Contesting Justice: Women, Islam, Law, and Society

Islamic law and women in the Muslim world

2011-03-02T19:25:00.000-08:00

There are numerous books published in the US about Islamic law and women in the Muslim world. Many of those books are by people with no language skills, and little familiarity with original sources. Souaiaia (religious studies, Univ. of Iowa) has deep familiarity with the original sources in Arabic and Persian. He knows his sources firsthand, and does not treat the subject superficially.

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... this book should be of interest to scholars and specialists, although it may be beyond the comprehension of laypeople... Summing Up: Recommended. Upper-division undergraduate, graduate, and research collections.

No permission to publish the entire review, but you may be able to read more on this link.

Reviewer: A. AbuKhalil California State University, Stanislaus

Source: Choice

Copyright American Library Association.

Prof. McCloud: "Souaiaia has also developed an approach of investigation that has a known integrity"

2009-09-15T07:12:00.000-07:00

Book Review: Read the Full Review

CONTESTING JUSTICE: WOMEN, ISLAM, LAW, AND SOCIETY. By Ahmed E. Souaiaia. State University of New York Press 2008. Pp. 195. $20.95. ISBN: 0-791-47398-8.

Some studies on Muslim women have assumed that the liberation of Muslim women from the oppressions of the Qur’an and Muslim men could only emerge by forcing Muslim governments to change their laws.

Other studies strongly advocate for women’s participation in governmental institutions and civic life where their voices on interpretations of texts including the Qur’an will cause changes in the distribution of justice and fairness regarding women. Still others assert that most, if not all, of women’s disenfranchisement is a result of male domination which must be attacked. Other researchers on Muslim women, especially in the West, have discovered that the more identifiable (i.e. western) the actions of Muslim women, the greater their potential for liberation. The variations on these arguments are too numerous to name here. What is evident is that there is a contradiction between a central text, the Qur’an, that calls for social justice and traditional cultural practices that largely obscure that justice and fairness in Muslim societies, communities and families irrespective of geographical location. Equally obvious is the fact that comparing the lives of Muslim women with lives of other women is not a path for a solution.

Rationales for the circumstances of Muslim women have alternatively been placed at the feet of male interpretation of the Qur’an, patriarchy, colonialism, the threats of Western modernity and illiteracy.

Analyses that base any of their positions on this list of blameworthy opponents however, have not produced a viable path. Yet, inside an unsettling green and yellow set of covers, Professor Ahmed Souaiaia presents one of the most compelling set of arguments to date. In Contesting Justice: Women, Islam, Law, and Society, he seeks to reexamine the arguments listed above and provide more challenging analyses. Focusing on justice and fairness, Souaiaia proposes that researchers cease to limit their attention to singular solutions such as legal reform or radical cultural reform; rather, he argues that they turn their intellectual resources to the creation and protection of civil society with a rebuilding of educational institutions that support and nurture critical thinking by men and women.

Read the Full Review
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Shaikh's Review of Contesting Justice

2009-04-19T09:06:00.000-07:00

Contesting Justice: Women, Islam, Law and Society; Reviewed by Khanum Shaikh, University of California, Los Angeles

In Contesting Justice, Ahmed Souaiaia offers an innovative examination of the link between social justice and the Islamic interpretive and legal tradition. The author’s main argument is premised on the need to maintain a clear-cut distinction between what are explicitly stated legal proofs within Qur’anic texts, and those that are implicit and ambiguous and have been given meaning through human interpretation…

…All in all, the author’s efforts at combining a theoretical approach and practical methodology are commendable and very welcome efforts for scholars, students, and practitioners of Islamic law and human rights. At times Souaiaia’s efforts to navigate multiple terrains may compromise the clarity of his message as the reader works her way through claims that oscillate between the generalized and the specific, the discipline-bound and the interdisciplinary, modern discourses on human and women’s rights and fiqh-based rulings on specific issues, etc. Overall, however, this work may serve as a useful and practical tool for academics and practitioners alike… read the rest of the review

Excerpt from the Review written for Journal of Middle East Women's Studies

HUSSIN's Review of Contesting Justice

2009-04-19T09:05:00.000-07:00

Contesting Justice, as reviewed by Iza Hussin, University of Massachusetts, Amherst

Studies of Islamic law for a nonspecialist readership are major undertakings for several reasons: they require clear explication of the hermeneutics and contexts of Islamic legal theory, and of the specific adaptations made within Muslim societies in history; they must avoid both the normative assumptions of "Western" theories of law and the in-speak of Islamic jurisprudence; they need to strike a balance between giving credence to the beliefs of Muslims and evaluating their political and social strategies. For all these reasons, Souaiaia's project is daring and ambitious; its strengths, and the challenges it faces, derive from the scope of the undertaking… Read the rest of the review

Excerpt from the Review written for Law & Society Review

"Contesting Justice" is in many ways a groundbreaking and pioneering study

2009-04-10T10:26:00.000-07:00

Contesting Justice- Women, Islam, Law , and Society; SUNY Press, 195 pp., by A. Souaiaia; Appendices , Bibliography, Index; $70.00 (hardcover, 2008), ISBN13: 978-0-7914-7397-9; $20.95 (paperback, 2009), ISBN13: 978-0-7914-7398-6;

Reviewed by: Adis Duderija*
Published by: SIME journal (March, 2009).

Over the last two decades in particular a significant number of scholarly books and articles have been written by Muslim female and male scholars on the subject of what we could broadly term women emancipation on the basis of novel approaches to Islamic hermeneutics and Islamic legal theory (usul-ul fiqh). The works of scholars such as A.Wadud, H. Baranzagi, Z. Mir-Hosseini, Abou El-Fadl, F. Esack and A. Barlas, to name but a few, come to mind. These works primarily focused on exposing, explaining, contesting and dislodging the male epistemic privilege in the formation and interpretation of religious sciences and tradition seen as the principal culprits for the andocentric, patriarchal and misogynist elements that persist in the understanding and interpretation of the Islamic tradition and its fountainheads, the Qur’an and the Sunnah. Moreover these women unfriendly (to put it mildly) dimensions of the Islamic tradition were considered as significantly contributing to the unenviable legal, political and economic status of Muslim women both in the historical and in the contemporary context. The solution advocated by these scholars was primarily restricted to the call for the inclusion of women’s voices and opinions in the interpretive processes and the subsequent demands for legal reform based on alternative more women egalitarian or just interpretations of the Islamic tradition. For reasons outlined below A. Souaiaia’s book under review is both a continuation of and a significant departure from this body of scholarly knowledge.

“Contesting Justice” is in many ways a groundbreaking and pioneering study that links discourses pertaining to the nature, origins, development and the scope of Islamic law and practices with the concept of justice as it relates to the legal and economic status of women with special attention to the Islamic laws of polygamy and inheritance.

The book addresses a vast array of important questions such as: What is the nature of Islamic law, its origins and development? What is the nature and meaning of the concept of justice in the Islamic tradition/law? How does this impact upon the legal, political and economic status of women? What is the relationship between Islamic law (defined as “the corpus of legal rulings and determinations that are inspired or based on Islamic teachings, p.xii) and explicitly stated legal proofs found in the Qur’an? How do we account for the gap between these two if one existed? How do we determine the level of explicitness of legal proofs in the Qur’an? Similarly, what is the interplay between practices, legal rules and legal proofs in Islamic law? What is the nature of morality and law in general? What is the place and function of morality and ethics in revealed scriptures? Are there any legal moral absolutes in the Islamic legal system? How do Qur’an and Islamic legal philosophies view men and women? Are social justice, fairness and equality going to be achieved on the basis of democratising of religious knowledge and interpretational practices or by developing abstract meanings and scope of these concepts? Similarly, is desired change (such as improving the status of women and other marginalised groups in a society) going to be engendered and vouchsafed in an enduring and effective fashion for each individual though the of creation of strong and vibrant educational and civil society and institutions or through legal reform?

Professor Souaiaia tackles these and other questions in a coherent and systematic fashion offering a number of very original findings and recommendations to which I shall turn shortly.

The objective behind the book according to the author is to “recount the historical, philosophical, and legal contexts that contribute to the negative and positive impact on women” (p.10), and Muslim women in particular. To achieve this the author adopts a multi-layered methodology that is normative, analytical, historical and quantitative (empirical) in character. Let me describe some of the main arguments and findings of this important study.

Firstly, based on an incisive and comprehensive analysis of the Qur’anic discourse prof. Souaiaia convincingly argues that Islamic law is in essence embedded and derives its legal potency from a larger dynamic underlying the nature of the Qur’anic discourse in form of emotionally charged “iconic/paradigmatic tales” (such as the story of Moses, the paragon of law-based religiousity and his mysterious and mystical knowledge endowed companion Khidr) that manifest themselves in the literary and stylistic qualities of the language inherent in the Qur’an in which God assumes a position of an absolute “Knower” and frames the issues of morality, ethics and law at the meta-human level. As a direct consequence of this broader dynamic, argues the author further, an organic relationship between faith, motive and behaviour is established. Here the author intimates that the ethics and morality present in Islamic law via the Qur’anic “Knower” principle directly determines the nature of the concept of justice which , due to the coalescing of morality and ethics and the fusion of religious and the political spheres in the Islamic tradition, permeates through the social, cultural, political and economic spheres of human endeavour, thus motivates, guides and directs all behaviour of Muslims to achieve compliance and law abiding citizenry. This characteristic of the Islamic law Prof. Souaiaia dubs communicative justice because it communicates public morality with a purpose of creating and establishing a socio-moral order at a faith-emotional level. Furthermore, prof. Souaiaia argues that it is imperative that any discussion on improving the status of Muslim women ought to take this broader Qur’anic framework of communicative justice (in contrast to just isolated rulings and practices) into account because this concept of communicative justice inspired the pre-modern Islamic legal philosophical discourses (still considered as authoritative by the majority of practicing Muslims) which assign women (as well as men) certain rights, responsibilities and functions both in the public and private spheres some of which, from a contemporary human rights era perspective, can be considered as detrimental to the well-fare and interests of women. In this context the author’s study is a response to what he considers to be a moral requirement of scholars of Islam in the contemporary world characterised by the prominence of human rights issues to “re-examine the historical causes and legal reasoning for traditional practices which injure women’s well-being”… as consistent with best insights of Islam.” (p. 44).

The second contribution of the study is that the author successfully accounts for the divergence between what he terms the Qur’anic law (defined as the legal rulings that are explicitly stated in the Qur’an and which did not require extensive interpretation in their formulation such as those on inheritance, p. xii) and the Islamic law (defined as the corpus of legal rulings and determinations that are inspired by or based on Islamic teachings, ibid.) on the basis of the oral-based and accretive nature of the Islamic law whose basis was the legal reasoning and the practice of early Caliphs rather then a close linguistic and syntactical analysis of the legal proofs found in the Qur’an or the hadith literature. It is this feature of Islamic law based on the consensus of early Companions, according to the author, which suspends the religious concept of justice and thus does not permit the rethinking and re-examination of practices such as polygyny and inheritance laws because any later consensus, according to traditional usul-ul-fiqh, is unable to overturn that of the early one. Elsewhere, the reviewer has proposed an additional explanation of the origins and the development of Islamic law that in many respects complements that of prof. Souaiaia although it differs in some. Therein the reviewer argued that one way of accounting for apparent ‘discrepancy’ between explicit Qur’ano-Sunnahic injunctions and the (early) Islamic law (Caliphs and the first generation of jurists primarily) is on the basis of the way in which the very concepts of Qur’an and Sunnah were conceptualised. Namely, I argued that, apart form their practise-based component (‘amaliyyah), these concepts were understood by the first two generations of Muslims as essentially:

ethico-religious (akhlaqiyyah), discursive, or objective-based (qasd) terms by being linked, for example, to subjective socio-culturally relative concepts of justice and righteousness/righteous conduct
endorsing a generally objective nature of moral values;
were reason inclusive (i.e. permitted reason to function not just exegetically or hermeneutically but also ‘independently’ of revelation in accordance with i.) and ii.)

As such, some explicit Qur’ano-Sunnahic legal proofs and injunctions were not followed by caliphs/fuqaha on the basis of the above understanding of the nature of the Qur’ano-Sunnahic teachings. In his other work, prof. Souaiaia himself also acknowledges the fact that values such as fairness and social justice were cited by early jurists as the driving principles behind certain Qur’anic injunctions such as in the case of inheritance.

As such the ‘gap’ or a ‘discrepancy’ between explicit Qur’ano-Sunnahic legal proofs and injunctions and that of (early) Islamic law that prof.Souaiaia has astutely recognised should not be seen as deviations in a normative sense by not being directly derived from normative primary source of religious and legal teachings (what prof. Souaiaia describes as being ‘manufactured’). Rather, one could argue instead that these sources lent themselves easily to be interpreted/understood in accordance which principles i.) ; ii.; and iii.) above. One could also argue that legal decisions taken by caliphs and the early jurists (which were later on used as normative legal precedents by subsequent generations as based upon the oral and accretive nature of Islamic law as pointed out by prof. Souaiaia ) were based upon such an understanding of the concepts of Qur’an and Sunnah but were grounded in what prof. Souaiaia terms time-specific social construct-dependent concepts of justice and fairness which did not evolve beyond the formative period. As such, I agree with the sentiment expressed by prof. Souaiaia that Muslim scholars are morally obliged to answer the Qur’ano-Sunnahic appeal for justice and fairness and the protection of weak and marginalised individuals on the basis of a contemporary, human rights era understanding of the concepts of justice and fairness (that ought to be methodologically linked to traditionally authentically Islamic legal theory) and therefore re-examine the traditional Islamic law in its light.

Another significant contribution of this study is that the author provides alternative interpretations of the polygamy and inheritance verses which conform to the grammatical and syntactical rules of the Arabic grammar. With respect to the polygamy verses 4:3, he demonstrates that the Qur’an in actual fact proscribes polygyny with orphaned women and discourages the practice with non-orphaned women. Similarly in relation to inheritance verses 4:7; 4:11; 4:12 and 4:176 he argues that the Qur’anic verses were primarily interested in protecting the interests of female heirs in the presence of other male heirs who otherwise might have appropriated it for themselves and did not necessarily fix the entitlements permanently. Significantly, unlike existing interpretations, prof. Souaiaia considers the inheritance verses in the Qur’an in the light of the verses pertaining to polygamy to argue that the traditional understanding of inheritance and polygamy verses as it applies to widowed women in a childless, polygamous marriage (which fixes the inheritance of the widow to one quarter) means that widowed women would have their inheritance portions diminished since they would have to share it with other co-wives. He uses this argument to argue that laws of polygyny must not be seen in isolation to those of inheritance.

Another novel aspect of this study is its attempt to empirically test the level of explicitness of Qur’anic legal proofs pertaining to inheritance. Prof. Souaiaia does so for two reasons. First, he wishes to demonstrate that even very explicit legal proofs can carry significant margins of deviations. Here, it is important to keep in mind that the traditional interpretations of Qur’anic legal proofs, especially in the case of inheritance verses, are defended on the basis of their explicitness. After establishing that there are significant divergences in these laws even within the traditional Islamic law (especially but not only between Sunni and Shi’a fiqh), the author produces empirical evidence based on a sound methodology to confirm that contemporary interpretations of inheritance verses also significantly diverge from the traditional ones . Secondly, he also establishes, contrary to those scholars of Islamic studies who argue for the inclusion of women’s voices in the interpretive process as the most effective way of improving the status of women that even the women interpreters did not interpret the Qur’anic verses in a women favourably fashion and actually contributed to the unjust status quo. As an implication of this, he argues that women and men are bound by social and cultural determinants of the meaning and scope of justice and fairness and that it is these which create women discriminatory language and value systems.

In contradistinction to the work of scholars mentioned at the very start of this review, prof. Souaiaia considers legal reform, especially if enforced by the nation-state in a the top-down fashion not only as an inefficient and unjust way of engendering change (which would most likely only improve the condition of an elitist section of society be they men or women) but also considers it at times as detrimental to the individual. As such, the author argues that instead of resorting to legal reforms that would, for example, either explicitly proscribe polygyny or permit it, the legal system ought to adopt what he terms a “ no-legal actions mechanism’ which leave the door for future legal intervention open. This is so because this mechanism ensures that the legal system can meet the needs and preserve the God given dignity of specific individuals. For example, polygyny could prove to be beneficial to difficult to employ widowed/orphaned women with or without children in a society that does not have a functioning welfare system (characteristic of many Muslim majority countries). Proscribing polygyny legally would be unjust in this case as it would be unjust to allow men unilaterally to enter into polygamous marriages as the traditional Islamic law does. The approach that prof. Souaiaia advocates is that in addition to no-legal action mechanisms the creation of free, strong, and vibrant educational and civil advocacy societies and institutions which frame the issues of justice and fairness on the basis of the human dignity of each individual is the most effective way of improving the status of women and other marginalised individuals. Here he adopts a similar view to prof. An- Na’im, another Muslim scholar, who has dealt with the issue of status of women from the perspective of the necessity for radical reform of what he terms the historical shari’ah (Islamic Law). What distinguishes the work of the two is that prof. Souaiaia’s heuristic is more closely aligned with and grounded in the traditional Islamic scholarship pertaining to legal theory (usul-ul-fiqh) and is therefore more likely to have more leverage with the traditionally minded Muslims as it would be considered more authentic and faithful to the inherited religious tradition (turath). I will return to this point again below.

Now to some criticisms.

Is the Qur’an a patriarchal text/discourse? Or in other words is the Qur’anic legal philosophy patriarchal? Prof. Souaiaia is of the view that Qur’anic language is patriarchal and seems to be of the view that the answer to both of the questions is yes. He dismisses the attempts of scholars such as A. Barlas who have advocated the opposite view as being based on a faulty methodology (p.174 ,footnote 81). One way of examining this question is to ask whether the Qur’an is inherently patriarchal or does it merely condone patriarchy as it assumes that its direct recipients operate within a patriarchal context and addresses them from within this given context? For a definition of inherently patriarchal we could take recourse to prof. Abu Zayd’s heuristic according to which for something to be truly Qur’anic it would need to be initiated rather then mirrored by the Qur’an itself. As I argued elsewhere it is beyond doubt that the Qur’anic discourse/text in relation to its socio-legal dimension (but not ontological) patriarchal because it was revealed in and operated within a patriarchal society. That much is evident from its texts as the author rightly asserts. Prof. Souaiaia also points out correctly that it is the nature of the Qur’nic discourse as a whole to address the elite and the powerful to be mindful and protective of the marginalised (such as women and children). Based on the analysis of the Qur’anic text (especially early Meccan revelations) it is fairly clearly evident that Qur’an recognised (but did not insist) that it is the powerful people in Mecca, the patriarchs of various tribes who held the socio-political and economic power, who needed to be persuaded and won over to the new faith for it to take hold. The question of patriarchy could then be seen in this broader characteristic of the nature of the Qur’anic discourse. The Qur’an, however, did not initiate patriarchy and therefore, if we accept prof. Abu Zayd’s approach would not be rendered patriarchal.

Another way of approaching the question of potential patriarchal nature of the Qur’an is on the basis of analysing patriarchal Qur’anic language and any eventual legal proofs they might entail in relation pre-existing conditions in its revelational milieu. A number of scholars such as El-Fadl and Abu Zayd have convincingly argued that, in accordance the above mentioned Qur’anic principle of preaching to the powerful to be mindful of their obligations to the weak and the marginalised, the Qur’an had a mitigating effect and initiated social, economic, political and legal incremental improvement of this section of the society. For example, it is evident that the Qur’anic verses pertaining to marriage and divorce were performing the function of protecting women from the power of men they already possessed by the virtue of the customs and practices of the society in which Islam was revealed. Elsewhere, this reviewer argued that, based on this, we could extract a moral trajectory of the Qur’an - others have called it a spirit or élan or objective (qasd)- towards which the Qur’an was pointing , that being a just and fair society in which men and women were free and equal in all respects pertaining to the mundane world. Based on this approach we could also argue that Qur’an is not inherently patriarchal.

Another point of criticism I would like to level at the author is in relation to question of the nature of the value in the Qur’anic discourse/text and its ethico-legal philosophy. Do they subscribe to the notion of the ethical relativism or objectivism? Prof. Souaia, based on the discussion of the function of Qur’anic “iconic/paradigmatic tales and the related principles of God as a “Knower” and communicative justice considered above leave the reader under the impression that the Qur’an and its ethico-legal philosophy is postulated upon ethical relativism. Admittedly, he does not directly address this issue (although in my view the question should have been explored in depth given the nature of the study and its main arguments). Classical Islamic theology and jurisprudence/ethics consider that indeed the Qur’an and its ethico-legal philosophy advocates ethical relativism. However, Mutazilite thought and that of some contemporary scholars such as El-Fadl and A. Emon are leaning towards the other view which can pave way to the development of natural theology. El-Fadl, for example, argues that based upon the analysis of how words such as such as al-munkar (commonly known to be immoral/wicked and al-ma’ruf (commonly known to be good/wholesome) are employed in the Qur’an one could argue that the Qur’an advocates an objective nature of values. Prof. Akhtar espouses the same view but based on more philosophical reasoning inspired by a comprehensive analysis of the Qur’anic Weltanschauung with the aid of ‘critical reason.’ As prof. Akhtar has convincingly argued those aspects of the Qur’an which are suggestive of ethical relativism should be seen in the broader context of God’s emphasis on His utter sovereignty and agency as a response to its interlocutors who emphasised their own agency at the expense of that of God.

The reviewer needs to also criticise the author’s excessive reliance on and exaggerated legal theory importance conferred to broader guiding principles ‘that furnished the legal and ethical justifications (p.47) in the fields of jurisprudence and ethics (such as la darar wa –la dirar , al-maslaha al-mursalah, daf al-haraj, tahqiq al-‘adalah) as developed by legal theorist (usuliyyun) such as al-Tusi, al-Ghazali or al-Shatibi in order to demonstrate that his methodology is grounded in traditional methodology. Prof. Souaiaia is well aware of the importance of methodological and epistemological authenticity (asala) in relation to potential acceptance of newly formulated ideas may they be legal and ethical, exegetical or hermeneutical , especially by the traditionally minded religious clergy (‘ulama) and individuals . As much as the reviewer is sympathetic to this approach it is questionable that these mechanisms have had much influence and leverage in classical legal theory (usul-ul fiqh) and as such can be used as effective traditionally authentic arguments for reform of the traditional Islamic episteme. In this context let me quote the view of a renowned contemporary legal theorist, prof. H. Kamali:
Another aspect of the conventional methodology of usul, which merits attention, is its emphasis on literalism and certain neglect, in some instances at least, of the basic objective and the rationale of the law. The early formulations of usul have not significantly addressed this issue and it was not until al- Shatibi (d.790 AH) who developed his major theme on the objectives and the philosophy of Shari’ah (maqasid al-shari’ah). Al-Shatibi’s contribution came, however, too late to make a visible impact on the basic scheme and methodology of usul.

Moving away from issues of Islamic law and legal theory my final points of criticism pertain to prof. Souaiaia’s recommendation that most effective way of improving the status of women is through setting up of civil advocacy and educational institutions which “guide and encourage critical thinking and unhindered access to learning (for both men and women)”… “ not only empower women to speak against injustice but also prepare men to accept new ideas and novel interpretations of society’s traditional heritage , ‘ensure that contestation of discriminatory social norms and practices are not conducted in the name of sexism and ethnicism, but in the name of justice and fairness ‘ …[In] order to create a paradigm of political and social power that is responsive to the universal demands’ …. in favour of absolute respect for human dignity.” (p. 125-126). Again while the reviewer is extremely sympathetic and shares this view one regrets that there remain a number of unanswered questions. For example, on what philosophical basis are these civil advocacy groups or educational institutions going to be set up in order to function in accordance with the criteria outlined by prof. Souaiaia? None of the largest grass roots social and civil advocacy groups cum political parties in the Muslim world that are based on a traditional religious worldview such as HAMAS, Hizb-ul’llah (or the Egyptian Ikhwan) have adopted a paradigm that is responsive to ‘the universal demands in favour of absolute respect for human dignity.” One could also argue that the status of women under HAMAS, in the Gaza Strip has actually markedly worsened. Non-traditional religious based social and civil advocacy groups on the other hand face what have proven to be insurmountable questions of religious legitimacy and authenticity if they attempted to bring about the objectives set out by prof. Souaiaia.
Also how useful is to frame desired social and cultural change in the Muslim world in terms of “universal demands of the human rights era” grounded in the concept of individual dignity. Isn’t the concept of human dignity just as contested as that of justice as prof. Souaiaia has aptly demonstrated? Traditional Islamic Weltanschauung, that is still well and truly alive in the minds of many a Muslim, considered it perfectly dignified to live in a society whose laws discriminated on the basis of class and social status, gender, religious affiliation and age.

Another question worth posing is just how are civil advocacy groups and educational institutions develop traditionally authentic discourses that can operate in accordance to criteria developed by prof. Souaiaia to achieve the improvement of women, the desideratum of social and cultural change? Who is going to head and lead these institutions? The only answer this reviewer can offer is that this can be achieved through curriculum reform in traditional religious institutions and other places of learning and through the leadership of critical Muslim scholar activists, such as prof. Souaiaia, who would need to assume both academic and social activist roles.

The criticism notwithstanding prof. Souaiaia’s book is an extremely important study and a major contribution to the literature of Islamic law, legal theory, Islamic hermeneutics, as well as politics, women and gender studies and is recommended highly to all those interested in these disciplines.

Adis Duderija, Centre for Muslim States and Societies, University of Western Australia.

Prof. Souaiaia discusses this characteristic of Islamic law in more detail in his: The Function of Orality in Islamic Law and Practices: Verbalizing Meaning, 2006.

On this point the author echoes the views of scholars such as Sh. Jackson, W. Hallaq and E. Moosa.

See footnote 1.

Traditionally and still widely accepted and authoritative interpretations proscribed the practice of marrying of orphaned women in general (clearly disadvantaging them in cases where polygyny was a better option for them) and permitted the marrying of up to four non-orphaned women as a solely men’s prerogative.

According to traditional Islamic law the more explicit the legal proofs the less the reliance on human opinion is needed and thus the more strict is its application.

At the philological level, this is evident in the Qur’anic injunctions which are exclusively directed at men in matters pertaining to divorce and marriage. For example, Qur’an (65: 2) instructs men: keep or stay with their wives in dignity or you divorce them in kindness and dignity.”
Qur’an (2:230) stipulates that if a man divorces a woman irrevocably, a man cannot remarry her until she is married to another. Similarly Qur’an 65:1 instructs the Prophet that if the men divorce their women they should allow women to reside in their marital home during their ‘idda (waiting period).
Again, in 33:49 the male believers are told that if they married believing women and then divorced them before touching them, they do not need to count the ‘idda. Similarly, in 2:236 men (second person plural) are, in case of divorcing women before consummating marriage, told to bestow gifts upon them.

A. Barlas, Believing Women in Islam-Unreading Patriarchal Interpretations of the Qur’an. University of Texas Press, Austin,2002.

H. N. Abu Zayd, in ’The Nexus of Theory and Practice’, in M. Kamvara (ed.), The New Voices of Islam-Rethinking Politics and Modernity, A Reader, University of California Press, Berkley and Los Angeles, 2006, pp. 153-176.

That the Qur’an neither reflects nor advocates patriarchy at an ontological/metaphysical level is clearly evident from numerous Qur’anic verses and was demonstrated systematically by A. Barlas. See footnote 7.

see footnote 6 .

A. Duderija, The importance of recognising textual assumptions in the Qur’anic text in the development of a Qur’anic hermeneutic and Islamic legal theory, unpublished article under review.

G. H. Hourani’s ‘Ethical Pre-suppositions of the Qur’an”, Muslim World , 70 (Jan. 1980) pp. 1-28.

Kh. Abou El-Fadl , The Place of Ethical Obligations in Islamic Law’, Journal of Islamic and Near Eastern Law, 4, 1, 2004-2005.

Sh. Akhtar, The Qur’an and the Secular Mind, Routledge, 2008.

M. H. Kamali, ‘Methodological Issues in Islamic Jurisprudence’, Arab Law Quarterly, Volume 11, Number 1, 1996 , pp. 3-33, p.5

L. Welchman, Honour and Violence Against Women in a Modern Shar'i Discourse. Hawwa, Vol. 5, No. 2-3. (2007), pp. 139-165.

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Review appeared on SIME Book Reviews

Contesting Justice: An Exercise in Courage

2009-04-10T10:23:00.000-07:00

by Ziad_B_2000

March 22, 2009: There has been a rise in the number of published books dealing with Islam. This work is a true paradigm shifter: it identifies the primary sources of the law, it disconnects the interpretations from the texts, it reviews recent scholarship, and provides new standards for dealing with social justice issues. Something else is refreshing about this work: the courage with which the author challenges both traditional Muslim scholars and Western intellectuals. I knew that I have in my hands an exceptional book when I read in the introduction declarations such as this one: "The Islamic civilization. undoubtedly had its achievements, its heroes, and its icons. But it also had its second-class citizens, its victims, its slaves, its cheap labor, its consumers, and its privileged elite." (pp. 7-8). The author, Ahmed Souaiaia, was not unrestricted by apologetics' rhetoric nor was he bashful in showing the complicity of the liberal West in maintaining authoritarian regimes for short term gains.

The author is clearly familiar with the complex debate of these issues and he enriches it thanks to his astounding proficiency in the languages of the original texts. He moves fluidly between the legal arguments and linguistic analyses to deconstruct the so-called precedents that limited women's property rights. Boldly, Souaiaia shows that the Qur'an protected women's inheritance rights but it was the elite who instituted a practice that is contrary to the explicit sanctions of the Qur'an.

Daringly, Souaiaia shows the role of many women in preserving a tradition that disadvantaged the weak. He challenges the theory that women's participation in the political and legislative processes would have eliminated discriminating against women by showing that in most cases, Muslim women were the strongest preservers of tradition and the most committed resisters of radical change.

Most original were the author's claims that Islamic law did not envision a system of brutal punishment; rather, exerted deterrence through what he calls communicative justice, which operated on the psychological and emotional levels to instill proper behavior. Also, the author beautifully applied the peculiar story of the Qur'an that links Moses to the "Knower" (khidr) to show the pervasiveness of religious morality among the "adherents" even in the face of what may be seen as unjust.

If I have to point out a weakness of this work, I would say its complexity. This work does not take a linear path to treat a single subject. Instead, it raises questions in the fields of ethics, jurisprudence, theology, and social behavior each of which could be treated in a book. But somehow, the author manages with extreme skill to show that all these paths lead to his findings. I don't think that this work could have stood out without that complexity; it is proof that not the theory (explanation) that is noteworthy; it is the method and approach that support such a theory that is at the foundation of original works. Contesting Justice is, without doubt, an original work; and Souaiaia is, without doubt, a scholar in valor.

Original review appeared on bn.com

An Interview with the Author of Contesting Justice

2008-11-14T08:21:00.000-08:00

The Dangers of Gendered Rights: “The Persistence of Social Injustice Requires that it is Addressed forwardly—that is in the Context of a Post-Gendered World:” An Interview with the Author of Contesting Justice

Interviewed by Sarah Raaii, April, 2008
__________________________________________________________________

Describe the process of writing Contesting Justice. How did you arrive at your conclusions?

It started with writing a controversial article about two of the most contentious topics in Islamic law: polygamy and inheritance. The article became the topic of a number of presentations which provided a good venue for commenting on my work. I took into consideration those comments and went back to the sources. After looking at some additional materials and employing new methodologies, I revised some of my original conclusions and strengthened others… The outcome is a work that I see as more challenging than informing, more questioning than answering, and more thought-provoking than mind-numbing.

What was most challenging about creating this book?

Simplifying the approach and legal analysis to make the book accessible to non-specialist readers

How did you simplify the book without sacrificing the content?

The process involved providing more details than I would usually do if I were writing for an audience of experts. So it was not about omitting content. The difficulty was to anticipate the appropriate level of familiarity with the content and not go below it, which carries the risk of talking to the audience instead of having a conversation with them.

Does Islam work against women's rights, or has it been corrupted?

It depends on what or which Islam you have in mind. Perhaps a better way of making the distinction is to ask, "Does the Qur'an work against women?" The answer is fairly easy; no. Certainly the Prophet Muhammad was also an advocate for women and the vulnerable. But with time, that initial progress either stopped or was scaled back. Therefore, Islam today, with all its diverse manifestations and multiplicity of views, many of which may have been appropriated and manipulated by the new elite, does contain a strain of expressions that work against women.

What is the differentiating factor between the Middle East and the Western world, if it is not religion?

First, for the purpose of answering this question, perhaps it is better to say the Arab or Muslim world instead of the Middle East. Second, the answer can be framed as follows: the Muslim world’s economic and political status as weak and undisciplined party that has bet its fortunes on its alliances with the Superpowers instead of trusting its people. You can see this difference today in the level of disconnect between the rulers and the ruled all over the Arab and Muslim worlds; the loss of sense of pride in being citizen; and the despair that is causing the brain-drain: the siphoning of talented and knowledgeable young men and women…

What is the biggest obstacle Muslim women face today?

The same problem faced by the Muslim men and women: total absence of civil society institutions, lack of civility in the political discourse, and abuse of power.

Can and should the Western world do anything to help?

It can't and it should not. The invasion of Iraq proved that despite the brutality and unpopularity of an Arab regime—such as that of Saddam—not all people are willing to replace such a regime with an occupation force. It is best for the West to stay out of the affairs of Muslim societies and work on staying true to the values to which they subscribe. Because many citizens of the West are Muslim and the number is growing, it may be more effective to empower Muslims here to remain proud citizens, which will serve as a model for the people of the Muslim world. To not subject Muslims in the West to discrimination and racism amounts to teaching by example; this is much more effective than dictating, lecturing, and invading.

There are two major proven ways of excluding the vulnerable and the insignificant "other:" legal exclusion and social exclusion. In other words, there are two ways one social group could achieve economic and political advantage over another: legal discrimination and social oppression. In the West, exclusion of women and minorities has been achieved through societal oppression. That is partly why it took more than two hundred years for the first woman to be a serious contender for the presidency, despite constitutional guarantees. In some Muslim countries, women and religious minorities are excluded from running for high political offices by law. Is there a difference between the two if the outcome is the same?

A case can be made that societal oppression is more effectively enduring than legal exclusion. After all, all that it will take to change the situation in a Muslim country is to change the law to allow women to compete for the presidency or prime ministry and a woman could win; it happened in Bangladesh, Turkey, and Pakistan. Can we say the same about the chance of an American-Muslim winning the presidency in the next half century? I doubt it and the proof is played before us today in the form of "accusations" that Senator Obama might be Muslim (as if it is a crime), although running for the presidency is a right the Constitution guarantees to every citizen--including Muslim-Americans.

In the past five years or so, we learned that abuse of power, torture of people, and disregard to international law can be undertaken by the leaders we elected right here at home. Before lecturing others about human rights and democracy, we must work to preserve the values and principles we want the rest of the world to emulate and adopt. That will be the best way to help people elsewhere.

Furthermore, many American scholars and activists who have never visited a Muslim country, a South or Central American country, an African country, or an Asian country are knowingly or unknowingly perpetuating a supremacist (or racist) undertone when they rant about and critique other countries and other societies for human rights abuses and keep silent about abuses by the governments they elect. It can be argued that their energy and expertise can be better used here in a society, in a culture, in a political system with which they are most familiar. As the saying goes, charity starts at home. When Americans fight for respecting the dignity of every citizen, that commitment and determination can help empower others to work within their own communities. Sincere respect to human dignity is inspiring; calculated humanitarianism is hypocritical. This is especially important when considering the colonial history of the West and the persistent discrimination against vulnerable social groups within America.

If the West is not to interfere in Middle Eastern countries' transformations, who will make sure civil society institutions like free press and watchdog organizations are protected?

The people who fought to establish the civil society institutions in the first place will. But I would ask, who is protecting the civil society institution in the West? Would any Western nation allow another country to interfere in its internal affairs in the name of empowering the people against their government? The question in itself is expressive of the damage done by colonial powers first directly—through military intervention; and then indirectly—through influence and sponsorship of dictatorial regimes: the damage seeded in the mind of many Muslims that they are not responsible for their own future; that they need Western help to achieve their aspirations; that they don’t have the power to bring about change. I would argue that even if the West were to establish civil society institutions, the West would be expected to stay there in perpetuity to protect them because citizens of those countries won’t develop a sense of ownership.

After so many generations of complacency, how is it possible to change the status quo of oppressed women now?

It is possible by properly diagnosing the problem. It is a skewed perspective to make the generalization that Muslim women are oppressed; a view that is generally derived from counting the number of women wearing headscarves. It may be the case that it is actually the women who are not wearing headscarves that are more oppressed. In the Muslim world, there is an endemic problem of oppression of people—men and women—by the ruling powerful elite. Some of these powerful elite are in fact women. Consider, for example, the situation in Bangladesh: two powerful women ruled the country for nearly two decades, but did the status of women improve during their rule? Did the status of women improve when Turkey was governed by a woman prime minister? Did the status of women improve when a woman led the government in Pakistan? Abuse of power is just as oppressive when exerted by women. I believe that it will be possible to change the status of women when the question of oppression is properly framed, when cruelty is not given a gender, when abuse is not given an ethnicity, and when arrogance is not given a race.

What do you perceive to be the main ideas of Contesting Justice?

To take the Western reader beyond stereotypes, remind Muslim religious authorities of the richness of their legal heritage, reframe the question of social justice outside the context of race, gender, and religion, and identify majoritism and power-enabled arrogance as the platform for discrimination against and subordination of the vulnerable individuals and groups.

If putting women in positions of power will not improve the female standard of living, then what will?

The status of women cannot be improved in the long run by categorizing it as a gendered issue; that is, men oppressing women. Women, just like men, when enabled by unbridled power, can be just as brutal and cruel as men. Second, women are treated as second-class citizens in many Muslim countries not just because they are women, but because oppression is tolerated in the first place and because women are members of a vulnerable group that is systematically marginalized and abused. Third, legal reform alone will not solve the epidemic of oppression; all that legal reform provides is a tool to alleviate suffering. But like any other tool, it comes with a price and that price may be too steep for the poor, the disadvantaged, and the oppressed. Subsequently, the elite and the powerful from the oppressed group will seize the opportunities provided by legal reform, but those in need cannot. In the end, at best, you end up creating a minority-elite within historically disadvantaged groups, thereby shuffling the power-holders but never treating the question of oppression and abuse of power. Fourth, my book argues for a solution that trusts in the power of civil society institutions and in a culture that encourages awareness of the abusive nature of political power and the propensity of power-holders to oppress the weak and the voiceless.

In the end, a combination of measures will work, but creating civil society institutions must be the top priority. On top of the hierarchy of the list of civil society institutions are the free press, legally protected watchdog organizations, and truly independent branches of governance. Legal reform (or education) alone is like going to an ocean full of fish and expecting to fish without fishing gear.

From The Independent Monitor Book Reviews: Contesting Justice

2008-11-02T10:07:00.000-08:00

Contesting Justice: Women, Islam, Law and Society”

by A. E. Souaiaia

by D. W. Aossey

From the manufactured hysteria surrounding Islamo-fascism to the election of the first Muslim to the U.S legislature, interest in “Islamic Law” - or Shari’ah - and its place in a broader social framework has recently surged. While those on opposite sides of many contemporary issues promote Shari’ah as a precise set of Islamic legal guidelines readily available to be rolled-out and implemented, much in the way of jurisprudence in the modern Muslim world has more to do with cultural norms and traditional social justice than anything arising from Koranic sources or scholarly Shari’ah. Add to the mix the subject of women rights and the issues only become more convoluted.

A new book by Dr. Ahmed E. Souaiaia entitled Contesting Justice: Women, Islam, Law and Society, examines the subject of women’s rights within the framework of Islamic Law and arrives at some rather surprising conclusions. Of specific interest in this concise and well-written text are the controversial issues of polygamy and inheritance, institutions that have traditionally held women at a disadvantage in the Muslim world. Yet, in regard to the inequitable practice of both institutions the author’s conclusion stands clear: don’t blame Islam for the actions of Muslims.

Following precise legal arguments and careful critical analysis, Professor Souaiaia shows that the disparity regarding women’s rights in Muslim society is most notably rooted in the conflict between traditional social norms and the abandonment of the revolutionary reform first championed by the Koran and the sayings of the prophet Mohammad, or Sunnah. In the case of inheritance, for example, rules governing female apportionment are actually quite clear and in fact guaranteed, whereas those governing men are ambiguous. Surprisingly, through the interpretative processes though, this lack of specificity of males’ inheritance still favored men in traditionally elite dominated societies. In a careful analysis of the basis for polygamy under Islam, Professor Souaiaia likewise shows that monogamy is the only marital state sanctioned under Qur’anic Law. In other words, the author sees a disparity between Islamic law and Qur’anic law and he argues that, by the middle of the second Islamic century, the progressive Qur’anic reform was restricted by the tradition of the elite.

Though written from a legal perspective Contesting Justice is also intended for a general audience and certainly succeeds in getting key points and concepts across in an understandable manner. Numerous illustrative examples set this intriguing and informative text apart from others on Islamic legal theory and practice and overall does an excellent job of dispelling many of the negative myths and stereotypes behind the perception of gender inequity in Islam.

In Contesting Justice: Women, Islam, Law and Society, Dr. Souaiaia has created a comprehensive and compelling doctrine on women’s rights under Islam and an indispensable guide to this fascinating subject.

Also published in October 2008; Issue 16 of The Independent Monitor

Book Review: An Introductory Western View of Contesting Justice

2008-09-12T10:13:00.000-07:00

By Ari Iaccarino, VT, USA.

Ahmed Souaiaia brings a plethora of issues to light, such as human rights for Muslim women in religious and secular nations, gender roles in upholding inequality between the sexes, the reality that reformation in law only caters to those who have the money to hire a lawyer, and many more issues that could never be addressed in one review. Although the book frames the above issues around inheritance and polygamy for Muslims, it allows a reader who may not be as versed to peer into the psyche of law based around the Qur'an and Islamic tradition. If the reader knows the general background of the prophet Muhammad, then Souaiaia's Contesting Justice will be a dense, but comprehensive read that will expose the other side of the coin in our western perception of Islam.
A wonderful example of introductory comprehensibility is Souaiaia's explanation of the ambiguity of legal decisions based on interpretation within the Qur'an and Islamic law by using real situations from past official judgments within the U.S. For example, freedom of speech is a constitutional right in the U.S.A. because the First Amendment explicitly protects it. On the other hand, abortion rights are not an explicitly stated constitutional right. Because of the non-explicitness of abortion in the constitution, interpretation was needed and some jurists found that abortion was rooted in the right to privacy. Even then the right to privacy was an interpretive ruling from Justice Louis Brandeis' "a right to be left alone." The right to privacy evolved into a "liberty of personal autonomy" protected by the Fourteenth amendment. Souaiaia's own knowledge of the U.S. legal system allows us to see the comparisons and difficulties of interpretive law within the Qur'an, Islamic jurisprudence, and our own system. The above example is only one of countless ways Souaiaia links the introductory reader to a world not understood by many Westerners. I would encourage anybody who wishes to read quantifiable, balanced, authoritative, and critical material to purchase Contesting Justice: Women, Islam, Law and Society.

Press Release: Contesting Justice: Women, Islam, Law, and Society

2008-03-05T14:37:00.000-08:00

Press Release:

Contesting Justice: Women, Islam, Law, and Society (English)

Contesting Justice: Women, Islam, Law, and Society (Arabic)

Book Review: ContestingJustice

2008-02-09T11:12:00.000-08:00

"This is the first study I have seen in which the author combines expert knowledge of highly technical aspects of shari`ah, Islamic hermeneutics, human rights, and social justice. Souaiaia speaks with authority to a specialist Islamic sholar, while making his argument and analysis clear and accessible to a general reader. This is an informative and engaging book.”— Abdullahi Ahmed An-Na‘im, Emory University School of Law

Women, Islam, Law, and Society

2007-12-22T13:51:00.000-08:00

Publisher Description: Contesting Justice examines the development of the laws and practices governing the status of women in Muslim society, particularly in terms of marriage, polygamy, inheritance, and property rights. Ahmed E. Souaiaia argues that such laws were not methodically derived from legal sources but rather are the preserved understanding and practices of the early ruling elite. Based on his quantitative, linguistic, and normative analyses of Quranic texts—and contrary to the established practice—the author shows that these texts sanction only monogamous marriages, guarantee only female heirs’ shares, and do not prescribe an inheritance principle that awards males twice the shares of females. He critically explores the way religion is developed and then is transformed into a social control mechanism that transcends legal reform, gender-sensitive education, or radical modernization. To ameliorate the legal, political, and economic status of women in the Islamic world, Souaiaia recommends the strengthening of civil society institutions that will challenge wealth-engendered majoritism, curtail society-manufactured conformity, and bridle the absolute power of the state.

Order it online:Contesting Justice: Women, Islam, Law, and Society