decisions as long as the decision
in question complies with the procedural requirements and normative out-
come the HCJ seeks to advance.36 For instance, in one particular case concern-
ing the Shari‘a court of Taibe,37 which revoked custody rights of a mother due
to her remarriage, the HCJ chose not to intervene because the decision was in
consonance with the welfare officer’s recommendation38—even though the
Taibe court made its decision solely on religious considerations.
Israeli Shari‘a courts operate under pressure from three distinct groups and
institutions: the feminists and the Islamists—both within the Muslim
community—and the civil judiciary.39 In response to challenges from these
actors, Shari‘a courts have undergone a semi-voluntary process of dialectical
transformation. They have simultaneously undertaken “Islamization” and
“secularization” of their substantive laws and procedures.40 The indirect role
that the HCJ has played in this process cannot be denied. Its constant threat of
intervention has forced the Shari‘a courts to internalize certain normative
frames and concepts of civil law, and to amend their rules and procedures.41
Qadis were more receptive to ideas and concepts (e.g. best interests of the
child, human dignity) for which they could find a legitimate basis and
justification in the Islamic tradition than merely secular concepts that could
be interpreted as contradictory to the religious texts (e.g. gender equality).
However, civil family courts, with which Shari‘a courts have been in direct
competition over jurisdiction and clientele since 2001, have had an even
greater impact than the HCJ in this reform process.

35
Ramadan, “Islamic Legal Hybridity.”
36
In HCJ 9347/99, the HCJ upheld the ruling of the SCA that reversed the district Shari‘a
court’s decision denying a woman 80% of her dower in a divorce case. Even though the SCA
based its decision solely on religious justifications rather than secular law, the HCJ chose not to
intervene because the outcome was pursuant to the normative objective it sought to advance (e.g.
women’s equal rights).
37
HCJ 8906/04.
38
That giving custody to the mother would have jeopardized the well-being of the child as her
stepfather was an abusive and violent man.
39
Ido Shahar, “Legal Reform, Interpretive Communities and the Quest for Legitimacy:
A Contextual Analysis of a Legal Circular,” in Law, Custom, and Statute in the Muslim World:
Studies in Honor of Aharon Layish, ed. Ron Shaham (Leiden: Brill, 2007), pp. 199–228.
40
Natour, “The Role of the Shari‘a Court of Appeals”; Ramadan, “The Shari‘a in Israel”;
Zahalka, “The Challenge of Administering Justice.”
41
Layish, “The Transformation of the Shari‘a.”
170 Yüksel Sezgin

Civil Family Courts

As mentioned in the section “The MFL Establishments in Israel and Greece,”

since 2001 Muslim litigants can choose between civil family and Shari‘a courts
for any personal status matter except marriage and divorce. When deciding on
these matters of concurrent jurisdiction (e.g. maintenance, child support,
custody), however, both civil and religious judges need to apply the same
material law. Where there is concurrent jurisdiction, there is always compe-
tition between the forums for clients, discursive power, and textual authority.
This has also been true for the relationship between the Israeli Shari‘a and civil
courts. In fact, the competition between the two court systems has been the
driving engine of reform with regard to Israeli Shari‘a courts.
In this competition, Shari‘a courts enjoy a number of structural advantages
over their civil counterparts. First, all judges at Shari‘a courts are Muslims who
speak Arabic and are familiar with the culturally specific concerns of Muslim
litigants. In family courts, nearly all judges are Hebrew-speaking Jews (at the
time of writing there were only four Arab judges). Furthermore, family courts
do not provide pro bono translation services for Arab citizens. Second, the
conduct of proceedings and claim submissions are easier at Shari‘a courts.
Moreover, the duration of proceedings are shorter at religious courts, where
women are also granted automatic exemption from application and filing fees
in alimony and child maintenance cases. In family courts, exemption requires
an application along with supporting documents and an attorney’s affidavit.42
What keeps family courts in the game, however, is their comparative
advantage with respect to pecuniary awards. As shown in Table 7.1, spousal
alimony and child support awards made by civil family courts are usually
larger than those obtained in Shari‘a courts. This in itself, despite the acces-
sibility issues mentioned in the previous paragraph, creates an incentive,
particularly for female Muslim litigants, to choose civil family courts over
Islamic courts. However, as my analysis of the emerging case law shows, the
competition between the civil and Islamic courts has not been just about the
clientele, but also the power to interpret the “divine” law.43
In maintenance cases, family court judges apply the OLFR as the source of
Muslim substantive law—just like qadis. They also often cite relevant articles
of Qadri Pasha’s Code of Personal Status (especially in regard to child support,

42
Kayan, “Five Years of Legal Aid: Summary and Analysis,” 2011, <[Link]
Public/ER20110101_5%20Year%20Legal%20Aid%[Link]>.
43
Pierre Bourdieu, “La Force du Droit: Eléments pour une Sociologie du Champ Juridique,”
Actes de la Recherche en Sciences Sociales 64 (1986): 4; Brinkley Morris Messick, The Calligraphic
State: Textual Domination and History in a Muslim Society (Berkeley: University of California
Press, 1993).
 Reforming Muslim Family Laws 171
Table 7.1 Family Courts vs Shari‘a Courts: Spousal Maintenance and Child Support
Awards.
Spousal Maintenance Child Support
Duration of Minimum/ Duration of Minimum/
Proceedings Maximum Proceedings Maximum Award
(average) Award (average) (per child)

Family courts N/A NIS 1,100– 11 months NIS 1,200–NIS 1,600

NIS 1,800
Shari‘a courts N/A NIS 1,000– 4 months NIS 700–NIS 1,300
NIS 1,500

Source: Based on the cases handled by Kayan between 2006 and 2010 (Kayan, 2011).

which is not included in the OLFR).44 Jewish judges who are not trained in
Arabic or Islamic law often rely on Hebrew textbooks and English sources on
Muslim law for their decisions.45 Judges at family courts have been familiar
with the Jewish law because they have been applying it since 1953, whereas
they started applying Muslim law only in 2001. Perhaps as a result of this
legacy, in most Muslim personal status cases, judges (both Jewish and
Muslim46, 47) often draw parallels between Shari‘a and halakhah in terms
of spousal or parental obligations. One gets the sense that the Islamic law is
interpreted through the lens of Jewish law in the Israeli family courts. How-
ever, it appears that, over the last decade, some Jewish judges have grown more
familiar and comfortable with applying Islamic law. Some have moved beyond
merely reproducing citations from textbooks to directly citing the Qur’an48
and Hadith49 of the Prophet Mohammad.50
Although some of the judges argue that they “interpret religious laws more
liberally and adjust them to modern times,”51 this usually does not go beyond

44
Although neither text was officially translated into Hebrew, an unofficial translation of the
OLFR exists in an oft-cited textbook by Shelomo Dov Goitein and A. Ben Shemesh, Ha-Mishpat
Ha-Muslemi Bi-Medinat Yisraʼel (Jerusalem: Mif ’al ha-shikhpul; Geovilim, 1957).
45
1410-06 Hadera Family Court (2007); 11310-04-11 Nazareth Family Court (2012).
46
16411-08-10 Tiberia Family Court (2010); 1410-06 Hadera Family Court (2007).
47
791-08 Krayot Family Court (2008); 2881-03 Nazareth Family Court (2006).
48
Surah Al-Talaq, Verse 6: “‫[ ” َﻓ ِﺈ ْﻥ ﺃَ ْﺭ َﺿ ْﻌ َﻦ َﻟ ُﻜ ْﻢ َﻓﺂ ُﺗﻮ ُﻫ ﱠﻦ ُﺃ ُﺟﻮ َﺭ ُﻫ ﱠﻦ‬And if they suckle your (offspring), give
them their recompense]; and Surah Al-Baqarah, Verse 233: “‫[ ” َﻭ َﻋ َﲆ ﺍ َْﳌ ْﻮ ُﻟﻮ ِﺩ َﻟ ُﻪ ِﺭ ْﺯ ُﻗ ُﻬ ﱠﻦ َﻭ ِﻛ ْﺴ َﻮ ُﺗ ُﻬ ﱠﻦ ِﺑﺎ َْﳌ ْﻌ ُﺮﻭ ِﻑ‬He shall
bear the cost of their food and clothing on equitable terms]. Cited in 34258-07-13 Nazareth Family
Court (2014).
49
“‫[ ” ُﺧ ِﺬﻱ َﻣﺎ َﻳ ْﻜ ِﻔﻴ ِﻚ َﻭ َﻭ َﻟ َﺪ ِﻙ ِﺑﺎ َْﳌ ْﻌ ُﺮﻭﻑ‬Take what is sufficient for you and your children, and the amount
should be just and reasonable.], Sahih Bukhari, Kitab al-Nafaqat, cited in 34258-07-13 Nazareth
Family Court (2014).
50
The number of family court decisions citing the Qur’an has grown over the years: 2001–3:
two decisions; 2003–5: two decisions; 2005–7: two decisions; 2007–9: two decisions; 2009–11:
three decisions; 2011–13: five decisions; 2013–15 (May): six decisions.
51
Email correspondence with Judge Assaf Zagury (March 7, 2013) (via the Office of the
President of Supreme Court of Israel).
172 Yüksel Sezgin

rhetoric.52 On the contrary, my analysis of recent case law suggests that family
courts, through their interpretation of Islamic law, actually sustain a conser-
vative and “patriarchal” rhetoric about gender roles within the Muslim family.
This becomes most apparent in family courts’ interpretation of spousal
maintenance rules.
The institution of ihtibas is considered the foundation of spousal duties and
obligations in a Muslim marriage.53 Judges often describe ihtibas as “the duty
of the wife to devote herself to her husband, and being physically available to
him.”54 Ihtibas is the quid pro quo of maintenance. They also note that a
woman who leaves the marital residence without her husband’s permission
may be declared a disobedient wife (nashiz). A wife who is deemed disobedi-
ent can lose her right to maintenance. In all decisions dealing with ihtibas, it is
also noted that the burden of proof is on the husband who accuses his wife of
disobedience.55 However, if she has already left the home, then it is her
responsibility to prove that she did not violate her confinement obligation
and that her departure was justified. However, as repeatedly indicated in
various decisions, occasional violence by the husband is not automatically
considered a just cause because Shari‘a is said to, arguably, condone certain
types of violence (e.g. “educational” violence, as opposed to “ongoing” vio-
lence).56 For instance, in one family court judgment where a woman was
declared a disobedient wife because she had left home due to her husband’s
alleged verbal assault, it was argued that since Islam even allowed the husband
to “discipline” his wife by lightly beating her, verbal abuse alone could not be
accepted as an excuse for violating the duty of confinement.57
A similarly conservative and patriarchal attitude is also observable in child
support cases. According to Islamic law, maintenance of children is the sole
responsibility of the father. The mother is never required to make financial
contributions toward her children’s maintenance, even if she is wealthy.58 As
far as the father’s obligations toward his children are concerned, there are
certain similarities between Islamic and Jewish laws: both discriminate against
the father. Although family courts have challenged the inequality of Jewish
child support laws,59 they have turned a blind eye to analogous inequality in

52
A good example of this rhetorical approach can be found in 2988-06-09 Tiberias Family
Court (2011): “Like other personal laws, such as those applying to Jews and Christians, it is clear
that Muslim family law is an archaic law which is based on the principles and rationales from
earlier periods.”
53
34258-07-13 Nazareth Family Court (2014).
54
1410-06 Hadera Family Court (2007).
55
1320/01 Hadera Family Court (2006).
56
34258-07-13 Nazareth Family Court (2014); 1410-06 Hadera Family Court (2007).
57
12810/06 Tel Aviv Family Court (2009).
58
1410-06 Hadera Family Court (2007).
59
In this respect, it can be suggested that Jewish judges at civil courts tend to interpret Jewish
law more liberally than orthodox dayanim at rabbinical courts. They have required Jewish
 Reforming Muslim Family Laws 173

Islamic law and continued to hold Muslim men solely responsible for the cost
of essential needs of their children, aged 18 and younger.
In brief, there has not been much difference in terms of applied Islamic
law between Shari‘a and civil family courts, as both systems seemed to have
upheld an equally conservative and patriarchal outlook. When both courts
operate within the same normative framework, but one of them systematic-
ally gives out larger child support and alimony awards, this obviously
increases that court’s attractiveness to potential litigants. This dynamic has
been at the core of the competition between Shari‘a and family courts over
the last two decades.
The 2001 amendment that reduced the jurisdiction of Shari‘a courts from
exclusive to concurrent over matters of custody, maintenance, and child
support was made possible by efforts of the Working Group for Equality in
Personal Status Issues (WGEPSI)—a coalition of Israeli (Arab and Jewish)
human and women’s rights groups. The coalition was founded in 1995 and
immediately began lobbying for a new law that would reduce the jurisdiction
of religious courts. As Qadi Natour argues, the 2001 amendment was the most
serious threat ever posed to the existence of the Muslim courts in Israel since
the founding of the state.60 Shari‘a courts realized that they would lose their
clientele, jurisdiction, and monopoly to interpret Islamic law to civil courts if
they continued business as usual. In response, they initiated a process of self-
reform and issued a new judicial decree (marsoum qadai) that aimed to
increase the appeal of the courts to female litigants by raising the amount of
child support and maintenance awards by means of procedural innovation.
Prior to 1995, “shari‘a courts never ordered a man to pay child support in an
amount higher than 500 shekels per month,” while this was the minimum
amount ordered by civil courts for Jewish children.61 Following the issuance of
the new judicial decree, both child support and spousal maintenance awards
by Shari‘a courts were reported to have steadily increased.62 Recent awards in
published decisions are usually in the range of NIS 1,200–NIS 1,500 per
month.63 As commentators suggest, the process of reform was not just limited
to maintenance; the fear of losing its jurisdiction motivated the Islamic
judiciary to undertake other substantive and procedural reforms in various

mothers to make equal contributions to children’s maintenance, especially for children older
than 15 years of age. For instance, see: 35921-05-13 Nazareth Family Court (2015); 791–08
Krayot Family Court (2008).
60
Personal interview with Ahmad Natour, Jerusalem, January 2005.
61
Maha T. El-Taji, “Arab Local Authorities in Israel: Hamulas, Nationalism and Dilemmas
of Social Change,” (PhD thesis, University of Washington, 2008).
62
Sezgin, Human Rights under State-Enforced Religious Family Laws.
63
For instance, see: SCA 12/2013, 1233/2013 Haifa Shari‘a Courts.
174 Yüksel Sezgin

areas, including divorce, in order to increase their appeal and competitiveness

vis-à-vis the civil judiciary.64
The present section has analyzed the Israeli HCJ and civil family courts’
Shari‘a jurisprudence and such courts’ indirect impact on the evolution and
reformation of MFL. The next section, “Greek Civil Courts and their Shari‘a
Jurisprudence,” will do the same for Greek courts by closely analyzing the
decisions of local courts of first instance in Western Thrace and the Court of
Cassation (CoC) in Athens.

GREEK CIVIL COURTS AND THEIR

SHARI‘A JURISPRUDENCE

According to Law 1920/1991, a Greek mufti is a religious leader who is also

accorded judicial functions. The following matters, according to Article 5 § 2 of
the law, fall under ratione materiae of the mufti: marriage, divorce, maintenance,
custody, guardianship, wills, and inheritance disputes. In order to carry legal
effect, the mufti’s decisions have to be declared enforceable by the local CoFI. In
the ratification process, the civil court will review the mufti’s decision to ensure
that it is within the bounds of his jurisdiction and conforms to the constitution. As
noted in the section “The MFL Establishments in Israel and Greece,” no direct
appeals are permitted against muftis’ decisions. The only—rather indirect—way
to challenge them is to appeal against the enforceability decision of the CoFI at the
court of appeals, and eventually at the CoC (Areios Pagos)—the court of last
resort. These ratification and appeal stages are the two instances when Greek civil
court judges—all non-Muslims—get to rule over various aspect of MFL.

Local Courts of First Instance

Can a mufti marry or divorce Greek Muslims not residing in his administra-
tive district, or foreign Muslims temporarily residing in Greece? Such ques-
tions usually arise in the process of review and ratification of muftis’ decisions
by the local CoFI in Thrace. However, despite the clear provision in Article
5 §1 of Law 1920/1991, according to which the mufti can exercise jurisdiction
only over Muslim Greek citizens residing in his region, there does not seem
to be a clear consensus among Greek judges concerning muftis’ territorial
(ratione loci) or personal (ratione personae) jurisdiction. Some courts take a
narrower view, others a broader one. In a landmark decision in 1980, the CoC
ruled that Shari‘a law was applicable to all Greek Muslims regardless of their

64
Moussa Abou Ramadan, “Divorce Reform in the Shari‘a Court of Appeals in Israel
(1992–2003),” Islamic Law and Society 13/2 (2005): 242–74.
 Reforming Muslim Family Laws 175

place of residence, with the exception of the Dodecanese.65 In 2007, however,

the CoFI in Xanthi ruled that the mufti had no jurisdiction to adjudicate a
divorce involving a Muslim couple living just a few kilometers outside of his
administrative region.66 In a similar divorce case,67 this time involving a
Muslim couple from Athens, the CoFI in Rodopi took the opposite view and
allowed the mufti to dissolve the couple’s marriage.68 Many contradictory
rulings also exist with respect to the muftis’ purview over non-Greek Muslims
and non-Muslim Greek citizens (e.g. in mixed marriages).69
It is evident from the analysis of both first-instance and appellate-level court
rulings that there is a great amount of ambiguity among Greek judges con-
cerning muftis’ jurisdiction. This lack of consensus is nowhere more apparent
than in debates over whether a mufti’s jurisdiction is compulsory for Muslim
citizens. In a recent communiqué issued by the Minister of Justice, Antonis
Roupakiotis, it was argued that a mufti’s jurisdiction should be viewed as
concurrent with ordinary courts, as viewing it as compulsory would violate the
government’s constitutional and international obligations to protect individ-
ual rights.70 However, until recently, the majority of Greek courts have held
that a mufti’s jurisdiction was mandatory for Muslims residing within his
district and have refused to hear pertinent family cases.71 For example, in
2002, the CoFI in Rodopi ruled a Muslim custody petition inadmissible on
the grounds that the dispute was between two Muslim citizens,72 hence the
jurisdiction had belonged to the mufti, not the civil courts.73 Similar judgments
closing the doors of civil courts to Muslim citizens were also issued with
respect to marital property, parent–child communication, and adoption.74
Since the enactment of Law 1250/1982, Greek Muslims have been free to
choose between civil and religious marriage. Family affairs of those who enter
a civil marriage are governed by the Civil Code (CC) under the jurisdictions
of secular courts. This ability to choose between secular and religious legal
systems has been affirmed by both the government, as in the aforementioned
communiqué, and the judiciary. For example, the CoFI in Xanthi declared, in
an important ruling, that

65 66 67
AP 1723/1980. CoFI, Xanthi, 203/2007. CoFI, Rodopi, 98/1997.
68
Kōnstantinos Tsitselikis, Old and New Islam in Greece: From Historical Minorities to
Immigrant Newcomers, Studies in International Minority and Group Rights (Leiden: Martinus
Nijhoff, 2012).
69
See: CoFI, Rodopi, 313/2009; Multimember CoFI, Rodopi, 18/2008; CoFI, Xanthi, 83/2004.
70
Greek Parliament Question No: 5937/16-01-2013, <[Link]
UserFiles/67715b2c-ec81-4f0c-ad6a-476a34d732bd/[Link]>.
71
Tsitselikis, Old and New Islam in Greece; Eleni Velivasaki, “Operating Religious Minority
Legal Orders in Greece and in the UK: A Comparison of the Mufti Office in Komotini and the
Islamic Shari‘a Council in London,” 2013, <[Link]
tute/zrv/dok/[Link]>.
72
CoFI, Rodopi, 149/2002.
73
Yannis Ktistakis, Charia Tribunaux Religieux et Droit Grec (Istanbul: Istos, 2013).
74
AP 1723/1980; CoFI, Chalkis, 1057/2000; CoFI, Xanthi, 127/2000; Appeals Court of
Thrace, 356/1995.
176 Yüksel Sezgin
inclusion of Greek citizens of Muslim religion and residents of Thrace within the
exclusive competence of the mufti for family and inheritance matters, despite the
conclusion of the civil marriage, will be held to infringe upon their freedom of
religion . . . Their celebration of civil marriage implicitly indicates their desire not
to be subject to the jurisdiction of the divine Muslim law, but the civil law, like
other Greek citizens.75
It is now widely accepted that Muslims who marry civilly can opt out of
muftis’ jurisdiction.
But what about Muslims who marry in a religious ceremony? Can they also
resort to civil courts for family disputes that may later arise? According to the
CoFI in Thiva, the answer is affirmative. In a Muslim guardianship and
paternity case in 2000, the court ruled that the mufti’s jurisdiction—for all
personal status matters listed in Article 5 § 2 of Law 1920/1991—should be
deemed concurrent with ordinary courts. Especially in the event that the
application of the “sacred” law would infringe upon basic rights protected
under the constitution and the European Convention on Human Rights
(ECHR), the court further argued, the state was required to give the members
of the religious minority the option to choose between the jurisdiction of the
mufti and of ordinary civil courts.76 In 2008, the CoFI in Rodopi arrived at the
same conclusion and claimed jurisdiction over inheritance disputes among
Muslims in the name of gender equality and fair trial:
The jurisdictional powers of the Mufti, which are clear from the letter and spirit
of the Treaty of Lausanne . . . would not violate individual rights of Muslims,
which are expressly protected both by the Constitution and the European Con-
vention . . . According to the holy Muslim law (Qur’an) of inheritance, a male
child receives twice the share of a female child . . . [We] cannot overlook the
provision of Article 116 § 2 of the Constitution, which states inter alia that:
“ . . . the State shall ensure the elimination of inequalities in practice, particularly
against women . . . ” [Thus], with the above content, [the case] is admitted for
trial before this court, which has jurisdiction with regard to the distribution of
inherited property . . . of Greek citizens of Muslim religion.77
Greek civil courts have been historically very conservative in their dealings
with Islamic law and muftis. There is an important reason for this: the legal
autonomy of the muftiate was established and guaranteed by international
treaties as part of a minority protection regime between Turkey and Greece
based on the principle of reciprocity. From this point of view, questions
concerning Islamic law were not just matters of legality, but also grave political
concerns intimately tied to security policy, minority affairs, and bilateral

75
CoFI, Xanthi, 1623/2003.
76
CoFI, Thiva, 405/2000; for further information, see: Tsitselikis, “Me Aphormē Tēn Apo-
phasē 405/2000 Tou Monomelous Prōtodikeiou Thēbōn.”
77
CoFI, Rodopi, 9/2008.
 Reforming Muslim Family Laws 177

relations with Turkey.78 In the late 1990s and early 2000s, Turkish–Greek
relations entered into a new phase of détente as the European Union (EU)
began accession negotiations with Turkey. At the same time, within the
context of the EU’s minority protection policies, the Greek government also
took a number of steps to improve the socioeconomic status of Muslims in the
Thrace region.79 It is difficult to make a causal argument, yet it is no surprise
that right around this time, as the preservation of Shari‘a in Thrace was viewed
as less of a geostrategic importance, some of the courts embraced a more
assertive stance vis-à-vis the muftiate and Islamic law. As I explain in the section
entitled “The Court of Cassation,” although they did not necessarily begin
challenging the constitutionality of Shari‘a law, they adopted an increasingly
restrictionist approach toward muftis’ jurisdiction. In many cases they either
refused to recognize muftis’ jurisdiction or declared it concurrent with civil
courts. For instance, in 2001, the Appeals Court of Thrace ruled that the
setting of parent–child communications was not within the jurisdiction of the
mufti and fell instead under the purview of civil courts.80 The same court in
2006 also decided that spousal property relations were excluded from muftis’
jurisdiction.81 In 2008–11, in a series of judgments,82 courts also ruled that
child custody (epimeleia) was no longer under the jurisdictional competence
of muftis83—often basing their decisions on a narrowed understanding of the
concept of parental authority (goniki merimna).84 Similarly, regional courts

78
Alexes Alexandres, The Greek Minority of Istanbul and Greek-Turkish Relations,
1918–1974 (Athens: Center for Asia Minor Studies, 1983); Baskin Oran, Türk-Yunan Iliskiler-
inde Bati Trakya Sorunu (Ankara: Mülkiyeliler Birligi Vakfi, 1986).
79
Ioannis N. Grigoriadis, “On the Europeanization of Minority Rights Protection: Compar-
ing the Cases of Greece and Turkey,” Mediterranean Politics 13/1 (2008): 23–41; Fulya Memi-
soglu, “The European Union’s Minority Rights Policy and Its Impact on the Development of
Minority Rights Protection in Greece,” 2007, <[Link]
hellenicObservatory/pdf/3rd_Symposium/PAPERS/MEMISOGLOU_FULYA.pdf>.
80
Appeals Court of Thrace, 7/2001.
81
Appeals Court of Thrace, 119/2006.
82
CoFI, Rodopi, 11/2008, 17/2008, 130/2008, 140/2008, 183/2008; and CoFI, Xanthi, 24/2011.
83
Like any other aspect of muftis’ jurisdiction, there is no consensus among lower court
judges concerning competence to adjudicate custody disputes, either. Despite the aforemen-
tioned rulings that removed custody from muftis’ jurisdiction, some courts continue to recognize
and ratify muftis’ custody decisions. For instance, see: CoFI, Rodopi, 5/2014.
84
Article 5 § 2 of Law 1920/1991, which defines muftis’ jurisdiction, is a verbatim copy of Article 10
§ 1 of Law 2345/1920, which included custody (epimeleia) within muftis’ jurisdiction. Epimeleia was
also employed in the CC that applied to non-Muslim citizens. However, Law 1329/1983, which
reformed the CC, replaced custody (epimeleia) with a new child-centered and gender-egalitarian
concept of parental authority (goniki merimna). Since then, the old concept of epimeleia has fallen
out of usage and goniki merimna has become the main legal framework for regulation of parent–child
relations within the civil judiciary. As a result, some civil court judges “narrowly” interpreting Article 5
§ 2 of Law 1920/1991, which still invokes epimeleia (without due regard for the historical evolution of
the concept), consider parent–child relations to be outside muftis’ jurisdiction. George Doudos,
“Syntomē Episkopēsē Tou Systēmatos Dikaiou Sharia Se Dialektikē Syzeuxē Me Tēn Ellēnikē Ennomē
Taxē” (Unpublished paper, Thessaloniki, 2009 [on file with author]); Athina Kotzambasi. “Oikogen-
eiakes Ennomes Sxeseis Ellinōn Mosolmanōn,” 2001, <[Link]
162_OIKOGENEIAKES_ENNOMES_SXESEIS.pdf>.
178 Yüksel Sezgin

also excluded inheritance from muftis’ jurisdiction, subjecting all Greek citi-
zens to the purview of the CC, regardless of religion.85

The Court of Cassation

This rising assertiveness of the courts at the local level sparked a backlash from
the CoC in Athens. The CoC has been historically very lenient in its decisions
concerning Shari‘a law. As Doudos notes, “High Court judges usually operate
under various political pressures. Over time they become an extension of the
state power as they embrace the official policy and increasingly reflect it on
their decisions.”86 The official Greek policy on Shari‘a rule in Thrace has been
in favor of preserving the status quo.87 This outlook has been also largely
incorporated into the court’s jurisprudence. For instance, in a series of judg-
ments, especially concerning inheritance issues, the court has repeatedly noted
that the application of Shari‘a law in Western Thrace was an international
treaty obligation; this bestowed upon Shari‘a the status of a “special law”
within the domestic system.88 Given its special status, the court argued, Shari‘a
could not be said to contradict the constitution, the ECHR, or ordre public.
Although the court did not formulate it in the same words as one of the local
courts in Thrace, it still signaled to lower courts that when they were “con-
fronted with questions about Islam, they must judge them as if they came from
a different value system, not by criteria exclusive to Western societies.”89
This essentialist perception of Islam and Shari‘a was particularly visible in
the court’s jurisprudence on Islamic inheritance law. Most Thracian Muslims
do not agree with Islamic succession rules (from a gender equality perspective)
and bypass them by leaving notarized public wills (dimosia diathiki).90 For
instance, fathers often distribute their inheritance equally between their sons
and daughters, even though, under Islamic law, a male heir’s inheritance
would be double that of female heir. However, relatives whose interests are
threatened by the public will could always challenge its validity at a civil court
and request redistribution in accordance with Shari‘a law. Many such cases
have come before the CoC—as the court of last resort—over the years.91 The

85
Appeals Court of Thrace, 439/2005, 642/2009, 392/2011, 192/2013; CoFI, Rodopi 50/2010;
CoFI, Xanthi, 30/2010, 122/2002.
86
Personal interview with George Doudos, Legal Counsel for Muftiate of Komotini, Komo-
tini, Greece, March 2015.
87
Bryan S. Turner and Berna Zengin Arslan, “Legal Pluralism and the Shari‘a: A Comparison
of Greece and Turkey,” Sociological Review 62/3 (2014): 439–56.
88
AP 1370/2014, 1862/2013, 1097/2007.
89
Multimember CoFI, Xanthi, 11/2001, cited in Ktistakis, Charia Tribanux Religieux et Droit
Grec.
90
Turgay Cin, Yunanistan’daki Türk Azinligin Hukuki Özerkligi (Ankara: Orion, 2009).
91
For instance, AP 322/1960, 2113/2009, 1097/2007.
 Reforming Muslim Family Laws 179

court has consistently upheld muftis’ jurisprudence over intestate and testate
succession as compulsory and categorically rejected Muslim citizens’ right to
leave public wills, relying upon a patriarchal interpretation of Islamic law and
neglecting local customs:92
The basis of Islamic inheritance law is intestate succession, and “public will” does
not have the same position [in Islamic law] that it has in Roman law-based
modern systems. If there are relatives, a will cannot be utilized for devolution of
inheritance. [The public will] solely complements the intestate succession, “what
the Prophet [no specific hadith is cited] has ordered the faithful to do cannot be
altered.” . . . However, there are other provisions of the Qur’an [no specific verse
is cited] urging the faithful to charity . . . Muslims, driven by the spirit of charity,
may leave a will in favor of third parties up to 1/3 of their estate. Therefore, the
will of a Muslim is a kind of simple legacy for a third party, not having the status
of legal heir, for charitable and philanthropic purposes . . . Inheritance relations of
Muslim Greeks are governed not by the CC but by the laws of faraiz over which
the mufti has jurisdictional authority.93
As the CoFI in Xanthi ruled in 2012,94 the application of Shari‘a-based family
laws, especially when people were subjected to the jurisdiction of the mufti
against their wishes, violated Muslim citizens’ constitutionally protected sub-
stantive and procedural rights, including equality before the law (Article 4§1)
and freedom of conscience (Article 13). As per Article 5§3 of Law 1920/1991,
the CoFI is supposed to review the constitutionality of muftis’ decisions and
declare them “unenforceable” if they find a contradiction. However, despite
widespread alleged violations,95 the CoC’s policy of treating Shari‘a as special
law and exempting it from constitutional review seems to have also influenced
and discouraged lower courts from conducting effective reviews of mufti
decisions. According to Ktistakis,96 during the period 1991–2011, three
CoFIs in Thrace reviewed 3,633 mufti decisions,97 and struck down only one
of them as unconstitutional, on the grounds that the uneven distribution of
inheritance by a mufti between a male and a female sibling (7/21 for girl,

92
Christina Jones-Pauly and Abir Dajani Tuqan, Women under Islam: Gender, Justice and the
Politics of Islamic Law (London: I.B. Tauris, 2011).
93
AP 1497/2013, 1862/2013, 1097/2007, 2138/2013.
94
CoFI, Xanthi, 102/2012, cited in Maria A. Bergou, “Ē Epharmogē Tou Ierou Mousoulma-
nikou Nomou (Saria) Stēn Ellēnikē Ennomē Taxē,” 2013, <[Link]
15678/33709/[Link]/fe567b9a-c5e7-4a37-ac14-b1caec4e4b6a>.
95
Stergios Kofinis, “The Status of Muslim Minority Women in Greece: Second Class Euro-
pean Citizens,” in European Union Non-Discrimination Law and Intersectionality: Investigating
the Triangle of Racial, Gender and Disability Discrimination, ed. Dagmar Schiek and Anna
Lawson (Burlington, VT: Ashgate Publishing, 2011), pp. 125–40.
96
Ktistakis, Charia Tribanux Religieux et Droit Grec.
97
CoFIs in Rodopi, Xanthi, and Orestiada.
180 Yüksel Sezgin

and 14/21 for boy) violated the constitutional principle of gender equality
(Article 4§2).98
As evidenced, the constitutional review of muftis’ decisions by civil courts is
ineffective or non-existent. There are political and institutional reasons for
this. Some institutional limitations that prevent civil courts from carrying out
an effective review of muftis’ decisions have already been mentioned: the
strong discouragement by the CoC, the language barrier, the lack of Muslim
judges in civil courts, the lack of codification of material and procedural rules
of Islamic law, the lack of a proper Islamic court system, and the lack of
oversight and appeal within the Islamic sector. The loose integration of the
muftiate within the national legal system poses additional challenges to con-
stitutional review. The fact that muftis are not professional career judges
trained in civil law makes them less susceptive to institutional constraints
(i.e. the cost of defiance is very low for the muftis) and less receptive to secular
concepts and frames (e.g. liberal human rights discourses).
One can also add to this list the lack of tradition and historical precedents.
Prior to the enactment of Law 1920/1991, muftis’ decisions were not subject to
constitutional review. By the time the new law was introduced, the issue of the
muftis’ appointment, duties, and jurisdiction had already grown into an
international problem between Turkey and Greece. In other words, questions
concerning muftis’ jurisdiction were too politically sensitive for ordinary
judges to handle, as they were directly linked to state security, foreign policy,
and majority–minority relations. In 1990, when the Greek government ap-
pointed two new muftis in Komotini and Xanthi, the Muslim minority
protested the appointments as “unlawful” (Law 2345/1920 required elections)
and elected their own muftis. Since then, there have been two muftis in each
city: one appointed and one elected. Elected muftis—who cannot function as
judges—are considered by the minority as spiritual/political leaders, and by
the Greek state as “Turkish agents,” whereas appointed muftis—who can
function as judges—are distrusted by the minority as “Greek agents.” Against
this backdrop, challenging the constitutionality of the state-appointed muftis’
rulings would inevitably have political repercussions. Such court rulings could
be interpreted as a symbolic support for groups who call for the abolition of
the muftiate or separation of muftis’ spiritual and judicial functions. The
Greek state seeks to avoid both outcomes, as they would only increase
international pressure (especially from Turkey) and create trouble for the
government. Fully embracing this strategic foreign policy concern, the CoC

98
CoFI, Rodopi, 152/1991. The CoFI remanded the case to the mufti of Komotini for retrial.
The second ruling by the mufti was an exact copy of his first judgment; the only difference was
that this time he did not mention numerical shares (e.g. 7/21, 14/21), but rather used the word
“corresponding shares.” When the new judgment was brought back to the court for ratification,
it was declared enforceable with no reservations: Ktistakis, Hieros Nomos Tou Islam Kai
Mousoulmanoi Hellēnes Polites.
 Reforming Muslim Family Laws 181

has effectively discouraged local courts from limiting muftis’ jurisdiction and
challenging the constitutionality of their decisions.
Greece, a member of the Council of Europe, recognizes the jurisdiction of
the ECHR. It means that Greek Muslims alleging violation of ECHR rights due
to application of Islamic law could lodge a complaint at the Strasbourg court
after exhausting domestic remedies. In some regards, the Strasbourg option
provides an additional layer of human rights protection on top of the consti-
tutional review mechanism put in place by Law 1920/1991. But does the
ECHR play the role that national courts fail to play in providing an effective
oversight over Islamic law and authorities in Greece? It is difficult to answer
this question, as the Strasbourg option remains underutilized. To this day,
only two cases concerning the implementation of Shari‘a law in Thrace have
been lodged at the court. The first case was Dilek Cigdem v. Greece (2010).99
The applicant claimed that her rights under Articles 8 and 14 were violated
when she was denied inheritance from her father under Islamic law on
the grounds that she had been born out of wedlock.100 The court rejected
the application as inadmissible due to a procedural error by the applicant. The
second case was Chatitze Molla Sali v. Greece (2014). The applicant com-
plained that her rights under Articles 5, 6, and 14 had been violated due to the
CoC’s decision (1862/2013) to deny Muslim Greeks the right to make public
wills, which deprived her of three-fourths of her property.
At the time of writing, the application was still pending. If the court rules
that the original Greek decision violates the ECHR, it may have important
implications for the mufti system in Thrace. The ECHR requires member
states to remove legal grounds and practices causing violations.101 If the court
finds a violation in the pending case, the government could choose to respond
by amending Article 5 of Law 1920/1991 and declaring muftis’ jurisdiction
concurrent with civil courts for all personal status matters; this could in turn
create lateral pressure on muftis to self-reform in order to protect their
jurisdiction and clientele, just as Shari‘a courts did in the Israeli case. Thus,
if sufficiently utilized, the Strasbourg court could ultimately be a source of
reformist pressure on the Islamic judiciary in Thrace, a role that Greek courts
have long failed to play.
In the absence of any serious threat to their clientele or judicial monopoly,
muftis have not had any incentive to self-reform. On the contrary, the political
climate has favored their existence and the status quo; high courts have
shielded them against the lower courts’ occasional incursions into their

99
Dilek Cigdem v. Greece (22009/10), <[Link]
php?pageId=10#caseId=1212>.
100
Appeals Court of Thrace, 497/2009.
101
Ibrahim Ozden Kaboglu and Stylianos-Ioannis G. Koutnatzis, “The Reception Process in
Greece and Turkey,” in A Europe of Rights: The Impact of the ECHR on National Legal Systems,
ed. Helen Keller and Alec Stone Sweet (Oxford: Oxford University Press, 2008), pp. 451–529.
182 Yüksel Sezgin

jurisdiction. There were practically no civil society organizations lobbying

them for reform either. In the end, the lack of top-down, lateral, or bottom-
up pressures allowed them to continue business as usual.

COMPARISON OF ISRAELI AND GREEK

EXPERIENCES, AND CONCLUDING REMARKS

Civil courts and judges in non-Muslim countries cannot be expected to effect

direct changes in MFLs, as they often lack the necessary moral authority. Their
effect tends to be rather indirect, by pressuring religious courts and judges to
undertake self-reform. This was true in Israel but not in Greece; Israeli civil
courts were able to induce indirect reform (albeit limited) in Shari‘a courts,
whereas Greek civil courts failed to induce any reform in the Thracian muftiate.
Israeli Shari‘a courts selectively and subtly complied with HCJ’s rulings by
internalizing civil discourses and principles that resonated with Islamic values.
In addition to the HCJ’s top-down pressure, Shari‘a courts were also under
lateral pressure from civil family courts. Jurisdictional competition with the
latter was the driving engine of self-reform in Shari‘a courts. In this respect,
the 2001 amendment law that firmly established the concurrent jurisdiction of
civil courts along with Shari‘a courts was of critical importance.
In Israel, the HCJ and civil family courts worked in tandem. In Greece, on
the other hand, this was not the case. There was neither top-down pressure by
the CoC nor lateral pressure by the local CoFI. In hindsight, the role that the
CoC played was highly unconstructive—especially in comparison to the Israeli
HCJ. The CoC has not only avoided challenging the jurisdiction of muftis by
requiring them to comply with the constitution or the ECHR, it has also
effectively barred lower courts from putting any meaningful lateral pressure
on muftis to reform. In Israel, the concurrent jurisdiction was guaranteed by
the law. In Greece, however, it had to be established by judicial activism,
particularly by the CoFI. The CoC has discouraged the lower courts from
playing such a role despite their increasing assertiveness in the early 2000s. In
the absence of meaningful vertical or lateral pressure from the civil judiciary,
muftis defied calls for reform and refused to enact any substantive or proced-
ural changes in the Islamic law.
In this respect, it should be noted that the cost of defiance was considerably
lower for Greek muftis than for Israeli qadis. The latter, who were civilly
trained and maintained professional ties with their civil counterparts, were
more attentive to and dependent upon the judicial hierarchy than the former.
Moreover, due to their training and professional ties, qadis were also more
familiar with and receptive to constitutional values and certain secular frames,
 Reforming Muslim Family Laws 183

and attributed greater legitimacy to some of them than did their Greek
counterparts.
The relative success of the reform process in Israel also owed much to
the existence of a vibrant non-governmental organization (NGO) sector—
particularly women’s rights groups. They constituted the third (bottom-up)
source of pressure for qadis to undertake reforms. For instance, groups such as
WGEPSI and Kayan played a pivotal role in the legislative process in
1995–2001 that opened the door to jurisdictional competition between civil
and Shari‘a courts. After the 2001 amendment, both groups provided legal aid
to Arab women in order to help them to utilize the civil courts. The increase in
the number of people using civil courts put greater pressure on Shari‘a courts
to self-reform. This bottom-up pressure, completely lacking in Greece, proved
critical in the reform in Israel. Another element that was lacking in Greece was
a reform-minded leadership at the apex of the Islamic judiciary. In compari-
son to Greek muftis, Qadi Natour, the former president of the SCA, was a
highly effective, competent leader and a self-declared reformer, who spear-
headed the reform and renewal process in the Shari‘a system.102
Last but not least, another major difference between the two countries’
experiences was the lack of a proper Islamic judiciary in Greece. The Islamic
judiciary in Israel is more closely integrated into the national system than is
the muftiate in Greece. In Israel, there are Shari‘a courts; there are qadis; there
is an SCA; and there are codified substantive/procedural laws. None of this
exists in Greece. This absence makes it very difficult for civil courts to
effectively review muftis’ decisions and force compliance with the constitution
or ECHR. Israeli civil court judges enjoy yet another advantage over their
Greek counterparts. With the enactment of Laws 1250/1982 and 1329/1983,
the Greek family law system has been almost completely secularized.103 Thus,
Greek judges, who are only familiar with secular law, often treat Shari‘a as a sui
generis law, not as an integral aspect of the national system. This ideological
attitude is one of the reasons why the constitutional review of muftis’ decisions
has been ineffective. In Israel, on the other hand, the family law system is
almost entirely religion-based. Religious laws and courts are an integral part of
the national system. This makes Israeli judges, in comparison to their Greek
counterparts, less biased and more receptive to MFLs. This does not mean that
Israeli judges are more knowledgeable about Islamic law, but they may be
more eager to treat Shari‘a courts as part of the mainstream judiciary and, as a
result, require them to comply with national norms and standards.
In the end, Israeli civil courts have played a more constructive role than their
Greek counterparts in incentivizing the Islamic courts and judges to undertake

Zahalka, “The Challenge of Administering Justice.”

102
103
Aspasia Tsaoussis-Hatzis, The Greek Divorce Law Reform of 1983 and Its Impact on
Homemakers: A Social and Economic Analysis (Athens: Sakkoulas Publishers, 2003).
184 Yüksel Sezgin

self-reform and make the application of MFL in that country relatively more
human rights- and rule of law-compliant than the Shari’a system in Greece.

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 8

Law, Gender, and Nation

Muslim Women and the Discontents
of Legal Pluralism in India

Vrinda Narain

INTRODUCTION

The question of Muslim women’s equality is of great importance in India, and

resonates globally as pluralist democracies grapple with questions of minority
rights, social diversity, women’s equality, and democratic inclusion. Contem-
porary democratic politics and the value of multiculturalism have contributed
to an understanding of pluralist democracy that attempts to value diversity
and difference.1 The Indian case offers a constructive lens through which we
can consider these questions, and holds important lessons for other societies
with multiple legal systems. While the Indian constitution guarantees equality
to all citizens in the so-called public sphere, in the private sphere of the family,
the state enforces explicitly discriminatory personal laws. As a result, Muslim
women in India are subject to discriminatory personal law that regulates their
status within the family and the community. Muslim women are unequal both
as compared to Muslim men and as compared to other Indian women, and the
state has created, in effect, a differentiated citizenship based both on gender
and religious identity. The status of Muslim Indian women is defined in
relation to an existing constitutional contradiction between “public” sphere

1
Manish K. Thakur, “Democracy, Pluralism and the Religious Minorities: The Muslim
Question in India,” Social Change 43/4 (2013): 581, at 582; Vrinda Narain, “Critical Multicul-
turalism,” in Feminist Constitutionalism, ed. Beverley Baines, Daphne Barak-Erez, and Tsvi
Kahana (Cambridge: Cambridge University Press, 2010), pp. 377–92; Will Kymlicka, Multicul-
tural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995);
Rajeev Bhargava, Amiya Kumar Bagchi, and R. Sudarshan, eds., Multiculturalism, Liberalism
and Democracy (Delhi: Oxford University Press, 2007); Anne Phillips, Multiculturalism without
Culture (Princeton, NJ: Princeton University Press, 2007).
 Law, Gender, and Nation 189

equality and “private” sphere inequality upheld by personal law.2 Muslim

women are unequal citizens of postcolonial India, disadvantaged both within
the family as a result of personal law, and as compared to other Indian women
in all other aspects of life: social, political, and economic.3
The postcolonial state’s construction of democratic citizenship thus expli-
citly excludes Muslim women and is justified as “protecting minority rights.”
The contradictions inherent in the simultaneous existence of discriminatory
Muslim personal law and constitutional equality guarantees pose serious
challenges for Muslim women’s equality in India. I suggest that an uncritical
valorizing of personal law as demonstrating the successes of legal pluralism
does not pay adequate attention to how such an understanding has legitimized
Muslim women’s inequality. Against this backdrop, the present chapter exam-
ines how the status of Muslim women in India is mediated by notions of
secularism and the protection of minority rights, and evaluates the extent to
which India’s policy of legal pluralism and multiculturalism can forward
Muslim women’s equality.
The complexity of Muslim women’s disadvantage is damaging to Indian
democracy, demonstrating the link between the community’s socioeconomic
status and participation in political life.4 Indian Muslim women have re-
mained at the margins of public policy, indeed on the margins of democracy.
Despite India’s economic growth over the past few years, the Muslim com-
munity remains the most impoverished across India, with Muslim women
among the poorest of the poor.5 With regard to literacy rates, education,

2
Vrinda Narain, “The Supreme Court of India and Maintenance for Muslim Women:
Transformatory Jurisprudence,” in Routledge Handbook of Gender in South Asia, ed. Leela
Fernandes (New York: Routledge, 2014), pp. 97–114.
3
Zoya Hasan, “Gender, Religion and Democratic Politics in India,” Third World Quarterly
31/6 (2010): 939–54; see also Prime Minister’s High Level Committee, Social, Economic and
Educational Status of the Muslim Community in India, 2006, Justice R. Sachar, Chairperson
(New Delhi: IGPS), 151–7, available at <[Link]
sachar_comm.pdf>; Sreevidya Kalaramadam, “Dis/empowering Political Subjects: The Produc-
tion of ‘Failed’ Elected Women Representatives in India,” Women’s Studies International Forum
35 (2012): 276–85.
4
Vasu Mohan and Suraiya Tabassum, “The Inclusion of Muslim Women in Indian Demo-
cratic Governance Structures and Processes,” in International IDEA, Journeys from Exclusion to
Inclusion: Marginalized Women’s Successes in Overcoming Political Exclusion (Stockholm: Inter-
national IDEA, 2013), pp. 199–233, at 202, and Sachar Report, supra note 3 at 163.
5
Over 300 million Indians live on less than USD 1 per day and 84 per cent of Muslims live on
less than 50 cents per day, Report on Conditions of Work and Promotion of Livelihoods in the
Unorganised Sector, National Commission for Enterprises in the Unorganised Sector, New
Delhi, 2007, p. 8 (website: [Link]); <[Link]
[Link]>. See also Mohan and Tabassum, “The Inclusion of Muslim Women in Indian
Democratic Governance Structures and Processes,” pp. 199–233, at 202; Zoya Hasan and
R. Menon, Unequal Citizenship: A Study of Muslim Women in India (New Delhi: Oxford
University Press, 2004), pp. 76–7, 237, 241.
190 Vrinda Narain

workforce participation, employment, and access to credit, the situation of

Muslim women is disturbingly precarious.6 Not surprisingly, while political
participation as well as representation of Muslims in India remains low, with
their representation in the lower house of Parliament at just over 4 percent,
political representation of Muslim women is even lower. In the most recent 2014
figures, there were only 22 Muslim MPs in the lower house, and only 3 Muslim
women out of 545 MPs. In some years there have been no Muslim women at all.7

THE LEGAL FRAMEWORK

In addition to minority rights and religious freedom, equality and freedom

from discrimination on the basis, inter alia, of gender or religion are guaran-
teed to all citizens in the Indian constitution,8 whose drafters sought to redress
the sharp inequalities in the country by enshrining equality as a fundamental
organizing principle.9 Aware of the need for substantive equality, the consti-
tution drafters sought legal reform, particularly for women and oppressed

6
Hasan and Menon, Unequal Citizenship, p. 48.
7
Rajeev Bhargava, “On the Persistent Political Under-Representation of Muslims in India,”
Law and Ethics of Human Rights 1/1 (2007): 76–133; The Hindu, May 17, 2014; “Muslim
Women in Indian Politics”, India Tomorrow, November 4, 2014.
8
The Constitution of India, 1950, arts. 14–16 [hereafter Constitution] (“[Article] 14. Equality
before law.—The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. [Article] 15. Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2)
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to—(a) access to shops,
public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks,
bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from
making any special provision for women and children. (4) Nothing in this article or in clause (2)
of article 29 shall prevent the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes. (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall
prevent the State from making any special provision, by law, for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30. [Article] 16. Equality of
opportunity in matters of public employment.—(1) There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the State. (2) No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect of, any employment or office under
the State”).
9
See e.g. Gaurav Jain v Union of India, AIR 1997 SC 3021 (“The Preamble, an integral part of
the Constitution, pledges to secure ‘socio-economic justice’ to all its citizens . . . in a united and
integrated Bharat.”).
 Law, Gender, and Nation 191

castes.10 Despite opposition from several members of the constituent assem-

bly, the postcolonial state, conscious of the need to reform religious laws to
redress women’s inequality, took on the authority to regulate religion.11 The
constitution drafters recognized that personal laws perpetuated women’s
inequality and inserted Article 44, calling for the enactment of a uniform
civil code (UCC).12 However, Article 44 is not a justiciable fundamental right,
but a directive principle of state policy. While such principles are critical in
governance and in formulating public policy, the state has not initiated a UCC
for fear of alienating minority allegiance to the secular nation-state.13
Muslim personal law was maintained as a sphere of authority for religious
leaders, exempt from the nation’s wider constitutional requirements, as a dem-
onstration of the postcolonial state’s commitment to minority rights. This incon-
gruence between constitutional requirements and Muslim personal law was
premised on the public/private split and a religious/secular binary that has had
profound implications for Muslim women, who are now subject to greater
patriarchal authority and effectively abandoned by the state.14 The personal law
system stands in sharp contrast to the ideal of universal equal citizenship.
Personal laws are the only laws that apply to individuals on the basis of their
religious identity. Muslim women do not enjoy the same rights and privileges as
Muslim men, or indeed other Indian women, in virtually any aspect of family law.
Although all religious personal laws disadvantage women, Muslim personal
law has not been reformed to address women’s inequality, while Hindu and
Christian personal law have been reformed to address the most egregious of
these inequities. The only postcolonial change has been the Muslim Women’s
(Protection of Rights on Divorce) Act (MWA), which was bitterly opposed by
Muslim progressives and reformists, as well as feminists.15 Muslim personal
law has been preserved free from any progressive change to address women’s
precarious position on the understanding that women’s equality stands in
opposition to minority rights and religious freedom.16 While the state has
refused to initiate legal reform, arguing that change must come from within
the group, religious leaders have resisted calls for internal reform, in particular
from Muslim women.17 They view a potential UCC as well as any law reform

10
Ibid.
11
I refer here to the executive and the judiciary. A Parashar, Women and Family Law Reform
in India (New Delhi: Sage, 1992), p. 225; J. D. M. Derrett, Religion, Law and the State in India
(New Delhi: Oxford University Press, 1968), p. 451; Vrinda Narain, Gender and Community:
Muslim Women’s Rights in India (Toronto: University of Toronto Press, 2001), p. 64.
12
Constitution, art. 44.
13
Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India (Toronto:
University of Toronto Press, 2008), pp. 144–5.
14
Narain, “Supreme Court,” 101.
15
For a detailed account of the passage of the MWA, see Narain, Gender and Community.
16
Narain, Gender and Community, p. 5.
17
Narain, Gender and Community, pp. 89–91.
192 Vrinda Narain

as state intrusion into their private sphere of autonomy.18 The state, by

unquestioningly accepting the equivalence of Muslim group identity with
the unreformed personal law, has neglected women’s equality in the mistaken
understanding that this is an affirmation of group life. Muslim women’s claims
for change have been excluded from the democratic dialogue, while conser-
vative religious leaders have been privileged as the sole definers of group
identity and interests.19
India’s explicitly discriminatory system of personal law, in contrast to
formal constitutional guarantees of equality and the resultant contradictions
between public formal equality and private discrimination, is a compelling
demonstration of the state’s reluctance to uphold gender equality when it is
presumed to conflict with group interests.20 The state is committed to a policy
of secularism in the so-called public sphere, but refuses to reform personal
laws in the so-called private sphere, using specious arguments of secularism,
cultural autonomy, and its commitment to minority rights, even when these
laws conflict with constitutional guarantees. The public–private dichotomy is
thus superimposed onto the religious–secular binary. Simultaneously included
and excluded from equal citizenship, Muslim women face discrimination
within the family in the private sphere and are unable to call on the state’s
constitutional guarantee of equality. The state’s refusal to regulate personal
law, as a demonstration of its commitment to upholding Muslim group rights,
has created a differentiated citizenship whereby the state has differing obliga-
tions and duties to citizens based on their gender and religion.21
The private subjugation of Muslim women is part of the public agenda,
made explicit by the state’s reaffirmation of the public–private dichotomy.22
Catharine MacKinnon notes that “As a legal doctrine, privacy has become the
affirmative triumph of the state’s abdication of women.”23 The “doctrine of
privacy” and the state’s upholding of personal law serve to absolve the state of
its constitutional responsibility to uphold equality for Muslim women, while
allowing the Ulema to consolidate their authority. As MacKinnon points out:
Family law keeps a lot of women in place and in line, fearful of altering their lives
because of how it could be made to look in court . . . The realm in which women’s
everyday life is lived, the setting for many of these daily atrocities, is termed the
private. Law defines the private as where the law is not, that into which the law
does not intrude, where no harm is done other than by law’s presence.24

18
Narain, Gender and Community, pp. 89–91. 19
Narain, “Supreme Court,” p. 101.
20
Vrinda Narain, “Muslim Women’s Equality in India,” Human Rights Quarterly 35/1
(2013): 91–115, at 95.
21
Narain, Reclaiming, pp. 78, 93, 97. 22
Narain, “Muslim Women,” p. 103.
23
Catharine A. MacKinnon, “Reflections on Law in the Everyday Life of Women,” in Law in
Everyday Life, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor, MI: University of Michigan
Press, 1993), pp. 109–22, at 117–18.
24
Ibid., pp. 116–17.
 Law, Gender, and Nation 193

While it is not within the scope of this chapter to discuss the politics of the
UCC, the issue of Muslim personal law reform raises questions about the
state’s commitment to minority rights, women’s equality rights, and equal
citizenship. Although, historically, the women’s movement had demanded the
enactment of a UCC to end inequality among Indian women, the politics of
the Shah Bano controversy resulted in a shift in this position,25 as feminists
found themselves supporting a position dangerously close the Hindu Right,
albeit for opposing reasons. While the feminist movement demanded a
UCC as a way to end women’s inequality across all personal laws, the Hindu
Right supported it as a way to erase minority rights through the suppression of
difference.26
The controversy over Muslim women’s rights erupted with the landmark
1985 Supreme Court decision in Shah Bano, awarding maintenance under the
secular law to Shah Bano, and the subsequent enactment of the MWA, 1986.
This decision over spousal support caused a constitutional crisis, raising
questions of gender equality, minority rights, and the relationship between
secular and religious law. It brought into sharp relief the paradox of multicul-
tural vulnerability for Muslim women, caught between the state and the
Ulema.27 Briefly, the facts of the case are as follows. Shah Bano was a
73-year-old Muslim woman who was divorced by her husband when she
sought maintenance under the general or secular law of maintenance, Section
125 of the criminal procedure code. The lower courts awarded maintenance to
Shah Bano but the case reached India’s Supreme Court when her husband
appealed against the High Court’s award of maintenance. Mohammed Ahmed
Khan contended that, as a Muslim, he was not subject to the secular law of
maintenance, and that Muslim personal law did not require him to comply
with the court order for support. He claimed that, as a Muslim, he was not
required to pay maintenance beyond the forty-day iddat period, which he had
already paid.28 The court disagreed and ruled in Shah Bano’s favor, asserting
that the social welfare purpose of the code’s provisions outweighed any
arguments based on religious law.29 The court went on to state that, since
Muslim personal law discriminated against women, it was incumbent on the
government to reform laws so that women of all religious faiths were governed
equitably.30 The court voiced its disapproval that the government had done
little to ensure equality in family law by refusing to initiate a UCC for all
citizens irrespective of religious identity.31

25
Mohammed Ahmed Khan v Shah Bano Begum, 1985 2 SCC 556, [1985] AIR 1985 SC 945
(India) [hereafter Shah Bano]; Narain, Gender and Community, pp. 93–4.
26
Narain, “Supreme Court,” 101. 27
Narain, Reclaiming, p. 9.
28
The court of first instance awarded Shah Bano a sum of 25 rupees per month. The High Court
of Madhya Pradesh then increased the amount of maintenance to 179.20 rupees per month.
29 30 31
Shah Bano, p. 948. Ibid., p. 965. Ibid., p. 950.
194 Vrinda Narain

Religious leaders reacted furiously to the Supreme Court’s decision, and

insisted that the government enact the Muslim Women’s Act (MWA) to
counteract the Supreme Court. They prevailed upon the government to
exclude Muslim women from the code’s purview, ignoring the strenuous
objections of Muslim women’s groups and civil society activists.32 Giving in
to pressure, while justifying its action as in conformity with secularism and
its commitment to protecting group rights, the government enacted this new
law, making it the first legislative initiative concerning Muslim personal law
in postcolonial India. Far from rectifying the precarious vulnerabilities of
Muslim women in the face of divorce, the MWA reaffirmed Muslim men’s
right to unregulated divorce, absolved them of the duty of spousal support,
and, in so doing, stripped Muslim women of previously held rights, rights
held by all Indian women.33 The state and community leaders lost the
opportunity to address Muslim women’s disadvantages, instead using this
political moment to further circumscribe their rights and entitlements.
Moving Muslim women farther away from equal citizenship, imposing
stricter patriarchal community control over them, and denying them rights
available to all other Indian women, this law underscores the precarious
position of Muslim women.
Further underscoring the specific location of Muslim women along multiple
axes of discrimination and increasing the difficulty of challenging inequality

32
For a detailed account of the Shah Bano case and the subsequent enactment of the MWA,
please see Narain, Gender and Community.
33
Narain, Reclaiming, pp. 13–18. Section 4 of the MWA provides that “Order for payment of
maintenance.—(1) Notwithstanding anything contained in the foregoing provisions of this Act,
or in any other law for the time being in force, where a Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself after the iddat period, he may
make an order directing such of her relatives as would be entitled to inherit her property upon
her death according to Muslim law to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of such relatives, and such maintenance shall
be payable by such relatives in the proportions in which they would inherit her property and at
such periods as he may specify in his order: Provided that where such divorced woman has
children, the Magistrate shall order only such children to pay maintenance to her, and in
the event of any such children being unable to pay such maintenance, the Magistrate shall
order the parents of such divorced woman to pay maintenance to her: Provided further that if
any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate
on the grounds of not having the means to pay the same, the Magistrate may, on proof of such
inability being furnished to him, order that the share of such relatives in the maintenance
ordered by him be paid by such of the other relatives as may appear to the Magistrate to have
the means of paying the same in such proportions as the Magistrate may think fit to order. (2)
Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in
sub-section (1) or such relatives or any one of them have not enough means to pay the
maintenance ordered by the Magistrate to be paid, the Magistrate may by order, direct the
State Wakf Board established under section 9 of the Wakf Act, 1954, or under any other law for
the time being in force in a State, functioning in the area in which the woman resides, to pay such
maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares
of such relatives who are unable to pay, at such periods as he may specify in his order.”
 Law, Gender, and Nation 195

within the Muslim community for fear of feeding into anti-Muslim forces, the
Hindu Right has strategically (mis)appropriated the issue of the UCC to single
out the Muslim community as backward and thus justify the denial of
minority rights. The recognition that the Hindu Right promotes a UCC as a
way to erase minority difference has led feminists to move away from the
demand for a UCC toward reform of specific laws which would benefit all
Indian women.34
The postcolonial Indian state, together with religious leaders of the Muslim
community itself, has ignored Muslim women’s claims to equality.35 And yet
India’s constitutional framework provides for the powerful application of
substantive equality principles.36 While embracing substantive equality in
the “public” sphere, the judiciary has reinforced gender stereotypes with
regard to family law rather than challenging them, thus limiting the possibility
of transformative change.37 Indeed, while the judiciary compelled a reluctant
state executive to enforce gender equality in the public sphere, the Supreme
Court has not made similar efforts in the realm of personal law,38 preferring to
leave these questions, particularly the constitutionality of Muslim personal
law, to the legislature.
The state, for its part, upholds Muslim personal law on the basis of the
protection of minority rights, arguing that reform must be sought from
within.39 Conservative religious leaders argue that family law is divine and
immutable, and thus unfit for reform. Yet religious law is not static: it is fluid
and changes over time, even within religious traditions that insist on the
immutability of divine law. Given the important impact of religious laws
on women’s equality, the need to formulate legislative and public policy
approaches to address such conflicts is critical.40

34
Such as the Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005),
and the latest move to regulate the division of marital property upon divorce via the Marriage
(Amendment) Bill that seeks to amend the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954. For a detailed discussion of this issue, see Srimati Basu, “The Personal and the
Political: Indian Women and Inheritance Law,” in Religion and Personal Law in Secular India:
A Call to Judgment, ed. Gerald James Larson (Bloomington, IN: Indiana University Press, 2001),
pp. 163–83, at 179; Rajeswari Sunder Rajan, The Scandal of the State: Women, Law and
Citizenship in Postcolonial India (Durham, NC: Duke University Press, 2003), p. 148; Maitrayee
Chaudhuri, “Feminism in India: The Tale and Its Telling,” Revue Tiers Monde 209 (2012): 19–36,
at 32; and Hasan, “Gender, Religion,” 947.
35
Hasan, “Gender, Religion,” 941–2.
36
Catherine A. MacKinnon, “Sex Equality under the Constitution of India: Problems, Prospects
and ‘Personal Laws’,” International Journal of Constitutional Law 4/2 (2006): 181–202, at 187.
37
Ratna Kapur and Brenda Cossman, Subversive Sites (New Delhi: Sage, 2004), pp. 61–2, 70.
38
See, for example, Vishaka v State of Rajasthan, AIR 1997 SC 3011 (India).
39
Zoya Hasan, “Minority Identity, State Policy and Political Process,” in Forging Identities:
Gender, Communities and State in India, ed. Zoya Hasan (New Delhi: Kali for Women, 1994),
pp. 59–73, at 60–1.
40
Narain, “Muslim Women,” 104.
196 Vrinda Narain

Governments have been reluctant to initiate the reform of religious personal

laws for fear of an electoral backlash.41 Electoral calculations by governments
in power pander to majoritarian politics within minorities, as invariably the
claims of culture are pitted against women’s equality. Within this complex
negotiation, raising questions of group identity and representation, the possi-
bility of reform is politically fraught. This persistent refusal to address Muslim
women’s disadvantage, while simultaneously reinforcing patriarchal struc-
tures of authority, forces a re-examination of legal pluralism and its impact
on minority women.

LEGAL PLURALISM AND ITS DISCONTENTS

The question of Muslim women’s legal status in India has been the subject of
much scholarly attention. As well, the question of India’s commitment to
pluralism and democracy has been debated and discussed.42 In recent times,
scholars have critiqued Indian democracy and India’s crisis of secularism
where minority rights are seen to be imperiled. With a Hindu Right national
government in power since 2014, these questions are even more urgent, as
minority anxiety increases in the face of the government’s legitimization of
Hindu hostility.
With the publication of two reports, scathing indictments of the state’s
failure to address Muslim inequality, the Report of the Prime Minister’s High
Level Committee on Social, Economic and Educational Status of the Muslim
Community of India, popularly known as the Sachar Committee Report
(Government of India, 2006),43 and the Report of the National Commission
for Religious and Linguistic Minorities,44 popularly known as the Justice
Ranganath Misra Commission Report (Government of India, 2007), the
issue of Muslim women’s marginalization has gained public prominence.
Scholars of Indian democracy have noted that these reports have underscored
the failure of public policy to address structural inequality and systemic

41
Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam, “Reviving South Asian
Comparative Constitutionalism,” in Comparative Constitutionalism in South Asia, ed. Sunil
Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam (New Delhi: Oxford University
Press, 2013), pp. 1–22, at 19.
42
Thakur, “Democracy, Pluralism and the Religious Minorities.”
43
Government of India, Social, Economic and Educational Status, of the Muslim Community:
A Report (New Delhi: Prime Minister’s High Level Committee, Ministry of Minority Affairs,
Government of India, 2006). See footnote 3.
44
Ministry of Minority Affairs, Report of the National Commission for Religious and Linguis-
tic Minorities (New Delhi: Government of India, 2007).
 Law, Gender, and Nation 197

discrimination, and have provided empirical data to show that the state’s focus
on cultural difference to the exclusion of structural inequality has failed Indian
Muslims.45
The Sachar Committee Report highlights this problem and faults the state
for neglecting all social, economic, and political aspects of inequality experi-
enced by Muslims across India. Muslim women in particular have been deeply
disadvantaged by a state that acquiesces in their subordination by accepting
Muslim personal law as the defining feature of Muslim group identity, ignor-
ing the fact that women are subordinated by patriarchal interpretations of
religious norms. The postcolonial state premised its policy of multiculturalism
and legal pluralism on cultural difference while neglecting more crucial
questions of structural inequality.
In the context of Muslim women’s legal inequality, it is now clear that there
can be no uncritical ideological endorsement of non-state law, particularly
given the concern of feminist multiculturalism scholars. Legal pluralism, as
understood in India in the context of religious personal law, casts women’s
equality rights as oppositional to group solidarity. This understanding of legal
pluralism clearly has profound implications for the status of Muslim women,
their inclusion in democratic dialogues, and their equal citizenship. Moreover,
it raises questions of representation and agency.
In postcolonial India, pluralism can be seen as a form of governmentality
understood as managing difference based on religious status, which set up
elite, male religious leaders as group representatives in control over group
membership and with authority over women and minorities within the
group. As a result, religious orthodoxy became fully entrenched within
the autonomous private sphere, free from public scrutiny of the state. The
secular bargain ironically put Muslim women even more firmly under
religious patriarchal control.46 The construction of personal law as a sphere
of autonomy free from judicial regulation, state control, or constitutional
conformity was more than simply an accommodation of difference—it was a
cynical political move that also resulted in rigidifying and reifying difference
along gendered hierarchical lines, subordinating women, and perpetuating
their subordination as an integral part of religious belief/faith. The conse-
quences for equal citizenship in general and Muslim women’s equality in
particular have been profound.
In this context, it is necessary to understand religious status-based legal
pluralism in the frame of competing jurisdictional politics and struggles over
power rather than simply in terms of accommodating diverse normative

45
Thakur, “Democracy, Pluralism and the Religious Minorities.”
46
Karen Barkey, Empires of Difference: The Ottomans in Comparative Perspective (New York:
Cambridge University Press, 2008).
198 Vrinda Narain

orders.47 Legal pluralism in India was the outcome of colonial state policy, a
policy of the imperial project that was continued by the postcolonial state as a
political compromise to secure minority allegiance to the postcolonial nation-
alist ideology. The existence of the personal law system is an illustration of a
type of legal pluralism that is complex—it is the existence of a normative
diversity that is both state and non-state to the extent that the state enforces
norms that are outside of the constitutional order, exempting religious mi-
norities from the application of the rules and norms of the wider society and
also from its constitutional requirements.
In the name of preserving minority identity and upholding India’s plural-
ism and multiculturalism, the state justifies discriminatory Muslim personal
law, thereby equating the subordination of women with the interests of
secularism. In turn, religious leaders, intent on preserving their control over
the community, adamantly oppose reforming the personal law to enlarge
women’s rights, positing women’s inequality as an aspect of the true inter-
pretation of religion. Thus, in the name of secularism, state neutrality, and the
protection of minority rights, Muslim women’s inequality continues to be
legitimized, debated, and located within these two patriarchies: the secular,
democratic state and the conservative religious leaders, the Ulema.
Pitting secularism, state neutrality, and minority rights as oppositional to
Muslim women’s equality rights frames the debate along a single axis, to the
disadvantage of Muslim women.48 This has had profound implications for
Muslim women who experience discrimination along multiple axes and have
to contend with the community and the state that define identity along religious
lines. This single-politics framing, which is focused on the cultural difference of
Muslims rather than on their structural inequality, has two major consequences.
First, it absolves the state of any responsibility to tackle questions of systemic
discrimination, such as the inequality of Muslims, and in particular of Muslim
women, in education, literacy, employment, labor force participation, access
to microcredit and microfinance, housing, sanitation, and so on. Second, it
simultaneously absolves Muslim community leaders from addressing Muslim
women’s inequality within the community, as it immunizes the personal law
from reform and buttresses community control over Muslim women.

DOUBLE PATRIARCHY

The limits of political liberalism with regard to the question of Muslim

women’s equality are illustrated in the postcolonial Indian formulation of

47
Mitra Sharafi, “Justice in Many Rooms since Galanter: De-Romanticizing Cultural Plural-
ism through the Cultural Defense,” Law and Contemporary Problems 71 (2008): 139–46.
48
Sirma Bilge, “Beyond Subordination vs. Resistance: An Intersectional Approach to the
Agency of Veiled Muslim Women,” Journal of Intercultural Studies 31/1 (2010): 9–28, at 10.
 Law, Gender, and Nation 199

citizenship, drawn from a liberal understanding. In this understanding, where

the religious/secular binary is superimposed on the public/private dichot-
omy, equality in the public sphere is seen as sufficient. Any inequality in the
private sphere is not seen as incompatible with liberal democracy and equal
citizenship in the public sphere. Thus, inequality in the private sphere,
including gender inequality in the family, is tolerated, as it is seen to be a
consequence of voluntary adherence to religious faith. In contrast, however,
feminists would require a thicker account of equality with a greater com-
mitment to gender equality. Such an understanding of citizenship and
pluralism and the upholding of minority rights should be problematized
because it perpetuates women’s subordination within minority communi-
ties. To this extent then, this kind of legal pluralism is simply one of
jurisdictional power and authority sharing between the state and religious
leaders. Arguably, the mere recognition of multiple groups as an expression
of the state’s commitment to protecting minority rights is not sufficient to
sustain a robust democracy. At the same time, the limits of multiculturalism
are revealed, whereby intergroup equality is limited by the lack of intragroup
equality. These are complex issues, but at the very least they force a reassess-
ment of the relationship between recognition and redistribution, cultural
difference and structural inequality, and its impact on those most vulnerable
within minority groups.
For Muslim women in India, the state’s understanding of citizenship
arguably excludes an acknowledgment of the multiple axes of discrimination
experienced by Muslim women. Sirma Bilge notes that the single-perspective
politics that frames the exclusion of Muslim women through the dichotomous
construction of women’s rights versus group rights also raises the critical
question of the nature of citizenship and who is considered to be a deserving
citizen. As Bilge argues, the religious feminist subject occupies a tricky pos-
ition in politics and in religious politics.49 It becomes necessary to reconcep-
tualize agency so that these accounts of agency may be included in feminist
understandings of how women negotiate the boundaries between community
and state.
This insight leads to the question of where we should also focus our
attentions to move toward equality for Muslim women. Indeed, going beyond
the secularism versus women’s rights binary, as well as moving away from a
focus on the state/community binary, we also need to focus on civil society
and the informal public sphere to see how Muslim women have resisted
subordination.50 I argue that the very fact that Muslim women are challenging
their subordination under the law by setting up their own religious courts and
law boards, as well as by initiating legal challenges in the courts, using the

49
Bilge, “Beyond Subordination vs. Resistance.”
50
Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton,
NJ: Princeton University Press, 2002), p. ix.
200 Vrinda Narain

general law rather than the personal law, demonstrates they have an understand-
ing of how to move beyond the “two patriarchies” of state and religious leaders
the Ulema. The existence of a large number of Muslim women’s organizations
testifies to the exercise of agency and resistance by Muslim women. This
understanding requires an acknowledgment that Muslim women can be seen
to interrupt this state–Ulema patriarchal alliance. It also has significance for our
understanding of legal pluralism and it illustrates that normative diversity
encompasses more than the allocation of a space for Muslim personal law.
Arguably, Muslim women are caught between two patriarchies—state and
religion. Yet their struggle toward equality, when understood in these terms,
can at best offer only a partial explanation. If we want a full account of this
struggle, then we have to open up the normative discussion beyond simply
majority/minority relations superimposed on state/Ulema power structures, to
understand in what other ways Muslim women exercise agency.51
In terms of recovering the subaltern citizen, Muslim women must be
understood as more than just passive victims caught between these two axes
of power. Muslim women’s groups have been organizing in defense of
their rights and have opposed their inequality under the personal law by
challenging the Ulema’s interpretations of Muslim law and demanding that
Muslim women’s organizations reform the personal law.52 Muslim women
have continued to use the general or secular law to resolve their family law
disputes. That they continue to approach the secular courts as well as those
that they have set up, their own women’s religious, community courts, is a
strong demonstration of the call for change from within, a call the state and
the Ulema have chosen to ignore.
The AIMPLB is an organization of male religious leaders, the Ulema, who
are the self-appointed representatives of the Muslim community, focused on
preserving the personal law from any state intrusion as well as on insulating it
from any reform called for by women, reformist, or progressive Muslims. The
AIMPLB was an intervener in the Shah Bano case on behalf of her husband,
Mohammed Ahmed Khan, to oppose the granting of maintenance to Shah
Bano. The AIMPLB was also one of the key players in subsequently opposing
the Supreme Court’s Shah Bano decision and in insisting on enacting the
MWA to further circumscribe Muslim women’s rights within the family.
Following the Shah Bano controversy and the fraught political climate
around issues of minority rights, gender equality, and Muslim personal
law, Muslim women’s activism emerged, seeking to address women’s rights

51
Emanuela Ceva and Federico Zuolo, “A Matter of Respect: On Majority–Minority Rela-
tions in a Liberal Democracy,” Journal of Applied Philosophy 30/3 (2013): 239–53, at 240.
52
Srinivas Bhaskar, “Progressive Muslim Women Call for Personal Law Reform,” Niti
Central, June 24, 2014, <[Link]
[Link]>.
 Law, Gender, and Nation 201

in general rather than focusing only on reforming the personal law.53

A noteworthy development has been the rise of Muslim-led networks that
challenge the authority of the Ulema and their legitimacy as the sole spokesmen
of Muslims. Simultaneously reframing the category “Muslim women,” these
activists assert their political agency in their efforts to enlarge women’s rights.54
One of the prominent organizations is Awaaz-e-Niswasn (AeN, Women’s
Voice, in English), founded in Mumbai in 1987 by Shahnaaz Shaikh, in
response to her experience of disadvantage and discrimination under Muslim
personal law.55 The organization, however, is concerned not just with the
reform of Muslim personal law and issues concerning Muslim women, but
rather is conceived of as an organization that caters to the needs of all Indian
women without regard to religion. The objectives of AeN are to assert wo-
men’s rights and to insist on state and community accountability, as well as to
make visible the issues affecting Muslim women and to combat their disad-
vantage in all spheres, including educational, economic, and social. AeN is
committed to the reform of personal laws disadvantaging Muslim women
as well as to ensuring gender equality in all laws relating to women. The
organization addresses a wide range of issues, from domestic and sexual
violence to unfair divorce practices, offering a safe space for survivors of
domestic abuse, and providing legal support, trauma counselling, and educa-
tional and vocational training. Resisting opposition from the Ulema, AeN has
been successful in organizing Muslim women in local communities.
The recognition that the legal status of women is critical to their equality led
AeN to form an advocacy platform, the pan-Indian Muslim Women’s Rights
Network (MWRN), in 1997. Led by the AeN, the stated objective of MWRN
is to campaign for the rights of Muslim women as well as those for the reform
of all religious personal laws, as they all have gender-discriminatory aspects.
It is noteworthy that MWRN links the reform of the status of women under
the personal laws with women’s rights as equal citizens.56 The MWRN as a
coalition of advocacy groups does not have a specifically religious or faith-
based agenda, choosing to premise their demands for change in the status
of women by appealing to constitutional rights and international human
rights norms.
Most recently, in the mid-2000s, a number of Muslim women’s organiza-
tions were formed to challenge the Ulema and their stranglehold on the
interpretation of Muslim law. Prominent among these are the All India
Muslim Women Law Board (AIMWLB) and the Bharatiya Muslim Mahila

53
Zoya Hasan, “Religion, Feminist Politics and Muslim Women’s Rights in India,” in Women
and Law: Critical Feminist Perspectives, ed. Kalpana Kannabiran (New Delhi: Sage, 2014),
pp. 264–73, at 269.
54
Ibid., p. 264.
55
Awaaz-e-Niswaan, “Our History,” <[Link]
56
Awaaz-e-Niswaan, “Our Work,” <[Link]
202 Vrinda Narain

Andolan (BMMA) (or Indian Muslim Women’s Movement, in English). The

All India Muslim Women Personal Law Board (AIMWPLB) was established
in 2005 as an effort by Muslim women activists to counter the retrograde
interpretations of Muslim law by the Ulema of the All India Muslim Personal
Law Board (AIMPLB). At each opportunity, the AIMPLB has opposed any call
for change, in particular, calls from Muslim women’s groups to address issues
of polygamy and unilateral divorce.57 Frustrated by the refusal of the Ulema to
heed women’s calls for reform, the AIMWPLB was set up by Shaista Amber,
offering women-friendly reinterpretations of Muslim law.
Another significant group is the Bhartiya Muslim Mahila Andolan,
BMMA. Illustrating the ways in which Muslim women’s leaders navigate
India’s normative diversity, BMMA cofounder Zakia Soman equally claims
both her faith and her citizenship as an Indian in efforts to reform Muslim
personal law. This understanding shapes the nature of the struggle—using
the general law, constitutional rights, and the language of a reinterpreted
Muslim law.58 The BMMA insists on reclaiming Muslim personal law, reinter-
preting it in accordance with Qur’anic principles, constitutional guarantees,
and international human rights norms. The BMMA emphasizes that the state
as well as the community should be held accountable to Muslim women.59
Dr. Noorjehan Safia Niaz, a cofounder of BMMA, has expressed concern
about the abysmal legal status of Muslim women. She is particularly concerned
about the reluctance of community leaders and the state to address women’s
inequality, and their refusal to reform the law. Niaz notes that, on the one
hand, community leaders refuse to listen to Muslim women’s calls for reform,
and on the other hand, the state refuses to intervene as Muslim law reform is
considered too politically sensitive an issue.60 Working closely with the late

57
See Narain, Reclaiming, p. 153.
58
<[Link] From the webpage of the BMMA, the organization’s
objectives, in its own words, are: To work towards understanding and ameliorating the margin-
alization of the Muslim community and Muslim women. To work to uphold the Constitutional
principles like equality, liberty, secularism, social justice and democracy. To take forward the
process of legal reforms within the Muslim personal law. To collaborate and build alliance with
other movements and networks that are fighting for social equality and human rights. To work
towards empowering Muslim women and take steps to ensure their social, economic, political,
civil, legal and religious rights. To undertake and propagate positive and liberal interpretations of
religion which are in consonance with principles of justice, equality, fairness and protection of
human rights. To oppose fascism, exploitative capitalism, communalism, imperialism in all its
forms and to support peace, justice and uphold human rights. To understand the caste hier-
archies within the Muslim community and raise the issues of Dalit Muslims. To create an
alternative progressive voice within the Muslim community.
59
BMMA, “Report of the Consultation: Rights of Muslim Women and Institutional Linkages,”
September 30, 2013, <[Link]
institutional-linkage-and-rights-of-muslim-women-in-india/> (accessed November 21, 2016).
60
Ibid.
 Law, Gender, and Nation 203

Asghar Ali Engineer, India’s most prominent Muslim reformist, in June 2014,
the BMMA released a draft law, entitled the Muslim Family Law Act, to address
women’s disadvantage in Muslim family law, doing away with polygamy and
the oral triple talaq or triple divorce, arguably the most troublesome aspects of
the personal law as it currently stands.
A significant development in the Indian feminist movement has been the
convergence between religious feminists and secular feminists. Women’s
rights activists now advocate for a combination of internal reform and
state legislative initiatives to reform key aspects of women’s rights. This is
a more nuanced position of the reform of religious personal law combined
with enacting gender-just laws derived from the principle of a uniform
family law.61 Certainly, there have been cleavages within the women’s groups
in India, with some Muslim activists criticizing the mainstream women’s
movement for either favoring a secular approach which left little room for
women of faith or for having, however unconscious, an upper-caste
Hindu bias.
The crisis of secularism in India in the aftermath of the Shah Bano
controversy led to a serious reorientation of the feminist movement, with
mainstream feminist groups moving away from their past insistence on a
UCC and reform of Muslim personal law, to focus instead on reforming
those aspects of women’s lives that cut across religious identity, such as
sexual assault, violence against women, adoption of children, and the div-
ision of marital property upon dissolution of marriage. Demonstrating its
wide impact, from community organizing to political activism and legal
reform, AeN successfully worked with other women’s organizations to
ensure the passage of India’s Domestic Violence Act.62 Indeed, it would be
fair to say that the women’s movement has been relatively successful in this
approach, with the enactment of legislation such as the Domestic Violence
Act and the Prevention of Sexual Harassment Act.63
As noted scholar Zoya Hasan writes, despite the fact that, thus far, there
have been no major legal reforms of Muslim women’s rights, “the presence of
Muslim women-led networks marks a significant shift in the Indian social
landscape.”64 The AIMWPLB, the BMMA, and several other Muslim women’s
organizations have challenged the Ulema’s monopoly over legal norms and

61
Hasan, “Religion, Feminist,” p. 269.
62
“Turning Up the Volume on Women’s Voices: Hasina Khan, Mumbai Human Rights
Defender,” American Jewish World Service, December 11, 2008, <[Link]
com/ruth-messinger/seeking-transformative-ju_b_4072019.html> (accessed November 21, 2016).
63
The Protection of Women from Domestic Violence Act, 2005 (India). No. 43 of 2005, The
Gazette of India Extraordinary, Part II, Section 1, September 13, 2005. The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (India). No. 14 of 2013,
The Gazette of India Extraordinary, Part II, Section 1, April 22, 2013.
64
Hasan, “Religion, Feminist,” p. 272.
204 Vrinda Narain

interpretation. Muslim-led women’s organizations provide a comprehensive

overview of the links between Muslim women’s activism and the women’s
movement more generally, and their rise highlights the diversification of the
women’s movement, and the willingness of these organizations to challenge
traditional structures of authority both within the state and the community at
multiple levels. It is through these challenges that the space has now been
created for Muslim women, both discursive and real, to renegotiate their
identities, to challenge gender essentialism, and to assert their rights, thereby
interrupting the complacency of the public/private divide. As Hasan notes, it is
all the more remarkable that they have been able thus to “reformulate relations
of power within an increasingly constrained and polarised political context,
one in which feminists have little room to manoeuvre outside of the confines
of religious boundaries.”65
Influential legal scholar and former chair of India’s Minorities Commission,
Tahir Mahmood, names the AIMPLB as one of the main obstacles in the way
of reform, stating that its members are “doing a disservice to the community.”
According to him,
The hold of maulvis (religious leaders) over the community is so strong that there
is absolutely no scope for reform of Muslim Law in any foreseeable future in
India. For any reform, we will have to look at the judiciary, which has been
introducing it through a circuitous way. The judiciary is the only hope.66
In this context, it is important to note that the Supreme Court of India, in a
July 2014 decision in Vishwa Lochan Madan v. Union of India, declared that
fatwas, or legal opinions, issued by religious courts, which undermined indi-
vidual Muslim women’s rights, were void and without legal force.67 The
decision was with respect to fatwas given by various religious courts, known
as Darul Uloom or Darul Qaza, across India in three well-publicized cases
where Muslim women had been raped by their fathers-in-law.68 Rather than
seeking justice for the survivors of sexual assault and punishing the perpet-
rators, religious leaders declared the women were now divorced from their
husbands for having had sexual intercourse with the rapists. It is important to
note that in none of these cases did the women themselves bring the complaint
to the religious courts. Unsurprisingly, harsh punishments were meted out by
these religious courts, which form a parallel, non-state legal system without
state sanction and are essentially community courts administering community

65
Ibid.
66
Ajaz Ashraf, “Ban Triple Talaq and Abolish Muslim Personal Law Board, Says Former
Minorities Commission Chairman,” [Link], May 5, 2015, <[Link]/article/724902/ban-triple-
talaq-and-abolish-muslim-personal-law-board-says-former-minorities-commission-chairman>.
67
Vishwa Madan Lochan v Union of India & Ors Writ petition (civil) no. 386 of 2005 (India),
decided on July 7, 2014 [hereafter Vishwa Madan Lochan].
68
Vishwa Madan Lochan, pp. 3–4.
 Law, Gender, and Nation 205

justice. This decision from India’s Supreme Court discrediting such fatwas
issued by Shari‘a courts and supported by the AIMPLB and the Ulema as being
incompatible with India’s laws, constitution, and human rights, was supported
and welcomed by Zakia Soman, president of the BMMA:
We whole-heartedly welcome today’s judgment . . . against fatwas that trample
upon rights of individuals and stating that diktats which are in violation of rights
of any individual are to be considered illegal and invalid. . . . This far-sighted
judgment will go a long way in enabling the poor and women among the Muslim
community to get speedy justice and at the same time their fundamental rights
will not be subject to arbitrary interpretations and violation.69
On the other hand, this decision also drew criticism for the court’s refusal to
go further. Rather than simply stating that the fatwas had no legal validity,
Muslim activists like Hasina Khan of AeN would have liked the court to go
further to question the very authority of clerics. Moreover, by dismissing the
fatwas as having no legal validity, the court thereby failed to recognize the
reality that women are subject to community-based structures of authority
and that this is a critical issue that the judiciary should have tackled.70 The
difficulty with community-based alternative dispute resolution mechanisms,
which are not subject to judicial scrutiny, oversight, or regulation, is that those
who are least powerful within the group are bound by structures of authority
against which there is little possibility of dissent. In effect, by acknowledging
that the Shari‘a courts fill a gap that the state legal system cannot satisfy, and
by stating that the pronouncements of these community courts are not legally
binding, and yet making no effort to regulate or oversee these courts to ensure
that basic principles of equality and justice are met, the Supreme Court is
effectively abandoning Muslim women to discriminatory misogynistic inter-
pretations of Muslim personal law.
As Hasina Khan points out,
The judgment recognises that alternate dispute redressal mechanisms such as
Darul Qazas are necessary, because courts can’t reach the most marginalised. But
it says their decisions must not impinge on anyone’s legal rights. How does one
bind clerics to this without a law that they must follow? How do you make them
accountable?
It is critical to note that precisely because the state sees the religious courts
as being outside of the judicial system and yet an important aspect of

69
“Ruling on Sharia Courts Bolsters Rights of India’s Muslim Women, Campaigners
Say,” Reuters, July 8, 2014, <[Link]
idINKBN0FD1FV20140708>.
70
Jyoti Punwani, “Muslim Women and Feminists Speak Out Against the Supreme Court’s
Sharia Judgment,” [Link], May 12, 2015, <[Link]
feminists-speak-out-against-the-supreme-courts-sharia-judgment>.
206 Vrinda Narain

community regulation, this gives them limitless powers to act with impunity,
as indeed the incidents under consideration in the Fatwa case illustrate. As
Khan astutely further points out, “If the state leaves it to the community to sort
out its disputes, the weakest sections of society have to bear the brunt.”71 To
declare that fatwas do not have any legal force and therefore women are not
obliged to obey them is a simplistic misrecognition of the reality of the
multiplicity of oppressions Muslim women face, and ignores the force of
non-state legal orderings on vulnerable groups within the community.

CONCLUSION

So what are the implications for the equality of Indian Muslim women in this
legal landscape? What does it mean for normative diversity and the regulation
of Muslim women? What is the possibility of making joint governance, a
choice between religious and secular jurisdiction, work? Can Muslim women
exercise a free choice of exit and entry? Indian Muslim feminists, activists,
women’s rights advocates, and reformists argue that a well-designed, “woman-
friendly,” religious status-based legal pluralism can help resolve the gendered
dilemmas of difference faced by religious women, and help to challenge both
community leaders’ and the state’s unwillingness to reform the law to address
the disadvantage of Muslim women.
These theoretical questions have serious material consequences for the lived
reality of Muslim women in India who are disadvantaged in many aspects of
family life. I argue that equality cannot be sustained where Muslim women’s
inequality is state legislated in the name of legal pluralism and minority rights.
As Jürgen Habermas cautions, state-administered group rights could result in
“an administrative preservation of cultural species.”72 Drawing from this
insight, I argue that we need to push for recognition of the equality of Muslim
women as an essential aspect of democracy. In order to do this, we must
understand where power is located and where power has to be challenged:
religious orthodoxy and dogmatic understandings of secularism and of state-
sponsored minority rights that refuse to pay attention to inequality and
vulnerability within groups. The challenge is to find the kind of institutional
arrangement that will foster belonging, but not at the expense of equality. If
the minority rights debate is not to reify and solidify hierarchical, patriarchal
forms of community control over minority women, then the debate has to go
beyond the majority–minority question.

71
Ibid.
72
Jürgen Habermas, “Struggles for Recognition in Constitutional States,” European Journal of
Philosophy 1 (1993): 128–55 at 142.
 Law, Gender, and Nation 207

The uneasy relationship between democratic inclusion, secularism, and

religion with regard to Muslim women’s rights, and the attendant power
dynamics, underscore the need to problematize these dichotomies of secu-
lar/religious, modernity/tradition, and public/private. The emerging new dis-
course of Muslim feminists in India, challenging traditional interpretations of
Muslim personal law, provide a counter-discourse to both the official narrative
of modernity and progress as well as to that of the Ulema who claim to be
preserving religion and culture through safeguarding women’s rights within
Islam. The explicit exclusion of Muslim women in a misconception of both
secularism and of the protection of minority rights in India underscores the
need to challenge both the state and the Ulema and their focus on the politics
of cultural difference to the exclusion of structural inequality. Indeed, any
policy of protecting minority rights that does not take into account structural
disadvantage is doomed to failure. There is a critical need to construct a viable,
inclusive democracy, one that includes Muslim women.

ACKNOWLEDGMENT
The author thanks Laetitia Baya Yantren for her excellent research assistance.

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 9

Islam, Gender, and Democracy in Iran

Ziba Mir-Hosseini

In 1995, in the course of research on gender and religious discourses in Iran,

I came across a statement by the controversial religious intellectual Abdol-
karim Soroush. It was in a lecture (audio-taped) that he gave to the annual
meeting of the main student organization on the recent emergence of rights-
based as opposed to duty-based approaches to Islam’s sacred texts. As usual, in
the break following Soroush’s lecture, audience members handed in questions
that he responded to after the break. In response to a question about why
human rights were only weakly grounded in Islamic discourses, Soroush said
something to the effect that “we can speak of human rights in Islam only when
we treat a violation of haqq (rights) as we are used to treating a violation of
namus (honour).”
Namus is a complex concept. In Iran, as in many neighboring countries, it is
a core value, so deeply ingrained in the dominant culture that it is rarely
questioned or even discussed—except when it is attacked or infringed. It is
very much linked with the notion of the sexual integrity of the family and the
group. Girls are brought up to understand that their namus resides in their
bodies; boys are raised with one of their prime duties being to protect the
namus of their close female relatives, especially their sisters. These practices
mean that a woman’s sexual propriety is always the concern of some man: her
father, brothers, husband, sons.
Before the 1979 Revolution, these values and practices were strong through-
out Iran, but the spread of education and liberal ideas had weakened them in
certain sectors of society, mainly among the educated middle class in the larger
cities, and particularly in affluent north Tehran. Notions of women’s right to
control their own bodies were germinating, and certain liberal laws were
passed that improved the gender imbalance. Notably, the 1967 Family Pro-
tection Law restricted polygamy and gave women more or less the same rights
as men with regard to divorce and child custody.
212 Ziba Mir-Hosseini

The analogy between haqq (rights) and namus (honor) is intriguing, and of
course gendered. It captures the obsession with sexuality and the control of
women in Islamist discourses. But it was not until the disputed 2009 presi-
dential election in Iran, and the emergence of the “Green Movement”1 in its
aftermath, that I came to realize how deeply the two are associated. It is this
association that I shall explore here; its dynamics, I suggest, have animated
Iranian politics since the start of the twentieth century, when the quest for
democracy began.
I argue, first, that to understand how Iranian politics have been shaped
since the 1979 Revolution, we need to question the conventional emphasis on
a polarized struggle between “Islamic” and “secularist” tendencies. A tension
between religiosity and secularity, and a radical difference of views over the
proper place of religion in politics and the moral basis of legitimate authority,
have always been integral to the main struggle, which has been, and continues
to be, between the ideologies and practices of despotism and patriarchy, on the
one side, and those of democracy, pluralism, and gender equality, on the other.
This struggle first emerged in the 1906–11 Constitutional Revolution, though
the battle lines have shifted, as have the scope and nature of women’s partici-
pation in society and politics.2
Second, I argue that one of many unintended consequences of the merger of
religious and political authority in post-revolutionary Iran has been a growing
popular understanding of the nature of this struggle. This understanding made
the 2009 election and its aftermath a turning point; by then, the traditional
cultural value of namus, sexual honor, was indeed, for many Iranians, out-
weighed by the notion of haqq, rights, especially the right to vote and to have
one’s vote counted. The regime’s violation of this right in the 2009 presidential
election created such fury, such a gut reaction, that huge crowds came out onto
the streets of the cities, with men and women side by side in the demonstra-
tions in open defiance of the regime’s rule of public gender segregation
(designed to protect the “honor” of women and the state). Popular anger
was at first focused into a single slogan: “Where is my vote?” But as the
protests developed and then were brutally suppressed, both the regime’s

1
A distinctive green color was adopted by supporters of Mir-Hossein Mousavi, one of the
reformist candidates, who promised to bring about a democratic shift in the political structure.
See the collection edited by Nader Hashemi and Danny Postel, The People Reloaded: The Green
Movement and the Struggle for Iran’s Future (New York: Melville House, 2010). The present
chapter is a development and elaboration of my brief contribution to that collection, originally
published as “Broken Taboos in Post-Election Iran,” Middle East Report Online, December 17,
2009, <[Link]
2
For a concise discussion, see Nader Hashemi, “Religious Disputation and Democratic
Constitutionalism: The Enduring Legacy of the Constitutional Revolution on the Struggle for
Democracy in Iran,” in Civil Society and Democracy in Iran, ed. Ramin Jahanbegloo (London:
Lexington Books, 2012), pp. 97–112.
 Islam, Gender, and Democracy in Iran 213

actions and the Green Movement’s responses increasingly played on the links
between political rights and sexual honor.
I begin with an outline of political developments since the 1979 Revolution,
leading to the 2009 presidential elections. Rather than framing my narrative in
terms of whether the project of an “Islamic Republic” has succeeded or failed,
which has been the subtext of much literature on post-revolutionary Iran,3
I focus on how the inbuilt tension between “Islamic” and “Republican” elements
became a catalyst for ideological and social transformation.

THE QUEST FOR D EMOCRACY IN IRAN

During the twentieth century, Iran experienced two popular revolutions. Both
were animated by contestation over the proper place of religion in politics and
the moral basis of legitimate political authority, and in both the main demands
were independence of foreign powers, democracy, and the rule of law; but
both led to dictatorships, the first secular, the second religious.
In the 1906–11 Constitutional Revolution, secularist democrats initially
gained the upper hand but, for a combination of internal and external reasons,
democracy and the rule of law failed to take root; the resultant impasse was
resolved in the 1920s by the modernizing and secularizing, but despotic,
Pahlavi monarchy. A brief resurgence of democracy in the late 1940s was
ended in 1953 by foreign intervention when a CIA-funded coup restored the
autocratic Pahlavi monarchy. Over the next twenty-five years, both democrat-
ic and religious opposition to Pahlavi rule grew until they erupted in 1978–9 in
the second Revolution. The monarchy was replaced by an Islamic Republic, a
novel combination of clerical theocracy and populist democracy,4 under the
leadership of Ayatollah Khomeini.
This new Islamic Republic merged religious and political powers, declared
Shari‘a the law of the land and embarked on a fierce process of “Islamizing”
law and society, with some devastating consequences for women, religious
minorities, and secular Iranians. In the process, it came to confront two urgent
late twentieth-century demands: for democratic pluralism and for gender
equality. These two demands transformed the Islamic Republic from within,
challenging its uneasy amalgamation of Islamic and Republican elements.
The post-revolutionary regime’s attempt to “Islamize” law and society
began with attempts both to safeguard women’s “chastity” and to redefine
the nature and scope of their rights. One of the first acts of the revolutionary

3
For example, Olivier Roy, The Failure of Political Islam (London: [Link], 1999).
4
I use theocracy in the sense of “government by divine guidance,” which became enshrined in
the constitution of the Islamic Republic.
214 Ziba Mir-Hosseini

regime was to dismantle the 1967 Family Protection Law. The victorious
Islamist “brothers” took upon themselves the duty of “protecting”—in other
words, controlling—the namus of all their “sisters.” Honor became collective
and the state took charge of it. The authority of the regime, in fact, came to
hinge on its success in policing sexual morality. Women’s “rights” were only
those granted them by the rulings of Muslim jurists, and relations between the
sexes—in private as well as in public—were strictly confined by the red lines
set by old jurisprudential texts. An official gender policy and culture were
instituted, epitomized by compulsory head covering for women and promoted
as the “culture of hijab.” The government instituted gender segregation in public
space, criminalized sexual contact outside marriage, and reduced women to
sexual objects, depriving them of many legal rights they had acquired.
This effort to put the clock back was thwarted by the fact that, after the
Revolution, women retained the right to vote and participated at a much
higher rate in education and public life. The state’s appropriation of the role of
protector of women’s honor gave women from traditional and religious
families the license to be in public space, which now, in the eyes of their
families, was purged from “corruption.” This not only reduced the role of
fathers and brothers and made the experience of patriarchy impersonal, thus
psychologically much easier to reject, but also made it possible for those
men who were not “Islamic brothers” to identify with women’s experience
of oppression.
The literature on the politics of gender and law in post-revolutionary Iran
is extensive.5 Much of the discussion in the early 1980s focused on dire
predictions concerning the fate of women and their status as chattels under
an Islamic Republic committed to application of the Shari‘a. By the early 1990s,
the discussion moved to documenting women’s increased gender consciousness,
and how they were resisting state-imposed restrictions and struggling to
retain their legal rights. In my own writings, I have argued that by identifying
the “Shari‘a” with state law, the regime turned it into a site of political contest-
ation and opened its rulings to scrutiny and public debate. Premised on a
premodern notion of justice, these rulings entitle individuals to different rights
on the basis of faith, social status, and gender: they subject women to male

5
This literature is too varied and complex to discuss here. Much of it has been produced by
Iranians in exile. For a bibliographic essay on this literature until the mid-1990s, see Ziba Mir-
Hosseini, Islam and Gender: The Religious Debate in Contemporary Iran (Princeton, NJ: Prince-
ton University Press, 1999; London: I.B. Tauris, 2000), pp. 283–5; for insightful analysis, see
Parvin Paidar, “Feminism and Islam in Iran,” in Gendering the Middle East, ed. Deniz Kandiyoti
(London: I.B. Tauris, 1996), pp. 51–68; Afsaneh Najmabadi, “Feminism in an Islamic Republic:
Years of Hardship, Years of Growth,” in Islam, Gender and Social Change, ed. Yvonne Y. Haddad
and John L. Esposito (New York: Oxford University Press, 1998), pp. 59–84; Nayereh Tohidi,
“The Women’s Movement and Feminism in Iran: A Global Perspective,” in Women’s Move-
ments in the Global Era, ed. Amrita Basu (Boulder, CO: Westview, 2010), pp. 375–414.
 Islam, Gender, and Democracy in Iran 215

authority and treat women and non-Muslims as second-class citizens. The

result has been so out of touch with current understandings of justice, with
popular aspirations, and with the ideals of the Revolution, that ordinary people,
as well as the religious and political elite, have come to rethink and redefine their
notions of the sacred and the Shari‘a.6 Paradoxically, by transforming Shari‘a
from an ideal into a state ideology and applying its legal mandates through the
machinery of a modern nation state, the Islamic Republic has unwittingly set in
motion a process of “desanctification” and “secularization” of its legal mandates.
What made this possible was the ambiguity in the founding theory of the state as
to where the base of political and religious authority should lie.

“ I S LAM ” VS “R E P U B L I C”

Brought into existence following a popular revolution, the idea of an “Islamic

Republic” was premised on two broad assumptions: first, that what makes a
state “Islamic” is adherence to and implementation of the Shari‘a; second, that,
given free choice in elections to political office, the people will choose “Islam”
and thus vote for clerics as the custodians and interpreters of the Shari‘a.7
The constitution of the Islamic Republic clearly recognizes the people’s
right to choose who will govern them, establishing democratic and legislative
institutions such as the parliament and the presidency, both elected by direct
popular vote. But it subordinates the people’s will to that of the clerical
establishment through the unelected institutions of the Rule of the Jurist
(velayat-e faqih), or Leader (rahbar), and the Guardian Council, composed
of twelve members, six of whom are jurists appointed by the Leader, the other
six being laymen nominated by the head of the judiciary and approved by
parliament, with a tenure of six years. The Leader has a wide mandate and a

6
See in particular Ziba Mir-Hosseini, “Stretching the Limits: A Feminist Reading of the
Shari‘a in Post-Khomeini Iran,” in Islam and Feminism: Legal and Literary Perspectives, ed. Mai
Yamani (London: Ithaca Press, 1996), pp. 285–319; Ziba Mir-Hosseini, “Muslim Women’s Quest
for Equality: Between Islamic Law and Feminism,” Critical Inquiry 32 (Summer 2006): 629–45;
Ziba Mir-Hosseini, “Debating Women: Gender and the Public Sphere in Post-Revolutionary
Iran,” in Civil Society in Comparative Muslim Contexts, ed. Amyn Sajoo (London: I.B. Tauris and
Institute of Ismaili Studies, 2002), pp. 95–122.
7
This section draws on my earlier writings, in particular, Ziba Mir-Hosseini, “Women and
Politics in Post-Khomeini Iran: Divorce, Veiling and Emerging Feminist Voices,” in Women and
Politics in the Third World, ed. Haleh Afshar (London: Routledge, 1996), pp. 142–70; “The
Conservative and Reformist Conflict over Women’s Rights in Iran,” International Journal of
Politics, Culture and Society 16/1 (Fall 2002): 37–53; “The Politics and Hermeneutics of Hijab in
Iran: From Confinement to Choice,” Muslim World Journal of Human Rights 4/1 (Summer–Fall
2007): Art. 2 [no page nos.]; and Ziba Mir-Hosseini and Richard Tapper, Islam and Democracy
in Iran: Eshkevari and the Quest for Reform (London: I.B. Tauris, 2006), pp. 1–38.
216 Ziba Mir-Hosseini

final say in running the state. Guardian Council members are charged with
deciding whether laws passed by parliament conform to the Shari‘a and the
constitution; in effect, they are the official interpreters of both the constitution
and Shari‘a.
The constitution named Khomeini as Leader for life, and created an As-
sembly of Experts to choose his eventual successor, and to supervise his
activities by ensuring that he complies with his religious and constitutional
duties. The eighty-six members of this Assembly are popularly elected every
eight years; but only qualified clerics are eligible to stand, and from the outset
conservative clerics have dominated. In practice so far, the Assembly has
merely endorsed the actions of the Leader. The constitution allows the Guard-
ian Council to supervise all elections, which the latter has interpreted as the
right to vet candidates’ eligibility to stand. This means that, in effect, the
Assembly of Experts and the Guardian Council form a closed system that
allows the Leader unlimited power. Through his appointees to the Guardian
Council, he can control both legislative and executive powers.8
As the revolutionary fervor subsided, neither of the initial assumptions
proved as valid or clear-cut as the framers of the constitution hoped, and
cracks in the system soon appeared. Either the notion of “Islamic” must adapt
to the political exigencies of a modern democracy; or the people’s choice must
be restricted or bypassed, which meant betraying the Revolution’s ideals and
losing the popular support from which the regime drew legitimacy.
The story of the Islamic Republic has been the story of how the rulers have
sought to manage this basic problem of legitimacy, and their success or failure
has been measured in regular elections. Simply put, it is the story of the unfolding
of the structural tension between the elected and unelected institutions within
the state, embodied in the concepts of “Islamism” and “republicanism.”
As long as Ayatollah Khomeini was alive, this tension was managed and did
not confront the state with a crisis of legitimacy. There were several reasons for
this. First, apart from Khomeini’s personal charisma as Leader, and his
religious standing as supreme religious authority, his style of leadership helped
to diffuse the tension. Not only was he mindful of—and responsive to—the
popular will, he managed to rise above factional politics and to avoid being
claimed by any faction. Perhaps the most important reasons were the

8
For the constitution, see Asghar Schirazi, The Constitution of Iran: Politics and the State in
the Islamic Republic (London: I.B. Tauris, 1997). For the political structure, see Wilfried Buchta,
Who Rules Iran? The Structure of Power in the Islamic Republic (Washington, DC, and Berlin:
Washington Institute for Near East Policy and Konrad Adenauer Stiftung, 2000). For further
developments and amendments of the constitution, see Said Amir Arjomand, After Khomeini:
Iran under His Successors (Oxford: Oxford University Press, 2009). For a reassessment of
the process of drafting the constitution, see Ali Rahnema, “Ayatollah Khomeini’s Rule of the
Guardian Jurist: From Theory to Practice,” in A Critical Introduction to Khomeini, ed. Arshin
Adib-Moghadam (Cambridge: Cambridge University Press, 2014), pp. 88–114.
 Islam, Gender, and Democracy in Iran 217

freshness of the revolutionary momentum and the fact that the politics of the
period were preoccupied with the Iran–Iraq War (1980–8), a unifying force
that provided the mechanisms for suppressing dissent.
Islamist hardliners eventually gained the upper hand and excluded secular-
ist and liberal Islamists from structures of power. But the issue of legitimate
authority remained crucial, revealing the ambiguity in the founding theory of
the state as to where the base of political and religious authority should lie. In
Twelver Shi‘ism, supreme religious authority is encapsulated in the institution
of marja‘iyat, embodied in the person of the marja‘-e taqlid (the “source of
emulation”)—that is, a high-ranking cleric whose opinions in matters of
religious law are binding on those who choose to follow him. Marja‘iyat as
an institution emerged in the nineteenth century, and, on the eve of the
Revolution, there were five maraje‘ in the Shi‘i world. Ayatollah Khomeini
was one of them. Each had his followers and supporters among ordinary Shi‘a
all over the world and among clerics and students in various seminaries.9 They
were equal in rank and religious authority; none was recognized as sole marja‘,
and none had a modern state apparatus at his disposal.
As the Islamic Republic consolidated itself, a structural contradiction be-
tween the two notions of authority—the marja‘iyat and the velayat-e faqih—
became increasingly evident. The first has no overt political claims, having
evolved through a tacit consensus between Shi‘i masses and clerics. The
second, a child of the Revolution, has no precedent in Shi‘a political thought,
but exerts power over and demands allegiance from all the Shi‘a. It invests the
ruling Jurist with the kind of powers and mandate that Shi‘i theology recog-
nizes only for the Prophet and the twelve Infallible Imams.10
By 1988, the tension between these two notions of authority intensified and
brought about a constitutional crisis. There was conflict not only between the
clerical supporters and opponents of velayat-e faqih, but also between the
factions within the ruling elite, which held differing views of authority.
Khomeini’s dismissal of his designated successor, Ayatollah Montazeri, in
March 1989, added a new edge to the tension. Montazeri was the most senior
clerical supporter of the principle of velayat-e faqih, and also the only one
whose own marja‘iyat was recognized. He had impeccable revolutionary

9
Ayatollah Khoi’i (d. 1992) lived in Najaf, the rest in Iran: Ayatollahs Shari‘at-Madari
(d. 1982), Mar‘ashi-Najafi (d. 1992), and Golpaygani (d. 1993) in Qom, and Khonsari
(d. 1985) in Tehran; see Moojan Momen, An Introduction to Shi‘i Islam (New Haven, CT, and
London: Yale University Press, 1985), p. 249; Michael Fischer, Iran: From Religious Protest to
Revolution (Cambridge, MA: Harvard University Press, 1980), p. 88.
10
See Said Amir Arjomand, The Turban for the Crown: The Islamic Revolution in Iran
(Oxford: Oxford University Press, 1988); Abdulaziz Sachedina, The Just Ruler in Shi‘te Islam:
The Comprehensive Authority of the Jurist in Imamite Jurisprudence (Oxford: Oxford University
Press, 1988); Shahrokh Akhavi, “Contending Discourses in Shi‘a Law on the Doctrine of Wilayat
al-Faqih,” Iranian Studies 29/3–4 (1996): 229–68.
218 Ziba Mir-Hosseini

credentials: he had spent years in the previous regime’s prisons, played an

instrumental role in inserting the velayat-e faqih into the constitution, and
published discussions on the subject from both theoretical and theological
angles. But he was also a vocal critic of state policies, and was not willing to
compromise his religious standing and beliefs for the sake of power. Mon-
tazeri’s dismissal, the outcome of an acrimonious struggle for the succession,
was in effect a proof of the impossibility of combining the old and new notions
of authority.
The crisis was resolved when Khomeini himself gave his blessing to the
separation of velayat and marja‘iyat, and set up a committee for revision of
the constitution. His death in June the same year forced a redefinition of the
relationship between religious authority and the state.11 In July 1989, parlia-
ment speaker ‘Ali Akbar Hashemi Rafsanjani was elected president. A popular
referendum ratified a revised constitution that no longer required the Leader
to be a marja‘, but merely a cleric qualified to issue fatwas in all fields of
Islamic law. The revised constitution also abolished the office of prime min-
ister (filled since 1981 by Mir-Hossein Mousavi) and transferred its executive
powers to the presidency. Rafsanjani’s priorities and his pragmatic approach
reversed some of the earlier policies, notably in the areas of the economy and
foreign affairs. The welfare policies of the wartime government under Prime
Minister Mousavi were replaced by measures that encouraged the growth of
the mercantile bourgeoisie and state-connected entrepreneurs.12
Khomeini’s successor as Leader, Ali Khamene’i, a middle-ranking cleric,
lacked his religious authority and charisma, which made him hostage to the
seminary and factional politics. Using the institutions at his disposal, Khame-
ne’i started to expand his own power base and to narrow the scope of
democracy, especially by introducing a more stringent vetting of candidates
for elected office. This upset the delicate balance of power and the working
relationship that had developed between the two ruling “factions,” the so-
called “Rightists” and “Leftists.” Although often spoken of as polarized fac-
tions, these terms are relative, the Rightists being more conservative and
theocratic, the Leftists more progressive and democratic; they were all, of
course, Islamists and supporters of the principle of velayat-e faqih. Indeed,
differences among them are best seen as positions around which people
gathered in relation to specific issues, many in the center shifting position
according to the issue.13

11
For a succinct discussion, see Said Amir Arjomand, “The Constitution of the Islamic
Republic,” Encyclopaedia Iranica 6 (1992): 151–8.
12
Ali Ansari, Iran, Islam and Democracy: The Politics of Managing Change (London: Royal
Institute of International Affairs, 2000), pp. 52–81.
13
For factional politics, see Bahman Baktiari, Parliamentary Politics in Revolutionary Iran:
The Institutionalization of Factional Politics (Gainesville, FL: University Press of Florida, 1996);
 Islam, Gender, and Democracy in Iran 219

By the mid-1990s, the Leftist faction had lost all its influence in the
judiciary, and, while it kept its middle-rank officials in government, it lost
its ministers. One of them was Mohammad Khatami, Minister of Islamic
Guidance and Culture since 1982. In 1992, he resigned under pressure from
the Rightist faction, which saw his liberal policies as allowing a form of
“cultural invasion.” Set aside from decision-making bodies, some of the senior
Leftist clerics retired from politics and returned to the seminaries,14 while
others formed political groups and bodies in the seminaries,15 or set up
research and study groups in Tehran and devoted themselves to “cultural
activities.”16 They went into a period of political retreat and reflection, during
which some of them broke away from absolutist ideology and started to argue
for democratic principles and the rule of law.17 In so doing, they joined the
increasing numbers of ordinary citizens who were becoming disillusioned by
the widening gap between the ideals of the Islamic Revolution for which they
had fought and the realities of the Islamic state they had helped to create.

GENDER DEBATES RESURFACE

Women, more than any other group, had reasons to be disaffected. They felt
the harsh reality of subjection to a patriarchal interpretation of Islamic law
when applied by the legal machinery of a modern state. They kept their
suffrage rights, but most of the pre-revolutionary legal reforms were abol-
ished. Men regained their rights to unilateral divorce and polygamy, while
women’s rights to divorce and child custody were limited and they were
forbidden to study mining and agriculture, to serve as judges, and to appear
in public without hijab. Many Islamist women, who had genuinely, if naively,
believed that women’s position would automatically improve under an Islamic

and Mehdi Moslem, Factional Politics in Post-Khomeini Iran (Syracuse, NY: Syracuse University
Press, 2002).
14
For instance, Ayatollah Yusef Sane‘i, head of the Guardian Council until 1984, and
Ayatollah Musavi Ardabili, head of the judiciary until 1987. Both are now among the main
supporters of reform.
15
For instance, Majma‘-e Modarresin va Mohaqqeqin-e Houzeh-ye ‘Elmiyeh (Assembly of
Teachers and Researchers of Qom Seminaries) was founded as an alternative reformist body to
the conservative-dominated Jame‘eh-ye Modarresin-e Houzeh-ye ‘Elmiyeh (Society of Teachers
of Qom Seminaries).
16
For the different circles of religious intellectuals and their link with the reformist move-
ment, see Hamid Reza Jalaeipour, “Religious Intellectuals and Political Action in the Reform
Movement,” in Intellectual Trends in Twentieth-Century Iran: A Critical Survey, ed. Negin
Nabavi (Gainesville, FL: University Press of Florida, 2003), pp. 136–46.
17
For an overview of the intellectual and sociopolitical roots of this transformation, see
Ahmad Ashraf and Ali Banuazizi, “Iran’s Tortuous Path toward ‘Islamic Liberalism’,” Inter-
national Journal of Politics, Culture and Society 15/2 (Winter 2001): 237–56.
220 Ziba Mir-Hosseini

state, were increasingly disappointed. They included some early activists, who
had played instrumental roles in discrediting feminists and destroying the pre-
revolutionary women’s press and organizations, as well as many ordinary
women for whom Islam meant justice and fairness.18
Yet despite women’s experience of legal setbacks and other forms of discrim-
ination, the Islamic Republic’s “Islamization” and segregation policies paradox-
ically became a catalyst for their increased participation in society. As the
coalition of forces that had brought about the Revolution collapsed, the religious
authorities came to rely more and more on popular support, including that of
large numbers of women. This gave an opportunity for political activity to so-
called “traditional” women, who until then had seen politics as beyond their
realm. At the same time, the long-drawn-out war with Iraq, and the accom-
panying rapid price inflation, forced women into the labor market, while
the state’s moralistic rhetoric and compulsory veiling made women’s activity
outside the home respectable in the eyes of religious and traditional families.
The “pragmatic” presidency of Rafsanjani brought some modification in
official discourses and policies, and some opening of public space. Some of
the earlier restrictions on subjects women could study were removed; family
planning and contraception became freely available; divorce laws were
amended so as to curtail men’s right to divorce and to compensate women
in the face of it; and women were appointed as advisory judges in family
courts.19 Debates about gender issues, harshly suppressed after the Revolu-
tion, resurfaced. Conducted publicly in the women’s press, these debates
revealed a growing dissent and pressure for legislation to curb the inequity
of men’s Shari‘a rights. By the early 1990s, there were clear signs of the
emergence of a new gender consciousness and a critique of the gender biases
in Islamic law. Zanan (Women), a women’s magazine, was the first to air this
critique. Its editor and founder, Shahla Sherkat, had played a role in the
Islamization of the women’s press; in 1982, she became an editor of Zan-e
Ruz, the most popular and outspoken pre-revolutionary women’s magazine
that the Islamists had taken over, but in the process, she became a critic of
patriarchal interpretations of the Shari‘a and found allies in feminism.20 It is
certainly true that the Islamic Republic’s rhetoric and policies in the 1980s
marginalized and excluded so-called “Westernized” women, but it is also true
that they empowered many other women, who came to see themselves as
citizens entitled to equal rights. It was becoming increasingly apparent to

18
Mir-Hosseini, “Women and Politics in Post-Khomeini Iran,” pp. 142–70.
19
Nesta Ramazani, “Women in Iran: The Revolutionary Ebb and Flow,” Middle East Journal
47 (1993): 409–28.
20
See Afsaneh Najmabadi, “Feminism in an Islamic Republic,” pp. 59–84; Mir-Hosseini,
“Stretching the Limits.”
 Islam, Gender, and Democracy in Iran 221

them that they could not become full citizens unless a modern, democratic
reading of Islamic law was accepted.

RISE AND F ALL O F THE REFORMISTS

Such a reading was the objective of a group of Muslim intellectuals, advocates

of what came to be known as New Religious Thinking. They included laymen
and women as well as clerics, all of whom now saw a widening gap between the
ideals of the Revolution and the realities and policies of the Islamic state in
which they lived. Representing various strands of modernist Islamic thought
that had remained dormant during the war with Iraq, they offered new
interpretations of Islam and began to articulate a theoretical critique of the
Islamic state from an Islamic perspective.21 Most prominent was Abdolkarim
Soroush, who published a series of controversial articles between 1988 and
1990 on the historicity and relativity of religious knowledge, later developed as
a book. In a direct challenge to the religious authority of the clerical estab-
lishment, Soroush sought to separate religion from religious knowledge,
arguing that, while the first was sacred and immutable, the second was
human and evolved over time as a result of forces external to religion itself.22
Thus, after over a decade of the experience of Islam in power, Islamic
dissent began to be voiced among “insiders.” Whereas in the 1980s these
men and women worked to consolidate the Islamic Republic, in the 1990s,
armed with Soroush’s theory of the relativity of religious knowledge, they
sought to create a worldview reconciling Islam and modernity, and argued for
a demarcation between the state and religion. They tried to redefine and
rework Islamic concepts and succeeded in producing discourses that were to
become highly attractive to youth and women. They argued that the human
understanding of Islam is flexible, that Islam’s tenets can be interpreted to
encourage both pluralism and democracy and to allow change according to
time, place, and experience. For them, the question was no longer who should
rule, but how they should rule, and what mechanisms should be in place to
curb the excesses of power. In this way, they began to cross the red lines that
had previously circumscribed any critical discussion of the political dogma
that sanctioned the concentration of power in the institution of Leadership.

21
For the emergence of this discourse and its key figures, see Mehran Kamrava, Iran’s
Intellectual Revolution (Cambridge: Cambridge University Press, 2000), pp. 120–72.
22
See Frough Jahanbakhsh, Islam, Democracy and Religious Modernism (1953–2000): From
Bazargan to Sorush (Leiden: Brill, 2001); Mahmoud Sadri, “Sacral Defense of Secularism: The
Political Theologies of Soroush, Shabestari, and Kadivar,” International Journal of Politics,
Culture and Society 15/2 (2001): 257–70; Charles Kurzman, “Critics Within: Islamic Scholars
Protest against the Islamic State in Iran,” International Journal of Politics, Culture and Society
15/2 (2001): 115–35.
222 Ziba Mir-Hosseini

Meanwhile, the struggles between traditionalist and pragmatic interpretations

of the Shari‘a intensified; and there were increasing signs of popular dissatis-
faction with state policies and resentment of the many injustices brought by
the “Islamization” of the legal system, which placed the administration of
justice in the hands of clerics, and focused on two areas of law: family and
criminal law.
Almost every other year under the Islamic Republic there have been
elections. Electoral campaigns are those rare moments when the regime’s
tolerance level rises, and contentious issues can be raised with less fear of
repression; they have become occasions for dialogue between the Islamic and
Republican sides of the state, as well as between the regime and civil society.
This dialogue fostered the emergence of reformist forces seeking to democra-
tize and liberalize the regime from within. Just before the 1996 parliamentary
election, with the support of Rafsanjani, whose liberalizing polices were
increasingly meeting opposition from the traditional Rightist faction, a
group of technocrats formed a new political group (Servants of Construction).
Representing the new and moderate right, this group entered the election
campaigns with a separate list of candidates. Among them was Rafsanjani’s
youngest daughter, Fa’ezeh, who had played an important role in promoting
women’s access to sports at both national and international levels. She won the
second highest vote in Tehran; it was rumored that she had in fact topped the
poll, but the candidate of the traditional right, Akbar Nateq-Nouri, who was
reportedly being groomed for the presidential elections due the following year,
was declared the winner.23 Then in 1997, a last-minute political alliance
between outgoing president Rafsanjani’s pragmatic modernist right and the
Islamic left put forward former culture minister Mohammad Khatami to
oppose Nateq-Nuri. The people voted en masse for Khatami, who stood for
the “rule of law” and “civil society,” and whose ideas and language were drawn
largely from the New Religious Thinkers.24
So in 1997 the public will reasserted itself with Khatami's election as
president, bringing a shift from the theocratic to the democratic side. Almost
overnight, new cleavages opened and new political alliances were forged. The
major cleavage was now between “Conservatives,” who insisted on keeping
the ideological construction of “Islam” intact, and “Reformists,” who sought to
reconcile Islam with the discourses of democracy and human rights. The
relatively liberal policies of Khatami’s government allowed the voices of
dissident intellectuals, both lay and clerical, to be aired in the press and to

23
See Ziba Mir-Hosseini, “The Rise and Fall of Fa’ezeh Hashemi: Women in Iranian
Elections,” Middle East Report 218 (Spring 2001): 8–11.
24
For elite factionalism, see Moslem, Factional Politics; and Mathew C. Wells, “Thermidor in
the Islamic Republic of Iran: The Rise of Muhammad Khatami,” British Journal of Middle
Eastern Studies 26/1 (1999): 27–39.
 Islam, Gender, and Democracy in Iran 223

reach the public. A new public space emerged, comprising a vocal and
dynamic press, the universities, the seminaries, and parliament, where the
ambiguities and contradictions in the original idea of the Islamic state, its
translation into law and policy, and the nature of the Shari‘a and its place in
everyday life were all subjects of debate.25
The victories of reformist candidates in the municipal and parliamentary
elections of 1999 and 2000, and Khatami’s re-election in June 2001 with over
77 percent of the vote, showed the strength of mass support for the advocates
of the new discourse and their vision of Islam. But despite these electoral gains,
which put them in charge of both executive and legislative powers, the
reformists were unable to fulfil their electoral promises. Instead, they became
both internally divided and locked in a fierce political battle with their
conservative opponents, who were now identified and aligned with the theo-
cratic and unelected side of the Islamic Republic.
Gender issues became a major area of confrontation. Women’s rights and
the reform of family law were central issues in the reformists’ successful
campaign for the 2000 parliamentary elections, but the Guardian Council
frustrated their subsequent legislative moves.26 Despite the slow pace of legal
reforms, the Islamic Republic’s gender codes began to be relaxed, and the
wisdom of compulsory hijab came to be questioned: an issue that until then
had been a red line that no one had dared to cross. In theory, no debate had
been tolerated; but in practice, many women had challenged the imposition of
hijab from the outset, and constantly pushed back its frontiers, and the gender
segregation codes had also been flouted.27 By the early 2000s, colorful and
stylish outfits had made their way back onto the streets, and young people
increasingly broke gender segregation rules with impunity. Celebrations of
International Women’s Day, March 8, which had been held during Rafsanja-
ni’s presidency by some women activists in their private homes, now became
public events. Activists directed their energies into “cultural activities,” a
euphemism for criticism of biases in law and society. New non-governmental
organizations (NGOs) were created, with briefs ranging from environmental
issues to defending the rights of political prisoners, providing legal services for
disadvantaged women, and the protection of abused children. Some of these
activists openly called themselves “secular feminists” and started to distance
themselves from the reformists in government.
But the conservatives, led by Khamene’i, successfully used the power of the
unelected bodies to frustrate all of the reformists’ initiatives in government and

25
Some of these debates are translated in Mir-Hosseini and Tapper, Islam and Democracy
in Iran.
26
See Ziba Mir-Hosseini, “Fatima Haqiqatjoo and the Sixth Majles: A Woman in Her Own
Right,” Middle East Report 233 (Winter 2004): 34–8, <[Link]
haqiqatjoo-sixth-majles>.
27
See Mir-Hosseini, “The Politics and Hermeneutics of Hijab in Iran.”
224 Ziba Mir-Hosseini

legislative moves in parliament. They also silenced key reformist personalities,

first by assassination, then by prosecuting and jailing them, and closed down
the vibrant free press that was one of the main early achievements and a
platform for the reformists. These measures, however, failed to silence the
debates and to circumscribe the public sphere, but rather highlighted the
urgency of the debates and the necessity for such a sphere.28
Nonetheless, divided and unable to deliver on their electoral promises or to
bring about a democratic shift in the structures of power, the reformists
started to lose popular support. By the time of the February 2003 council
elections, the stalemate produced what the reformists had feared most: voter
apathy. Conservatives won the major cities by default—in Tehran, the turnout
was a mere 14 percent—though not the villages and small towns.
For the parliamentary elections the following year, the Guardian Council
disqualified a large number of reformist candidates, including eighty sitting
members. The reformists protested, members organized a sit-in, and there was
talk of President Khatami’s resignation, but to no avail. The election went
ahead without the participation of the largest reformist parties. The conser-
vatives won the election, but victory came at a price: in order to appeal to the
popular legitimacy on which the Islamic Republic was founded, they had to
appropriate the reformist platform, or at least its rhetoric. The turnout of
around 42 percent was the lowest for any parliamentary election in the Islamic
Republic.
In the June 2005 presidential elections, having lost the popular argument to
the reformists, but strengthened by the reformist government’s failures in both
domestic policy and foreign relations, the theocratic forces relied on the
Revolutionary Guards to ensure the election of their candidate, Mahmud
Ahmadinejad. The means by which this was done—rigged ballot boxes,
interference with the electoral process by organizing mass votes for their
candidate—further undermined the popular legitimacy and mandate on
which the Islamic Republic had so far rested.
The failure of the reformists in the 2005 election was also a consequence of
US policy in the Middle East. Despite Iran’s assistance in dislodging the
Taliban in Afghanistan in 2001, President Bush included Iran in his “Axis of
Evil” in early 2002. Even after Iran helped to stabilize Iraq following the US
invasion in 2003, the Bush administration refused to talk to Iran about nuclear
and other issues and appeared determined on regime change. These rebuffs all
had a decisive impact on Iranian internal politics. The conservative and
theocratic forces in Iran were able to point to the reformists’ foreign policy
failures, and to use the threat of invasion to silence voices of dissent and to
derail the democratic process. The hardliners had what they needed internally,

28
For an overview of this period, see Ghoncheh Tazmini, Khatami’s Iran: The Islamic
Republic and the Turbulent Path to Reform (London: I.B. Tauris, 2013).
 Islam, Gender, and Democracy in Iran 225

as well as the opportunity to aim for regional influence and popularity in the
Muslim world.
During Ahmadinejad’s first presidential term, the Revolutionary Guards,
from which many of his ministers had emerged, gained increasing control of
the country. His government tried to resurrect the early revolutionary gender
discourse and policies, and to undo the modest but steady gains of women and
civil society during the reformist phase. In 2006, they reinstated restrictions on
celebrating March 8, and cancelled some women’s meetings planned in
universities; police and paramilitary forces broke up the gathering organized
by women activists in a central Tehran park. In April, the police launched an
unprecedented aggressive drive to reimpose the rigid codes of dress and
comportment that prevailed in the early days of the Revolution. The
initiative—called the Moral Security Plan—involved female police in full
chador, and targeted young women sporting the new hijab fashion, consisting
of tight tunics, short trousers, and narrow scarves. Thousands of women were
arrested in big cities, with many hundreds of thousands receiving verbal
warnings. Then in June, when women tried to stage a rally in a main square
in Tehran to protest against discriminatory laws, the protestors, including a
number a men, were beaten and many were arrested. Most detainees were
released within a week, some on bail, to appear in a Revolutionary Court on
charges of “propaganda against the system,” “acting against national security,”
and “participating in an illegal demonstration.”29 The government introduced
a number of regressive measures, notably gender quotas to limit women’s
admission to university—by then they numbered nearly two thirds of students—
and a family bill that made it easier for men to practice polygamy. In January
2008, Zanan magazine was closed down for “blackening the authorities” by
reporting incidents of militia forces raping girls they had arrested on the
pretext of “bad hijab.”30
Yet despite increasing pressures (such as regular interrogation by security
forces and detention after attending meetings abroad) and disagreements over
what actions to take, women’s rights activists remained undaunted and
launched a number of campaigns. These campaigns, conducted through the
Internet and on websites, became the focal point for opposition to discrimin-
atory laws, raising consciousness, and opening a new forum for discussion and
debate in the face of the increasing censorship of the press and the closure of
NGOs. Prominent among them was One Million Signatures Demanding
Changes to Discriminatory Laws, which became the model for other cam-
paigns and connected women activists inside with Iranians in the diaspora.

29
Ziba Mir-Hosseini, “Is Time on Iranian Women Protestors’ Side?” Middle East Report
Online, June 16, 2006, <[Link]
30
See “Shutting Down Zanan,” New York Times editorial, February 7, 2008, <[Link]
[Link]/2008/02/07/opinion/[Link]?_r=0>.
226 Ziba Mir-Hosseini

Launched in August 2006, and inspired by Moroccan women’s successful 1992

campaign to change family laws, it became a magnet for activists to take the
message of gender equality into civil society, by doorstep meetings with
ordinary women, and by workshops and online discussions.31
Instead of silencing reformists and human rights and women’s activists,
Ahmadinejad’s government succeeded only in uniting them and making their
demands more radical. Reformist and women’s websites, now the only forum
in which activists could still interact, continued the debate and became bolder
in their critique of violations of what they considered to be their basic human
rights. In this way, the public sphere that emerged after Khomeini’s death and
was nurtured during Khatami’s presidency (1997–2005) not only survived, but
became more and more oriented toward rights.32

RIGHTS A ND S EXUAL HONOR IN

THE 2009 ELECTION: A TURNING P OINT

The 2009 presidential election, when Ahmadinejad stood for a second term,
took place against the background of these developments. As the election date
approached, reformist personalities and groups started to mobilize people to
vote. Former President Khatami was persuaded to run again. The reformist
Mehdi Karroubi, who had lost the 2005 election to Ahmadinejad, also an-
nounced his candidacy on behalf of the party he had formed then, shortly after
resigning from all his governmental posts in protest at what he described, in an
open letter, as election-rigging by the Revolutionary Guards and one of
Khamene’i’s sons. Then in March, Mir-Hossein Mousavi, the former prime
minister, entered the presidential race after over twenty years of political
silence, and before long Khatami withdrew in his favor. Having had Ayatollah
Khomeini’s backing and a popular base due to his welfare policies, Mousavi
now stood as an independent centrist candidate. His campaign, reminiscent in
many ways of Khatami’s in 1997, was run by a group of young activists, who,
lacking access to state-controlled media—in particular television, which was
heavily biased toward Ahmadinejad—skillfully used digital media to reach
large numbers of people.
On election day, June 12, the turnout throughout the country was high. But
it was followed by what many have interpreted as a coup d’état by theocratic

31
For the campaign, see <[Link]
campaign/>. For other campaigns, see <[Link] this website has
not been updated since July 2009 but contains important campaign documents.
32
See Negin Nabavi, “From ‘Reform’ to ‘Rights’: Mapping a Changing Discourse in Iran,
1997–2009,” in Iran: From Theocracy to Green Movement, ed. Negin Nabavi (London: Palgrave,
2012), pp. 39–54.
 Islam, Gender, and Democracy in Iran 227

forces. From the beginning, numerous serious irregularities were reported:

Revolutionary Guards and the Interior Ministry clamped down on Ahmadi-
nejad’s opponents; in many cases, they kept their representatives out of both
polling booths and counting stations; they attacked Mousavi’s campaign
headquarters and arrested his aides and other prominent reformists and
journalists. The official result was announced on TV only two hours after
polling ended, declaring Ahmadinejad the winner with 63 percent of the
votes, Mousavi second with less than half that, and the other two candidates,
Karroubi and Mohsen Rezaie (a former head of the Revolutionary Guards),
with single figures: there were indications that these proportions had been
decided in advance of the polling.33
Mousavi and Karroubi refused to accept the results, and asked for a recount.
On June 13, Ahmadinejad celebrated his victory, and in a provocative speech
referred to those objecting to the poll as “dirt and dust” that would be soon
washed away. On June 15, an estimated 2 million protesters marched through
Tehran with the single slogan, “Where’s my vote?” This was the biggest protest
march since the 1979 Revolution, and a direct challenge to the theocratic
forces. It was followed by more protests, which the government met with
violence. In a much-awaited Friday prayer speech on June 19, Khamene’i,
instead of attempting to find a healing formula, threw oil on the fire. He
blamed foreign media for “doubts over election results,” dismissed the pro-
testers, and warned them of further government violence if they persisted. But
the protests continued, leading to the formation of the popular movement for
change, which came to be known as the Green Movement, under the joint—
but very diffuse—leadership of Mousavi, Karroubi, and Khatami, with Raf-
sanjani attempting to mediate reconciliation with the Leadership.
In the 2009 election and its aftermath, both the protests of supporters of the
Green Movement and the reactions of the regime were pervaded by implicit
and explicit links between rights and honor—haqq and namus. This, as I have
argued, was a by-product of the gender policies of the Islamic Republic and the
politicization of sexual honor, which had been previously a private matter for
the family and the local community. Not surprisingly, over the decades since
the Revolution, many men and women, particularly the young, have come to
challenge the rhetoric and values of honor, as a way of challenging the state’s
denial of their personal and political rights.
In my view, we can identify four key moments in the 2009 election and its
aftermath that heralded a new phase in Iranian political culture which is
bound to affect the deep structures of power. The first moment was the nature
of women’s political participation. For a long time, a division, if not an

33
For an insightful analysis, see Farideh Farhi, “The Tenth Presidential Elections and their
Aftermath,” in Iran: From Theocracy to Green Movement, pp. 3–16.
228 Ziba Mir-Hosseini

antipathy, between “secularist” and “religious” women had marked the politics
of gender. The distinction refers to political attitudes, not personal piety.
“Religious” women, in the main, believed that the country’s laws and social
norms should be based upon Islam, while “secularist” women might be anti-
clerical or advocate the complete separation of mosque and state. Many
women of all persuasions backed the reformist President Mohammad Kha-
tami because he promised concrete improvements in women’s lives, but the
divide lingered nonetheless.
On the eve of the 2005 election, at the end of Khatami’s second term, when
secularist women’s groups organized a rally in front of Tehran University to
ask for equality, framing their demands in constitutional terms, women from
the official reformist parties did not join them. They did not want to break all
ties with the establishment and to be seen as siding with the newly vocal
secularist feminists, who for their part were keen to keep their distance from
religious reformists.34
But four years later, in April 2009, 42 women’s groups and 700 individuals,
including both secularist feminists and religious women from the reformist
parties, came together to form a Women’s Convergence.35 Without support-
ing any individual candidate, the coalition posed pointed questions to the field.
They raised two specific demands: first, ratification of the UN Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW),
which had been approved by parliament when the reformists were in the
majority but was then rejected by the Guardian Council; and second, revision
of Articles 19, 20, 21, and 115 of the Iranian constitution that enshrine gender
discrimination. Using the press and new media, they put the candidates on the
spot to respond. Women’s demand for legal equality became a central issue in
the campaign season. Distinguished filmmaker Rakhshan Bani-Etemad made
a documentary, available on the Internet, which registered the voices and
demands of these women and the replies of the candidates. Ahmadinejad was,
of course, the only candidate not to appear.
The second moment in the campaigns was the appearance of Zahra
Rahnavard at the side of—and even holding hands with—her husband, the
candidate Mir-Hossein Mousavi. Though many women politicians have served

34
See Mir-Hosseini, “Is Time on Iranian Women’s Side?” and Mahsa Shekarloo, “Iranian
Women Take on the Constitution,” Middle East Report Online, July 21, 2006, <[Link]
[Link]/mero/mero072105>.
35
See my earlier analysis of the 2009 election, “Broken Taboos in Post-Election Iran”; see also
Nayereh Tohidi, “Women and Presidential Elections: Iran’s New Political Culture,” Informed
Comment, September 30, 2009, <[Link]
[Link]>; and Fatemeh Sadeghi, “The Green Movement: A Struggle Against Islamist Patri-
archy,” in Iran: From Theocracy to Green Movement pp. 123–36.
 Islam, Gender, and Democracy in Iran 229

in the Islamic Republic’s legislature, they had been absent from high-level
politics, and the 2009 campaign was the first time that a woman appeared as
an equal partner and intellectual match for her man. Rahnavard, in fact, was the
more charismatic and articulate of the couple. Her open support for women’s
rights and human rights changed the tone of the campaign. She was also blunt in
many of her remarks, which inspired the youth of the country. For instance, in
Mousavi’s second campaign film, Rahnavard is shown in conversation with the
renowned actress, Fatemeh Motamed-Arya. At one point, she complains that,
in Iran today, “A woman does not even own her own body: If you go to the
hospital for an operation, you need the permission of a man.”
The third moment was in the election aftermath: the availability on the
Internet of letters to male political prisoners—key reformist figures and people
active in Mousavi’s campaign—from their wives. What makes these often very
affecting love letters especially significant is that many of the writers are
women from religious backgrounds who have no qualms about speaking of
their physical longing for their men and question the very justice of the system
that has imprisoned them. They are breaking another taboo, according to
which they should confine expressions of sexual desire and love to the private
sphere. So the policies of the regime have generated another paradox: having
politicized the sexuality and honor of all Iranian women, the regime now finds
its own adherents taking this policy to an uncomfortable extreme—by making
the personal political, in true feminist fashion.
The fourth and perhaps the most important moment was that the regime
was caught breaking its own taboos, when the extensive sexual abuse and rape
of detainees of both sexes were revealed. Those who demand political rights,
the government implied, have no sexual honor. The imagination of the world
was caught by the on-camera death of Neda Agha-Soltan—the 26-year-old
philosophy student shot dead during the protests on June 26, 2009. But in
my view, a more significant martyr was Taraneh Mousavi, a young girl who
was detained, reportedly raped, and murdered; her body was burned and
thrown out.
These atrocities, and the allegations of more, horrified the public—and
many leading clerics. They discredited the “culture of hijab” that the regime
had advocated for thirty years in the name of Islam and of protecting women
and keeping society safe. The “Islamic brothers” were now implicated in the
violation of the honor (namus) of the families that they were supposed to
protect. The role played by defeated reformist candidate Mehdi Karroubi in
the disclosure of these sexual abuses, his support for the victims, and the
authorities’ refusal to allow proper investigations, added further to the rumors
and led gradually to other victims breaking their silence. One of Karroubi’s
witnesses, a male rape victim, refers to his decision to disclose what happened
to him as “committing social suicide,” which speaks to the power of the
taboo—but then, once a taboo is broken, it loses its power. In December
230 Ziba Mir-Hosseini

2009, Britain’s Channel 4 broadcast a television interview with a refugee

member of the Basij, the paramilitary force charged with carrying out the
arbitrary detention and abuse of protesters; he movingly detailed his horror at
what occurred. “I have lost my world,” he says, choking back tears. “I have lost
my religion.” The clip rapidly spread through Iranian cyberspace.
The fate of Majid Tavakoli, the student leader, is even more telling of the
radical shift in Iranian gender politics. He was arrested after a fiery speech
denouncing dictatorship during the demonstrations on National Student Day,
December 8, 2009. Following his arrest, pro-government news agencies
claimed Tavakoli had been caught trying to escape dressed as a woman, and
they published a series of photographs showing him wearing a headscarf and
a chador.
Attempts at flight in such gender-bending disguises are a classic trope in
Iranian political history. The best-known instance in the Islamic Republic was
when the first president, Abol-Hasan Bani-Sadr, after his deposition in 1981,
allegedly fled the country in women’s dress—so now the Fars News Agency,
close to the Revolutionary Guards, put a photo of Bani-Sadr in a scarf next
to that of Tavakoli. But pro-government media outlets chose to ignore the fact
that, in pre-revolutionary Iran, clerics too, such as Ayatollah Bayat, were said to
have evaded the Shah’s authorities by concealing themselves beneath chadors.
To be nabbed in this act is portrayed by the state as doubly shameful: a
prisoner so afraid of punishment that he literally denies his manhood. In this
case, the shame was pictured not only draped over Tavakoli’s head and
shoulders, but also etched on his face—unshaven, his eyes downcast. The
exposure of Majid Tavakoli’s “cowardice” was intended to humiliate a hero of
the student movement, but it backfired when an Iranian photographer invited
men to post pictures of themselves wearing hijab on Facebook. Men respond-
ed en masse, inside and outside Iran, asserting, “We are all Majid.”
The campaign in support of Tavakoli became an occasion for both solidar-
ity and spirited debate among different elements in the Iranian opposition, as
well as for condemnation of state-imposed hijab and gender discrimination,
and a celebration of women’s equality and their involvement in the Green
Movement. “Majid Tavakoli Was Multiplied, Not Humiliated,” reads one
poster. The students issued a statement referring to Tavakoli as the “honour
of the students’ movement” (though the word for “honor” here, eftekhar,
unlike namus, is neither sexual nor gendered). The statement stressed that
what matters was resistance to injustice and the struggle for freedom, a
struggle that would undoubtedly continue, whether in male or female clothing.
Likewise, what Mohsen Rezaie, former head of Revolutionary Guard, had said
during his unsuccessful election campaign came to haunt him: he had prom-
ised to defend people’s vote like his namus. When he failed to join Mousavi
and Karroubi in denouncing the results, countless comments on his website
called him bi-namus, shameless.
 Islam, Gender, and Democracy in Iran 231

After the events of summer 2009, the Green Movement moved beyond the
stage of “Where is my vote?” to tackle a range of issues that animate the
population, not just the restive middle-class urban youth, but many strata of
society. The government, supported by Khamene’i, continued with a massive
and brutal crackdown. Almost all reformist personalities, women’s rights and
human rights activists were either imprisoned or forced to leave the country,
or were silenced in some other way. Ayatollah Montazeri, one of the founders
of the Islamic Republic, who became the Green Movement’s spiritual leader,
died in December 2009. His seventh-day memorial was suppressed, his sup-
porters were forced to withdraw from the streets, and they were inactive in
public throughout 2010. But they came back on February 14, 2011, following
Mousavi and Karroubi’s call for a show of solidarity with the democracy
movements in Tunisia and Egypt. This was the movement’s last public
manifestation; it was Valentine’s Day—the day of lovers that in recent years
has also been celebrated in Iran—a very curious coincidence! Soon after,
Mousavi and Karroubi and their spouses were put under house arrest. Fatemeh
Karroubi was released after a year, but the other three remain confined at the
time of writing; and the brutal crackdown on dissent continued unabated.
The Islamic Republic survived, but its very basis was shaken; its legitimacy
and its credibility were questioned by some of those who played a central role
in its creation. Before his death, Ayatollah Montazeri had denounced the state
as a religious dictatorship and declared that it was now neither Islamic nor a
republic.36 Economic mismanagement by Ahmadinejad’s government, harsh-
ening US-initiated sanctions, the continuing external threat and confrontation
with the West, and the Arab uprisings—all these left the theocratic forces with
no other choice than to return to the ballot box in June 2013. The presidential
elections were highly orchestrated, and the candidates handpicked; those with
the slightest history of sympathy by association or action with the Green
Movement were weeded out—notably, Rafsanjani was disqualified. The cam-
paigns began in a low key, and it was only a week before election day that there
was any momentum in the TV debates among the candidates. Apart from the
alliance of moderate conservatives and reformists, what brought the victory of
Hassan Rouhani—a pragmatic and moderate insider—was people’s willing-
ness to vote. Supporters of the Green Movement energized his election rallies
with slogans in support of Mousavi and Karroubi and demanding the freedom
of all political prisoners.
The convincing first-round victory of Rouhani, the candidate who was most
articulate in his critique of Ahmadinejad’s era, must be seen as a concession
that people extracted from the theocratic and undemocratic elite now sur-
rounding the Leader, among whom there is a very serious rift. Running under

36
See Massoumeh Torfeh, “Neither Islamic nor a Republic,” The Guardian, August 29, 2009,
<[Link]
232 Ziba Mir-Hosseini

the slogan of “Prudence and Hope,” Rouhani chose as his campaign emblem a
key, implicitly for the locked doors behind which the representatives of the
republican side of the state are kept.
At the time of writing (December 2016), Rouhani has not yet opened any
locked doors. Despite some success in lifting social and political restrictions,
he has not yet achieved the release of Mousavi or Karroubi and those arrested
in the aftermath of the 2009 election. He has encountered fierce opposition
from unelected elements in the state, which control vast economic, political,
and military resources. His government, a mix of reformist and conservative
personalities, is severely constrained by the legacy of Ahmadinejad’s disas-
trous foreign and domestic policies and the acute economic crisis that the
country faces. The removal of international sanctions, announced in January
2016, could strengthen the hand of reformists and moderate conservatives,
and determine the success of Rouhani’s government; it could also be decisive
in reopening political space. In the two elections in February 2016, for two
bodies that hardliners had dominated for many years, Rouhani and his
reformist allies had partial successes. For the parliamentary elections, they
ended the almost complete control of the hardliners; but they failed to do so in
the elections to the Assembly of Experts (charged with choosing and super-
vising the Ruling Jurist). The outcome of the two elections in June 2017—for
the presidency and the city councils—will, as ever, be determined both by the
internal factional struggle and by international events, not least the actions of
the new US administration.

CONCLUDING REMARKS: THE S TRUGGLE

CONTINUES

After over three decades of intense contestation between the “Islamic” and
“Republican” components of the state, what has emerged is a wider confrontation
between the backward-looking forces of autocratic and patriarchal despotism on
the one hand, and the growing popular demand for free elections, the account-
ability of those in power, and the abolition of legal and extralegal discrimination
between men and women on the other. The present younger generation knows
that democracy and patriarchy are incompatible; and they are the future.
It is true that the reformist and democratic factions in the Islamic Republic
have so far failed to bring tangible changes in the structures of power; they
have lost many battles; they faced, and continue to face, many political
setbacks. But they have had one major and lasting success: they demystified
the power games that authorities conducted in a religious language and the
rulers’ instrumental use of “Shari‘a” to justify their autocratic rule. It was this
demystification that gave birth to the Green Movement in 2009—its advocates
 Islam, Gender, and Democracy in Iran 233

are slowly but surely breaking down dichotomies such as “secular” versus
“religious” democracy, or “Islam” versus “human rights” that infested Iranian
politics over the course of the twentieth century.
The contestation between theocratic and democratic elements in the Islamic
Republic is far from over. In 1989, it was partially managed by amending the
constitution and divorcing velayat-e faqih from marja‘iyat. How it plays out in
the future partly depends on whether the proponents of clerical theocracy can
accommodate the democratic and feminist aspirations of the citizens. The
events of 2009–11 may prove to have been as important as those that brought
about the 1979 Revolution. Despite the regime’s propaganda and the brutal
suppression, imprisonment, or exile of many leaders and rank-and-file sup-
porters, the Green Movement’s values and demands have gone deep into
Iranian society, and are changing the political culture and dynamics of the
Islamic Republic.37 The movement’s advocates remain active in cyberspace
and outside Iran. New media is enabling them to bypass the authority of the
state-controlled media’s narrative to influence the public agenda and debate.
What is certain is that Islamist ideology has lost much of its political luster and
popular support; there is a popular rights movement that is seeking a definite
separation of the religious institution from the state.38
The Iranian quest for democracy that started in 1906 has had its successes,
but it has been regularly frustrated, either by the unresolved internal tensions
between religion and secularism and between absolutism and democracy, or as
a result of external interventions. One thread running through the quest from
the start has been the struggle for national sovereignty and freedom from
interference by Western powers. This common struggle united the diverse
forces that made the 1979 Revolution, which was eventually appropriated by
Islamist forces. The resultant Islamic Republic assumed the duty of protecting
the namus of all Iranian women; but they also sought a closely related value on
the world stage: ehteram, recognition and respect. This they have continually
been denied, especially by their chief enemy, the US, whom they in turn have
termed “the global arrogance.” It became recognized that the chief motive on
the Iranian side in the 2014–15 nuclear negotiations was the same: an insist-
ence that Iran be respected as an equal partner. Rouhani’s choice of Javad Zarif
as chief negotiator was astute: he is an experienced diplomat, widely respected
in the US and at the United Nations. While the Iranian regime may have lost
the respect of many of its citizens, by infringing on both their honor and their
political rights, I suggest that at the international level they are seeking the

37
See, for instance, the contributions to Jahanbegloo, ed. Civil Society and Democracy in Iran;
and Annabelle Sreberny and Massoumeh Torfeh, eds., Cultural Revolution in Iran: Contemporary
Popular Culture in the Islamic Republic (London: I.B. Tauris, 2013).
38
Farhad Khosrokhavar, “The Green Movement in Iran: Democratization and Secularization
from Below,” in Jahanbegloo, ed., Civil Society and Democracy in Iran.
234 Ziba Mir-Hosseini

respect that in some ways transcends, or perhaps amalgamates, both national

honor and international rights. But what the Islamic Republic’s clerical theo-
crats have so far failed to understand is that this cannot be achieved without
honoring its republican side. The “culture of hijab” and the regime’s ability to
manipulate the discourse of honor have passed their sell-by date, and a
“culture of rights” is taking over the popular imagination. For many Iranians,
haqq has become as important as namus.

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 10

Women’s Rights and Democratization

in Morocco and Tunisia
Valentine M. Moghadam

INTRODUCTION

The relationship between democratization and women’s participation and

rights has been the subject of a large literature on women and the “third-
wave” democratic transitions of 1975–90.1 Countries of the Middle East and
North Africa (MENA) were not part of that wave, although studies docu-
mented an emergent civil society as well as the activities of women’s rights
organizations.2 The Arab Spring events of 2011 seemed to suggest that MENA
had caught up with democracy’s third wave, but the road since then has been
rocky to say the least, with varied trajectories and outcomes. In 2011, Morocco
and Tunisia saw different protest dynamics and outcomes, and at the time of
writing they represent the two positive cases of the Arab Spring, especially when
compared with the repression or violent contention that plagued Bahrain,
Libya, Syria, and Yemen. Elsewhere, I have suggested that the different Arab

1
According to Samuel Huntington, democracy’s third wave began in the 1970s with the end
of authoritarian or military rule in Greece, Portugal, and Spain, followed by Latin American
countries, South Korea, and the Philippines, and ending with Eastern Europe and the former
Soviet Union in 1989–91. Although Huntington ended his analysis in 1990, South Africa’s
democratic transition is generally agreed to be part of the third wave. See Samuel Huntington,
The Third Wave: Democratization in the Late Twentieth Century (Norman, OK: University of
Oklahoma Press, 1991). On women, gender, and democratic transitions, see Georgina Waylen,
Engendering Transitions: Women’s Mobilizations, Institutions, and Gender Outcomes (London
and New York: Oxford University Press, 2007).
2
See Augustus Richard Norton, ed. Civil Society in the Middle East, vol. 1 (Leiden: E. J. Brill,
1995); Jillian Schwedler, ed. Toward a Civil Society in the Middle East? A Primer (Boulder, CO:
Lynne Rienner, 1995); Valentine M. Moghadam, Women, Work, and Economic Reform in the
Middle East and North Africa (Boulder, CO: Lynne Rienner Publishers, 1998); and Valentine
M. Moghadam, “Engendering Citizenship, Feminizing Civil Society: The Case of the Middle East
and North Africa,” Women & Politics 25/1–2 (2003): 63–88.
238 Valentine M. Moghadam

Spring trajectories and outcomes are explained by a set of endogenous and

exogenous factors and forces, one of which pertains to the strength, visibility,
and influence of the women’s rights movements before and during the upris-
ings. That is, those countries that had seen independent feminist activism and
institutional gains for women’s rights prior to the protests were most likely to
experience relatively smooth democratic transitions.3 Here, I elaborate on my
argument regarding the relationship between democratization and women’s
rights through an analysis of Morocco and Tunisia. Questions addressed are:
How were women’s rights advanced during the authoritarian period? How did
these gains, and the activities of the feminist associations, influence the nature
of the protests and the ensuing political changes? To what extent does the
secular–religious divide obtain in Morocco and Tunisia, particularly with
respect to the expansion of women’s participation and rights?
As part of the Maghreb geocultural subregion that also includes Algeria,
Morocco and Tunisia share an experience of French colonialism; retain some
francophone identity as well as French-influenced institutions such as the
education system, the judiciary, and trade unions; and are home to prominent
women’s rights groups. Contemporary feminist activism dates back to the
1970s, when women and development study groups were formed. In the
1980s, academics and activists mobilized to warn about the growing Islamist
influence, and in the latter part of the 1980s, they became part of feminist
sociologist Fatima Mernissi’s Maghreb-wide anti-fundamentalist network. In
the early 1990s, feminists from Algeria, Morocco, and Tunisia formed the
Collectif 95 Maghreb-Egalité to advocate for egalitarian family laws and full
citizenship for women, and they were able to influence the passage of a
number of key legal reforms and policy initiatives for women’s rights.
A common feature of Maghrebian feminism, especially when compared with
women’s rights groups elsewhere in MENA, is attention to labor and social
rights issues as well as to the enhancement of women’s civil and political
rights. This they achieve in part through cooperation with the trade unions of
their countries.
Political opportunities—such as the environment of “state feminism” that
Tunisian feminists enjoyed under both Presidents Bourguiba and Ben Ali, or
the presence of elite allies within government, which Moroccan feminists
experienced, beginning in the late 1990s—as well as a capacity for organizing,
mobilizing, and effective advocacy, have enabled women’s rights groups in
Morocco and Tunisia to advance their agenda and to face conservative
Islamist movements. With their activism and agenda-setting, Maghrebian

3
I discuss this further in Valentine. M. Moghadam, “Democratization and Women’s Political
Leadership in North Africa,” Columbia Journal of International Affairs 68/1 (Fall/Winter 2014):
35–53; see also Valentine M. Moghadam, Modernizing Women: Gender and Social Change in the
Middle East, 3rd edn (Boulder, CO: Lynne Rienner Publishers, 2013).
 Women’s Rights in Morocco and Tunisia 239

women have been major contributors to, and participants in, civil society and
democracy movements; they see a democratic polity as both a desirable
alternative to authoritarianism and a pathway to their own equality and rights.
This chapter examines the activities of women’s rights networks and asso-
ciations in Morocco and Tunisia since the early 1990s, their relations to both
transnational feminist networks and the UN’s global women’s rights agenda,
the major campaigns and coalitions they have launched or joined, and their
contributions to policies, practices, and discourses of democratization in their
respective countries. It describes how the women’s rights movements and
“modernizing women” were situated in the Arab Spring, the constitutional
and societal implications of the demand for women’s full and equal citizen-
ship, and differences with the Islamist discourse. The research is based on the
relevant secondary sources, my observations and interviews during visits to
the two countries beginning in 1990, and exchanges I have had over nearly
a decade with Khedija Arfaoui, a now-retired professor and long-standing
Tunisian women’s rights activist.

ADVANCING WOMEN’S RIGHTS UNDER

CONDITIONS OF AUTHORITARIANISM

As Mounira Charrad has documented, the postcolonial states in the Maghreb

acted in different ways to accommodate the traditional male elites. In Tunisia,
the French-educated lawyer Habib Bourguiba managed to craft a modern
constitution with no mention of Shari‘a law. Adopted in 1959, the constitution
did, however, construct an Arab-Muslim identity for Tunisia in Article 1:
Tunisia is a free and sovereign state; its religion is Islam; its language is Arabic;
and its political system is a republic. Article 5 guaranteed religious freedom
within the confines of public order. The 1956 Code du Statut Personnel (CSP,
also known as the Madjala), which governed family life and the status of
women, was considered the most forward-looking and modern in the Arab
world. It made no mention of the Shari‘a, banned polygamy, and gave women
the right to divorce, although inheritance remained in accordance with Islamic
law, and thus privileged male kin, and the law barred Muslim women from
marrying non-Muslim men. The CSP was then justified in terms of consist-
ency with the Hanafi and Maliki rites and with the right of Muslims to ijtihad,
or reinterpretation of religious texts to conform to social reality, even while
Bourguiba and his supporters viewed it, along with the constitution, as
symbols of Tunisia’s republican modernity. In contrast, Morocco was ruled
by a king with absolute powers who was also known as “Commander of the
Faithful.” Given Morocco’s more traditional kin-based social structure, the
family law that was adopted, known as the Moudawana, was among the most
240 Valentine M. Moghadam

patriarchal in the Muslim world.4 This did not sit well with the small but
growing population of educated women in Morocco, especially those on the
political left. The two divergent tracks of the independent Moroccan state—
the “traditionalization” of women’s roles inscribed in the 1957 Moudawana,
and the gradual modernization and advancement of women’s status through
education—represented the ambivalence of the neopatriarchal state.
In both countries, the immediate postcolonial period saw women involved
in either official women’s organizations or charitable associations funded by
the government and staffed by women from elite families. New organizations
emerged in the 1980s and 1990s in the socioeconomic and political context of
the rise of Islamic fundamentalist movements, political liberalization (albeit
managed and limited) following the end of the Cold War, and the global
diffusion of the UN’s women’s rights agenda in the aftermath of three world
conferences on women.5 These included professional associations, women’s
sections of political parties and trade unions, women-in-development non-
governmental organizations (NGOs), research and policy centers and women’s
studies institutes, and women’s rights or feminist organizations. While practi-
cing Muslim women certainly were part of these organizations, the agendas
tended to be non-religious and devoid of the values or objectives of the growing
movement of political Islam.
In Tunisia, the Women’s Condition Study Club celebrated International
Women’s Day on March 8, 1980, and subsequently a group of women
intellectuals formed the Tahar Haddad Club—named after a famous liberal
thinker—which became a center for the discussion of social problems and
women’s rights. Themes included low-income and rural women’s precarious
conditions, the plight of divorced mothers without family support or
resources, girls forced to leave school, household violence, and media images
of women. A bilingual (Arabic and French) feminist magazine called Nissa
(Woman) appeared in 1985; feature articles over the first year of publication
included discussions of the problem of illegitimate children, the personal
status laws of Tunisia and Egypt (both under attack that year), the Israeli
bombing raid of the PLO headquarters in a suburb of Tunis, the pros and cons

4
For details, see Mounira Charrad, States and Women’s Rights: The Making of Postcolonial
Tunisia, Algeria, and Morocco (Berkeley, CA: University of California Press, 2001); Jocelyne
Cesari, The Awakening of Muslim Democracy: Religion, Modernity, and the State (New York:
Cambridge University Press, 2014), p. 69.
5
The conferences took place in 1975 in Mexico City, 1980 in Copenhagen, and 1985 in
Nairobi; the fourth conference convened in Beijing in 1995. The UN’s global women’s rights
agenda includes the 1979 Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW); the 1985 Nairobi Forward-Looking Strategies (following the UN’s third
world conference on women); the 1995 Beijing Platform for Women; UN Security Council
Resolutions 1325 and 1820 on women, war, and security; and the Millennium Development
Goals of 2000–15, especially Goal 3: to end gender inequalities in schooling and political
participation.
 Women’s Rights in Morocco and Tunisia 241

of sex-segregated activities, the risks of childbirth, and feminism. The maga-

zine folded in 1987 mainly because of disagreements among its staff members,
some of whom went on to form or join l’Association Tunisienne des femmes
démocrates (ATFD) and l’Association des femmes Tunisiennes pour la
recherche sur le développement (AFTURD), which would come to have close
ties to the Women’s Commission of the General Union of Tunisian Workers
(UGTT). Formed in 1989, the two women’s rights groups became known as
fiercely independent and autonomous from the state, although members did
engage with some initiatives of the official women’s organization, l’Union
national des femmes Tunisiennes (UNFT), and the state-affiliated Association
of Tunisian Mothers.6
Political opportunities specific to Tunisia, even in an authoritarian context,
enabled the women’s rights movement to grow. The Tunisian government
signed the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) in July 1980 and ratified it in 1985. In 1982, Tunis
was host to the United Nations Educational, Scientific and Cultural Organ-
ization’s (UNESCO’s) Expert Meeting on Multidisciplinary Research on
Women in the Arab World. Khedija Arfaoui has argued that government
policies and programs enabled the emergence of women’s organizations and
other NGOs in that period. President Ben Ali, who portrayed himself as a
champion of women’s rights, advanced Tunisia’s state feminism by enabling
the establishment and funding of the women’s policy agency Centre de
recherche et d'étude pour la diffusion du français (CREDIF), which produced
research on women’s labor force participation, problems associated with the
implementation of women’s legal rights, the conditions of rural women, and
the situation of poor urban women. Tunis also hosted the Center of Arab
Women for Training and Research (CAWTAR), the region-wide women’s
research and policy agency whose work was largely funded by the World Bank,
the United Nations Development Programme (UNDP), and Saudi Arabia.
In Morocco, educated women largely from the political left, concerned
about women’s subordination under the Moudawana, produced the periodical
8 mars/Thamania mars and formed l’Union de l’Action Féminine (UAF) and
l’Association démocratique des femmes du Maroc (ADFM).7 As the country
slowly ascended from the repressive “years of lead” (1956–99) and King
Hassan II permitted some political liberalization, political parties began to
regroup and media became more expansive. The One Million Signatures

6
See Kevin Dwyer, Arab Voices: The Debate on Human Rights in the Middle East (Berkeley,
CA: University of California Press, 1991); and Khedija Arfaoui, “Origins of the Tunisian
Women’s Movement,” in Feminisms, Democratization and Radical Democracy: Case Studies of
South and Central America, Middle East, and North Africa, ed. Graciela DiMarco and Costanza
Tabbush (Buenos Aires: UNSAMEDITA, University of San Martín Press, 2011).
7
See Zakia Salime, Between Feminism and Islam: Human Rights and Sharia in Morocco
(Minneapolis, MN: University of Minnesota Press, 2011).
242 Valentine M. Moghadam

Campaign launched by UAF resulted in some amendments to the family

law in 1993, and in 1998 the formation of a progressive government under
Prime Minister Abderrahame Youssoufi provided the feminist organizations
with a more favorable environment for the goal of achieving an egalitarian
family law.
The National Action Plan for Integrating Women in Development—known
by its French acronym PANDIF—was largely a program for women’s socio-
economic participation, but it included a proposal to reform the family law
and thus enable more female mobility outside the home. Both the women’s
rights movement and the government were challenged by the growing
Islamist movement, which called the initiative culturally alien and contrary
to religious values.

National, Regional, and Transnational Activism

Casablanca was home to the female-owned publishing house Editions Le

Fennec, which produced a series of books in the 1990s on women and
the law in Algeria, Morocco, and Tunisia. These books examined in detail
the family codes and legal status of women in each country and discussed the
rise of intégrisme, or Islamic fundamentalism, and the threat it posed to
women’s advancement. Another concern of the women’s rights groups was
economic restructuring.
The Maghreb participates in the world economy and world society, which
makes it vulnerable to the vagaries of global capitalism and the recipient of
global discourses and norms.8 Thus, when states began implementing struc-
tural adjustment policies from the late 1970s into the 1990s, it was not just
unions, but also the burgeoning feminist groups which began to raise objec-
tions. While the unions protested on the streets of the major cities of Morocco
and Tunisia, the feminist groups wrote critiques in their domestic publications
as well as in documents prepared for the UN’s Third World Conference on
Women, in Nairobi in 1985, and the Fourth World Conference, in Beijing in
1995. Moroccan and Tunisian women’s rights advocates were present at a

8
The capitalist world economy—with its three zones of core, peripheral, and semi-peripheral
economies—is part of the modern world system, which also includes a hierarchical and unequal
interstate system. World polity scholars emphasize the role of international organizations in the
making of a “shared modernity,” with isomorphism in bureaucracies and even standards and
norms. See Immanuel Wallerstein, “Globalization or the Age of Transition? A Long-Term View
of the Trajectory of the World-System,” International Sociology 15/2 (2000): 249–65; Christo-
pher Chase-Dunn, Global Formation: Structures of the World Economy, 2nd edn (Totowa, NJ:
Rowman & Littlefield, 1998); John Boli and George Thomas, “World Culture in the World
Polity: A Century of International Non-Governmental Organization,” American Sociological
Review 62 (April 1997): 171–90.
 Women’s Rights in Morocco and Tunisia 243

regional conference of Arab women’s NGOs, which took place in Amman,

Jordan, in November 1994, in advance of the Beijing conference. The two-
week deliberations resulted in a document entitled “Work Program of the
Non-Government Organizations in the Arab Region,” and included a discus-
sion of the negative fallout from indebtedness, poverty, unemployment, and
outmigration in search of employment; submission to the dictates of the
International Monetary Fund (IMF); and inadequate health and social ser-
vices, including services cut by structural adjustment policies. The inclusion of
this issue can be attributed to the diffusion of the transnational feminist
critiques since the 1980s, to the presence of left-wing Arab women and their
awareness of union protests, and to the alignment of this document with the
draft Platform for Action of the Beijing conference. The document also took a
strong stand against invasion and occupation, and declared that “people
should never be subject to economic sanctions and starvation,” which at the
time were references to Palestine, Kuwait, and Iraq. At the parallel NGO
Forum in Beijing, women from the Collectif 95 Maghreb Egalité organized a
Women’s Parliament to call for family law reform, and distributed pamphlets
and a book on the discriminatory laws faced by women in the region.9
The Collectif continued to launch campaigns to improve women’s legal
status and social positions and to ensure that their governments implemented
international agreements. While recruiting from within their own borders,
holding meetings in the three countries, and cooperating on seminars, books,
and media activities, the group also relied on the support of other transnational
feminist networks, such as Women Living under Muslim Laws (WLUML) and
the Women’s Learning Partnership for Rights, Development, and Peace
(WLP). After the Collectif produced the 2003 study of family law across the
Maghreb, entitled Dalil pour l’égalité dans la famille au Maghreb (also avail-
able in Arabic), the WLP’s translation service provided an English-language
version which became available in 2005. Some Collectif members forged ties
with the Malaysian women’s rights group Sisters in Islam, which was associ-
ated with WLUML and WLP and in 2009 launched Musawah, a transnational
initiative and network aimed at ensuring that Muslim women are treated
equally in the families and communities of Muslim societies.10 This network
for the equality and rights of women in Muslim communities should be
distinguished from any Islamist women’s group or network. Like the Collectif,
WLUML, and WLP, Musawah is opposed to polygamy, child marriage, and

9
I attended the November 1994 Amman meeting in my capacity as a UN staff member and
was given a copy of the outcome document. I also attended both the NGO Forum and the
intergovernmental meeting in Beijing in September 1995. For details, see Moghadam, Women,
Work, and Economic Reform, pp. 216–17.
10
The project was initiated by SIS cofounder Zainah Anwar, with a global meeting in
February 2009 that brought together over 250 Muslim scholars and feminist activists from
nearly 50 countries.
244 Valentine M. Moghadam

inequality within the family, issues that Islamist women’s groups do not
necessarily adopt.
In the 1990s and into the new century, the global diffusion of the UN’s
women’s rights agenda—including the mandate to “mainstream” gender in all
policies, programs, and projects, and to establish or strengthen the “national
women’s machinery” and women’s policy agencies—had some effect in
Morocco and especially in Tunisia. The male elites in both countries may
have been ambivalent about women’s equality, but their involvement in the
world polity led to measures and institutions in favor of women’s advance-
ment. Thus, women’s rights advocates were able to push for legislation on
violence against women, equal nationality rights, policies to ease the burden of
working women, and family law reform.
Advancing women’s rights in Morocco and Tunisia, even under conditions
of authoritarianism, reflected grievances, values, and aspirations associated
with changes in the characteristics of the female population. Educational
attainment, the rising age at first marriage, smaller family size, women’s
presence in an array of professional fields and occupations, travel abroad,
access to satellite TV, and knowledge of information technology facilitated
international connections and fostered civic and feminist activism. In this
respect, the formation of women’s rights organizations, with work programs
and agendas, volunteers and paid staff members, and a public presence, was
politically and culturally significant. In the absence of large-scale female
participation in the labor force or in government, critically minded educated
women could establish their authority, take part in decision-making, engage
with various publics, develop their civic skills, and exercise political rights in
their own organizations. Participation in the media and cultural production
and creating a feminist press gave women access to the public sphere and
enabled engagement in national debates and dialogues.

CAMPAIGNS, COALITIONS, AND ACHIEVEMENTS

In the late 1990s and into the new century, the women’s rights groups in
Morocco and Tunisia conducted research and advocacy around reform of
patriarchal Muslim family laws, criminalization of violence against women
(honor killings, sexual harassment on the streets and in workplaces, domestic
violence), the right of women married to foreigners to obtain citizenship rights
for their children, and enhancing women’s participation in political bodies
and in the workforce through appropriate institutions and policies. In Tunisia,
the issue of equal rights in inheritance was also, audaciously, raised.
Responding to women’s rights activism, the Tunisian state introduced a
series of positive amendments to the family law in 1993. The mother’s consent
 Women’s Rights in Morocco and Tunisia 245

was now required in addition to the father’s for the marriage of a minor; a
wife’s duty of obedience to her husband was replaced by her right to be treated
with care and concern; she gained the right to participate in the management
of the family’s affairs, such as the children’s education, travel, and financial
matters; and the couple could choose joint or separate financial holdings, to be
stipulated in the marriage contract. If a child is born out of wedlock and the
father is known, the child carries the father’s name, has the right to the father’s
support until reaching adulthood, and inherits the same portion as a daughter.
In 1998, a law criminalizing crimes of honor was adopted, and the punishment
for domestic violence was made double that of an ordinary offense.
The ATFD secured the passage in 2004 of the country’s first legislation
combating sexual harassment; earlier, it had established the first centre
d’écoute, or listening center and hotline for female victims of domestic violence
and sexual harassment.11 Khedija Arfaoui explains that ATFD had started
working on the issue in 1991 and cites a report by Ahlem Belhaj, a former
ATFD president, delivered at a seminar organized by CAWTAR in Tunis in
September 2006, to the effect that initially the group lacked a strategy, but the
project was so well received that the Association had to find a way to tackle
the flow of women seeking help. In 1993, a person on duty was appointed to
receive those women before the ATFD was able to create a real center where
women would be listened to and their problems addressed. A commission
also was formed to identify strategies to tackle growing reports of domestic
violence.12

On Women, Work, and Social Rights

As more Moroccan and Tunisian women entered the labor force, whether as
professionals or factory workers, attention turned to improving conditions,
laws, and norms pertaining to women and work. Tension grew among the
emerging generation of Tunisian young women, who rebelled against trad-
itional views about the limits imposed on their roles in the home and work
spheres. According to Arfaoui, mothers continued to teach their daughters that
their responsibility was to care for the home. As the sons were expected to
become breadwinners, they were given more freedom while of mobility,
whereas daughters were to stay at home, away from temptations and untoward
encounters. But, combined with the effects of education and constitutional
principles of equality between the genders, the CSP served as a “platform for

11
The counseling center and hotline set up by ATFD was followed by one set up by the
official women’s organization, UNFT, in 2004.
12
This information is from Arfaoui, “Origins of the Tunisian Women’s Movement.”
246 Valentine M. Moghadam

second generation reforms that are allowing women to . . . share power with
men . . . on the forefront of the national scene.”13
At the 2004 Arab League Summit held in Tunis, the host nation called on
the member states to “consider the promotion of the rights of Arab women as
a fundamental axis of the process of development and modernization of Arab
societies.”14 At the same time, President Ben Ali offered women the possibility
to work part-time for three-quarters of their salary and the promise of a full
retirement. Tunisian feminists argued instead for nurseries and kindergartens
for the children of working mothers, because, by 2005, Tunisian women’s
representation in the workforce had risen to 24.3 percent, compared with less
than 6 percent in 1966. Women were found in all the sectors of the economy:
43 percent in manufacturing industries, 32 percent in agriculture and fishing,
and 21 percent in administration. Fully 72 percent of pharmacists were
women, and females made up 42 percent of the medical profession, 34 percent
of journalists, 51 percent of primary schoolteachers, 48 percent of secondary
schoolteachers, and 40 percent of the teaching staff in higher education. Some
10,000 women were company directors in 2004. In the legal sector, women
represent 27 percent of judges and 31 percent of lawyers. In 2004, a woman
was appointed public prosecutor and another one judge at the Directorate
General of the Higher Institute of Magistrature. Several Tunisian women also
acquired international renown. In April 2007, Souhair Belhassen was elected
president of the Fédération Internationale des Droits de l’Homme (FIDH);
Khedija Cherif was elected general secretary and Sophie Bessis assistant
secretary general.15 In such a context of occupational distribution and profes-
sional achievement, how could Tunisian feminists agree to the overall
marginal position of women in the workforce?
In Morocco, women’s rights and human rights advocates turned their
attention to the prevalence of child labor, especially among young girls from
the countryside who worked long hours as maids in urban households.
Another concern was sexual harassment of women factory and office workers.
In late 1995, ADFM organized a campaign to support the two-week strike by
women workers at the Manufacture du Maroc factory outside Rabat over
repeated sexual harassment and other outrageous managerial practices.16

13
Abdelaziz Barrouhi, “Un cas à part” [“A Special Case”], Jeune Afrique 2381 (août
27–septembre 2, 2006): 39.
14
Lilia Labidi, “The Nature of Transnational Alliances in Women’s Associations in the
Maghreb: The Case of AFTURD and ATFD,” Journal of Middle East Women’s Studies 3/1
(2007): 7.
15
In an article entitled “Governance, Women, and the New Tunisia,” Politics and Religion 8/1
(2014): 135–64, Khedija Arfaoui and Jane Tchaicha note that the state media made no mention
of these achievements.
16
I discuss this at greater length in Moghadam, Women, Work, and Economic Reform,
pp. 72–3.
 Women’s Rights in Morocco and Tunisia 247

Advocacy around sexual harassment and workplace conditions, as well as high

female unemployment, continued into the new century. In February 2004, a
coalition to ensure the implementation of Morocco’s new labor law was
launched by the Centre des Droits des Gens, the Ligue Démocratique pour
les Droits des Femmes, and the Association Marocaine des Droits des
Femmes, and in November of that year it was joined by the Union Marocaine
du Travail, the Confédération Démocratique du Travail, and the Association
Marocaine des Droits Humains. The campaign also issued a report entitled
Protection des Droits des Femmes, which, among other things, pointed out that
Morocco had yet to sign and ratify International Labour Organization (ILO)
Convention 183 on maternity protection, designed to protect the rights
of working mothers. In addition to the various coalitions and campaigns,
the Réseau Annaruz, a network of over forty women’s rights associations
and centers, coordinated many activities and prepared various reports. Such
concerns and advocacy point to the Maghreb’s social feminism.

Support for CSP and Expansion of Women’s Rights

In 2006, Tunisia celebrated the fiftieth anniversary of the CSP, an event

commemorated with much ceremony by Tunisian feminists and human rights
activists from the ATFD, AFTURD, the Tunisian League of Defense of Human
Rights, the UGTT’s National Commission of Working Women, the Tunisian
branch of Amnesty International, and the Collectif. ATFD and AFTURD
published “15 Arguments for inheritance equality between the sexes” that
ended with the demand that it was time to abolish privileges, modify the
inheritance law, and establish inheritance equality between the sexes. That
same year, AFTURD published Egalité dans l’Héritage: Pour une citoyenneté
pleine et entière, a book on inheritance in two volumes.17 In hindsight, that
celebration and the subsequent discussion presaged the intense debates and
divisions that would appear after January 2011.
In late January 2009, ATFD organized, in Tunis, a Maghreb-wide seminar
on “Equality in Inheritance” entitled “Nothing Justifies Discrimination in
Inheritance.” Sana Ben Achour, a law professor and ATFD official, said that
although no woman had yet filed a lawsuit to protest unfair distribution of
inheritance, it was likely to occur in the future, given that it clashed with the
equality clause in the Tunisian constitution. With an eye to other parts of the
Muslim world, where ijtihad—reinterpretation of the holy texts in light of
contemporary realities—was a strategy used by women’s rights scholars and

17
Vol. 1: Histoire, Droits et Sociétés (Tunis: AFTURD, 2006); vol. 2: Plaidoyer pour l’Egalité
dans l’Héritage (Tunis: AFTURD, 2006).
248 Valentine M. Moghadam

activists, lawyer Alya Chérif-Chammari suggested that it could be deployed in

Tunisia to argue for inheritance equality.
Research on women’s movements has highlighted their democratic orien-
tation, in terms not only of their preferred nomenclature, but also their goals
and internal practices.18 In Tunisia, this was evident from the following
passage in a 2008 AFTURD statement: “Our work on behalf of women’s
empowerment is also aimed at political change and is part of the movement
for democratization.” The question of hijab came up at the ATFD Congress in
November 2008, and Khedija Arfaoui has written that although Tunisian
feminists disagreed with hijab and were concerned about its growing visibility
within the female population, they did not endorse the state’s prohibition.
Again, the concern about hijab seemed to anticipate the challenges that secular
feminists and their male allies in the universities would face after the January
2011 Revolution.
At the same time, events in the years before the revolution suggested
growing opposition to President Ben Ali and the police state from across the
political spectrum. A rally was held to protest a constitutional amendment that
would enable Ben Ali to run for a longer term. Worker protests took place in
Gafsa and other industrial enclaves. In 2009, Khedija Arfaoui was called before
the police to explain her internet activity. In May 2010, an anti-censorship
protest involved many bloggers, including the young female bloggers Emna
Ben Jemaa and Lina Ben Mhenni. Critically minded NGOs made extensive use
of social media, and it was clear that there was much dissatisfaction with the
status quo in the years before Mohammed Bouazizi set himself on fire.

Reforming the Moudawana and Expanding

Women’s Rights in Morocco

The reform of Morocco’s highly patriarchal Moudawana and its replacement

in 2004 with a more egalitarian set of laws and norms for marital life and
family affairs was the end result of more than a decade of women’s rights
coalition-building, advocacy, and lobbying, and it paralleled a period of
political liberalization in the late 1990s. As noted earlier in this chapter, both
the feminist initiative and the Youssoufi government were challenged by the
growing Islamist movement in Morocco. In particular, family law reform was

18
See Yesim Arat, “Toward a Democratic Society: The Women’s Movement in Turkey in the
1980s,” Women Studies International Forum 17/2–3 (1994): 241–8; and Yesim Arat, “Democracy
and Women in Turkey: In Defense of Liberalism,” Social Politics: International Studies in
Gender, State, and Society 6/3 (1999): 370–87; Andrea Barron, “The Palestinian Women’s
Movement: Agent of Democracy in a Future State?” Middle East Critique 11/1 (2002): 71–90;
Karen Beckwith, “Mapping Strategic Engagements: Women’s Movements and the State,” Inter-
national Feminist Journal of Politics 9/3 (2007): 312–38.
 Women’s Rights in Morocco and Tunisia 249

opposed by Islamist women such as Nadia Yassine, head of the women’s

section of the Jama’at al-Adl wal Ihsan (Justice and Spirituality Association).19
When a 2003 terrorist bombing in Casablanca forced the Islamists to retreat
from their open hostility to the PANDIF, the family law reform was approved
by a royal commission and, early the next year, adopted by parliament. The
women’s rights groups were jubilant.20 As the ADFM noted:
The new law embodies the principle of shared family responsibilities between the
spouses. It was the product of extensive public discussion of challenges women
faced under the previous law, as well as analysis of the implications of human
rights standards and religious texts. To help ensure effective implementation of
the new rights that have been guaranteed, the legislative changes were accom-
panied by the creation of dedicated Family Courts, and the Ministry of Justice is
enhancing the provision of support services and training for judges and court
officials.
Introduction of the new family code was part of a broader wave of reforms
within the country, which had gained momentum at the turn of the new
century. In 2001, women politicians from the main political parties—Istiqlal,
Union Socialiste des Forces Populaires, the leftist Parti du Progrès et du
Socialisme, and the Mouvement Populaire, among others—established a net-
work for the establishment of a women’s quota system, with the result that the
2002 electoral code introduced a “national list” with thirty reserved seats
for women, or a 10 percent parliamentary quota.21 More progress followed.
The new labor code (2004) introduced the concept of sexual harassment in the
workplace; the penal code criminalized spousal violence; and in 2007 the
nationality code gave women and men equal rights to transmit nationality to
their children, as required by CEDAW’s Article 9.22 Among the women MPs
and ministers who played an important role in pushing for family law reform
and reform of the nationality law were Aicha Belarbi and Nouzha Skalli.23

19
In her book, Zakia Salime argues that the feminist and Islamist women’s organizations
interacted and learned from each other. However, she does not provide evidence for this, and
certainly not for the period prior to the family law reform. Instead, the two sides appear to have
been ideologically distant, a perception confirmed by a number of interviews and conversations
I have had over the years with various Moroccan feminists.
20
At a May 2004 meeting in Helsinki, Finland, I had the opportunity to hear Latifa Jbabdi
speak eloquently and emotionally about the hard road to the family law reform.
21
James M. Sater, “Changing Politics from Below? Women Parliamentarians in Morocco,”
Democratization 14/4 (August 2007): 723–42. Between 2002 and 2007, the major political parties
had no more than six women each, though, given the total seats won by the parties, the Justice
and Development Party (PJD) had the highest proportion, with a 14% female share. See Hanane
Darhour and Drude Dahlerup, “Sustainable Representation of Women through Gender Quotas:
A Decade’s Experience in Morocco,” Women’s Studies International Forum 41/part 2 (2013):
132–42.
22
For details and full references, see Moghadam, Modernizing Women, ch. 7.
23
Aicha Belarbi was State Secretary for Foreign Affairs in the Abdelrahman Yousefi govern-
ment of 1998–2002 and later ambassador to the European Union (EU); she is a founder of the
250 Valentine M. Moghadam

In June 2006, human rights and women’s rights organizations from the
region met in Morocco to launch the Rabat Appeal for the regional
campaign Equality Without Reservations, which called on governments
in the region to take immediate action for the ratification of CEDAW
and the withdrawal of all reservations; the implementation of CEDAW and
the harmonization of national legislation with CEDAW provisions on civil,
political, economic, social and cultural rights; and the ratification of the
Optional Protocol to CEDAW. In 2010, Moroccan feminist groups formed
a coalition with physicians’ groups and human rights organizations, called
the Springtime of Dignity, to urge the government to revise the penal code
toward criminalizing all forms of violence against women and to “preserve
the dignity of women, their physical and psychology integrity, and their
autonomy.”24 Among other priorities, ADFM called for more women
police officers to deal with violence cases, and established Nejma centers
for female victims of violence as well as a network of centres d’écoute,
listening centers with hotlines. The UAF similarly established the Annajda
Center, with several locations across Morocco.
Meanwhile, the participation of women in governance steadily increased.
A new cabinet formed in Morocco in October 2007 included seven women—
the highest female representation in the cabinet since the country gained
independence. Subsequently, CEDAW reservations were removed and a pro-
cess of harmonizing domestic laws with each other and with the international
women’s rights agenda was launched. Thus, women in political society and
civil society were able to collaborate for the purposes of effecting legal and
policy changes.
The contemporary discourses of women’s participation, human rights, civil
society, modernity, citizenship, and democratization reflect the changing socio-
political dynamics of women’s activism. Advocacy becomes more pointed, with
a focus on the need to reform discriminatory family laws and bring them in line
with constitutional guarantees of equality and with CEDAW; to criminalize
domestic violence and prohibit sexual harassment; to grant women equal
nationality rights so that their children may acquire citizenship through the
mother and not just the father; and to create mechanisms to facilitate women’s

Moroccan Organization of Human Rights. Nouzha Skalli of the Party of Progress and Socialism
(PPS) was elected to parliament in 2002 and in 2007–11 was Minister of Solidarity, Women,
Family, and Social Development.
24
For details, see the Women’s Learning Partnership for Rights, Development, and Peace,
<[Link] See also the following by Loubna Hanna Skalli,
“Women, Communications and Democratization in Morocco,” in Empowering Women: Par-
ticipation, Rights, and Women’s Movements in the Middle East, North Africa, and South Asia, ed.
Valentine M. Moghadam (Syracuse, NY: Syracuse University Press, 2007); Loubna Hanna Skalli,
“Constructing Arab Female Leadership: Lessons from the Moroccan Media,” Gender & Society
25/4 (August 2011): 473–95.
 Women’s Rights in Morocco and Tunisia 251

access to employment and political decision-making. The demands and strat-

egies are indicative of the political maturity of the women’s rights movements in
Morocco and Tunisia. Those groups are, moreover, among the more democratic
sociopolitical forces in society.
Table 10.1 summarizes key features of women’s legal status and social
positions in Morocco and Tunisia on the eve of the Arab Spring and in

Table 10.1 Gender Indicators, Tunisia and Morocco, 2010–11.

Gender Indicators Tunisia Morocco

Socio-
demographics*
Mean age at first 27 26
marriage, F
Total fertility rate 1.9 2.4
Paid labor force, 25% 28%
F%
Tertiary 40% 12%
enrolment, F %
age group
Female share of 42% 17%
university
teaching staff
Political
empowerment
measures
Women in 28% of total (first appointed 1965) 610, or 19% of total (first
judiciary** appointed 1960)
Female share, seats 23–28% 11% (after 2002 quota)
in parliament
(1995–2010)
Feminist leaders in Alya Chérif Chammari (human Fatima Mernissi (feminist
civil society/ rights/women’s rights lawyer); sociologist and Islamic law
public Hafidha Chékir (ATFD); Amel scholar); Latifa Jbabdi (UAF);
intellectuals Grami (Islamic law scholar); Amina Lemrini, Rabéa Naciri
Samia Letaief (UGTT & (ADFM); Nadia Yassine
AFTURD) (Islamist Party)
Prominent women Maya Jribi, coleader of Progressive Aicha Belarbi, USSP; Nouzha
in political Democratic Party Skalli, PPS
parties
Government in Parliamentary Constitutional monarchy
2011
Family law Liberal CSP since 1956; 1993 2004 reform of patriarchal
amendments Moudawana

Sources: *World Economic Forum, Global Gender Gap Report, various years; **Papers commissioned from
Fouzia Rhissassi and Khalid Berjaoui (Morocco), and Monia Ammar (Tunisia), in Femmes, Droit de la
Famille et Système Judiciaire en Algérie, au Maroc et en Tunisie, publié sous la direction de Souria Saad-Zoy,
UNESCO-Rabat, 2010; data on women in parliament from the Interparliamentary Union, <[Link]
252 Valentine M. Moghadam

2011, and identifies women active in political parties and in women’s rights
organizations. In both Morocco and Tunisia, women’s rights activism has
played a key role in the trend toward democratic social change. Over the years,
the women’s rights organizations have developed the civic skills necessary to
help shepherd a democratic transition and the democratic values necessary
to cultivate a sustainable or “effective” democracy.25

WOMEN’S RIGHTS, ISLAM, AND DEMOCRACY

IN THE ARAB SPRING

The Jasmine Revolution in Tunisia and the 20 February Movement in

Morocco were largely populist, cross-class phenomena without hierarchy,
leadership, or ideology. Protesters everywhere demanded political change
and economic security, and secular and religious organizations alike took
part in the protests. Although Islamist parties emerged as a major force in
both countries, a countervailing feature was the presence of relatively strong,
egalitarian political parties with clear social and rights-based agendas. Another
advantage was that external intervention did not occur and thus the political
changes proceeded organically. Finally, a pre-existing advantage in both
countries was the unprecedented participation by women in the protests,
along with a strong record of civic and political engagement, feminist aware-
ness, and well-established women’s rights organizations. These factors enabled
Moroccan and Tunisian women to bolster their place in political society and
civil society, especially when compared with outcomes for women in other
countries affected by the Arab Spring.26
With the launch of the Arab Spring in Tunisia in December 2010 and the
collapse of the Ben Ali government the following month, feminist groups
mobilized to ensure a democratic transition with women. Fearing that the

25
On “effective democracy,” see Christian Welzel, “Democratization as an Emancipative
Process,” European Journal of Political Research 45 (2006): 871–96.
26
On this subject, see the special issue on “Women, Gender and the Arab Spring,” Journal of
North African Studies 19/2 (March 2014), with contributions by Boutheina Cheriet on Algeria;
articles on Tunisia by Mounira Charrad and Amina Zarrugh, by Lilia Labidi, and by Andrea
Khalil; Sherine Hafez on Egypt; Zahra Langhi on Libya; Samia Errazzouki on Morocco; Loubna
Skalli on young women’s social media campaigns against sexual harassment; and introductory
essays by Andrea Khalil and by Valentine M. Moghadam. See also Diane Singerman, “Youth,
Gender, and Dignity in the Egyptian Uprising,” Journal of Middle East Women’s Studies 9/3 (Fall
2013): 1–27; Valentine M. Moghadam, “What is Democracy? Promises and Perils of the Arab
Spring,” Current Sociology 61/4 (June 2013): 393–408; and Moghadam, Modernizing Women,
esp. ch. 7.
 Women’s Rights in Morocco and Tunisia 253

revolution in which they had taken part would come to favor Ennahda—the
Islamic party that had been banned since the early 1990s—and recalling
Ennahda’s regressive stance on women’s issues in the past, Tunisian feminists
staged a protest on the eve of leader Ghannouchi’s return from exile in January
2011. Another protest by thousands of women took place in February. Perhaps
as a result of the women’s protests, but also mindful of the presence of many
qualified women, the 2011 transitional government and its four high commis-
sions were careful to include women. Out of 115 officials, 30 were women,
constituting 26 percent; this included three female cabinet ministers, although
two resigned and only one, the Minister for Women’s Affairs, stayed on for the
duration of the year’s work. It is indicative of Tunisian women activists’ self-
confidence and expectations that they were critical of the numbers and found
women’s presence insufficient.27
In August 2011, a new law guaranteed the right to form political parties.
But the explosion of political parties—especially of centrist, center-left, and
leftist parties—fragmented what could have been a progressive bloc and
helped bring about the Islamist electoral victory. The election for the
Assemblée Nationale Constituante (ANC, the national constituent assem-
bly) in the fall of 2011 saw Ennahda winning 37 percent of the votes. As a
result, it formed a three-party coalition government with Ettakatol and the
Congrès pour la République (CPR), two secular parties that had received a
relatively high proportion of ballots cast. Within the ANC, women consti-
tuted 28 percent of the members; forty of the women deputies in the ANC
were from the Ennahda Party, but the others were very active. Of the
numerous parties legalized, three were led by women: the Party of Social
Center directed by Salma Ammar; Afek Tounès by Emna Menif (codirected
with Mohamed Louzir); Movement of Democratic Edification and Reform by
Emna Mansour Karoui. (Maya Jribi was already coleader of a left-wing party,
the Progressive Democratic Party, later called the Parti Républicain.) The
Modern Democratic Pole, a left-wing coalition party, featured a significant
number of women at the head of their electoral lists in 2011, such as Nadia
Chaabane of Al Massar, the former communist party. (See Table 10.2.)
Prior to the Tunisian Revolution, there was no Islamist women’s association,
in part due to state repression of Islamist activity. Afterwards, Islamist women
mobilized largely within Ennahda, which also promoted women candidates
to the ANC, forty of whom were elected. Indeed, Ennahda’s Meherzia
Laabidi was appointed vice-president of the ANC. But that autumn saw

27
For details, see Andrea Khalil, “Tunisia’s Women: Partners in Revolution,” Journal of
North African Studies 19/2 (March 2014): 186–99.
Table 10.2 Principal Political Parties and Women Members in Tunisia’s National Constituent Assembly (ANC), 2011–14.
Political Party Ideology Number of Seats in Number of Women Some Key Female Deputies
ANC (% of total)* Members in ANC

Ennahda Islamist 89 (41%) 40 Souad Abderrahim; Meherzia Laabidi;

Farida Laabidi
Congrès pour la République (CPR) Center-left 29 (13%) Mabrouka M’barek; Noura Ben Hassen;
Samia Abbou
Aridha Shabiya (Popular Petition) Islamic/populist 26 (12%) Rabiaa Najlaoui
Ettakatol Center-left 20 (9%) Lobna Jribi; Fatma Gharbi;
Salma Mabrouk; **Karima Souid;
Selma Zenaidi
Parti Démocrate Progressiste (PDP) Left-wing 16 (7.4%) Maya Jribi; Najla Bouriel
Pole Démocratique Moderniste (PDM) Left coalition 5 (2.4%) Nadia Chaabane; Salma Baccar
Al-Moubadara (The Initiative) Formerly RCD 5 (2%) Mouna Ben Nasr; Amira Marzouk
Afek Tounès (Tunisia’s Horizon) Liberal/centrist 4 (1.89%) Rim Mahjoub; Samira Merai
Parti communiste des ouvriers de Far left 3 (1.5%)
Tunisie (PCOT)
Others & Independents 20 (10%) Faiza Kadoussi
Total NCA 217 (100%) 61 (28%)

Notes: * There were changes to various parties and their representatives over the course of the ANC. Initial reports stated that, in October 2011, a total of forty-nine women,
including forty from Ennahda, were elected to the NCA (see, e.g. <[Link] With
resignations, deaths, and other changes, more women deputies entered the NCA. Various accounts set the final female tally at 58, 61, or 67; I have settled on 61, as this is 28
percent of the 217 total ANC deputies. See also <[Link]
** Later joined Al Massar.
Sources: Personal communication from sources in Tunis; <[Link] p. 54;
<[Link]
 Women’s Rights in Morocco and Tunisia 255

clashes with radical Islamists—Salafists as well as others who may have been
with Ennahda—along with attempts to silence or intimidate artists, singers,
actors, and progressive professors. In March 2012, students clashed with Salaf-
ists who tried to replace the Tunisian flag with a black flag; it took an athletic
young woman, Khaoula Rachidi, to climb up the building to remove the Salafist
flag and return the Tunisian flag.28
The Arab Spring protests in both Tunisia and Morocco were generated by
grievances over deteriorating socioeconomic conditions as well as political
authoritarianism and corruption, but in Tunisia’s ANC, as one female deputy
told me, “we wasted a year on religious and cultural debates when we should
have been discussing the economy and people’s social conditions.”29 The
disagreements within the ANC were considerable and the debates intense.
Ennahda members wanted reference to Shari‘a as a source or the source of
legislation, while some secularists wanted reference to universal human
rights.30 Ettakatol members declared that the new Tunisia should be neither
an Islamic republic nor a military-style republic; CPR members argued that
the constitution’s preamble should focus on affirming the state’s civic charac-
ter, with stipulated protection of minority rights. The Pole Démocratique
Moderniste (PDM) representatives wanted not so much US-style separation
of religion and state as French-style state control over religion, that is, a kind of
state bureaucracy to monitor religious activities and keep them in check.
Ennahda’s conservative wing wanted Shari‘a as a set of laws and rules; the
moderate wing preferred to speak in terms of the spirit of the Shari‘a rather
than the letter of the law. By some accounts, Ennahda women tended to be
more flexible and accommodating, although they insisted that Article 1 of the
1959 constitution meant that Islam was the religion of the state and the people;
and referring to what they saw as repression of religiosity under Ben Ali, they
argued that a stronger statement would constrain the state.31 After much

28
See Lakhdar Souid, “Le Coeur palpitant des Tunisiens,” in “Quelle printemps pour les
femmes?” special issue, Femmes et Réalités 16 (mars 8, 2012): 28–30. He writes: “Dans un autre
temps et un autre pays, la geste de Khaoula vous fait penser à l’américaine Rosa Parks, . . .” From
a lower-income family in Gafsa, Khaoula is tall with short hair and seemingly sweet while
assertive. She is quoted as saying: “Je n’ai aucune couleur politique, mais je suis Tunisienne et
fière de l’être” (p. 30). On the aggressive behavior of Salafists, see the report by the International
Crisis Group, 2016, available at <[Link]
africa/tunisia/jihadist-violence-tunisia-urgent-need-national-strategy>.
29
Mabrouka M’barek of CPR, in a conversation with the author, Tunis, March 29, 2013,
following a conference organized by Stanford University.
30
Malika Zeghal, “The Enduring Muslim State in the Middle East: History and Implications,”
lecture delivered at the Belfer Center, Harvard University, September 18, 2014.
31
Zeghal, “The Enduring Muslim State.” She concluded that the divide in Tunisia was not
between secularists and Islamists, but between different conceptions of what it means to be a
democratic Muslim state. This echoes Cesari’s argument on the role of religion, modernity, and the
state in Tunisia’s “Muslim democracy” and “unsecular democracy” (see especially pp. 243–6). In
my judgment, the divide between secularists and Islamists in fact grew in 2014 and 2015.
256 Valentine M. Moghadam

debate, Ennahda members agreed in March 2012 that the draft constitution
would retain the language of Article 1 of the 1959 constitution. Indeed, the
final version strengthens it with an additional sentence: “This article cannot be
modified.”
Many Tunisians—whether self-described secularists or not—began to ques-
tion Ennahda intentions, especially around women’s rights and the CSP.32
During the ANC deliberations, Ennahda members of the ANC sought to
replace the term “equality” with words akin to “complementarity” or “part-
nership” in the draft constitution’s Article 28. A protest wave by women’s
rights activists and their male supporters in the secular and left-wing parties—
who took to the streets and to the domestic and international media—forced
another Ennahda retreat, and the constituent assembly retained the term
equality. It should be noted that a number of women’s rights advocates—
including Amel Grami, Sana Ben Achour, Salwa Charfi, and Raja Ben Slama—
have distinguished themselves as experts on Islamic law and have advanced
a new feminist ijtihad that has strengthened the female voice in religious
affairs.33 Their interventions during the intense debates in the Constituent
Assembly arguably helped shift the discursive balance of power, although the
secularists in the ANC were the key drivers.
The rise of Salafists and their aggressive behavior generated much discus-
sion within the ANC regarding the proper role of religion, the rights of non-
religious citizens, and the responsibility of the state. There were discussions as
to whether atheism and apostasy could be tolerated; Ennahda representatives
argued that “freedom of conscience” would have to be subject to the dominant
culture and morals. The nationwide horror at the assassination of left-wing
politicians, allegedly by Salafists, put the conservative Ennahda representatives
on the defensive and created a political crisis, with renewed protests over
Salafist aggression and continued socioeconomic problems.34 Civil society
groups led by the UGTT stepped in to mediate between Ennahda and its
main secular opposition, the National Salvation Front, with the result that
the government agreed in early October 2013 to resign and make way for a
caretaker government and new elections. In early January 2014, the new
constitution—which now allowed for freedom of conscience, banned takfir
(declaring a Muslim a kafir, or non-believer, which could be a license to kill),
established the state as custodian and as protector of religion and of citizen

32
For a discussion of their survey of attitudes toward the CSP, growing religious conserva-
tism, and contemporary Tunisian politics, see Jane D. Tchaicha and Khedija Arfaoui, “Tunisian
Women in the Twenty-First Century: Past Achievements and Present Uncertainties in the Wake
of the Jasmine Revolution,” Journal of North African Studies 17/2 (March 2012): 215–38.
33
Arfaoui and Tchaicha, “Governance, Women, and the New Tunisia,” 157.
34
Front Populaire members Chokri Belaid, Mohamed Brahmi, and Mohamed Belmofti were
assassinated.
 Women’s Rights in Morocco and Tunisia 257

rights, and adopted a proportional representation parliamentary system—was

adopted to much acclaim, domestically and internationally.
During visits to Tunis in March 2013 and March 2014, the atmosphere
appeared very polarized. Interpreting revolution as the right to be free to
practice religion openly had its complement in the desire to be free from
religious and state constraints, expressed in various ways by the youth and by
secularists. In March 2013, Tunis was host to the World Social Forum, which
convened at the University of Tunis El-Manal. The atmosphere at the univer-
sity and indeed throughout the city, where marches and rallies took place, was
one of remarkable openness, with the participation of feminists, secularists,
communists, anarchists, and many foreigners of various left-wing persuasions.
When I approached a group of young Tunisian anarchists and asked one of
the women if the law allowed them to display their anarchist symbols and
publications, she smiled and replied, “Even if it did not, we still would be out
here.”35 When Ommezine Khelifa, a rising star in Tunisia’s Ettakatol Party,
stated that “women’s empowerment is deeply ingrained in our culture,”
informed observers did not consider this an overstatement.36 In a conversa-
tion in March 2014, Samia Letaief of AFTURD and UGTT told me: “We are
very happy with the codification of equality in the constitution, but we still
have lots to do, we need many new laws, and Ennahda is still here. So I can’t
celebrate just yet.” A survey of university students and a follow-up focus-
group interview that I conducted in March 2014 showed alienation and
apathy.37 New electoral coalitions had been established, such as the secular
Nidaa Tounès, which was also concerned about the seeming alienation of
young people.38 A number of feminist activists told me they preferred to
remain in civil society rather than associate with the political parties. Nadia
Chaabane of Al Massar disagreed, pointing out that “We need both political
society and civil society if we are to build a sustainable and participatory
democracy.” Indeed, the open political environment and balance of political
forces enabled ATFD and AFTURD to establish sections outside Tunis, in
Sfax, Sousse, Bizerte, and Kairouan, and to work in coalition with the UGTT,
Human Rights League, and figures from the progressive political parties
toward the formation of an electoral bloc to try to prevent another Islamist

35
Author observations; see also Valentine. M. Moghadam, “The University as an Open Space:
The World Social Forum, Tunis, March 2013,” ASA Footnotes, newsletter of the American
Sociological Association, October 2013.
36
See the article by Omezzine Khelifa, in the special issue “Quelle printemps pour les
femmes?” of Tunisian magazine Femmes et Réalités 16 (mars 8, 2012): 34–5.
37
I gratefully acknowledge the assistance of Professors Khedija Arfaoui, Leila Hjeije, and
Samia Charfi with the questionnaires and the focus group interview.
38
Personal communication from Dr. Mahmoud Ben Romdhane, a leading figure in Nidaa
Tounès, March 2014.
258 Valentine M. Moghadam

victory in the next elections.39 Tunisia’s parliamentary system of proportional

representation and the parité law enabled a 47 percent female share of
candidates during the October 2014 parliamentary elections, though only 12
percent were at the head of the party lists. Eventually, women won 31 percent
of seats in Tunisia’s new parliament, and Nidaa Tounès gained most of the
parliamentary seats overall. The new parliament looked considerably different
from the ANC, especially with the fifteen seats won by the far-left Front
Populaire, though losses for other progressive parties were significant.40 In
civil society, feminist campaigns around domestic violence and for equal
inheritance preoccupied activists in 2014–16.
Turning to Morocco, although the Mouvement du 20 Février (20 February
Movement) was largely driven by young people, the UAF eventually joined its
National Council of Support.41 As Fatima Sadiqi explains, the movement was
started in part by a young woman, Nidal Hamdache Salam, who initiated a
Facebook forum discussion on political and socioeconomic issues.42 The
movement also had the backing of progressive political parties, which, along
with strategic decision-making on the part of the king, resulted in subsequent
constitutional amendments to restrict the king’s vast powers as well as to
institutionalize the rights of women and the cultural rights of the Amazigh
(Berber) ethnic group. Five women out of a total of eighteen members sat on
the Consultative Commission for the Constitutional Reform Coalition. In
April 2011, the coalition Feminist Spring for Equality and Democracy issued
a memorandum to the newly formed commission, which included three key
demands by the women’s movement: the primacy of international conven-
tions, namely CEDAW, over national laws; equality in civil rights between
men and women; and institutionalization of affirmative mechanisms and
measures for women’s equality.
ADFM hosted a regional seminar in Rabat in May 2011 on Women and
Democratic Transitions in the MENA region, which was attended by members
of civil society, women’s rights organizations, UN Women, other international

39
Personal communications and interviews during research in Tunis, March 2014.
40
In stark contrast to the figures in Table 10.1, Ennahda won 69 seats compared with the 86
seats for Nidaa Tounès. The breakdown of the 69 women parliamentarians was as follows: Nidaa
Tounès 32 (including the well-known constitutional lawyer and feminist activist Bochra Bel Haj
Hmida), Ennahda 29 (including Meherzia Laabidi), Front Populaire 3, l’Union Populaire Libre 2
(including Mbarka Aouania, widow of the assassinated Mohamed Brahmi), and two from two
smaller parties. By summer 2016, however, Nidaa Tounès saw the resignation of a number of
members due to disagreements with the party leader’s actions. For details, see <[Link]
[Link]/wiki/Assembly_of_the_Representatives_of_the_People>.
41
Zakia Salime, “A New Feminism? Gender Dynamics in Morocco’s February 20th Move-
ment,” Journal of International Women’s Studies 13/5 (October 2012): 110–14.
42
Fatima Sadiqi, “An Assessment of Today’s Moroccan Feminist Movements (1946–2014)”,
in Moroccan Feminisms: New Perspectives, ed. Moha Ennaji, Fatima Sadiqi, and Karen Vintges
(Trenton, NJ: Africa World Press, 2016), pp. 51–75.
 Women’s Rights in Morocco and Tunisia 259

organizations, and diplomats from Morocco, Tunisia, Egypt, Syria, and Lebanon.
Feminists from various countries in the region warned of the potential threats
to women’s rights posed by increasingly vocal and visible fundamentalist and
conservative groups. The Moroccan Minister of Women’s Affairs at the time,
Nouzha Skalli, announced that after years of advocacy by women’s rights
organizations, the Moroccan government would officially ratify CEDAW’s
Optional Protocol. Minister Skalli, a socialist well known for her commitment
to women’s rights and equality, also discussed the challenges and prospects for
equality in the constitutional reform process in Morocco.43
Morocco’s constitutional amendments were approved in a referendum in
July 2011—even if dissident Moroccans feel that the amendments fell short of
codifying genuinely democratic and egalitarian principles.44 Following the
referendum to endorse the constitutional amendments, elections took place
and the Islamic Parti du Justice et Développement (PJD) won 26 percent of
seats and the right to name a prime minister. Women’s share of total seats in
parliament rose to 17 percent because the reserved seat system had evolved in
to an expanded and eventually legalized system.45 Nabila Mounib became the
first woman elected to lead a major political party, the Parti Socialiste Unifié
(PSU). A critic of the Islamist agenda and of the power of the makhzen (royal
palace), she said that the PSU “respects Moroccan women and places women’s
rights at the center of the democratic struggle,” adding that “my election is a
victory for all women struggling for equality and dignity.”46
Although some might assert that the PJD does not have enough power to
make substantial changes, many Moroccan feminists are concerned about its
agenda and feel that it is a block on further progress after the constitutional
changes of 2011. At a conference that took place in Fez in June 2013, a clash of
cultures and ideologies could be seen between the religious or Islamist women
in the audience and a number of the speakers. There was disagreement over
the law that allows a rapist to marry his victim; over fully implementing laws
against child marriage (thus limiting parental privilege); and over the separ-
ation of Islam and the law.47 Dr. Soumia Boutkhil (of Mohamed I University,

43
See “News from May 2011 Rabat Convening on Women and the Political Transitions
in the MENA Region, and a Call for Action,” Charrington, May 25, 2011, <http://
[Link]/print/3940>.
44
Criticisms of the limitations of the Moroccan constitutional amendments were raised in
conversations I had during a visit to Rabat, May 27–30, 2014.
45
Darhour and Dahlerup, in “Sustainable Representation,” suggest that the political uprising
in the neighboring countries during late 2010–11 created a political transitional atmosphere for
the reform of the Moroccan constitution, and provided an opportunity for institutionalizing the
principle of gender equality in the 2011 constitution.
46
Ramdane Belamri, “Moroccan Socialist Leader Blasts Islamists,” <[Link]
com/pulse/tr/contents/articles/politics/2012/05/[Link]#>.
47
International Forum: Mediterranean Women’s Rights in the Aftermath of the “Arab
Uprisings,” organized by Professor Dr. Fatima Sadiqi, founder and director of the ISIS Center
260 Valentine M. Moghadam

Oujda) argued that Moroccan women’s quest for equality had thus far resulted
in a state of limbo, or “liminal citizenship,” drawing attention to Constitu-
tional Articles 3, 6, and 19. Although conceding that the family law reform
was a major achievement and referring positively to the government’s Agenda
for Equality 2011–15, she noted gaps in the legislation, such as men’s legal
guardianship over children even after a divorce that gave the mother custody
rights. The contradictory legal and religious discourses of the state under-
mined women’s full and equal citizenship, she argued. In a presentation
on cultural diversity and the need for women’s cultural empowerment,
Dr. Rachida Kerkesh (of the Ecole Normale Supérieure, Rabat) showed images
of Moroccan women in varying styles of dress, from tribal to Western to hijab.
Although women are presumed to be carriers of national cultures and iden-
tities, she said, their right to take part in and shape cultural expressions is
restricted by male authority figures who define what is culturally appropriate.
Dr. Kerkesh also questioned the authority that male kin have retained even
after the sweeping reform of the Moudawana, Morocco’s family law. This
raised the ire of the Islamist women in the audience, some of whom used the
Q&A period to voice their criticism of some of the presentations and to defend
the record and objectives of the PJD.
At the same conference, Dr. Asma Lamrabet (coordinator of a Rabat-based
research group on Muslim women and intercultural dialogue), argued that the
emphasis on law had eclipsed Islam’s spiritual message of emancipation,
equality, and closeness to God. The jurists of the tenth century may have
declared that the days of interpretation of the holy text were over, but she
reiterated the “Islamic feminist” insistence on the right to ijtihad in light of
new conditions. Asma El-Mehdi (president, Initiatives for the Protection of
Women’s Rights (IPDF), Fez), wondered whether the Arab Spring represented
a step forward for women or presented a set of risks and threats. She then
discussed the Springtime of Dignity campaign for the penal code reform—
criminalizing rape, decriminalizing abortion, ending virginity tests—and
pointed out that the women’s movement was as important politically as it
was culturally. Nouzha Guessous—Professor of Medicine, Hassan II Univer-
sity, Casablanca, and former member of the Consultative Commission on the
Moudawana Reform—argued that women were now insisting on shaping
understandings of culture and religion, but that the real frame of reference
should be la citoyenneté based on natural rights and innate human rights.
A quite audacious presentation was by Abdellatif Zaki (Agronomy and
Veterinary Institute, Rabat), who called not only for women’s full and equal

for Women and Development, and Dr. Ellinor Zeino-Mahmalat of the Konrad Adenauer
Stiftung, Rabat Office, Palais des Congrès, Fez, Morocco, June 21–23, 2013. I attended as the
keynote speaker; the information is based on notes I took during the conference.
 Women’s Rights in Morocco and Tunisia 261

rights, but also for freedom of conscience, including the right to leave Islam.
The Islamist women in the audience were visibly displeased.
Activists of the 20 February Movement continue to speak out, to join the
relatively frequent demonstrations of young people for jobs, and to decry what
they deem to be excessive police presence at universities.48 In June 2014,
feminists held a press conference and rally to protest the prime minister’s
comments that “women’s role” should be focused on the family.49 They have
criticized Islamist women who call for lowering the legal age of marriage to
encourage wedlock and prevent premarital sex or prostitution. The younger
women activists who formed Woman Choufouch in 2011 continued their
campaign against sexual violence and street harassment, insisting that the
dignity and freedom called for in the 20 February Movement extends to
women and their bodily integrity.50 One official survey found that some 62
percent of Moroccan women reported having experienced some form of
violence.51 A victory was won in January 2014 when the government over-
turned Article 475 of the penal code allowing a rapist to marry his victim; this
was the result of sustained activism following the Amina Filali tragedy and a
parliamentary bill drafted by the Socialist Group.

CONCLUSIONS

This chapter began by positing a positive connection between democratization

and women’s participation and rights. In Morocco and Tunisia, the legacy of
feminist institution-building, civic engagement, and organizing, even under
conditions of authoritarianism, was felt during the 2011 protests and after-
wards, as women’s rights activists joined others in expanding the space for
political debate and action. As such, they contributed to the relatively smooth
democratic transition that was launched in 2011, and they constitute a
key sociopolitical force in the construction of a democratic culture in the
two countries.

48
See <[Link]
[Link]>. In Rabat on May 27, 2014, I witnessed a demonstration of
young people in front of the Justice Ministry.
49
See <[Link]
work>.
50
Woman Choufouch—a reference to the catcall “woman, what’s up?”—is an audacious
campaign that was also galvanized by the 2012 suicide of Amina Filali. See Loubna Skalli, “Young
Women Demanding Justice and Dignity: By All Means Necessary,” Jadaliyya (2012), <http://
[Link]/pages/index/4854/young-women-demanding-justice-and-dignity_by-all-m>.
See also <[Link]
51
Skalli, “Young Women Demanding Justice and Dignity.”
262 Valentine M. Moghadam

Political scientists and scholars of democratic theory have emphasized the

importance not just of formal political systems, but also of democratic cultures.
Larry Diamond has written that moderation, tolerance, civility, and intellec-
tual openness, along with the capacity for pragmatism, compromise, and
negotiating, are attitudes and forms of behavior conducive to and reflective
of a democratic political culture. Also central to democracy are political
activities by private citizens to influence government policies, along with the
presence of autonomous movements and associations that allow people to
express their political preferences. Similarly, Robert Dahl discussed the need to
raise civic competence through “citizen assemblies” which allow for discus-
sion, reflection, and recommendations about public policy.52 In this chapter,
I have drawn attention to the ways in which feminist organizations and
individual women’s rights activists in Morocco and Tunisia have engaged
with public policy through involvement in the political process and in civil
society. Their conferences, seminars, and rallies may be seen as the sort of
“citizen assemblies” and civic action that democracy theorists have empha-
sized as critical to the making of a democratic culture. As such, a large section
from within the Maghreb’s population of “modernizing women” seems to
have developed the necessary political awareness and civic skills to help effect
a successful democratic transition.
As bearers of democratic values and practices, the women’s rights groups
reveal a very different orientation from respondents to surveys that show very
high support for democracy but low tolerance for women’s equality, women’s
political leadership, the separation of religious law from the state, and the
equality of Muslims and non-Muslims.53 Their position on domestic violence,
family law reform, and women’s reproductive and sexual rights puts them at
odds with Islamist groups, which continue to uphold very conservative views
on these matters. While feminists in Morocco and Tunisia will utilize the
language of women’s human rights or of full and equal citizenship or of
dignity and health to defend single mothers or female victims of sexual
abuse, Islamists will revert to the tenets of Islam or the cohesion of the family
as arguments against premarital sex or abortion or equal inheritance. As such,
the secular–religious divide continues to assert itself in the cultural politics and
the political process of both countries, although both camps include “brokers”
who seek to bridge the divide through dialogue and issue-based coalition-
building. At the same time, the need in both countries to improve economic
conditions for all citizens and to guarantee security in the face of region-wide

52
See Larry Diamond, ed. Political Culture and Democracy in Developing Countries (Boulder,
CO: Lynne Rienner Publishers, 1993), pp. 7–8, 10–11, 23–4; Robert Dahl, “The Problem of Civic
Competence,” Journal of Democracy 3/4 (October 1992): 45, 55.
53
See Amy C. Alexander and Christian Welzel, “Islam and Patriarchy: How Robust is
Muslim Support for Patriarchal Values?” International Review of Sociology 21/2 (2011): 249–76.
 Women’s Rights in Morocco and Tunisia 263

violent conflicts should be acknowledged as important enough to transcend

cultural differences and find common ground among the diverse political
forces and women’s groups.

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 11

Making Spaces in Malaysia

Women’s Rights and New Muslim Religiosities

Maila Stivens

Just in April, Prime Minister Datuk Seri Najib Razak said that Islam is
now being tested by new threats under the guise of humanism, secular-
ism, liberalism and human rights.
Malaysia’s foremost religious authority JAKIM1 had warned Muslims
through Friday sermons nationwide against a conspiracy by “enemies of
Islam” to manipulate them through ideas like secularism, pluralism,
socialism, feminism and positivism.2

Muslim-majority Malaysia, like many other places, has confounded predic-

tions about the supposed association of secularization and modernity. Instead,
the country has seen a resacralizing Muslim revivalist project which seeks to
promote an alternate Islamic modernity. Arguing that Malaysia’s recent
Islamization has been a thoroughly gendered process, this chapter3 focuses
on the significance of gender relations, gendered action, and, specifically,

1
JAKIM is the acronym for Jabatan Kemajuan Islam Malaysia, Department of Islamic
Development Malaysia, <[Link]
2
A. R. Zurairi, quoting remarks by Prime Minister Datuk Seri Najib Razak, “Religious
Curbs Used to Keep Malays Subservient, DAP MP Claims,” Malay Mail Online, September 27,
2014, <[Link]
malays-subservient-dap-mp-claims>. Prime Minister Najib’s statements created a national
uproar.
3
Australian Research Council funding is gratefully acknowledged for projects in Malaysia
and Singapore: “Work and Family in the New Malay Middle Classes” (1990–3); “Public and
Private: Gender and Southeast Asian Modernities” (1995–6); “Inventing the ‘Asian Family’:
Gender, Globalisation and Cultural Contest in Southeast Asia” (2000–2): and “Imagining the
Asian Child: Towards an Anthropology of New Asian Childhoods” (2006–7).
 Making Spaces in Malaysia 267

women’s rights claims in the making of new politics,4 new publics, and new
private spheres within Malaysia’s national Islamic modernity project.5
Malaysian women have long been involved in women’s organizations,
including Muslim organizations, and women’s sections of parties; this, and
their active engagement in the remaking of Muslim thought and practice
within an Islamizing order, are seen as important elements of ongoing reshap-
ings of “public” and “private” spaces alike and of ideas of the religious and
secular. A particular focus is the gendering of democratization processes,
processes understood both in their narrower “political” sense of public-sphere
engagement and in the wider sense of women activists’ robust attempts to
democratize gender relations in general and the domestic in particular. Many
of the leading women activists in the country are energetic scholar-activists,
engaging in a politics embedded in intellectual reflection and practice, explor-
ing their relationship to local and global feminisms. Like many such women in
postcolonial orders, they have often been wary of the universalisms of Western
feminisms, with some declaring themselves to be “womanists” instead. We are
beholden to them for some developed “insider” accounts of their attempts to
make gendered democratic space.6
The chapter discusses these developments in the light of recent feminist
calls to rethink the assumed links between struggles for gender justice on the

4
While this chapter’s main focus is women activists, it is not reading “gender” as “women.”
The relative dearth of studies on masculinities in the Muslim world is noted: see Lahoucine
Ouzgane, ed., Islamic Masculinities (Global Masculinities) (London: Zed Books, 2006); Amanul-
lah De Sondy, ed., The Crisis of Islamic Masculinities (London: Bloomsbury Academic, 2014).
5
This chapter’s focus is Peninsular (West) Malaysia.
6
These scholars include Zainah Anwar, “What Islam, Whose Islam? Sisters in Islam and the
Struggle for Women’s Rights,” in The Politics of Multiculturalism: Pluralism and Citizenship in
Malaysia, Singapore, and Indonesia, ed. Robert Hefner (Honolulu, HI: University of Hawai’i
Press, 2001), pp. 227–52; Lai Suat Yan, “Winds of Change: The Women’s Movement in
Malaysia,” paper presented to the Second International Malaysian Studies Conference, Univer-
sity of Malaya, Kuala Lumpur, August 2–4, 1999; Lai Suat Yan, “The Women’s Movement in
Peninsular Malaysia 1900–99: A Historical Analysis,” in Social Movements in Malaysia: From
Moral Communities to NGOs, ed. Meredith Weiss and Saliha Hassan (London: Routledge, 2003),
pp. 46–74; Patricia Martinez, “From Margin to Center: Theorizing Women’s Political Partici-
pation from Activism on the Margins to Political Power at the Center,” Working Paper, Ralph
Bunche Institute for International Studies, City University of New York, 2000, <[Link]
[Link]/catalog/14566>; Cecilia Ng, Maznah Mohamad, and Tan Beng Hui, Feminism and
the Women’s Movement in Malaysia: An Unsung Revolution, Routledge Malaysian Studies Series
(Abingdon and New York: Routledge, 2006); Norani Othman, “The Sociopolitical Dimensions of
Islamisation in Malaysia: A Cultural Accommodation or Social Change?” in Shari‘a Law and the
Modern Nation-State: A Malaysian Symposium, ed. Norani Othman (Kuala Lumpur: Sisters in
Islam Forum, 1994), pp. 123–43; Norani Othman, “Grounding Human Rights Arguments in
Non-Western Culture: Shari‘a and the Citizenship Rights of Women in a Modern Islamic State,”
in The East Asian Challenge for Human Rights, ed. Joanne R. Bauer and Daniel B. Bell (Cam-
bridge: Cambridge University Press, 1999), pp. 169–92; Norani Othman, “Islamization and
Democratization in Malaysia in Regional and Global Contexts,” in Challenging Authoritarianism
in Southeast Asia: Comparing Indonesia and Malaysia, ed. Ariel Heryanto and Sumit K. Mandal
(New York and London: Routledge Curzon, 2003), pp. 117–44.
268 Maila Stivens

one hand and secularisms and secular modernity on the other.7 Contemporary
contests in Malaysia between women activists and elements of both conser-
vative Muslim religionists and the state are often represented within the
rhetorical binary of “secular” and “religious,” as in the quote from Prime
Minister Najib in the epigraph at the head of this chapter.8 Some women
campaigners are also not immune to such binaries, on occasion representing
their struggles with Islamic authorities as contests between “patriarchal”
conservative religious forces and progressive secular forces. But such dichot-
omizing can obscure the intricate relationships between “religion” and the
“political”/“state” in all their many meanings. Complex developments have
tied present-day Malaysian nation-state forces and Muslim religious elements
ever more closely; the dominant state mantra of a “modern, moderate Muslim
nation” stands in sharp contrast to many prevailing imaginings about the
incompatibility of Islam and modernity. As I shall argue, the closely entwined
moral projects of a modernizing state and revivalist Islam in recent decades
have important consequences for women claiming rights: Muslim or not, many
claimants must necessarily engage with the “Woman Question in Islam,” in its
many local and global versions, in any negotiations with both the country’s
“illiberal” “pseudo-democracy”9 and politicized Islamic forces. In particular,
the centrality of issues of women, gender, family and household, women’s
bodies, and sexualities within Malaysia’s own “culture wars” has seen highly
limiting gender constructs being deployed as central sites for meaning-making
and contest within nation-building and conservative religious rhetoric alike.
Any discussion of these issues will face conceptual problems with the
charged, elusive, and often essentialized terms populating these debates,
especially within the Malaysian context of postcolonial critique: these include
the “state,” “secularism” and “modernity,”10 “religion,” “rights,” “civil society,”

7
See Linell E. Cady and Tracy Fessenden, eds., Religion, the Secular, and the Politics of Sexual
Difference (New York: Columbia University Press, 2013); Niamh Reilly, “Rethinking the Inter-
play of Feminism and Secularism in a Neo-Secular Age,” Feminist Review 97 (2011): 7.
8
The ongoing, highly charged debates about the nature and existence of secularism today
mean that the term cannot be used in any innocent way. See Charles Taylor, “Foreword: What is
Secularism?” in Secularism, Religion and Multicultural Citizenship, ed. Geoffrey Brahm Levey
and Tariq Modood (Cambridge: Cambridge University Press, 2009), pp. xi–xxii; and discussions
by Taylor’s interlocutors, including: Talal Asad, Formations of the Secular: Christianity, Islam
(Stanford, CA: Stanford University Press, 2003); José Casanova, “Secularization Revisited:
A Reply to Talal Asad,” in Powers of the Secular Modern, ed. David Scott and Charles Hirschkind
(Stanford, CA: Stanford University Press, 2006), pp. 12–30; Nader Hashemi, Islam, Secularism,
and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (New York: Oxford
University Press, 2009); and Craig Calhoun, Mark Juergensmeyer, and Jonathan Van Antwer-
pen, eds., Rethinking Secularism (New York: Oxford University Press, 2011).
9
William Case, “New Uncertainties for an Old Pseudo-Democracy: The Case of Malaysia,”
Comparative Politics 37/1 (2004): 83–104.
10
“Modernity” as always presents sizeable epistemological difficulties of eurocentrism, an-
drocentrism, and linearity. See Maila Stivens, “Theorising Gender, Power and Modernity in
 Making Spaces in Malaysia 269

“public” and “private,” “democracy,” “citizenship,” “woman,” “gender,” “fem-

inisms,” and, of course, Islam itself. As is customary, I also need to underline
my own problematic and particular positionality as a “Western” female
scholar, an issue that Malaysian interlocutors have not been shy about raising
on many occasions.

ISLAMIZATION, MODERNITY, AND

THE S TATE IN MALAYSIA

Malaysia’s dramatic Islamization of the last decades has arisen amidst signifi-
cant transformations in economic, political, and social life. State-promoted
and state-led industrialization policies since the late 1960s11 have established
Malaysia as a relatively stable, middle-income country, with per capita GDP
of USD $10,538.06 (2013), and massive rises in urbanization, large-scale
improvements in life expectancy, infant mortality, and literacy, rising ages at
marriage, and falling birth rates. Affirmative action policies12 to redress long-
standing Malay disadvantage have seen a striking growth of new middle
classes, but also increasing class differentiation and what many interpret as a
shift of power to new bureaucracy and technocracy.13 These social changes
saw dramatic new masculinities and femininities: the heroic, hypermasculine
“New Malay” (Melayu Baru), a decidedly male symbol of a would-be entre-
preneurial “can-do” social order (as in the government slogan “Malaysia
boleh!”—“Malaysia can do it!”) took center stage, while large numbers of

Affluent Asia,” in Gender and Power in Affluent Asia, ed. Krishna Sen and Maila Stivens
(London: Routledge, 1998b), pp. 1–34.
11
To avoid reifying the “state,” however, I understand it to comprise a highly specific
ensemble of relations and forces, a series of arenas.
12
The New Economic Policy (1971), extended through the New Development Policy
(1991–2000) and the National Vision Policy (2001–10).
13
See Khoo Kay Jin, “The Grand Vision: Mahathir and Modernization,” in Fragmented
Vision: Culture and Politics in Contemporary Malaysia, ed. Joel Kahn and Francis Loh Kok
Wah (Sydney: Allen & Unwin, 1992), p. 50; Harold Crouch, Government and Society in Malaysia
(Sydney: Allen & Unwin, 1996). On the new middle classes in Malaysia, see Abdul Rahman
Embong, State-Led Modernization and the New Middle Class in Malaysia (Basingstoke and New
York: Palgrave, 2002); Joel S. Kahn, “Growth, Economic Transformation, Culture and the
Middle Classes in Malaysia,” in The New Rich in Asia: Mobile Phones, McDonalds and Middle
Class Revolutions, ed. Richard Robison and David S. G. Goodman (London and New York:
Routledge, 1996), pp. 49–78; Patricia Sloane, Islam, Modernity and Entrepreneurship among the
Malays (Basingstoke: Palgrave/Macmillan Press; New York: St. Martin’s Press, 1999). See Maila
Stivens “Sex, Gender and the Making of the Malay Middle Class,” in Gender and Power in
Affluent Asia, ed. Krishna Sen and Maila Stivens (London: Routledge, 1998a), pp. 86–126; and
Stivens, “Theorising Gender.”
270 Maila Stivens

newly veiled young women enrolled in tertiary education—outnumbering

male students—and entered “modern” occupations outside the home.14 It
should be noted that Malay women had long enjoyed considerable rights in
the rural economy, including property ownership under both Islamic and
customary arrangements,15 although they also suffered some disadvantages
under Islamic family laws.16
The country’s resacralizing order has been driven strongly by state
forces, the outcome of both the local expansion of highly complex Islamizing
forces, including Malay ethnonationalism and the global emergence of
Islamic revivalisms and neo-fundamentalisms.17 Many discussions of the
Middle East have presented Islamic revivalisms there as responses to rapid
and disruptive social change, and in opposition to the state and to “state
secularism.” In the Malaysian case, however, a resolutely “not-Western,”
state-led modernity project and contemporary Muslim practice can be
seen as mutually constitutive in all their respective multidimensional
complexities.18
Hooker suggests that we speak of Islams, rather than Islam,19 in the history of
the country. Islam is the official religion of Malaysia and the federal constitution
assumes that all Malays are Muslim. Malaysia is not an Islamic state, however,
although arguments about whether it is a secular or Islamic state have
been ongoing. The head of state, elected from the sultans of the constituent
states every five years, is head of religion in the country, and Islamic law is
administered by the states, except in the Federal Territory.20 Moustafa
among others emphasizes the present-day intertwining of religion and state

14
The female labor force participation rate is 45%: The World Bank, “Labor Force Partici-
pation Rate, Female (% of female population ages 15+),” <[Link]
[Link]>.
15
Maila Stivens, Matriliny and Modernity: Sexual Politics and Social Change in Rural
Malaysia (Sydney: Allen & Unwin, 1996).
16
For a comprehensive account of issues facing contemporary Malaysian women, see
Women’s Aid Organisation (WAO), (on behalf of the Malaysian NGO CEDAW Alternative
Report Group), CEDAW and Malaysia: Malaysian Non-Governmental Agencies Alternative
Report, Petaling Jaya, Selangor, 2012, <[Link]
20CEDAW%20Alternative%20Report%202012%[Link]>.
17
Olivier Roy, Globalised Islam: The Search for a New Ummah (London: Hurst, 2004).
18
Maila Stivens, “ ‘Family Values’ and Islamic Revival: Gender, Rights and State Moral Projects
in Malaysia,” in Gender and Islam in Southeast Asia: Women’s Rights Movements, Religious
Resurgence and Local Traditions, ed. Susanne Schröter (Leiden: Brill, 2013), pp. 143–70.
19
M. B. Hooker, “Introduction: Islamic Law in South-East Asia,” Australian Journal of Asian
Law 4/3 (2002): 215. See William R. Roff, “Patterns of Islamization in Malaysia, 1890s–1990s:
Exemplars, Institutions, and Vectors,” Journal of Islamic Studies 9/2 (1998): 210–28.
20
Almost all Malays identify as Sunni Muslims, of the Shafi’i school. See Tamir Moustafa,
“Judging in God’s Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia,”
Oxford Journal of Law and Religion 3/1 (2014): 152–67.
 Making Spaces in Malaysia 271

governance in the country,21 arguing that religious law has been transformed by
incorporation as state law, in a process dating back to the colonial era.22 Under
British colonial rule, legal codifications established a tripartite legal structure
comprising civil law, Islamic law—relegated to dealing mainly with personal/
family law relating to marriage, inheritance, and kinship—and adat or custom-
ary law, dealing with issues of “custom” and land. “Islamic law” in Malaysia,
argues Hooker, has been “in essence Anglo-Muslim law, the law that the state
makes applicable to Muslims,”23 with the state authorities monopolizing reli-
gious interpretation.24 This historical trajectory has been highly significant in
gender terms, as I shall discuss in the section on gendering Malaysian Islam-
ization, with “private sphere,” “family” issues central to the workings of Islamic
law from the colonial era on.
State management of Islam has involved extensive balancing acts, however.
The ruling political coalition (Barisan Nasional, National Front), led by the
“Malay” party, the United Malays National Organisation (UMNO), has long
expressed support for versions of a “moderate” Islamic modernity while com-
peting with varied revivalist forces, especially the opposition Pan-Malaysian
Islamic Party of Malaysia (PAS, Parti Islam SeMalaysia), to prove their respective
Islamic credentials.25 But it is problematic to pose local contests as an opposi-
tion between a homogeneous bloc of neo-traditional, conservative, theocratic
revivalist forces and supposedly more moderate governmental forces, like the
“modern” version of Islam promoted as Islam Hadhari by the former Malaysian
Prime Minister Abdullah Ahmad Badawi (prime minister from 2003 to 2009).
Such depictions neglect many of the complexities of support for revivalisms in
the country, including significant middle-class endorsement, the involvement of
state forces in highly bureaucratic interventions within religious regulation and
practice, and the linking of “modern” and “Islamic” in Malay imaginaries.
Support for revivalisms and the long-term demands for an Islamic state by
PAS in particular can be understood best as the outcome of the multifaceted

21 22
Ibid., 153. Ibid., 161–2.
23
Hooker, “Introduction,” 218.
24
Moustafa, “Judging in God’s Name,” 152, reports that Malaysia is now ranked sixth out
of 175 countries on a scale measuring state regulation of religion.
25
Michael Barr and Anantha Raman Govindasamy, “The Islamisation of Malaysia: Religious
Nationalism in the Service of Ethnonationalism,” Australian Journal of International Affairs 64/3
(2010): 292–311; Othman, “Islamization and Democratization”; Meredith L. Weiss, “The Chan-
ging Shape of Islamic Politics in Malaysia,” Journal of East Asian Studies 4 (2004): 139–73. PAS is
designated by most local writers as “Islamist,” having become dominated by “Young Turk”
graduates from Middle Eastern Universities during the earlier phase of the current Islamization,
Anwar, “What Islam,” p. 241.
272 Maila Stivens

development of Malay ethnicity and ethnonationalism,26 and of earlier Islamic

modernist initiatives.27
Local Islamizing forces28 in the past few decades have included dakwah
(proselytizing or missionary) groups; growing numbers and influence of
Islamic non-governmental organizations (NGOs);29 extensive moves to Islam-
ize finance,30 the economy, and educational institutions; the growth of a large-
scale religious bureaucracy based on Shari‘a law; and wide-ranging moves to
Islamize the law.31 The latter have included continuing controversial attempts
in the northern states of Kelantan and Terengganu to introduce Muslim
criminal law (hudud) and legal codifications of Islamic norms, values, and
morals, as well as attempts to undo earlier Islamic family law reforms and to
institute Shari‘a law for all Malaysians. More generally, there has been an
Arabization of architecture and other cultural forms and increased pollution
taboos around non-halal food, as well as the automatic enforcement into law
of fatwa such as those against “tomboys,” black metal music, and women’s

26
Farish Noor, The Malaysian Islamic Party PAS 1951–2013 (Amsterdam: Amsterdam
University Press, 2013); Patricia Martinez, “The Islamic State or the State of Islam in Malaysia,”
Contemporary Southeast Asia 23 (2001): 474–503; Judith Nagata, The Reflowering of Malaysian
Islam: Modern Religious Radicals and their Roots (Vancouver: University of British Columbia
Press, 1984); Weiss, “Changing Shape.” The Malayan colonial and postcolonial assemblage of
ethnic categorizations essentialistically identified “Malays,” “Chinese,” “Indians,” and “Others.”
These classifications persist today in the contemporary reductive, naturalized census categories:
Malaysia’s population in 2010 was 28.3 million, comprising 67.4 percent “Bumiputera” (literally
“sons-of-the-soil”—Malays and other indigenous groups), 24.6 percent “Chinese,” 7.3 percent
“Indians,” and 0.7 percent “Others,”, Department of Statistics, Malaysia, Population Distribution
and Basic Demographic Characteristics, Malaysia 2010 (2010 Census), <[Link] [Link].
my/[Link]?r=column/cthemeByCat&cat=117&bul_id=MDMxdHZjWTk1SjFzTz
NkRXYzcVZjdz09&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09>. Malays formed
63.1 percent of the population of Peninsular Malaysia in 2010.
27
Khoo Boo Teik, “Searching for Islam in Malaysian Politics: Confluences, Divisions and
Governance,” Working Chapters Series, no. 72, City University, Hong Kong, September 2004,
<[Link]
28
See Noor, Malaysian Islamic Party, for a detailed analysis of Malaysian Islamization.
29
Joseph Chinyong Liow, Piety and Politics: Islamism in Contemporary Malaysia (Oxford:
Oxford University Press, 2009).
30
Malaysia has become a global center for Islamic finance.
31
Norani Othman, “Religion, Citizenship Rights and Gender Justice: Women, Islamization
and the Shari‘a since the 1980s,” in Sharing the Nation: Faith Difference, Power and the State
50 Years after Merdeka, ed. Norani Othman, Mavis C. Puthucheary, and Clive Kessler (Petaling
Jaya: Strategic Information and Research Development Centre, 2008), pp. 34–5, argues that
Islamization has produced not just legal pluralism, but an often ambiguous jurisdictional
dualism, with problems of overlapping and competing jurisdiction between Islamic law and
the common law, the possible centralization of Islamic law, its synthesis with English law to
produce a new, overarching Malaysian common law, and the removal of unIslamic features from
statutes. See Donald L. Horowitz, “The Qur’an and the Common Law: Islamic Law Reform and
the Theory of Legal Change: pt 1,” American Journal of Comparative Law 42/2 (Spring 1994):
233–93; Donald L. Horowitz, “The Qur’an and the Common Law: Islamic Law Reform and the
Theory of Legal Change: pt 2,” American Journal of Comparative Law 42/3 (Summer 1994):
543–80; Liow, Piety and Politics.
 Making Spaces in Malaysia 273

groups. At the same time, there has also been a growing “pop-Islamist”
culture, flooding the country with Islamic local and transnational consumer
goods and cultural forms.32
Many commentators have suggested a shift among Malays from a central
identity of “(Muslim) Malay” to “Muslim” per se with Islamization. But
“Muslim”—like “Malay”—has never been a singular identity. Thus, in a
study of new middle classes in Kuala Lumpur and Penang in the 1990s,
I found sizeable support among my informants for versions of religious
revivalisms,33 but also evidence for what one might term a postmodernization
of Muslim identity and practices: my informants were offered, took up, and
recreated a range of positionings within the shifting complexes of meaning
surrounding ideas of an Islamic modernity.34
This links to the intricate relationships between Islamization and the rise of
the democracy movement Reformasi (Reformation). Following the dismissal
of Deputy Prime Minister Anwar Ibrahim in 1998, democracy activists called
for transparent and accountable governance and the elimination of KKN
(korupsi, kronyisma, and nepotisma): NGO and party-political mobilizations
and electoral gains since Reformasi have reflected new patterns in multi-ethnic
and reformist politics,35 and new publics, not least the spaces claimed by
revivalists and women activists, to be outlined in the section on gendering
new Malaysian publics. New cyberspace publics have been able to bypass to
some extent the previously draconian state controls over the media, although
some bloggers have faced sedition charges. At the same time, there is con-
tinuing debate about the democracy movement’s future: middle-class support
has been uneven,36 PAS has had a particularly awkward and ambiguous
relationship within the movement, with ongoing tensions over the direction
of Islamization in general and over gender issues in particular, and the
opposition is presently disunited.37 Moreover, the growing strength of a
number of Malay rights organizations and their highly exclusionary rhetoric
has alarmed other ethnic groups.38

32
Dominik Müller, Islam, Politics and Youth in Malaysia: The Pop-Islamist Reinvention of
PAS, Routledge Contemporary Southeast Asia Series (Abingdon and New York: Routledge,
2014).
33
Stivens, “Sex, Gender”; Stivens, “ ‘Family Values.’ ”
34
Stivens, “ ‘Family Values.’ ”
35
Garry Rodan, “Civil Society Activism and Political Parties in Malaysia: Differences over
Local Representation,” Democratization 21/5 (2014): 826. For accounts of the democracy
movement, see Edmund Terence Gomez, ed., The State of Malaysia: Ethnicity, Equity and
Reform (London and New York: Routledge Curzon, 2004); and Francis Loh Kok Wah and
Johan Saravanamuttu, eds., New Politics in Malaysia (Singapore: ISEAS, 2003).
36
Gomez, State of Malaysia; John Hilley, Mahathirism, Hegemony and the New Opposition
(London: Zed, 2001).
37
See Julian C. H. Lee, Islamization and Activism in Malaysia (Singapore: ISEAS, 2010);
Loh Kok Wah and Saravanamuttu, New Politics; and Noor, Malaysian Islamic Party.
38
These include Persatuan Pribumi Perkasa (Perkasa) and Ikatan Muslimin Malaysia (Isma).
274 Maila Stivens

Political science is replete with debates about the role of the highly prob-
lematic and increasingly contested concept civil society in promoting dem-
ocracy. Osella and Soares caution that we should pay “attention to the political
processes and discourses producing ‘civil society,’ in which the state is thor-
oughly imbricated,” rather than “seeking to isolate an almost ideal typical
picture of an ‘autonomous’ public sphere.”39 Rodan’s proposal that contem-
porary political processes in Southeast Asia are better understood as the
opening of political space rather than as a struggle between civil society and
state can be useful in thinking about the complex positionings of different
political actors within Malaysia’s Islamizing order.40 It should also be empha-
sized that “making political space” is a central trope within much Malaysian
activist rhetoric.

GENDERING M ALAYSIAN ISLAMIZATION

A large body of work has emphasized the centrality of the “private sphere”
issues of gender, family, women’s bodies, and sexualities within both the
workings of Islamic law and the cultural politics of Muslim-majority societies.
As I shall discuss in the next section, many Malaysian women activists have
grave concerns about the consequences of Islamization for gender equality:
particular issues have been the workings and reworkings of Muslim family
law, and the highly limiting gender constructs being deployed as central sites
for meaning-making and contest within nation-building and conservative
religious rhetorics. But important work on contemporary women’s piety
movements in both the Muslim world and beyond has also highlighted issues
of women’s agency41 within religious movements and the ways in which such
agency not only constructs new female subjectivities, but also new public
and private spaces within complex local and global social formations.42 In
Malaysia, Muslim women have become important political and religious
actors through a range of activities, including their everyday living of revivalist
spiritualities and moralities, their engagements in the remaking of Muslim
thought, their adoption of highly visible renewed modes of Muslim dress, and

39
Filippo Osella and Benjamin Soares, eds., Islam, Politics, Anthropology (Chichester and
Malden, MA: Wiley-Blackwell, 2010), p. 6.
40
Garry Rodan, ed., Political Oppositions in Industrializing Asia (London: Routledge, 1996).
41
Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton,
NJ: Princeton University Press, 2011); Sylva Frisk, Submitting to God: Women and Islam in
Urban Malaysia (Copenhagen: NIAS Press, 2009); Rachel Rinaldo, Mobilizing Piety: Islam and
Feminism in Indonesia (Oxford: Oxford University Press, 2013). I prefer “political effectivity” to
“agency” here, given the many problems with the latter term within feminist argumentation.
42
See the discussion in Cady and Fessenden, Religion, the Secular.
 Making Spaces in Malaysia 275

their roles in neighborhood mosque, prayer, and study groups and the grow-
ing numbers of Islamic NGOs.43
Some feminist literature on the Middle East has seen colonial codifications
of family law as directly constructing an emerging private sphere, with the
colonial relegation of Islamic law to family, kinship, and inheritance matters.44
Colonial codifications of law in Malay(si)a have clearly been important in
gender terms, setting parameters for the operation of Islamic law, along with
later postcolonial bureaucratizations of Islamic law. But such a model of a
supposedly new private sphere can exaggerate the power of colonial law to
construct both a supposed “nuclear family” and “family” as lived experience.45
The emergence of “modern” elementary or nuclear family households within
wider kinship structures has been a complex historical process intimately tied
to growing commoditization, new consumer regimes, and emerging “modern”
subjectivities, as well as legal codifications.46 This historical body of law in
Malay(si)a has clearly hindered some Muslim women’s attempts to democra-
tize aspects of family law, like polygamy rules. But it is also important to note
that the everyday operations of syariah47 courts can differ significantly from
the formal legal precepts. For example, Peletz reports from his intensive
ethnographic study of Islamic courts that they engage in practices that assume
men cause most of the problems in marriage—and in so doing dilute some of
the gendered inequalities that obtain in Islamic law.48
A key issue here is the conceptualization of the “public” “private” divide. As
many have argued, the concepts of public and private are implicated in all
discussions of the relationships between the state and religious discourse and
practice.49 Feminist theorizations of this divide over the last few decades have
usefully deconstructed this highly problematic categorization, critiquing the
long-standing androcentrism, essentialism, and eurocentrism of its conceptu-
alizations within Western liberal political thought. In postcolonial contexts,
however, it can be problematic to assume either the existence of such spheres,
or their conformity to Western reified models. Anthropologists, for example,
have argued for a skeptical take on the existence of such spheres outside
stratified/state societies. There are further complications within ideas of
the privatization of religion within secular modernity, and the denials within

43
Sharifah Zaleha binti Syed Hassan, “Islamization and the Emerging Civil Society in
Malaysia: A Case Study,” in Islam and Civil Society in Southeast Asia, ed. Nakamura Mitsuo,
Sharon Siddique, and Omar Farouk Shaeik Ahmad Bajunid (Singapore: ISEAS, 2001), pp. 76–90;
Frisk, Submitting to God.
44
See Cady and Fessenden, Religion, the Secular.
45 46
See Stivens, Matriliny and Modernity, for discussion. Ibid.
47
Malay normally renders Shari‘a as syariah or shariah.
48
Michael G. Peletz, Islamic Modern: Religious Courts and Cultural Politics in Malaysia
(Princeton, NJ: Princeton University Press, 2002), p. 280.
49
See Cady and Fessenden, Religion, the Secular.
276 Maila Stivens

some Muslim thought of any such divide: in such constructs Islam is seen as
providing a total model for life, with a necessarily embedded private sphere
as the core of morality. In my view, it is best to think of these spheres as
contingent and contextual ideological constructs, with highly fluid, ever-
changing boundaries.50 In relation to the public sphere or public space,
I will follow Nancy Fraser’s proposal of the idea of a public as an arena of
global citizen discourse within the nation-state, “a theatre of modern societies
in which political participation is enacted through the medium of talk.”51
Calls to produce a revivified private sphere have been a key feature of both
the nation-state and revivalist moral projects, with both state and religious
authorities involved in extensive “moral policing” campaigns; key tropes
within the hyper-symbolizations of the culture wars have included “the
family,” polygamy, women’s bodies, new masculinities, and homosexualities.52
There has been a long series of staged controversies: these have included:
“obedient wives’” clubs; bans on Malay women taking part in beauty pageants;
raids on nightclubs; campaigns against forms of entertainment considered
unIslamic, including “traditional” Malay song and dance forms; raids on drag
beauty pageants; bans on gays and transvestites appearing on Malaysia’s state-
run television network; bans on a Seksualiti Merdeka (Sexual Rights) festival
in 2011; government campaigns to “curb homosexuality;”53 pressures on
transgender people; the threatened Shari‘a whipping of a woman for drinking
alcohol;54 and, perhaps most significantly, the endless Anwar Ibrahim sodomy
saga and a series of apostasy and religious conversion cases under Islamic law
intimately involving issues of “family.”55
In the Malaysian context, “too modern” femininities have become central
symbols within the revivalist critique of the presumed ills of a modernity
designated as “too free” and “(too) Western,” if not “westoxified.” The figure
of the high-achieving, educated, and energetic “modern Malay woman” of the
new middle classes may represent a version of postfeminist femininity; but
she also slides easily into the moral ambiguities of modernity both within
revivalist discourses and beyond.56 These discourses are the site of important

50
Cf. Nancy Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition
(London and New York: Routledge, 1997).
51
Fraser, Justice Interruptus, p. 70. 52
Stivens, “Sex, Gender.”
53
In 2012, for example, the government’s anti-homosexual campaign “was training volun-
teers to ‘help’ people in the lesbian, gay, bisexual and transgender (LGBT) community,” Patrick
Lee, “Campaign to Curb Homosexuality,” Free Malaysia Today, March 22, 2012, <[Link]
[Link]/category/nation/2012/03/22/campaign-to-curb-homosexuality/>.
54
Maila Stivens, “Gender, Sharia and the Politics of Punishment: A Contemporary Malaysian
Case,” in Asian Muslim Women: Globalization and Local Realities, ed. Huma Ahmed Ghosh
(Albany, NY: SUNY Press, 2015), pp. 127–60.
55
The latter have seen both Muslims and non-Muslims caught up in their operations. See
Othman, “Religion, Citizenship Rights,” p. 37.
56
See Stivens, “Sex, Gender.”
 Making Spaces in Malaysia 277

intersections of religion, ideas of the nation and citizenship, and anxieties

about the future of the Muslim majority: women as the bearers of neo-
romantic national culture and ethnonationalist imaginaries are to secure an
increasingly “religious” nation-state moral project from the many dangers it
might face, including secularisms. As the quote in the epigraph at the head of
this chapter suggested, these dangers are directly tied to feminisms in many
such imaginaries.57 State forces have energetically orchestrated “family” cam-
paigns, including the earlier postcolonial project of the “Asian family,” while
there have been promotions of idealized notions of “traditional family values”/
“Islamic values” “happy families” in revivalist and other Muslim moral
imaginaries.58 In these overlapping imaginaries, family is seen as a critical
site for producing both a new go-ahead nation, with ideal citizen-subjects, and
new versions of a purer, more pious Islam. For the revivalists and state agents
alike, a properly regulated private sphere is a model for public order; gender
and family issues are linked explicitly to ideas of a moral hierarchy in society,
including the moral authority of both religious and state forces. This devel-
oped cultural politics means that the gendering of the nation-state is intim-
ately associated with ideas of virtue that become ever more inseparable from
pious religiosity.
The deployments of “private” sphere issues within cultural politics contra-
dictorily deny the very real changes in the domestic/private with moderniza-
tion, including the national state’s own policies to encourage women’s
participation in work outside the home.59 But women are not necessarily to
be confined to the “private” sphere in some state or religious versions of the
ideal Malay woman: for example, the national state on occasion has chosen to
counter more conservative PAS leaders’ views on women in order to garner
electoral credit, such as the time the PAS leader in Kelantan, Chief Minister
Nik Aziz Nik Mat, was chided by UMNO for proclaiming that “pretty women
should not work outside the home.”60
The politicization of the private sphere has important implications for
women’s right activists in the specific case of Malaysia, inscribing an incre-
asingly Islamized cultural domain for Muslim and non-Muslim activists’
political interventions alike. But I would also note that while such moral
imaginaries and culture wars have been seen to be especially developed within

57
See Stivens, “ ‘Family Values.’ ” 58
Stivens, “ ‘Family Values.’ ”
59
Juanita Elias, “The Gender Politics of Economic Competitiveness in Malaysia's Transition
to a Knowledge Economy,” Pacific Review 24/5 (2011): 529–52. Elias suggests the government
offers little tangible support for this policy.
60
Helen Ting, “Gender Discourse in Malay Politics: Old Wine in New Bottle?” in Politics in
Malaysia: The Malay Dimension, ed. Terence Gomez (Abingdon and New York: Routledge,
2007), p. 89; Lim Kit Siang, blog, Friday, March 14, 2008, <[Link]
03/13/apology-to-perak-sultan-and-regent-no-offence-intended/comment-page-18/>. (Nik Aziz
Nik Mat also suggested that women were the main cause of “social ills and moral decadence.”)
278 Maila Stivens

Muslim-majority societies, similar culture wars are also a feature of the South-
east Asian region in general, with state-level politics, new religiosities, and
emerging consumer regimes all key actors.61

GENDERING NEW MALAYSIAN P UBLICS: RIGHTS

CL A I M S , REL I G I O S IT Y , AN D G E N D ER J U S T I C E

Women in Malaysia are different to those in other countries. There is no

need for a women’s rights movement as we have from the start acknow-
ledged equal rights for women.62
[T]he Malaysian government has not incorporated the CEDAW Conven-
tion into national law. There is no gender equality legislation in place
providing for the comprehensive realization of substantive equality of
women with men in both public and private spheres of life.63

Malaysia has a long history of women’s organizations active in welfare asso-

ciations and anti-colonial nationalist struggles during the colonial period,
within women’s sections of parties and in ongoing campaigns for women’s
education, health, education, and family law reform, especially relating to
marriage and polygamy.64 There were also “grassroots” rights claims within
the (Communist) Emergency of the 1940s; Rembau rural women marching for
their “matrilineal” land rights against Islamic law incursions in the 1950s;65
and labor activisms, especially those of the much-described factory women of

61
See Stivens, “Theorising Gender”; Stivens, “ ‘Family Values.’ ”
62
Prime Minister Najib Razak, quoted in Adila Razak, “PM: No Need for Women’s Rights
Movement in M’sia,” Malaysiakini, Tuesday, October 2, 2012, <[Link]
news/210484>.
63
WAO, CEDAW and Malaysia, p. 9.
64
See Rohana Ariffin, “Feminism in Malaysia: A Historical and Present Perspective of
Women’s Struggles in Malaysia,” Women’s Studies International Forum 22 (July–August
1999): 417–23; Lai, “Winds of Change”; Lai, “The Women’s Movement,” pp. 46–74; Lenore
Manderson, Women, Politics, and Change: The Kaum Ibu UMNO, Malaysia 1945–1972 (Kuala
Lumpur and Oxford: Oxford University Press, 1980); Maznah Mohamad and Wong Soak Koon,
eds., “Feminism: Malaysian Critique and Experience,” special edition, Kajian Malaysia: Journal
of Malaysian Studies 12/1–2 (June/December 1994); Martinez, “From Margin to Center”; Cecilia
Ng and Heng Leng Chee, “Women in Malaysia: Present Struggles and Future Directions,” Asian
Journal of Women’s Studies 2 (1996): 192–209; Cecilia Ng, ed., Positioning Women in Malaysia:
Class and Gender in An Industrializing State (Basingstoke: Macmillan, 1999); Othman, “Reli-
gion, Citizenship Rights”; Ng, Mohamad, and Hui, Feminism and the Women’s Movement;
Weiss and Hassan, eds., Social Movements in Malaysia.
65
See Stivens, Matriliny and Modernity; Peletz, Islamic Modern.
 Making Spaces in Malaysia 279

the industrializing 1970s expressing their discontents in episodes of spirit

possession.66 Women achieved the vote with Malayan independence in
1957. Since the 1980s, there has been a growing number of NGOs working
on “women’s issues,” from a range of political positionings: it is estimated that,
at the end of the 1990s, there were 250 women-focused NGOs in the coun-
try.67 A key factor in the rise of these latter groups has been the expanding
educational and economic roles of large numbers of women entering the new
middle classes. Women have also been active members of the growing num-
bers of Islamic NGOs of the last decades.
As noted in my introduction, much Western feminist writing has proposed
a necessary connection between secularisms and gender justice, seeing uni-
versalist claims to rights as the most effective path to gender justice; this has
been particularly clear in writing about Muslim women’s supposed power-
lessness. Aihwa Ong argues, however, that there are “many benefits to a
richer, more complex, and plural concept of gender justice” in postcolonial
milieus,68 beyond the rights-based conceptualization popular among inter-
national NGOs:
Gender justice and rights cannot be unilaterally imposed, but are transmitted and
translated through negotiations with situated religious and citizenship norms. In
postcolonial milieus, ideals of gender justice interact with diverse ethical regimes
to shape the conditions of possibility for problematizing gender and possible
solutions to gender inequality that cannot be predetermined.69
As I will show in the next subsection, some Malay Muslim women activists,
like members of the reformist organization Sisters in Islam (SIS), have con-
sciously engaged with such ideas in their tense and difficult negotiations with
both state agents and revivalist religionists. There have also been many
attempts to rethink the nature of women’s rights in such Muslim-majority
social orders, with arguments for human rights to be pursued through a
process of mediated “cultural” dialogue. Yet it is apparent that there has also
been an increasing willingness to pursue versions of modernist ideas of rights,
democracy, and gender justice by sections of the women’s movement, includ-
ing Muslim “womanists,” in spite of their wariness of “Western” feminist
agendas, and the misgivings shared by many NGOs about the language of

66
Vicki D. Crinis, “Malaysia: Women, Labour Activism and Unions,” in Women and Labour
Organizing in Asia, ed. K. Broadbent and M. T. Ford (Abingdon: Routledge, 2008), pp. 50–65;
Aihwa Ong, Spirits of Resistance and Capitalist Discipline: Factory Women in Malaysia, 2nd edn
(Albany, NY: SUNY Press, 2010).
67
Lai, “Winds of Change.”
68
Aihwa Ong, “Translating Gender Justice in Southeast Asia: Situated Ethics, NGOs, and
Bio-Welfare,” Hawwa: Journal of Women of the Middle East and the Islamic World 9/1 (2011): 30.
69
Ibid., 26.
280 Maila Stivens

“women’s [human] rights.”70 They themselves recognize that more modernist

ideas of rights are often seen as highly problematic, not only by cynical state
elements, who consistently deride such claims as “Western,” but also by
conservative religionists, who, like Prime Minister Najib, publicly associate
such ideas with “secular” modernity.
A core problem is the complex nature of rights. One feminist response to the
postmodern and postcolonial deconstructions of universalizing feminisms has
been a reassertion (and perhaps reinvention) of women’s rights as human rights,
laying claim to, expanding, and reconfiguring the idea of human rights in a neo-
universalist mode.71 This move has had its advocates in Malaysia. But such a
response also underlines the definitional issues surrounding liberal, formally
juridical ideas of rights in particular, and their exclusionary character.72 None-
theless, such rights claims should not be construed as “Western,” or even
“global” imports in any simple sense: they have been produced and reinvented
locally in highly specific dialogues with rich histories of ideas about freedom,
rights, human rights, equality, justice, and democracy.73 These specifically
situated histories, contests, and struggles are easily overlooked in the polemics
around the “Woman Question” in Islam, whether those of Western projects to
“save” the Muslim woman,74 or those of the critics of such “crusades.”
In spite of misgivings about the term civil society—the space of political
engagement outside state and party institutions—Weiss identifies a number of
types of groups within civil society in Malaysia: NGOs advocating for human
rights, sustainable development, and more; mass-based movements (such as
“Islamist” or youth organizations); religious and social groups (though, clear-
ly, not all are “political” in orientation); trade unions; public intellectuals and
other unaffiliated activists; and alternative media such as blogs.75 Weiss
suggests that advocacy NGOs only developed in Malaysia in the 1980s,76

70
Maila Stivens, “Introduction: Gender Politics and the Reimagining of Human Rights in the
Asia Pacific,” in Human Rights and Gender Politics: Asia Pacific Perspectives, Routledge Ad-
vances in Asia Pacific Studies, ed. Anne-Marie Hilsdon, Vera Mackie, Martha Macintyre, and
Maila Stivens (London: Routledge, 2000), pp. 1–36; Maila Stivens, “Gender, Cosmopolitanisms
and Rights Claims,” in Anthropology and the New Cosmopolitanism: Rooted, Feminist and
Vernacular Perspectives, ed. Pnina Werbner (London: Berg, 2008), pp. 87–110.
71
Stivens, “Introduction.” 72
Ibid.
73
For Asian freedoms, see David Kelly and Anthony Reid, eds., Asian Freedoms: The Idea of
Freedom in East and Southeast Asia, Cambridge Asia-Pacific Studies (Cambridge: Cambridge
University Press, 1998). Just one example: in Malay the Arabic word haq (rights) is rendered as
hak, and has been used for centuries in contexts such as customary land rights.
74
Lila Abu-Lughod, Do Muslim Women Need Saving? (Cambridge, MA: Harvard University
Press, 2013).
75
Meredith Weiss, “Edging Toward a New Politics in Malaysia: Civil Society at the Gate?”
Asian Survey 49/5 (September/October 2009): 742.
76
Ibid.; Meredith Weiss, “Introduction,” in Social Movements in Malaysia, ed. Weiss and
Hassan, pp. 1–16. See also Boon Kean Tan and Bishan Singh, Malaysian NGOs in Development
(Kuala Lumpur: Asian and Pacific Development Centre, 1994).
 Making Spaces in Malaysia 281

forerunners to and part of citizen-driven initiatives emerging across the

region in the 1990s.77 These built on a long history of welfare, philanthropic,
humanitarian, cultural, and progress associations and their political space-
making.
Many NGOs, however, have been state-sponsored or organized conduits for
government policy.78 Located within the state bureaucracy and largely man-
aged by people at the grassroots and community level, they have had access
to financial and human resources through their close relationship with state
patrons.79 More active in rural areas, such NGOs have been involved in adult
literacy programs, credit cooperatives, and in health and sanitation, domestic
science, language, and citizenship classes. With unexamined, received notions
of “women” to the fore,80 gender concerns have often been subsumed to those
of nationalism, ethnonationalism, and class in much of this activity.81 Thus,
the umbrella group, the National Council of Women’s Organizations
(NCWO), was considered to be not only adept at working with the state, but
also very closely aligned with it. Nonetheless, the NCWO did initiate a
“progressive,” if highly contested, codification of the Islamic family laws of
Malaysia in the late 1970s, along with Ahmad Ibrahim, dean of the University
of Malaya’s new law faculty.82
By the mid-1980s, women activists in Malaysia had joined women across
the region in becoming active in “private-sphere” issues such as sexual assault
and domestic violence, and were setting up refuges and crisis centers. There
was also a widening concern with land rights, the environment, domestic
workers’ rights, problems of migrant and sex workers, sexual harassment,83
and, later, rape and sex trafficking, as activists became bolder in addressing
“sensitive” topics. A particular achievement was the concerted campaign for a
Domestic Violence Act over nearly a decade by a wide-ranging coalition of
women’s groups drawn from across class, ethnic, and religious lines.84 The
core strategy of this campaign was an education-based process of public
conscientization, seminars and workshops debating gender violence, and
extensive lobbying of the government by groups like the Association of
Women Lawyers and other well-connected organizations.85 Implementation

77
Ong, “Translating Gender Justice.” 78
Tan and Singh, Malaysian NGOs.
79
Ibid.
80
Ibid., pp. 2–3. See Lai, “The Women’s Movement”; Ng, Mohamad, and Hui, Feminism and
the Women’s Movement.
81
See Manderson, Women, Politics; Ariffin, “Feminism in Malaysia”; and Lai, “The Women’s
Movement”.
82
Anwar, “What Islam,” p. 233. 83
Ng and Chee, “Women in Malaysia.”
84
Ibid.
85
Irene Fernandez, “Mobilising on All Fronts: A Comprehensive Strategy to End Violence
against Women in Malaysia,” in Freedom from Violence: Women’s Strategies from Around the
World, ed. Margaret Schuler (New York: UNIFEM: Women, Ink, 1992), pp. 101–20.
282 Maila Stivens

of the Act has continued to be difficult in the face of both procedural problems
and pressure from conservative clerics, however.86 Local activists note that it
was easier to gain political support for laws criminalizing rape than for laws
against domestic violence.
In the 1990s, a group of women activists from differing ethnic and religious
backgrounds came together to produce a Women’s Manifesto. The group
lobbied political parties about women’s work, the law and violence against
women, and wider issues of development, corruption, democracy, and human
rights.87 In 1999, this coalition developed the Women’s Agenda for Change
(WAC),88 a document to be presented to the government. This covered
women’s relationships to participatory democracy, religion, and culture, vio-
lence against women, land, women and health services, the law, work, (HIV/)
AIDS, and the environment. A final section on “women, health and sexuality”
was only added later,89 reflecting anxieties about concerns with sexuality being
seen as too “Western” and problematically associated with the supposed
amoral freedoms of secular modernity. While the WAC was initially well
received by the government, little effective support from parliamentarians
was ultimately forthcoming.90
It is arguable that the Women’s Agenda for Change was part of forces both
precipitating democracy claims and contributing to an overt gendering of the
democracy movement. Building on pre-existing campaigns around domestic
violence, the WAC directly posed such violence, gender justice, and govern-
ance as interlinked public issues.91 Some women have also played leading roles
in the democracy movement, including Wan Azizah Wan Ismail (Anwar
Ibrahim’s wife), Irene Fernandez, a labor activist, and, later, Ambiga Sreene-
vasan, a prominent human rights lawyer and women’s rights advocate, who
chaired the multi-ethnic activist coalition Bersih 2.0 (Gabungan Pilihanraya
Bersih dan Adil, Coalition for Clean and Fair Elections). In the view of
activists, Reformasi in turn gave further impetus to women working toward
a unified women’s movement.
Women’s groups decided to capitalize on new Reformasi spaces by en-
gaging directly with state forces through electoral politics: a newly formed

86
See Tan and Singh, Malaysian NGOs; Ng, Mohamad, and Hui, Feminism and the Women’s
Movement.
87
Women’s Agenda for Change (WAC), “Introduction to the Women’s Agenda for Change,”
<[Link] Lai, “The Women’s Movement”; Martinez, “From
Margin to Center”; Ng, Mohamad, and Hui, Feminism and the Women’s Movement.
88
This included: Wanita JIM, the women’s wing of Jamaah Islah Malaysia (Malaysian Islamic
Reform Society), a Muslim NGO; Sisters in Islam; All Women’s Action Society (AWAM);
Persatuan Sahabat Wanita Selangor (PSWS), a women workers’ support group; Malaysian
Trade Union Congress (Women [sic] Section); the Women’s Development Collective (WDC);
and the Selangor Chinese Assembly Hall (Women [sic] Section).
89
Martinez, “From Margin to Center.” 90
Ting, “Gender Discourse.”
91
Cf. Ong, “Translating Gender Justice.”
 Making Spaces in Malaysia 283

Women’s Candidacy Initiative (WCI) therefore fielded a woman candidate in

the 1999 general election.92 While this clearly furthered women’s claims for a
central place within the democracy movement, it had little direct impact on
parliamentary representation per se. Women have had continuing difficulties
entering formal electoral politics—women only hold 10 percent of parliamen-
tary seats, for example93—although this is scarcely a problem confined to
Malaysia. On occasion, state elements have paid what activists see as lip service
to women’s demands and rights, and mobilized around gender issues, hoping
to attract the women’s vote94 and to counter challenges to its political legit-
imacy by conservative religionists.95 Ng, Mohamad, and Hui, however, regard
the state as reinforcing this legitimacy by appropriating rights rhetoric and the
women’s and democracy movement causes within electoral campaigns.96
They also see problems with women’s mobilization into male-directed organ-
izations such as political parties.97 Together with opposition parties, conser-
vative religionists too have occasionally presented more liberal perspectives
to increase their credibility with their supporters:98 PAS, for example, wooed
the women’s vote by “allowing” [sic] women candidates to contest the 2004
election.99 PAS has not clarified its stance toward gender justice within an
Islamic state, however.
The complex links between NGOs and state and conservative religionist
elements point to the tensions and difficulties in finding political spaces within
which to assert rights claims against a state apparatus intent on managing
opposition ideologies, activities, and identities. As suggested in the section on
gendering Malaysian Islamization, there are especial pressures on Muslim and
non-Muslim activists alike in being forced to operate within increasingly
Islamized cultural domains. Martinez points to the ways in which women’s
NGOs have achieved (some) substantial gains for women, such as the domestic
violence legislation, “by working with the possibilities that surface from the
state not as a single entity, but as a conglomeration of bureaucracies, institutions

92
See Lai Suat Yan, “Participation of the Women’s Movement in Malaysia: The 1999
General Election,” in Civil Society in Southeast Asia, ed. Lee Hock Guan (Singapore: Institute
of Southeast Asian Studies, 2004), pp. 122–43; Patricia Martinez, “Complex Configurations: The
Women’s Agenda for Change and the Women’s Candidacy Initiative,” in Social Movements in
Malaysia, ed. Weiss and Hassan, pp. 75–96, for detailed accounts. See also Zarizana Abdul Aziz,
“Strategies for Change in the Women’s Movement in Malaysia,” Expert Group Meeting,
Violence Against Women: Good Practices in Combating and Eliminating Violence Against
Women: UN Division for the Advancement of Women in collaboration with the UN Office
on Drugs and Crime, May 17–20, 2005, Vienna, Austria, <[Link]
daw/egm/vaw-gp-2005/docs/experts/[Link]>; and WAO, CEDAW and Malaysia.
93
WAO, CEDAW and Malaysia.
94
Saliha Hassan, “Women in the 2004 Malaysian General Election,” paper presented at the
Program Sains Politik, PESPESI, FSSK, Universiti Kebangsaan Malaysia, 2004.
95
Ng, Mohamad, and Hui, Feminism and the Women’s Movement.
96 97 98 99
Ibid., p. 154. Ibid. Ibid. Ibid.
284 Maila Stivens

and individuals.”100 Ng, Mohamad, and Hui, however, emphasize the dangers
of appropriation and cultivation of the movement by the state, which legitim-
ates its authoritarian stance through such co-option.101 These are familiar
experiences for feminists worldwide, who debate the advantages and disadvan-
tages of working with and within, rather than against, the state.
As noted in my introduction, many scholar-activists from the 1990s on
have been involved in highly reflexive explorations of their relationships to
local and global womanisms and feminisms. In the view of Ng, Mohamad, and
Hui,102 the movement has embraced shifting and fluid notions of feminism in
the process. The multicultural perspectives of women’s organizations involved
in both the WAC and the Reformasi movement more generally were particu-
larly significant, however. But while many women’s groups during and after
Reformasi have consciously sought to transcend ethnic and religious divisions,
the intersections of ethnicity and class have made for some further tensions
and instabilities in rights claims: most observers have seen the middle-class
character of many women’s NGOs and issues of accountability as particular
and continuing problems, for example.103

Women in Muslim Associations, NGOs, and Party Sections

The majority of Muslim associations/organizations in which women have

participated have been missionary and welfare societies.104 Early organizations
were mainly involved in welfare, social activities, and areas such as religious
education, but over time a number developed ties with nationalist forces.
During the two periods of intense Islamic revivalism, however, the 1920s
reform period and dakwah in the 1970s, many women joined revivalist
organizations in search of a revivified Muslim life, and as acts of defiance
against the then Muslim establishment.105 Women’s arms of some political
parties have also been important in the sphere of Muslim politics; although it
was not supportive of women’s rights per se, the women’s arm of PAS, Dewan
Muslimat, achieved new importance with Reformasi.

100
Martinez, “Complex Configurations,” p. 83.
101 102
Ng, Mohamad, and Hui, Feminism and the Women’s Movement. Ibid.
103
See Ng, Mohamad, and Hui, Feminism and the Women’s Movement; Lai, “The Women’s
Movement.”
104
Weiss and Hassan, eds., Social Movements in Malaysia; Sharifah Zaleha binti Syed Hassan,
“Strategies for Public Participation: Women and Islamic Fundamentalism in Malaysia,” in The
Freedom to do God’s Will: Religious Fundamentalism and Social Change, ed. Gerrie ter Haar and
James J. Busuttil (London and New York: Routledge, 2002), pp. 49–74.
105
Hassan, “Strategies”; Saliha Hassan, “Islamic Non-Governmental Organisations,” in Social
Movements in Malaysia, ed. Weiss and Hassan, pp. 97–114; Ng, Mohamad, and Hui, Feminism
and the Women’s Movement, p. 85.
 Making Spaces in Malaysia 285

Liow observes that it “is important to note the recent proliferation of

[Muslim] civil society groups and NGOs that can be defined as Islamist by
virtue of their articulation of relatively clear and deliberate Islamic agendas,
contribution to ongoing debates, and the potential influence they wield over
the trajectory of Islamism in the country”:106 they are seen as becoming
the dominant force in Malaysian politics.107 From the “progressive” side of
politics, on the other hand, some Muslim NGOs have been engaging with
interfaith organizations, notably the recently formed, energetic Islamic
Renaissance Front (IRF), which actively campaigns for a “secular” society
(i.e. a society observing full freedom of religion).
Saliha Hassan’s account of Muslim NGOs underlines the developed ideas
of the “Woman Question” within revivalist Muslim circles,108 although Muslim
women were strongly courted for their labor in supporting NGO activities and
in mosque groups. The assumed “welfare” character of many of these NGOs
obscures their wider political significance, however. The gender dimensions of
this politics have not been explored in the literature on Malaysia. First, such
welfare provision as religious duty has strong class dimensions, with a heavy
stress on the more affluent helping the marginalized; this emphasis has
emerged strongly in recent Muslim NGO activities. Second, women have
shaped new spaces within the national Islamic modernity project through
their energetic involvement in such welfare activities within formal and
informal Muslim groups. One could also see some earlier groups constructing
the conditions of possibility for the development of later Muslim womanist/
feminist and other women’s organizations: as with the nationalist organiza-
tions, there has clearly been a strong maternalist political dimension to these
activities, again, one that has not been explored in the Malaysian literature.
While not overtly “political,” such welfare organizations can be seen as part of
processes supporting “women’s interests,” understood in wider maternalist
terms. One might also consider the gendered political effectivity of women
members of revivalist NGOs and their quite separate agendas—although these
are as yet mostly undocumented for Malaysia. Insofar as some of these groups
might fit into the “neo-fundamentalist” category of Olivier Roy’s scheme,109 their
actions in seeking justice within a global ummah also have universalist dimen-
sions that are nonetheless simultaneously exclusionary.

106
Liow, Piety and Politics, p. 188.
107
Clive Kessler, “Islam, the State and Desecularization: The Islamist Trajectory during the
Badawi Years,” in Sharing the Nation: Faith Difference, Power and the State 50 Years after
Merdeka, ed. Norani Othman, Mavis C. Puthucheary, and Clive Kessler (Petaling Jaya: Strategic
Information and Research Development Centre, 2008), pp. 59–80.
108
Hassan, “Strategies.” 109
Roy, Globalised Islam.
286 Maila Stivens

Sisters in Islam

Promoting an understanding of Islam that recognises the principles of

justice, equality, freedom, and dignity within a democratic nation state.110

One of the most significant developments within Malaysian women’s activism

has been the rise of the NGO Sisters in Islam (SIS). Formed in 1988, the core
group comprised a small group of professional women with skills in Islamic
studies, theology, law, Shari‘a law, gender studies, sociology and anthropology,
journalism, social planning and social work, women’s health, and Islamic art
and creativity.111 Part of an internationalist movement working to reclaim a
social justice agenda within Islam,112 SIS’s mission is to promote the develop-
ment of an Islam that recognizes equality between women and men and that
adheres to the principles of justice and democracy; the aim is to contribute to a
“more informed public debate on topical issues of concern.”113 The group has
had a very considerable international impact, with numerous invitations to
address conferences and groups overseas,114 and many appearances in a
growing literature.115
SIS’s central “long-term objectives” are:
• to promote a framework of women’s rights in Islam which takes into
consideration women’s experiences and realities;
• to eliminate injustice and discrimination against women by changing
mindsets that regard women as inferior to men;

110
Sisters in Islam website, banner, <[Link]
111
Sisters in Islam website, <[Link]
112
See Fatima Mernissi, Islam and Democracy: Fear of the Modern World (Reading, MA:
Addison-Wesley Publishing Co., 1992); Amina Wadud-Muhsin, Qurʼan and Woman (Kuala
Lumpur: Fajar Bakti, 1992); Amina Wadud-Muhsin, Inside the Gender Jihad: Women’s Reform
in Islam (Oxford: Oneworld, 2006).
113
Sisters in Islam website, <[Link]
114
France also made Zainah Anwar, a core member, a Chevalier de la Légion.
115
See Sisters in Islam website, <[Link] Scholarly discussions
include Anwar, “What Islam”; Yasmin Moll, “ ‘People Like Us’ in Pursuit of God and Rights:
Islamic Feminist Discourse and Sisters in Islam in Malaysia,” “Gender and Islam in Asia,” special
issue, Journal of International Women’s Studies 11/1 (November 2009): 39–55; Azza Basarudin,
“In Search of Faithful Citizens in Postcolonial Malaysia: Islamic Ethics, Muslim Activism, and
Feminist Politics,” in Women and Islam, ed. Zayn Kassam (Santa Barbara, CA: Praeger, 2010),
pp. 93–128; Azza Basarudin, Humanizing the Sacred: Sisters in Islam and the Struggle for Gender
Justice in Malaysia (Washington: University of Washington press, 2016); Ratna Osman and
Catherine Hirst, “Sisters in Islam: Engendering Islamic Law Reform in Malaysia,” in Muslim
Secular Democracy: Voices from Within, ed. Lily Zubaidah Rahim (New York: Palgrave Mac-
millan, 2013), pp. 191–284; and at least two PhD theses completed or in process. See also
Chapter 5, this volume; Maila Stivens, “(Re) Framing Women’s Rights,” in Malaysia: Islam,
Society and Politics, Essays in Honour of Clive Kessler, ed. Virginia Hooker and Norani Othman
(Singapore: Institute of Southeast Asian Studies, 2003), pp. 126–46; and Stivens, “Gender,
Cosmopolitanisms.”
 Making Spaces in Malaysia 287

• to increase public awareness and reform laws and policies within the
framework of justice and equality in Islam.116
SIS has submitted numerous memoranda to the government and dissem-
inated its views through press statements, newspaper articles and letters in
Malay and English, academic writings, pamphlets, and television and other
media appearances. Memoranda have included “Reform of the Islamic Family
Laws and Justice in the Syariah System,” “Reform of the Islamic Family Laws
on Polygamy,” “Reform of the Islamic Family Laws and Administration of
Justice in the Shari‘ah System,” “Provisions in the Syariah Criminal Offences
Act and Fundamental Liberties,” and “Hudud Law in Kelantan and the Syariah
Criminal Offence Act and Fundamental Liberties.” The group has also ad-
dressed polygamy—including through a national-level research study—as well
as divorce, equality, dress codes for Muslim women, arbitrariness in implemen-
tation of syariah criminal laws, issues of apostasy, and Qur’anic views of
modesty. They also campaigned successfully for female Islamic court judges to
be appointed. A main focus is promoting equal rights for women in the area of
“Muslim family law”—a term they prefer to “Islamic family law”—indicating
their view of the social origins and mutability of this body of law. They have
been very active in struggles over conservative religionists’ attempted amend-
ments to earlier reforms of Islamic family laws from the 1990s on.117 More
recently, SIS has moved to education work, providing training workshops
and legal counselling.118 SIS has also organized a number of important confer-
ences and seminars, including ones on Shari‘a law, on hudud (Islamic criminal
law), and on Islam, reproductive health and women’s rights. The year 2009 saw
the launch of Musawah, a “Global Movement for Equality and Justice in the
Muslim Family” in Kuala Lumpur, with 250 activists, scholars, academics, legal
practitioners, and policymakers from some fifty countries attending.119
The group’s core strategy has been to promote claims to rights within
highly sophisticated, reconfigured ideas of rights, seeking sources for women’s
rights and internationally recognized human rights in the local Muslim
“culture” and religious teachings through highly reflexive participatory pro-
cesses of “cultural mediation.”120 This strategy refuses a simplistic opposition
between universalist rights claims and cultural relativism, seeking to over-
come some of the binaries and polemics that have dogged human rights and
women’s rights debates.

116
“Mission Statement and Objectives,” Sisters in Islam website, <[Link]
[Link]/[Link]?36>.
117
Anwar, “What Islam”; Othman “Religion, Citizenship Rights.”
118
See Sisters in Islam website, <[Link]
119
See <[Link]
120
Othman, “Grounding Human Rights”; Anwar, “What Islam.”
288 Maila Stivens

At the same time, SIS argue for a transformation of the Islamic part of the
world through “a modern notion of law” and a modernizing and regalvanizing
of Islamic culture and reform from the inside, to create an “authentically
Muslim culture of modernity.”121 From the beginning, the organization em-
phasized the importance of engaging with the larger issues of nation-building,
governance, Islamization, human rights, and democratic movements in the
country, and the “challenge of change and modernity.”122 It particularly
stresses the role of democratic law-making, and challenges attempts to remove
law-making and policymaking on Islamic matters from the public domain.123
SIS sees itself as “one of the main advocates of justice and equality [within]
Islam, not only in Malaysia but throughout the world.”124 Its “faith-based
perspective of a just God”125 has obviously been inspiring to Muslim women
globally: SIS members have created complex, multilayered, cosmopolitan
spaces with robust links to global womanist and feminist cosmopolitan spaces,
forming an international counter-public.126 They have been particularly im-
portant in claiming a place as public intellectuals engaged in religious inter-
pretation and the remaking of Muslim thought and practice, a space often
occupied with difficulty by Muslim women. In so doing, they have asserted
new forms of “womanist” politics not only within the contested spaces of
the Malaysian Islamic modernity project, but also within wider global would-
be Islamic feminist counter-publics and projects.
But SIS has also faced extreme criticism on occasion, mainly from local
conservative religious authorities, and wider criticisms that it is too “secular,”
and not properly Muslim. Some critics among oppositional activists have also
suggested that SIS was too close to government, had been co-opted,127 and was
too internationalist in outlook. For example, there were suggestions that former
Prime Minister Mahathir Mohamad had found it advantageous to enlist the
Sisters’ Islamic reformism as a voice of “moderate” Islam in his continuing
struggles with PAS in the eastern states of Malaysia prior to the political unrest
of Reformasi. More recently, SIS has faced strong criticism from both govern-
ment and religious bureaucracies, being accused of, among other things,
promoting pluralistic, liberal views of Islam. In 2014, for example, the Selangor
Islamic Religious Council (Majlis Agama Islam Selangor, MAIS) pronounced a
legally binding fatwa declaring any persons or groups “professing liberalism or
religious pluralism” to be “deviants,” and singling out SIS.

121
Othman, “Sociopolitical Dimensions,” p. 140.
122
Sisters in Islam, “The SIS Story,” <[Link]
123
Anwar “Whose Islam,” p. 247. 124
Sisters in Islam, “SIS Story.”
125
Shelia Nair, “Challenging the Mullahs,” International Feminist Journal of Politics 9/2
(2007): 240–8.
126
Stivens, “Gender, Cosmopolitanisms.”
127
See the (surprisingly brief and somewhat dismissive) coverage of SIS in Ng, Mohamad,
and Hui, Feminism and the Women’s Movement, where this is suggested.
 Making Spaces in Malaysia 289

CO NCLUSION

This chapter has addressed the significance of gender relations, gendered

action, and women’s rights claims in the making of new politics, new publics,
and new private spheres within the Malaysian national Islamic modernity
project. It is clear that developments in the country strongly undermine any
simplistic association of struggles for gender justice with secularisms and
secular modernity. The close relationship between state forces and emerging
revivalisms has posed enormous challenges for both Muslim and non-Muslim
activists alike in locating spaces for women’s rights claims. The ties between
opposition forces and PAS, and the growing influence of what most observers
term Islamist NGOs, have posed particular problems for women’s involve-
ment in the democracy movement. But the responses of women campaigners
to those difficulties have pointed up some of the nuances and complexities of
the relationships between searches for gender justice and the nexus of state,
nation, and religious relations.
The main body of the chapter examined the ways in which “womanist”/
feminist organizations, especially Muslim women’s associations, have worked
over the last few decades to construct new public spaces for a range of
conversations about women’s rights. Organizing around expanded ideas of
gender justice, activists have focused on issues of the domestic—the “pri-
vate”—in particular, family, family law, sexualities, and violence against
women. This has produced significant public contestations at the intersections
of state, gender, and religious relations: interventions by women’s organiza-
tions into “private-sphere” issues of family law, sexualities, and violence against
women in particular have opened up new areas of political, religious, and legal
discourse, and produced some important policy successes, like the Domestic
Violence Act. But NGO efforts have also, on occasion, provoked strong counter-
reactions from elements of the state and conservative religionists alike.128 These
reactions show some of the limits on public space-seeking, given the continuing
power of both an authoritarian state and neo-traditionalist versions of Islamic
discourse and practice in the current political order.
The varying activities of Muslim women’s organizations, womanist/femin-
ist and non-feminist, have pointed to the importance of religiously based
action in creating new public and private spaces, whether the maternalist
politics of welfare organizations, the space-making of women’s mosque group
associations within the piety movement, or the more directly rights-claiming,
feminist, culturally mediated interventions by Sisters in Islam and others into
areas like Muslim family law. The campaigns by SIS in particular have
complicated the binary of “religious” and “secular.” I also suggested that the

128
Othman, “Religion, Citizenship Rights.”
290 Maila Stivens

gendered dimensions of both earlier maternalist Muslim associations and the

Islamic revival itself in fact provided some of the conditions of possibility for a
developed program like that of SIS and its reshapings of Muslim female
political effectivities and Muslim “publics,” both nationally and globally.
Such reshapings again subvert ideas about a necessary link between secular-
isms and the achievement of women’s rights.
I outlined, too, the complexities surrounding ideas of rights, and the
importance of rights claims made within a conceptual framework of Islamic
human rights to be pursued through a process of mediated “cultural” dialogue
rather than through universalist claims to human rights. But, as I argued, such
reconfigurations and reimaginings of rights and associated strategies have
faced a series of complex challenges. Activists have not only had to negotiate
tense and difficult relationships with the authoritarian post-independent state,
but must also confront a state modernity project which has become an increas-
ingly “religious” undertaking, replete with the language of piety: as suggested,
they must necessarily engage within increasingly Islamized cultural domains,
confronting the moral policing of contemporary cultural politics. Moreover,
this politics has meant an increasing delegitimization of women’s activist
interventions, which are easily characterized as “humanist”/human rights-seek-
ing, “secular,” “liberal,” “pluralist,” “socialist,” “feminist” and “positivist” (pace
Prime Minister Najib). The terms of the abuse aimed at feminists as “enemies
of Islam” speak to the importance of gender within this political assemblage.
The emerging alliances among women’s organizations have been highly
significant: women have consciously and reflexively aimed to organize on a
more multicultural, universalist, if not cosmopolitan, model, transcending
ethnic and religious differences; this has important political dimensions in a
social order so long marked by hyper-ethnicity and ethnonationalisms. It is
not clear, however, how far the post-Reformasi political processes have taken,
and will take, into account the demands by women’s organizations for gender
justice. While there is a dogged ongoing enthusiasm among organization
members, many activists have been somewhat pessimistic about the prospects
for lasting change. They see apparent state support for women’s rights claims,
when it does occur, as a cynical attempt to appropriate democratic and
feminist causes, and to forestall challenges against the government by conser-
vative religionists.129 There is also concern about the direction of what some
term “NGO-ization” or “[Link]” in Asia more generally, in which the
“professionalization” of the women’s movement undermines its political
force.130 On the other hand, the continuing growth of cyberspace is signaling
energetic new rights claims by younger women and there is an extensive

129
Cf. Ng, Mohamad, and Hui, Feminism and the Women’s Movement, p. 153.
130
Tan Beng Hui, “Movement Building and Feminism in Asia: Challenges and Opportunities,”
in The Future of Asian Feminisms: Confronting Fundamentalisms, Conflicts, and Neoliberalism, ed.
 Making Spaces in Malaysia 291

development of lesbian, gay, bisexual, trans gender and queer (LGBTQ) claims
to rights, as well as longer-term ongoing activism around HIV/AIDS, both of
which also involve men. Various Facebook groups and blogs,131 for example,
list overtly feminist and queer causes from home and abroad, and record
approvingly the interventions of SIS. As such, they no doubt confirm the very
worst fears of conservative religionists and state functionaries alike about the
course of the women’s movement in Malaysia.

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 Index

Abduh, Muhammad 113 Badinter, Elisabeth 77

abortion 33, 38, 40, 54, 56 Badran, Margot 106, 116, 130
Abu Zaid, Nasr Hamid 117 Bangladesh
adab 40 blasphemy 143
adultery 29 child marriage 140, 150–2, 158
AeN (Women’s Voice) 201 constitution 142–6
Afghanistan domestic violence 152
dress code 9 economic performance 139
women’s rights 7 family planning 155
Agha-Soltan, Neda 229 female education 145, 156
ahadith 115 gender gaps 140–1
Ahmadinejad, Mahmud 224–32 gender roles 139–58
Ahmed, Leila 129 harmful practices 150–2
Aisyiyah 94, 98, 100 Hindu family law 144
AKP (Justice and Development Party) 37–8 international agreements 142–6
al-Afghani, Jamal ad-Din 113 Islamic tradition 141
Al-Azhar University 34 law, gender, democracy nexus 11
Algeria legal issues 142–6
abortion 33 madrasa school system 144
divorce 33 patterns of violence 142, 150–2
family law 30, 33 personal status laws 144
wage equality 26 progress despite Islam 158
women’s economic rights 24–8 religious actors and women’s rights
women’s education 20–1 154–6
women’s health rights 20–1 religious backlash and women’s
women’s political rights 21–4 rights 153–4
Ali, Kecia 88 religious institutions 143, 157
Alliance of New Men 127 religious traditions 139
al-Nour Party 35 secularity 139–41, 145
Amber, Shaista 202 secular vs religious principles 141–6, 155
Amin, Qasim 113 violence against women 142, 150–2, 158
ANC (Assemblée Nationale women’s rights 140, 154–6
Constituante) 253, 256 women’s roles 157
anti-colonialism Bangladesh/Senegal comparative
Egypt 113 framework 139–42
and Shari‘a law 91 Bani-Sadr, Abol-Hasan 230
Anwar, Zainah 129 Barlas, Asma 123–4, 130
Aouij, Emna 153 Barth, Fredrik 84
Arab Awakening 1, 39 Basic Law of Human Dignity and Liberty
Arab Human Development Report 21–2, 24 166, 167
Arab League Summit (2004) 246 Basic Laws, Israel 166–7
Arab Spring, and women’s rights 252–61 Baubérot, Jean 65
Arfaoui, Khedija 239, 241, 245, 248 BDP (Peace and Democracy Party) 23
Argentina, divorce law 54 Belarbi, Aicha 249
Association of Muslim Merchants 93 Belhaj, Ahlem 245
Auclert, Hubertine 74, 76, 78 Ben Ali, President 238, 241, 246, 248, 252
Ben Jamaa, Emna 248
Baby Loup affair 67 Ben Mhenni, Lina 248
bad hijab 9 Bertelsmann’s Religion Monitor 51
300 Index
Bilge, Sirma 199 culturally constructed values 40
Bill of Rights for Women 34 culture wars 46
Bouazizi, Mohammed 248
Bourguiba, Habib 238, 239 Dahl, Robert 262
Boutkil, Soumia 259–60 Dahlan, Kyai 126
Brazil Dahlan, Muhammad 92, 94
divorce law 54 Daly, Eoin 77
secularization 52 Declaration on Religious Freedom 47
Bush, George W. 224 democratic authoritarianism 149
democratization
Cairo Declaration of Human Rights in in Catholic countries 46–61
Islam 118 third wave of 46–7
Caritas 48 and women’s rights 2–8
Casanova, José 6 Diamond, Larry 262
Catholic countries 46–60 Dignitatis Humanae 47, 57
abortion 54–5, 56 Dilek Cigdem v. Greece 181
church/state separation 48–9 Diouf, Mamadou 148
contraception 54 divorce 30, 31–2, 33, 53, 90–1, 94, 105, 121,
divorce 54, 55 163, 191–4
faithful dissent 56 dress code 8–9, 37, 65–8, 76, 77, 90, 115
family law 53–4 Dubet, François 67
free church 48 Du Prêtre, de la Femme, de la Famille 71–4
gender question 56–7, 60 Durkheim, Emile 78
Napoleonic Code 53
religious freedoms 47–8 education rights 21, 97–9
secularity of the state 48–50 egalitarian individualism 3
and sexual morality 52, 55–9 Egypt
Synod of the Family 60 abortion 33
Vatican II aggiornamento 47, 57–8 anti-colonialism 113
CEDAW (Convention on the Elimination of divorce 33
All Forms of Discrimination Against family law 32–3
Women) 27, 117–18, 127, 130, 142, 146, gender inequality 25–7
228, 241, 249, 250, 258, 259, 278 Islamic prescription 9
Cesari, Jocelyne 7, 11, 28, 46, 240 Personal Status Law 32
Charrad, Mounira 28, 239 and Shari‘a Law 38
Chatitze Molla Sali v. Greece 181 wage equality 26
Chechen Republic, modesty laws 9 women’s economic rights 24–8
Chérif-Chammari, Alya 248 women’s education 21
child marriage 140, 150–2, 158 women’s health rights 21
Chile, political Catholicism 50 women’s political rights 21–4, 35
Choudhury, Rasheda 146 women’s rights 11
CHP (Republican People’s Party) 23 ehteram 233
Christian Democracy 50 Elham, Manea 16
citizen assemblies 262 El-Mehdi, Asma 260
civil law, and Islam 28 Engineer, Asghar Ali 125
civil liberties, and women’s rights 1–8 Ennahda Movement 35, 253–6
CLD (Counter Legal Draft) 102–5 Equality Without Reservations 250
Clemenceau, Georges 73 Erbakan, Necmettin 36
CMRA (Child Marriage Restraint Act) 151 ethical plurality, in Indonesia 89–91
Code of Personal Status 170
Compilation of Islamic Law 102–3 family law see MFL
Crenshaw, Kimberlé 130 Fardid, Ahmad 114
criteria of validity 84 Fatayat NU 125–6
Croatia, church/state separation 48 female emancipation 40
CSP (Code du Statut Personnel) 239, 245, female seclusion 90
247–8, 256 female secularization 58–9
 Index 301
feminism, and secularism 57 CoFI (courts of first instance) 163,
Feminist Spring 258 174–9, 182
Fernando, Mayanthi 76 courts and Shari‘a law 161–5, 174–84
FGC (female genital cutting), Senegal 153, 158 ECHR (constitution) 178, 181
Filali, Amina 261 Law 1250/1982 174, 183
fiqh 85, 86, 88, 90, 91, 92, 103, 105, 106 Law 1329/1983 183
Fish, Steven 2, 16 Law 1920/1991 174, 176, 179, 180, 181
FJP (Freedom and Justice Party) 34 Law 2345/1920 180
France muftiate 162–3, 174–81
agency and women 76 Muslim minority population 161
anti-Muslim politics 67 parental authority 177
clerical numbers 70 Turkish-Greek relations 177
dress code 65–8, 76, 77 Guardian Council 215
French Revolution and women’s rights 69 Guessous, Nouzha 260
gender in equality 64 Guhathakurta, Meghna 145
gender inequality and the state 63–79
laïcité and stability 77 Habchi, Sihem 76
la nouvelle laïcité 66 Habermas, Jürgen 206
Muslim status 65 Habib, Claude 76
Muslim women, representation of 78 halakhah 171
Muslim women, as threat 78 haqq 211, 212, 234
new laïcité (secularism) 65–8 Hasan, Zoya 203
old laïcité (secularism) 69–74 Hassan, Riffat 123–4, 130
pornographic archaeology 70–4 Hassan, Saliha 285
religion and women 72–4 HCJ (High Court of Justice) 165–9
secularism 63–79 headscarf rules 9
state neutrality 68 health rights 21
women and charity 70–1 Hefner, Robert W. 11
women and civilizing mission 74–7 hegemonic religion 6–7, 18–19
women and religion 78–9 Hennette Vauchez, Stéphanie 68
women’s suffrage 73 Hizbut Tahrir Indonesia 103–4
Francis, Pope 59–60 Holyoake, George 64
Fraser, Nancy 276 Homosexuels Musulmans de France 124
French Revolution and women’s rights 69 honor killings 9, 37
fuqaha 88 Hooker, M.B. 103, 270–1
Htun, Mala 28, 53, 55
Gaudium et Spes 47, 49, 57 Hudood Ordinances 30
Gender and Citizenship in the Middle East 28 Hufton, Olwen 69
gender gap, in education 21–2 Hui, Tan Beng 283–4
gender jihad 119 Humanae Vitae 58
gender politics Hungary, church/state separation 48
and religious fundamentalism 57
state and Islam 15–41 Ibrahim, Ahmad 281
gender question, in Catholic countries 56–7 ihtibas 172
gender representation in parliaments, by ijtihad 85, 92–3, 116, 239, 247, 256, 260
country 22 illiteracy 85
gender roles, in family 40 IMF (International Monetary Fund), and
Gerin, André 77 gender gap 24–5
Gerwani (Gerakan Wanita Indonesia) 95, India
96, 98 constitution (Article 44) 190–1
Gharbzadegi 114 discriminatory law 188–95
Glemp, Primate Cardinal 48 divorce 191–4
Global Gender Gap Report 21, 22, 23, 25, 26 domestic violence legislation 203
Greece Hindu Right 195, 196
CC (Civil Code) 175 legal framework 190–6
CoC (Court of Cassation) 177, 178–82 legal pluralism and postcolonialism 196–9
302 Index
India (cont.) International Congress of Islamic
Muslim inequality reports 196–7 Feminism 131
Muslim personal law 191–207 International Women’s Day 223, 240
Muslim women’s activist groups 200–5 Iran
Muslim women’s economic rights 24–8 1906–11 Constitutional Revolution
Muslim women’s inequality 188–207 212, 213
Muslim women’s political rights/ 1979 Revolution, effects of 211–33
participation 21–4, 190 1996 election 222
secular/religious influence, on 2005 election 224
discrimination 188–206 2009 election 226–32
Shah Bano court decision 193–4, 200, culture of rights 234
202, 203 and democracy 213–15
state/religious patriarchy 188–206 democracy/patriarchy incompatibility 232
Supreme Court, and Muslim personal dress code 8–9
law 204–5 family law 28–33
UCC (uniform civil code proposals) 191, Family Protection Law 211, 214
193, 195 gender consciousness 214
Ulema 192, 200, 201, 202, 205, 207 gender debates 219–21
wage equality 26 gender disguises 230
Indonesia Green Movement 212–13, 227, 230–1, 233
anti-liberal militant groups and Guardian Council 223, 228
reform 103–5 Islam, gender, and democracy in 211–34
CLD (Counter Legal Draft) 102–5 Islamic constitution 215–19
democracy in 19 Islamic feminism 128
divorce 33 Islamic leadership structure 215–19
ethical plurality 89–91 Islamic Republic concept 215–17
ethico-legal traditions 82–9 Islam vs secular Republic 212–34
family law 33 law, gender, democracy nexus 11
family law reform 102–5 marja’iyat 217–18, 233
gender justice in 125–7 Moral Security Plan 225
Islamic day school 92 New Religious Thinking 221
Islamic feminism and gender NGOs 223, 225
injustice 125–7 One Million Signatures campaign 225–6
Islamic law and Muslim women in political participation 227–8
82–106 polygamy 211
Islamic law and new gender ethics 105–6 reformists, rise and fall 221–6
Islamic law in plurality of moral religious dissent 221–6
registers 82–9 secular feminists 223
Islamic modernism 92 secularization 114
Islamic revival 97–8 Servants of Construction 222
Islamization process 89–90 sexual atrocities 229–30
Muslim Brotherhood 97 sexual honor and rights 211, 212,
Muslim/communist conflict 95–6 226–32
Muslim women in 82–106 Shari‘a law 212–19
nationalism and Muslim women’s state feminism 113–16
activism 93–6 velayat-e faqih 217–18, 233
New Order development 97 women’s campaigns 225–6, 228
new reform 91–3 Women’s Convergence 228
radical Islamist groups 96–7 women’s equality and Western values 114
regional bylaws 101 women’s rights 7, 213–14, 219–34
secular movement 92 Iraq
Shari‘a law and anti-colonialism 91 family law 33
UIN-IAIN Islamic University system 97, secularism 4
99, 104 Ireland, divorce law 54
zero tolerance of violence to women 102 IRF (Islamic Renaissance Front) 285
see also Islamic feminism ISIS 7
 Index 303
Islam Muslim women in Indonesia 82–106
and civil law 28 personal law 191
and culture 15 Shari‘a bylaws 101
and democracy 4–8 Shari‘a family law see family law
divorce 29 Shari‘a law 28–33, 98, 105
and ethical plurality in Indonesia 89–91 Shari‘a law and anti-colonialism 91
and the female body 8–10 Shari‘a law definition/enforcement
as hegemonic 7, 19 87–8, 106
modernization of 17–20 Shari‘a law and fiqh rulings 103
in national constitutions 20 Shari‘a law in Greece 161–5, 174–84
nationalization of 17–20 Shari‘a law and human rights 118
political Islam 18–19 Shari‘a law in Iran 212–19
as political norm 5 Shari‘a law in Israel 161–5, 174–84
as public morality code 40–1 Shari‘a law in modern political
reformist 116–17 transitions 82–106
in Saudi Arabia 15 Shari‘a law and nation-states 28–33
Woman Question 280, 285 Shari‘a law and popular movements 87
Islam Hadhari 271 see also women’s rights
Islamic Association 93 Islamic modernism 92
Islamic Awakening 106 Islamic morality police 9
Islamic courts, and women’s rights 88 Islamic Republic 7
Islamic day school 92 Islamic revitalizations 113–16
Islamic Defenders Front 103–4 Islamic Revolution 9
Islamic dress code see dress code Islamic state see state
Islamic ethico-legal traditions 82–9 Islamic terrorism, and secularism 63–4
Islamic ethics 88 Islamists, within state policy framework
Islamic family law see MFL 34–9
Islamic feminism 57, 96–102, 106, 113–32 Islamist/Salafi distinction 35
Amina Wadud’s impact on 119–23, Israel
124, 131 Basic Laws 166–7
controversial concepts of 128–32 HCJ (High Court of Justice) 165–9, 182
feminist activism 122–5 Muslim minority population 161
foundations of 116–18 NGOs and women’s rights 183
gender justice/injustice in Indonesia 125–7 and Shari‘a law 161–5, 174–84
human rights secularity 130
international centers of 124–5 Jasmine Revolution 252
international organizations/ JI (Jamaat-i-Islami) Party 36
movements 127–8 John XXIII, Pope 48
intersectionality 130 Joseph, Suad 28
as middle path 115–16
modern Qur’an interpretation 117, Kaddor, Lamya 124–5
119–24, 127 Kadyrov, Ramzan 9
Muslim progressive activism 122–5 Kandiyoti, Deniz 28
national/international impact 121–2 Kaplan, Benjamin 3
national/transnational dimensions 113–32 Karroubi, Mehdi 226–32
postcolonial critique of 129–31 kebangkitan 97
Qur’an and feminism 131 Keddie, Nikki R. 114
and reformist Islam 116–17 Kerkesh, Rachida 260
religion and emancipation 129 Khamene’i, Ali 218, 223
second-wave feminism 117–18 Khan, Hasina 205–6
see also Islamic law; women’s rights Khatami, Mohammad 219, 222, 223, 224,
Islamic feminist writers 115–16 226–32
Islamic law Khelifa, Ommezine 257
as fundamentally illiberal 161 Khomeini, Ayatollah 114, 213, 216, 217,
gender ethics in Indonesia 105–6 218, 226
higher aims of Shari‘a law 84 kodrat 96
304 Index
Laabidi, Meherzia 253, 254 PAS (Parti Islam SeMalaysia) 271, 273,
laïcité (secularism) see France 277, 283, 284, 289
Lamrabet, Asma 260 political parties/coalition 271
la nouvelle laïcité 66 political space 274
Latin America, gender-related legislative politicized Islam 268
changes 55 pop-Islamist culture 273
Leader (Iran) 215–16, 218 private sphere issues 274, 281
Leaders of Influence 155 public/private divide 275–7
Lebanon, democracy in 19 Reformasi movement 273, 284
Legal Capacity and Guardianship Law 168 religious bureaucracy 272
legal neutrality 19 Sexual Rights festival 276
legal pluralism, India 188–207 Shari‘a law 272
legal privilege 19 SIS (Sisters in Islam) 279, 286–8, 290, 291
Lembaga Konsultasi dan Pemberdayaan state-led modernity 269–74
Perempuan 126 state/religious governance 270–1
Le Pen, Marie 67 WAC (Women’s Agenda for Change)
Les Femmes arabes en Algérie 74 282, 284
Letaief, Samia 251, 257 WCI (Women’s Candidacy Initiative) 283
LGBTI (lesbian, gay, bisexual, transgender, women in Muslim organizations 267,
and/or intersex) rights 127, 291 284–5
Liberal Muslim Association 124 women’s activist organizations 267,
The Liberation of Women 113 278–83, 290
Liow, Joseph Chinyong 285 Women’s Manifesto 282
women’s political participation 283, 284–5
MacKinnon, Catharine 192 Malta, divorce law 54
Madjala see CSP Maritain, Jacques 50
madrasa 84, 90, 91, 144 marja‘iyat 217–18, 233
Maghreb-Egalité 238–9, 242, 247 marja‘-e taqlid 217
Mahmood, Tahir 204 marriage 30, 94, 103, 150
Malaysia Marshall, Katherine 11
activist secularism/conservative religion marsoum qadai 173
differences 267–9 Mater et Magistra 48
democracy in civil society 274 Mayeur, Françoise 73
democratic governance 273 Mernissi, Fatima 238
Domestic Violence Act 281–2, 289 Mexico, secularization 52
entrepreneurial society 269 MFL (Muslim Family Laws) 28–41, 94, 121
ethnonationalism 270, 272 in Greece 160–5
family campaigns 277 Greek civil courts and Shari‘a
feminist views 267–8 jurisprudence 174–84
gender and democratization 267 in Israel 160–5
gender and Islamization 274–8 Israeli civil courts and Shari‘a
gender justice and secularism 279 jurisprudence 162, 165–74, 182–4
gender and new Malaysian publics Israeli High Court of Justice 165–9
278–88 Law of Family Courts 161
Islamic courts 275 reform in non-Muslim
Islamization of 266–74 democracies 160–84
law, gender, democracy nexus 11 and secular legislation 164
legal tradition 271, 275 spousal maintenance/child support 170–4
modern femininities 276–7 MFLO (Muslim Family Laws Ordinance) 29,
Muslim criminal law 272–3 32, 144
Muslim identity issues 273 Michelet, Jules 71–4
new Muslim religiosities, and women’s Michot, Micheline 65
rights 266–91 millet system 163
NGOs’ influence 272, 275, 279, 280–1, 283, Mir-Hosseini, Ziba 11
284–5, 289–90 MMA (Muttahida Majlis-e-Amal) six-party
participatory democracy 282 alliance 36
 Index 305
MMI (Council of Indonesian Moudawana 239–40, 248–52, 260
Mujahidin) 103–4 Mounib, Nabila 259
modernization, and women’s rights 2–8 Mousavi, Mir-Hossein 226–32
modesty laws 9 Mousavi, Taraneh 229
Moghadam, Valentine 11 Moustafa, Tamir 270–1
Mohamad, Maznah 283–4 Muhammadiyah 92–6, 98, 100, 125
Mohammed Taha, Mahmoud 117 MUI (Council of Indonesian Ulama) 104
Montazeri, Ayatollah 217, 218, 231 Mulia, Siti Musdah 102–3, 126
Moral Security Plan 225 Müller, Rabeya 124–5
Morocco Musawah movement 127, 128, 243, 287
20 February Movement 252, 258–61 Muslim Brotherhood 34, 35, 36, 97, 114
Agenda for Equality 260 Muslim family law see MFL
in Arab Spring 252–61 Muslim Family Law Act 203
authoritarian government 239–43 Muslim feminism see Islamic feminism
campaigns, coalitions, and Muslims for Progressive Values 123
achievements 244–52 Muslim Wake-Up 123
constitutional amendments 259 Muslim Women’s Freedom Tour 123
divorce 33 MWA (Muslim Women’s (Protection of
domestic violence legislation 250 Rights on Divorce) Act) 191, 194
family law 30, 33, 248–9 MWRN (Muslim Women’s Rights
Feminist Spring 258 Network) 201
Islamist movement growth 248–9
labor law 247 namus 211, 212, 233, 234
law, gender, democracy nexus 11 Narain, Vrinda 11
Moudawana law 239–40, 248–52, 260 Nasser, Gamal Abdel 86
national/regional/transnational Nasyiatul Aisyiyah 125–6
activism 242–4 Nateq-Nouri, Akbar 222
One Million Signatures campaign 241–2 nationalism, and Muslim women’s
patriarchal government 239–40 activism 93–6
penal code reform 260–1 NCWO (National Council of Women’s
postcolonial NGOs 240 Organizations) 281
sexual harassment 247 New Religious Thinking 221
social rights 245–7 Ng, Cecilia 283–4
Springtime of Dignity campaign 250, 260 NGOs (non-governmental organizations),
wage equality 26 and Islamic feminism 98–9, 124, 127–8
women in governance 250 Niaz, Noorjehan Safia 202
women’s associations 241–3, 247 Nissa magazine 240–1
women’s cultural empowerment 260 Nomani, Asra 123
women’s economic rights 24–8 Nostra Aetate 57
women’s education 21 NPNS (Ni Putes, Ni Soumises) 76
women’s employment rights 251 NU (Nahdlatul Ulama) 95, 96, 99–100,
women’s health rights 21 125–6
women’s legal status, key features 251 NWDP (National Women’s Development
women’s parliamentary representation 259 Policy) 145
women’s political rights/
participation 21–4, 250–1, 259 Occidentosis 114
women’s rights and OECD (Organisation for Economic
democratization 237–63 Co-operation and Development), gender
women’s rights expansion 248–52 index 21, 27
women’s rights groups, differences 262–3 OLFR (Ottoman Law of Family Rights)
women’s rights networks/associations, 162, 170
activities 239–63 One Million Signatures Demanding Changes
women’s rights under authoritarian to Discriminatory Laws
conditions 239–44 campaign 225–6, 242
women’s social position, key features 251 Ong, Aihwa 279
work rights 245–7 Osella, Filippo 274
306 Index
Ottoman Empire, collapse of 17–18 Rahman, Fazlur 119
Ozouf, Mona 75 Rahnavard, Zahra 228–9
Rais, Amien 100
Pakistan Rajoy, Mariano 54
family law 28–30 Randall, Vicky 16
gender gap 23 Rasul-Bernardo, Amina 125
Hudood Ordinances 30–1 Refah Party 36
Islamic prescription 9 Reformasi movement 273
wage equality 26–7 religion
women’s economic rights 24–8 hegemony of 6–7, 19–20
women’s education 21 social significance 2–3
women’s health rights 21 and state 4–6, 11, 17–20
women’s political rights 21–4 and women 72–4
women’s rights 11, 35 religious pluralism 3, 6
PAS (Parti Islam SeMalaysia) 271, 273, 277, Reproductive Health Law 54
283, 284, 289 Rezaie, Mohsen 227, 230
Pastoral Constitution on the Church in the Rodan, Garry 274
Modern World 47 Rouhani, Hassan 231–2, 233
Pateman, Carole 75 Roupakiotis, Antonis 175
Paul VI, Pope 58 Roy, Oliver 285
Peletz, Michael 275 Rule of the Jurist 215
Penguatan Hak-hak Perempuan 126
peraturan daerah 101 Sadiqi, Fatima 258
personal status law see family law Salafi groups 35, 256
pesantren 91–4, 99–100, 102 Saleh, Suad 122
Pew Survey of Religion, in Latin America Sarkozy, Nicolas 67
55, 56 Saudi Arabia
Pius VI, Pope 48 cultural restrictions 15
Pius IX, Pope 48 family law 28–33
PKI (Indonesian Communist Party) 95, 98 women’s rights 7, 15
PKS (Prosperous Justice Party) 97–8 SCA (Shari‘a Court of Appeals) 161, 167
plurality of moral registers, Indonesia 82–9 Schröter, Susanne 11
PNI (Indonesian Nationalist Party) 95 Scott, Joan W. 7, 10
Poland The Second Message of Islam 117
church/state separation 48–9 second-wave feminism 117–18
deconfessionalization of the state 52 secular feminists 223
political Catholicism 47, 50–1 secularism 4–5
political Islam 18–19 and equality 64
political rights 21–4 and feminism 57
polygamy/polygyny 9, 30, 33, 94–5, 103, 150, and French state 63–79
164, 211, 239 and Islamic terrorism 63–4
pondok 91 and religious liberty 68
pornographic archaeology 70 and sexual liberation 78
Portugal, church/state separation 48 secularization
PP (Partido Popular) 51 female secularization 58–9
Progressive Muslim Union 122–3 three aspects of 63
public morality code, in Islam 40–1 and women’s rights 2–8
secular states 4–6
Qur’an in Catholic countries 48–50
and feminism 131 Sée, Camille 73
modern interpretation of 117, 119–24, Seeley, Paul 69, 71
127, 155 Senegal
constitution 146–50
Rachidi, Khaoula 255 democracy in 19
Rafsanjani, Ali Akbar Hashemi 218, 222, democratic authoritarianism 149
227, 231 economic performance 139
 Index 307
family code 146–50, 155 Springtime of Dignity campaign 250, 260
family planning 155–6 Stahuljak, Zrinka 70
female education 154, 156 state
FGC (female genital cutting) 153, 158 and accommodation 6
gender gaps 140–1 and Islamic law 8–10
gender roles 139–58 localization process 18
Islamic tradition 141 post-Ottoman Empire 18
law, gender, democracy nexus 11 and religion 4–6, 11, 17–20
liberal government 148 state actions 10
marriage 150 state entrepreneurship 17–18
parity 146–50 state feminism 113–16, 238–9
politics 146–50 state homogenization 17
polygamy 150 state, women, and Islam 8–10
progress despite Islam 158 Stepan, Alfred 4, 149
Qur’an and women’s rights 149 Stivens, Maila 11
religious actors and women’s rights 154–6 Sufism 86
religious backlash and women’s Syamsiyatun, Siti 99
rights 153–4 Synod of the Family 60
religious traditions 139, 157
secularity 139, 141, 147 Tahar Haddad Club 240
sociocultural barriers 152–3 talaq see divorce
women’s health 153 Taliban, and women’s rights 36
women’s rights 140, 146–50 taqlid 92
women’s roles 148, 157 tarbiyah 97–8
Senegal/Bangladesh comparative Tavakoli, Majid 230
framework 139–2 tawhid 120
Senghor, Léopold 148 Third Worldism 114–15
Sexual Contract 75 Tocqueville, Alexis de 75
sexual morality, in Catholic countries 52, traditional Islamic jurisprudence 32
55–8 transgenderism 91
sexual offences 30 Tunisia
Sezgin, Yüksel 11 1959 constitution 239
Shah Bano court decision 193–4, 200, 2004 Arab League Summit 246
202, 203 in Arab Spring 252–61
Shari’a law see Islamic law authoritarian government 239–44
Sherkat, Shahla 220 campaigns, coalitions, and
Sinta Nuriyah, Abdurrahman 99 achievements 244–52
SIS (Sisters in Islam) 125, 127–8, 279, CSP (Code du Statut Personnel) 239, 245,
286–8, 290, 291 247–8, 256
Skalli, Nouzha 249, 251, 259 divorce 33
Slovakia, church/state separation 48 dress code 8
Slovenia, church/state separation 48 family law 30, 33, 35, 244–5
Soares, Benjamin 274 hegemonic religion 6
sociological secularism 6 International Women’s Day 240
Soman, Zakia 202, 205 Jasmine Revolution 252
Soroush, Abdolkarim 211, 221 law, gender, democracy nexus 11
Spain national/regional/transnational
abortion law 54 activism 242–4
church/state separation 48 parliamentary system 258
contraception 54 political parties/coalitions 253–8
divorce law 54 polygamy 239
political Catholicism 50–1 postcolonial NGOs 240
religion and sexual morality 52 secularism 4
secularization 52 secularization 114
Spivak, Gayatri Chakravorty 129 sexual harassment legislation 245
spousal maintenance/child support 170–1 social rights 245–7
308 Index
Tunisia (cont.) Wadud, Amina 119–23, 124, 131
state feminism 113–16, 238–9 Wahid, Abdurrahman 99, 102
Tahar Haddad Club 240 wali nikah 103
wage equality 26 Waylen, Georgina 16
women’s associations 240–3, 247, 248 WEF (World Economic Forum) 22, 25
women’s economic rights 24–8 Weil, Patrick 65
women’s education 21 Weiss, Meredith 280–1
women’s health rights 21 Weldon, S. Laurel 28
women’s legal status, key features 251 Westoxification 114
women’s political rights/ WFDD (World Faiths Development
participation 21–4, 35, 253, 254 Dialogue) 155
women’s rights and WGEPSI (Working Group for Equality in
democratization 237–63 Personal Status Issues) 173
women’s rights groups, differences 262–3 Widodo, Joko 104–5
women’s rights networks/associations, Wieringa, Saskia 94
activities 239–63 WLUML (Women Living Under Muslim
women’s rights under authoritarian Laws) 127
conditions 239–44 Woman Choufouch 261
women’s social position, key features 251 Woman Question 280, 285
women’s workforce representation 246 Women and Democratic Transitions in the
work rights 245–7 MENA Area 258–9
Turkey Women, Islam and the State 28
abortion 33, 38, 40 Women Protection Bill (2006) 30, 36
divorce 33 Women’s Condition Study Club 240
dress code 8 Women’s Convergence 228
EU accession, and women’s status 37 women’s equality, and Western values 114
family law 30–1, 33 Women’s Fatwa 122
headscarf ban 37 Women’s Refinement Union 113
hegemonic religion 6, 19 women’s rights
patriarchal culture 39 advancement by authoritarian
secularism 4 regimes 20–33
secularization 114 in Algeria see Algeria
and Shari‘a Law 38 in Arab Spring 252–61
state feminism 113–16 under authoritarian conditions 239–4
Turkish-Greek relations 177 in Bangladesh see Bangladesh
wage equality 26 in Catholic countries see Catholic countries
women’s economic rights 24–8 and civil liberties 1–8
women’s education 21 cultural restrictions 15
women’s health rights 21 and democratization 2–8, 10, 16
women’s political rights 21–4 disobedient wives 164, 172
women’s rights 1, 11, 36–8 economic rights 24–8
Twelver Shi‘ism 217 education rights 21, 97, 99
20 February Movement 252, 258–61 in Egypt see Egypt
in France see France
ulama 100 gender reform 83, 97
Ulema 192, 200, 201, 202, 205, 207 in Greece see Greece
ummah 120, 123, 285 health rights 21
Universal Declaration of Human Rights 124 historicity of 16
in India see India
Vatican II 47, 57–8 in Indonesia see Indonesia
velayat-e faqih 215, 217–18, 233 in Iran see Iran
Villalon, Leonardo 149 and Islamic courts’ judgments 88
violence against women 39, 102, 142, 150–2, and Islamic ethics 88
153, 158, 229–30, 250, 281–2, 289 in Islamic states 8–11, 16
Vishwa Lochan Madan v. Union of India 204 in Israel see Israel
voluntarism 75 in Malaysia see Malaysia
 Index 309
in minority conditions 11 voting rights 23
and modernization 2–8, 16 wage equality 26–7
in Morocco see Morocco women’s associations 240–3, 248–9
nationalism and Muslim women’s see also Islamic feminism; Islamic law
activism 93–6 women’s rights activists, and international
and NGOs in Israel 183 pressure 11
in Pakistan see Pakistan women’s rights groups, differences
political activism 242–4 among 262–3
political rights 21–4 World Bank, and gender gap 25
in the postcolonial state 16, 17
in Saudi Arabia see Saudi Arabia Yassine, Nadia 249
and secularization 2–8 Yemen, gender gap 23
in Senegal see Senegal Youssoufi, Abderrahame 242, 248
and sociological secularism 6
in Spain see Spain Zaki, Abdellatif 260–1
in Tunisia see Tunisia Zanan magazine 220, 225
in Turkey see Turkey Zarif, Javad 233
UN agenda 244 Zia ul Haq 30
and vigilante groups 83 Zubaida, Sami 87