Women Under Islam: Gender, Justice and the Politics of Islamic Law

558 Pages·2011·1.79 MB·English

by  Chris Jones-Pauly

CHRISTINA JONES-PAULY is an independent consultant on women and
governance for various international agencies. She holds a Dr Phil in
Comparative and Islamic Laws (London) and a Dr Jur in international law
(Harvard). She was Human Rights Fellow at the Radcliffe Institute for Ad-
vanced Study, Harvard University, taught Islamic Law at Harvard Law
School, and was Associated Researcher at the Socio-Legal Studies Centre,
Oxford University. Before this she headed the Human Rights and Devel-
opment Unit at the University of Bonn. She has worked on numerous
human rights projects for the UN.
ABIR DAJANI TUQAN studied Islamic Law at SOAS, and is the first Arab
woman to pass the Bar in Britain (Middle Temple), with First Class Hon-
ours in Islamic Law. She has spoken at various international conferences
and in the media on Islamic family law.

CHRISTINA JONES-PAULY
WITH ABIR DAJANI TUQAN
WOMEN

UNDER ISL AM
Gender, Justice and the Politics of Islamic Law
Foreword by The Rt. Hon. Justice Thorpe
Published in 2011 by I.B.Tauris & Co Ltd
6 Salem Road, London W2 4BU
175 Fifth Avenue, New York NY 10010
www.ibtauris.com
Distributed in the United States and Canada Exclusively by Palgrave Macmillan
175 Fifth Avenue, New York NY 10010
Copyright © 2011, Christina Jones-Pauly
The right of Christina Jones-Pauly to be identified as the author of this work has
been asserted by her in accordance with the Copyright, Designs and Patents Act
1988.
All rights reserved. Except for brief quotations in a review, this book, or any part
thereof, may not be reproduced, stored in or introduced into a retrieval system, or
transmitted, in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise, without the prior written permission of the publisher.
Library of Islamic Law: 3
ISBN: 978 1 84511 386 5
A full CIP record for this book is available from the British Library
A full CIP record is available from the Library of Congress
Library of Congress Catalog Card Number: available
Typeset in Garamond by Artform, Oxfordshire
Printed and bound in Great Britain by CPI Antony Rowe, Chippenham
from camera-ready copy edited and supplied by the author
This book is dedicated to the memory of mentor,
friend and philanthropist Helen Maguire Muller
for her generous support and above all friendship.

CONTENTS
Foreword by The Rt. Hon. Lord Justice Thorpe xi
Acknowledgements xiii
Introduction xvii
1 TUNISIA – THE IDEAL ISLAMIC REFORM 1
Introduction 1
Historical roots 3
Modernity 13
Modern intellectual reformers of Islamic law – Taalbi 18
Abusive practices against women: dar jawad (house of discipline) 28
Tahar Haddad – successor to Taalbi 35
Pre-Independence and reform of Sharia 70
Independence – equality before the law 72
Population law 86
Infanticide 96
Fundamentalism 100
2 EGYPT – CONSERVATIVE INCREMENTAL REFORM 103
Introduction 103
Arabization and Islamization of Egypt and class stratification 103
The modern state – arrival of the Europeans 106
Reform movements in the 19th century on women’s rights 107
Religious reformers: Muhammad Abduh 110
Reform movements: Salafiyya, Rashid Rida 111
Secular reform movements: Haykal 112
Islam and the state 113
viii WOMEN UNDER ISLAM
Court systems 116
Political background since 1952 121
Efforts to codify and reform the law of personal status 124
Reforming the wife’s right to divorce – Law No. 1 of 2000 171
Women’s Council 193
Female circumcision 194
Conclusions 203
3 PAKISTAN – ORTHODOX MODERNITY 207
Historical background 207
The start of Independence 213
A Muslim ruler/state – in need of an Islamic law? 216
The 1973 Constitution – basis of applying Islamic law 220
Judicial review of Islamic laws 227
Judicial review of the Offence of Zina Ordinance 232
May a husband kill a wife or her partner for adultery? 277
Is an honour murder because of zina permissible under
any circumstances? 288
Reforming Pakistani Islamic criminalization of laws:
honour killings and zina 291
Conclusions 294
Postscript on the Protection of Women Act 2006 296
4 SOUTH AFRICA – CONSTITUTIONAL CHALLENGES
FOR ISLAMIC LAW 301
Introduction 301
A brief history of the Muslim Malay community 302
Islamic law in South African jurisprudence – the ‘Malay’
Cape community 305
The Muslim Asian Indian community 317
The apartheid era and Islamic marriages 324
Summary of South African jurisprudence on the application
of Islamic law 337
Judicial recognition of Muslim marriages in post-apartheid
South Africa 339
Extra-judicial practices in South African Muslim communities 366
Extra-judicial interpretations in the Asian Muslim communities
of Islamic marriage and divorce law 379
CONTENTS ix
Inheritance inequality and the South African Constitution
– a comparative view 394
Approaching Islamic succession/inheritance law in a new light 398
Theological and power disputes within the Muslim communities 410
Religious sects 414
Islamic dispute settlement – extra-judicial conflict resolution
in the Muslim communities 420
Considerations for statutory recognition of Muslim marriages 429
Conclusions 444
5 CONCLUSIONS 447
Notes 469
Bibliography 509
Index 527