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Legal Pluralism and Women's Status in Muslim Majority/Minority Contexts

Panel VII-11, 2024 Annual Meeting

On Thursday, November 14 at 11:30 am

Panel Description
The accommodation of religious and customary normative orders has been the subject of heated debates. There is particularly concern regarding women's rights in the context of legal pluralism as traditional understandings of gender roles and sexuality systematically disadvantage women. This panel examines the topic contextual perspectives, drawing especially on emerging research on gender, agency, and authority in Islam. Two papers address how Muslim women negotiate and relate to the normative agentic and authoritative dimensions of shari’a that Islamic family laws mediate. The relationships between shari’a and arbitration councils, including European Council of Fatwa, who presides on these, and how they interact with state structures, has suffered from a lack of technical and conceptual precision. These papers will interrogate how the gendered development of Islamic family laws in specific European contexts can be better understood in terms agency and authority through consideration of relevant legal texts and state policies. A third paper focuses on religion-based legal pluralism as recognised under Iranian law and its impact on women from religious minorities. Despite substantial legal and de facto restrictions on the rights of religious minorities in Iran, recognized religious minorities enjoy significant authority in the adjudication of matters related to their personal status. According to Iranian law, personal status includes laws relating to marriage, divorce, legal capacity, inheritance and child custody. The paper will investigate the legal development of religion-based legalpluralism under Iranian law with particular attention to reforms in family law and how women are treated by religious courts in different communities, including Sunni Muslims (Hanafi and Shafi'i), Christians, Jews and Zoroastrians. A fourth paper focuses on late-Ottoman judicial decision-making concerning honour killings. In 1911, the Ottoman parliament amended the Ottoman Criminal Code and re-introduced total immunity for these killings with references to Islamic law and modern theories of culpability concerning freedom of will. This paper examines how judges at the Ottoman Court of Cassation resisted this attempt for the expansion of legal tolerance for gender violence by utilizing Islamic legal principles and customary norms. Examining the decisions of the high court, it shows that these judges rendered the application of this immunity clause practically impossible because they developed an extremely limited interpretation of it by drawing on practices and norms stemming from customs and the Ottoman understanding of sharia such as the requirement of zina alameti (sign of adultery) and the concept of şüphe (Ar. shubha, doubt).
Disciplines
History
Interdisciplinary
Law
Religious Studies/Theology
Participants
  • Nazife Kosuko?lu -- Presenter
  • Afrooz Maghzi -- Presenter
  • Joel Hanisek -- Organizer, Presenter
Presentations
  • Joel Hanisek
    This paper addresses how Muslim women negotiate and relate to the normative agentic and authoritative dimensions of shari’a that Islamic family laws mediate. The relationships between shari’a and arbitration councils, including the European Council of Fatwa, who presides on these, and how they interact with state structures, in sum, the very concept of Islamic religious authority and its position vis a vis state structures, would benefit from additional technical and conceptual work. This paper advances such work and interrogates how the gendered development of Islamic family laws in specific European contexts can be better understood in terms agency and authority through studies of social texts, legal texts, and national policies.
  • Nazife Kosuko?lu
    This paper focuses on late-Ottoman judicial decision-making concerning honor killings. In 1911, the Ottoman parliament amended the Ottoman Criminal Code and re-introduced total immunity for these killings with references to Islamic law and modern theories of culpability concerning freedom of will. In line with this amendment, a man who killed his wife upon finding her committing adultery would not face any sanctions. This paper examines how judges at the Ottoman Court of Cassation resisted this attempt for the expansion of legal tolerance for gender violence by utilizing legal traditions and Islamic legal principles. Examining the decisions of the high court, this paper shows that Ottoman judges at the Court of Cassation rendered the application of this immunity clause practically impossible because they developed an extremely limited interpretation of it by drawing on practices and norms stemming from customs and the Ottoman understanding of sharia such as the requirement of zina alameti (sign of adultery) and the concept of şüphe (Ar. shubha, doubt). On this basis, the paper underlines that Islamic law and customary socio-legal practices may have different interpretations and might be utilized for different ends related to women’s rights. It also suggests that interactions between secular law, religious law and customary socio-legal practices may produce diverse and sometimes unexpected outcomes for the protection of women's rights.
  • Afrooz Maghzi
    This paper will consider the extent to which religion-based legal pluralism is recognised under Iranian law and its impact on women from religious minorities. Despite substantial legal and de facto restrictions on the rights of religious minorities in Iran, recognized religious minorities enjoy significant authority in the adjudication of matters related to their personal status. According to Iranian law, personal status includes laws relating to marriage, divorce, legal capacity, inheritance and child custody. The paper will investigate the legal development of religion-based legal pluralism under Iranian law with particular attention to reforms in family law and how women are treated by religious courts in different communities, including Sunni Muslims (Hanafi and Shafi'i), Christians, Jews and Zoroastrians.