Muslim Women's Rights

Contesting Liberal-Secular Sensibilities in Canada

Tabassum Fahim Ruby

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351726665
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

In the post-9/11 environment, the figure of the Muslim woman is at the forefront of global politics. Her representation is often articulated within a rights discourse owing much to liberal-secular sensibilities—notions of freedom, equality, rational thinking, individualism, and modernization. Muslim Women's Rights explores how these liberal-secular sensibilities inform, shape, and foreclose public discussion on questions of Islam and gender.

The book draws on postcolonial, antiracist, and transnational feminist studies in order to analyze public and legal debates surrounding proposed shari'ah tribunals in Canada. It examines the cultural and epistemological suppositions underlying common assumptions about Islamic laws; explores how these assumptions are informed by the Western progress narrative and women's rights debates; and asks what forms of politics these enable and foreclose. The book assesses the influence of secularism on the ontology, epistemology, and ethics afforded to Islam in the West, and begins to trace possibilities by which Islamic family law might be productively addressed on its own terms.

Muslim Women's Rights is a significant contribution to the fields of both Islam and gender and the critical study of secularism.

1Liberal-secular sensibilities and a genealogy of the Ontario Shari‘ah tribunals

Introduction

I’ve come to the conclusion that the debate has gone on long enough…. There will be no sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians.

(Dalton McGuinty, the premier of Ontario, cited in Yelaja and Benzie, September 12, 2005)¹

On the afternoon of Sunday, September 11, 2005, the premier of Ontario, Dalton McGuinty, held a press conference and publicly announced that shari‘ah law would not be used in arbitrating family disputes. Although he reached this conclusion because the debate had “gone on long enough,” the timing of his announcement was notable. Sunday afternoon was an exceptional time for press conferences, and the date marked the fourth anniversary of the attacks on the World Trade Center and Pentagon. The chosen day and time made it clear, to those Muslims who sought to resolve their marital disputes according to their faith, that they would remain marginalized in Canada. Yet for some who opposed faith-based arbitrations (henceforth referred to as “opponents” or “critics”), “the day was perfect…. It was a victory” because “this [effort] is a political attempt, and we’ve already pushed political Islam one step [back]” (Arjomand, frontrunner of the International Campaign Against Sharia Court in Canada, cited in the legislative session, January 16, 2006, 1140). By invoking the specter of “political Islam” in reference to the proposed Ontario shari‘ah tribunals, the comment brought to the fore common sentiments about the West being attacked by “radical Islamists.” In so doing, it affirmed the basic “clash of civilizations” contours of the post-9/11 sociopolitical environment; that is, pointing to “the Muslim threat,” the fear of shari‘ah law, and women’s oppression, frequently associated with Islam and Muslims.

In subsequent chapters, I examine the ways legal and public debates about the proposed Ontario shari‘ah tribunals were embedded in global politics and in the Islam and gender discourse. I begin this chapter by outlining my main arguments and the methodology I employ in this volume. I then position my central arguments against existing scholarly work, underscoring the significance of my case study to the question of Muslim women’s rights. The chapter also situates the debates about the proposed Ontario shari‘ah tribunals in a Canadian historical context. To that end, I delineate the history of the Arbitration Act, S.O. 1991, the efforts to establish Muslim Family Law in Ontario since the 1960s, and the Marion Boyd (2004) report. In the final section, I chart the arc of the book.

Framing the debates

In late 2003, Ontario’s Islamic Institute of Civil Justice (IICJ) made an announcement that, under the Ontario Arbitration Act, Muslims could resolve their family disputes through faith-based arbitration. This announcement created the impression that the government had recently made changes to the Act that had given some form of special permission to use Islamic Family Law in Ontario.² Despite the fact that the intended scope of resolving family disputes through Islamic laws was limited to divorce and inheritance issues, such procedures were dubbed “shari‘ah courts,” evoking images of oppressive patriarchal practices associated with the interpretation of Islam in other countries (Selby and Korteweg 2012, 18). Unsurprisingly, the IICJ statement quickly engendered a moral panic, garnered international attention, and certain women’s rights organizations launched a global campaign to ban this kind of faith-based arbitration. The Canadian Council of Muslim Women (CCMW), the Muslim Canadian Congress (MCC), the International Campaign Against Sharia Court in Canada, and the No Religious Arbitration Coalition, comprising over one hundred agencies and groups and a number of individuals, among many other groups, vehemently campaigned against the proposed Ontario shari‘ah tribunals. However, the Arbitration Act had not only previously permitted private resolutions, but had for several decades allowed for family matters to be arbitrated based on religious teachings in Jewish, Muslim, and Christian settings, even before the passing of the Act in 1992 (M. Boyd 2004, 4). Despite this longstanding practice, because of the increasing pressure from women’s rights organizations, the government of Ontario decided to call for a full review of the Arbitration Act. The premier formally asked for the advice of the attorney general, Michael Bryant, and the Minister Responsible for Women’s Issues, Sandra Pupatello. In June 2004, Pupatello appointed Marion Boyd, a former left-wing New Democratic Party attorney general, known for her feminist advocacy and her work with battered women, to look into the concerns that different organizations had raised regarding the Act (M. Boyd, 2004, 5). This review and the global campaign contributed to the February 2006 government decision to amend the Arbitration Act, called Bill 27.³

Over two and a half years, legal and public discussions about the Act raised significant questions pertaining to Islam and gender. A major focus of the campaign to ban faith-based arbitration was the idea that Islamic laws, as interpreted and understood in the global North, did not embody a certain conception of gender equality; hence, according to critics, Muslims ought to employ Canadian civil laws when resolving family disputes to assure (and secure) women’s rights. Opponents to the Act considered Canadian civil laws the best mode to safeguard the rights of women because, they argued, these laws were founded on liberal-secular ethics and not religious principles. They also insisted on maintaining the separation of church and state and on relegating religion to the private realm. Further, certain opponents claimed that the rights accorded to women by the Canadian Charter of Rights and Freedoms and under the Declaration of Human Rights were consistent with Islam, and hence there was no compelling reason to live under any other form of law in Canada (CCMW Position Statement 2004).

These broad arguments showed the tensions and inconsistencies that characterized the debates. Critics’ arguments suggested that liberal-secular regimes were inherently “progressive” and religious establishments were intrinsically “repressive” for women. Moreover, Muslim women were deemed to have only two options: either resolve family disputes through liberal-secular laws and consequently enjoy the promise of gender equality, or accept inequitable religious resolution. In an epistemic register, these articulations were rooted in a sharply binary mode of thought, as they invoked a religious/secular dichotomy that historically has shaped Western social traditions and institutions. In an empirical register, such a formation made possible a series of benevolent interventions, including convincing subjects, notably liberal-secular ones, to save Muslim women from their “patriarchal” religion. Additionally, one could only assume the separation between the secular (public) and religious (private) realms if the borders between them were settled and established. But what if these borders were inherently unstable? More radically, what if a Qur’ānic worldview would not seek to dichotomize the realms of the sacred and the secular, the public and the private?

Put more directly, whether to address Muslim women’s rights from a religious perspective (i.e., Islam and shari‘ah law) or through secular institutions (i.e., civil courts and rights discourse) is ultimately a question into which theories, epistemologies, and methodologies one engages in when discussing the subject. It is also a question about the genealogies of the concepts themselves, such as what “secular” and “religious” mean within a particular context. How are such concepts developed and deployed? For what purposes? More specifically, what kinds of ideological, ontological, and epistemological orientations do liberal-secular ethics embody? How is such an orientation similar and different from an Islamic one? This book pursues these challenging but imperative and timely questions. As many feminist scholars have pointed out, “what we hold to be the nature of knowledge is not culture-free but is determined by the methodologies and data legitimated by the dominant cultures” (Schutte 1998, 55).⁴ The sanctioning of prevailing discourses thus calls for their contextualization.

To analyze the extent to which the norms of the dominant culture influences one’s understanding of the Muslim woman’s question, I unpack the epistemic and pragmatic composition of the notion of “saving” Muslim women through the debates about the proposed Ontario shari‘ah tribunals. I argue that on both registers, the idea of saving Muslim women from supposedly patriarchal shari‘ah law was coupled with major axes of power and colluded with logics of colonization and processes of imperialism. Colonial and imperial representations of Muslim women were historically secured by employing the notions of rights, freedom, and equality. I call these generic terms “liberal-secular sensibilities” because they were embedded in liberal-secular political thought (see Chapters 3 and 4) even though those levying these arguments might not explicitly cite this political-theoretical archive. Further, since such tropes enabled opponents to assert the supremacy of liberal-secular sensibilities and sustained an image of a victimized Muslim woman, I identify them as agents of “liberal-secular violence.” The following chapters thus illustrate how both Muslim and non-Muslim interlocutors ended up participating in discourses of Islamophobia, ethnocentrism, and an imperial liberal-secular order. To that end, the chapters engage in systematic and thematic analyses, first revealing how the logics of Orientalism were produced in the debates (see Chapter 2) and then uncovering the hegemonies of liberal and secular discourses (see Chapters 3 and 4). In so doing, they contend that one could only privilege the social order that critics supported if one were to assume that life ought to be organized by and hence reduced to a single set of values.

I also argue that the position of those who supported the Ontario shari‘ah tribunals was shortsighted, for an array of reasons (see Chapter 5). In part, this was due to the fact that the Muslim population is very diverse and follows different schools of Islamic law. According to the 2001 census, there were 579,645 Muslims in Canada; the majority of them, 62 percent, resided in Ontario (Hamdani 2004, 4). Although the bulk of these Muslims came from South Asian and Middle Eastern countries, “French, Dutch, Italian, Swedish, Chinese, Vietnamese, Filipino, Inuit, Métis, etc. are integral parts of the Canadian Islamic tapestry” (Hamdani 2004, 4). Further, while the majority of Muslims are among Canada’s most recent immigrants, the presence of Muslims in North America traces back to the Columbian period: “Of the hundreds of thousands of slaves brought from West Africa by the Spaniards, Portuguese, Dutch, French, and British between 1530 and 1850 to work in mines or on plantations in the American colonies, about 14 to 20 percent were Muslims” (Yousif 2008, 12–13). Given this diverse population, to form shari‘ah tribunals that would entertain and satisfy a wide-ranging population remains a challenging task. From public data—the website of The Canadian Society of Muslims, and the newspaper reporting—it is unclear how the IICJ intended to actually execute their proposed shari‘ah-based arbitration. Their proposal neither outlined procedures, nor resources, nor assurance of those socioeconomic rights that Islamic traditions have afforded women who do not find the financial support expected from their male kin. Had proponents charted a well-developed shari‘ah-based arbitration proposal, it could have had global resonance in contexts where similar debates have emerged (including the United States, Britain, and other Western and Muslim countries).

While I critique the approaches of both opponents and proponents of the proposed Ontario shari‘ah tribunals, I also explore an alternative framework in this book (see Chapter 6). I have come to realize that the prevailing liberal-secular sensibilities, as evidenced in the legal and public debates I trace, are in sharp contrast to the Qur’ānic worldview to which the proposed tribunals were actually addressed. These divergences go beyond substantive or procedural rules, and relate indeed to the orders of existence. Since these differences are vital, I emphasize that it is imperative to articulate the question of Muslim women’s rights also within the parameters of Islam. Otherwise any such discussion will continue to imply, however reservedly, that these questions ultimately must be rendered in the language of the state (public/private, secular/sacred). Yet what is precisely at stake in these discussions is the possible forms these questions can take, in conversation across and within disparate communities. To illustrate the ideological, ontological, and epistemic differences at stake, I particularly examine how the conception of...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Acknowledgments
• Glossary of Arabic words
• 1 Liberal-secular sensibilities and a genealogy of the Ontario Shari‘ah tribunals
• 2 From Orientalism to neo-orientalism: Discourses of race and imperial hegemony in the name of gender equality
• 3 Liberalism, the court system, and multiculturalism: Examining epistemic claims
• 4 Secularism and its discontents: Social hierarchies that matter1
• 5 Aversion or conversion: A missed opportunity?
• 6 Ideology, ontology, and epistemology: Shari‘ah debates and the Tawhidi (Unitary) weltanschauung
• 7 Conclusions: Signs are enough for those who think1
• Index