Kecia Ali identifies a core problem through all schools of Islamic law based on a close scrutiny of the core texts: the status of wife and the status of slave are constantly presented in parallel – statuses are applied and extrapolated from one position of dependence to another. There are reasons then, to have concerns about legal systems which stake their distinctiveness in continuity with this paradigm. Certainly, clients of IKWRO have expressed fury at shoddy and discriminatory treatments in shari’a courts, of the type exposed in the C4 documentary Divorce: Sharia Style.
But women attend shari’a courts with enthusiasm, we are told; and this voluntarism means that the fact that most forms of Islamic personal status law violate international standards of human rights such as UNDHR and CEDAW is not relevant, since these rights are freely waived. It’s important then, to think about why this might be: why are women paying to use an alternative legal system which tends to provide less affordances than the mainstream?
Firstly, it was not always so: Belgium surveyed hundreds of women in the late 1980s to discover whether they wanted to see some level of adoption of Islamic legal traditions into local practice: the move was overwhelmingly rebuffed. Single women feared losing the ability to refuse arranged marriages; married women feared facing summary divorce without alimony, or of becoming embroiled in polygynous marriages.
So where does the change in attitude come from? Firstly, the rise of radicalism cannot be ignored. Muslim women in the West are under far more pressure to conform to religious directives than they were in the 1980s, and many of them have adopted an identity which includes elements of Islamic Revivalism within an atmosphere of competitive piety. But there’s another factor: the skyrocketing of divorce in Muslim communities. These rates aren’t reaching the levels they are in non-Muslim households, but they aren’t far off, and they are occurring within households where marriage has been treated as permanent and divorce unthinkable. So young people are combating a cultural discourse in which divorce is not allowed with a higher-status religious discourse in which it is permitted, even if only in ways which may discriminate against women. Shari’a then, is being used to legitimise the choices of a younger generation to their parents.
However, the discourse of shari’a is simultaneously part of a vigorously anti-feminist backlash in the face of changing gender roles. Where ‘cultural’ reasons for restricting women’s freedoms have become denigrated, ‘religious’ rationales step up to take their place, especially since religious discourses tend to have a privileged status making them less vulnerable to challenge. The identification of shari’a at the core of the Islamist identity, including recent moves to include it in the constitution in Egypt (which has passed the first round of a referendum) seems a clear attempt to reinscribe the ‘complementary’ model of gender against vast social changes.