Domestic Violence and Shariah

Domestic Violence and Shari’a: A Comparative Study of Muslim Societies in the Middle East, Africa and Asia
By Lisa Hajjar 1. ntroduction On March 12, 2000, some 300,000 demonstrators took to the streets of Rabat, Morocco, expressing their support for a new law expanding women’s right to di orce! "imultaneousl#, a comparable number of demonstrators took to the streets of the nearb# cit# of $asablanca to protest the law as a de iation from shari’a %&slamic law'! (hile di orce is a permissible and established option in &slam, in man# Muslim societies it tends to be treated as a male prerogati e) women can easil# be divorced, but not seek divorce!1 *he new Moroccan law aimed to lessen this gender imbalance,2 sparking the competing demonstrations that, together, offered anecdotal e idence of sharpl# di ergent iews on Muslim women’s rights! Opponents of the new law framed their position as a defense of religion and the famil#, claiming that the law conflicts with women’s duties to their husbands, and contra enes their shari’a+based status as legal minors! "upporters heralded the new law as an ad ance for women, not %necessaril#' a repudiation of shari’a! *hose who had been working for #ears to bring such a law into being had sought to alter women’s status as perennial subordinates in the context of the famil#! &ndeed, the law’s significance, recogni,ed b# opponents and supporters alike, was its potential for eroding masculine pri ilege, albeit slightl#, b# enhancing women’s options to end a marriage!
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&n 1-./, two #ears after Morocco gained its independence from 0rance, the state established a $ode of 1ersonal "tatus % Mudawwana al-Ahwal al-Shakhsiyah', which reiterated and codified the %Maleki' tradition of famil# law 2urisprudence! 3mong the pro isions of this code was the husband’s right to dissol e the marriage at will b# means of talaq %repudiation', stating, 4& di orce thee5 three times, although the code instituted the re6uirement of two witnesses to authenticate the di orce! &f the husband chose to di orce his wife, she had no legal recourse, while her right to di orce was restricted and sub2ect to confirmation b# a shari’a court! 2 *he background to this new law includes prodigious ad ocac# efforts b# women’s rights acti ists, and the political transition on the death of 7ing 8assan &&, who was succeeded b# his son, Muhammad! Morocco has a ibrant women’s rights mo ement, although there are some notable differences in the interests and goals that arious sectors pursue) some ha e taken the position that women’s rights can be assured and protected onl# through the replacement of the Mudawwana with a secular code enshrining liberal alues, including the enforcement of the e6ualit# pro isions of Morocco’s constitution! Others ha e sought to expand women’s rights through the reform of &slamic 2urisprudence, and to these ends the countr# has been a center of some extremel# inno ati e efforts to reinterpret 9ur’anic erses and hadith in a manner that would enhance the rights and e6ualit# of women! 3s a result of acti ism in the earl# 1--0s, some modest reforms of the Mudawwana were instituted in 1--3! :ut the accession to the throne b# Muhammad, who, b# man# accounts is committed to bolder legal reforms, set the stage for the promulgation of the new law!

&n Morocco, as elsewhere, one of the most common reasons women would seek to end a marriage is to extricate themsel es from a harmful situation! *his illuminates the connection between the right to di orce and female ulnerabilit# to domestic iolence!3 ;omestic iolence can be defined as 4 iolence that occurs within the pri ate sphere, generall# between indi iduals who are related through intimac#, blood or law<=&t is> nearl# alwa#s a gender+specific crime, perpetrated b# men against women!5? One of the strongest predictors of iolence against women is the restriction on women’s abilit# to lea e the famil# setting!. :ut, as most women’s rights acti ists would concede, di orce does not constitute an ade6uate form of protection, or e en an option for man# women! M#riad factors discourage, impede or pre ent women from lea ing a iolent relationship, including a lack of resources or support to establish alternati e domestic arrangements, and powerful social expectations and pressures to maintain famil# relations at an# cost! &n this stud#, the central 6uestion concerns the relationship between domestic iolence and shari’a! *his relationship is of critical importance because shari’a pro ides both the legal framework for administering famil# relations and a religio+cultural framework for social norms and alues in Muslim societies. 3s the example of demonstrations o er the Moroccan di orce law illustrates, there are strong interconnections among gender relations, religion and law! *he example also illustrates the challenges to pursuing legal reforms to enhance women’s rights, and the abilit#@indeed, the likelihood@that constituencies with different interests and perspecti es will mobili,e and compete for state support! *his stud# seeks to pro ide an anal#tical framework and a comparati e assessment of domestic iolence in Muslim societies in the Middle Aast, 3frica and 3sia! *he approach is socio+legal, probing the functions and uses of religious and other bodies of law, and tracing struggles o er the rights of women in the context of domestic relations! Bi en the importance and attention de oted to the relationship between women’s rights and &slam, to date surprisingl# little comparati e anal#sis has been generated about the relationship between domestic iolence and shari’a! *his stud# is an effort to redress this lacuna!

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*he Moroccan $ode of 1ersonal "tatus has ser ed to foster conditions in which domestic iolence is tolerated! 0or example, while the $ode does allow for the possibilit# of di orce on the grounds of 4general harm,5 rules of e idence that would enable women to pro e such harm are extremel# difficult to fulfill! Moreo er, shari’a court 2udges tend to be skeptical of such charges and inclined to ad ocate reconciliation of the couple rather than prioriti,e relief for the wife! ? Radhika $oomarswam# %CD "pecial Rapporteur on Eiolence against (omen', 40urther 1romotion and Ancouragement of 8uman Rights and 0undamental 0reedoms<5 Report to the CD $ommission on 8uman Rights, 0ebruar# F, 1--F %AG$D!?G1--FG.3'! . &n a comparati e stud# of gender iolence in -0 societies, four socio+cultural factors, taken together, were shown to be a strong predictor of spousal abuse in H. societies! *hese factors areI 1' sexual economic ine6ualit#) 2' a pattern of using iolence for conflict resolution) 3' male authorit# and decision+making in the home) and ?' di orce restrictions for women! *he stud# found that the more dependent women are on men, the more ulnerable the# are to iolence! ;a id Je inson, Domestic Violence in Cross-cultural Pers ective %Dewbur# 1arkI "age, 1-/-'!

!."ender # n$E%uality, &omen’s 'i(hts, and the )ro*lem of Domestic Violence &ne6ualities between men and women are common the world o er, albeit the forms and conditions ar# and change! &t is a nearl# uni ersal truism that gender matters in wa#s that make and keep women relati el# less free, less independent, less empowered, less financiall# and ph#sicall# secure than men! *he arena where gender ine6ualities are most entrenched, in the context of famil# relations, is also where the# are most widel# accepted and thus most difficult to alter! "exual and other ph#sical differences between men and women lend themsel es to understandings of social ine6ualities as both deri ati e of and conforming to 4nature,5 especiall# in terms of famil# roles and relations! "uch understandings pre ail in man# cultures! :ut the challenges of contesting and altering ine6ualities are compounded in societies where gender and famil# relations are go erned b# religious laws, because the resultant hierarchies can be defended as di inel# sanctioned! ;ebates o er the legitimac# of gender e6ualit# ha e been especiall# igorous in Muslim societies, and displa# some common patterns related to shari’a!F *he 9ur’an, which belie ers accept as the literal word of Bod and thus eternall# applicable, contains man# erses that would seem inescapabl# discriminator# toward women! "o, too, do man# of the hadith %sa#ings b# and stories about the 1rophet Muhammad'! Ket there are also man# 9ur’anic erses and hadith establishing the e6ualit# of men and women! *hese seeming contradictions lend themsel es to multiple readings, claims and counter+claims about what &slam prescribes for women!H 3lthough the use of shari’a to administer famil# relations/ contributes to certain commonalities in gender relations across Muslim societies, notabl# the pri ileging and empowerment of men o er women within the context of the famil#, it is important to note significant ariations as well! *he state is the most important ariable for understanding ariations across societies, since, in the modern era, the state is the primar# arbiter of law! "tate power is deplo#ed to regulate gender and famil# relations, as well as the role of religion in societ#! 3cross the three regions that are the focus of this stud#, the histor# and politics of the state@that is, the specific experiences and legacies of colonial rule, and the tra2ectories of national independence, integration and de elopment@ha e gi en
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Shari’a encompasses the ordinances deri ed from the 9ur’an and hadith, and an# other laws that are deduced from these two sources b# methods considered alid in &slamic 2urisprudence %!iqh'! *he two main methods are i"ma’ %consensus among Muslim 2urists' and i"tihad %interpretation based on accepted rules of logic and religious texts'! H *he literature on women and &slam is ast! "ee 3sghar 3li Angineer, #he $i%hts o! &omen in 'slam %DKI "t! Martin’s 1ress, 1--2') $amilla 0aw,i Al+"olh and Lud# Mabro, eds!, Muslim &omen’s Choices( $eli%ious )elie! and Social $eality %Oxford, C7I :erg 1ublishers, 1--?') 0atima Mernissi, #he Veil and the Male *lite( A +eminist 'nter retation o! &omen’s $i%hts in 'slam %Reading, M3I 3ddison+(esle# 1ublishing $o!, 1--1') 8aideh Moghissi, +eminism and 'slamic +undamentalism( #he ,imits o! Postmodern Analysis %JondonI Med :ooks, 1---') Mai Kamani, ed!, +eminism and 'slam( ,e%al and ,iterary Pers ectives %Dew KorkI Dew Kork Cni ersit# 1ress, 1--F'! / *hese famil# relations, also known as 4personal status5 issues, include marriage, di orce, custod#, and inheritance!

rise to astl# different state pro2ects and agendas in regard to gender relations, law and religion, and the relationship among them! "tate formation affects the position of women in societ# in se eral wa#s! &n particular, the state mediates gender relations through the law<in its attempts to foster or inhibit social change, to maintain existing arrangements or to promote greater e6ualit# for women in the famil# and the societ# at large!*he role of the state is particularl# important to an# discussion of domestic iolence because of its capacit# and responsibilit# to regulate %i!e!, prohibit, punish, etc!' violence! 0or the purpose of this stud#, which focuses on %and is limited to' relations and practices go erned b# shari’a- the categories of domestic iolence considered here include, inter alia, beatings, batter# and murder) marital rape) and forced marriage! (hen iolence occurs within the context of the famil#, it raises 6uestions about the laws and legal administration of famil# relations! 3re iolent practices among famil# members legall# permitted or prohibitedN &n practice, are the# ignored, tolerated or penali,edN ;o perpetrators en2o# impunit# %whether de 2ure or de facto' or do the# stand to be punishedN 3re ci il remedies a ailable to ictims %e!g!, right to di orce, restraining orders'N A en failure or refusal on the part of the state to deal with intra+famil# iolence is an act, not an omission or absence, of law! &n the 1-H0s, women’s rights acti ists in man# (estern societies began pursuing an agenda %generall# successfull#' of bringing criminal law to bear on intra+famil# iolence!10 One outcome was to open up the 4pri ate sphere5 of the famil# to increased state inter ention, at least in principle, b# establishing prohibitions and punishments for iolence between famil# members! $riminali,ation has undermined the abilit# of perpetrators to claim that what the# did at home was 4pri ate!5 *he model of criminali,ing domestic iolence has become a popular goal in other parts of the world as well!11
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Mounira $harrad, 4"tate and Bender in the Maghrib,5 Middle *ast $e ort, no! 1F3 %March+3pril 1--0', p! 20! 10 &n the C", women’s rights acti ists initiall# began addressing domestic iolence b# responding to the concrete, urgent needs of ictims b# mobili,ing to set up shelters and other resources to protect and assist ulnerable women! Jater, frustrated b# the unresponsi eness of the 2udicial s#stem to battered women’s situation, the# turned toward a structural approach to criminali,e domestic iolence! State $es onses to Domestic Violence( Current Status and .eeded 'm rovements %(ashington, ;$I (omen, Jaw and ;e elopment &nternational, 1--F', p! 10! 11 :ut e en in countries where a criminal 2ustice approach has been adopted, for example the Cnited "tates, there are serious problems and limitations to rel#ing so thoroughl# on the state! &f the state lacks legitimac#, as it does for communities and populations sub2ect to discrimination, ictims are unlikel# to see the state as a source of relief and protection, and disinclined to bring the police into their homes or turn in famil# members! "ee 7ristin :umiller, #he Civil $i%hts Society( #he Social Construction o! Victims %:altimore, M;I *he Lohns 8opkins Cni ersit# 1ress, 1-//') 7imberle $renshaw, 4Mapping the MarginsI &ntersectionalit#, &dentit# 1olitics, and Eiolence against (omen of $olor,5 in $renshaw et al!, eds!, Critical $ace #heory( #he /ey &ritin%s that +ormed the Movement %Dew KorkI *he Dew 1ress, 1--.') Jinda B! Mills, 47illing 8er "oftl#I &ntimate 3buse and the Eiolence of "tate &nter ention,5 0arvard ,aw $eview 113G2 %1---'!

3d ocates of the criminal 2ustice approach point to the s#mbolic power of the law and argue that arrest, prosecution and con iction, with punishment, is a process that carries the clear condemnation of societ# for the conduct of the abuser and acknowledges his personal responsibilit# for the acti it#<&t is, howe er, critical that those in ol ed in polic# making in this area take into account the cultural, economic and political realities of their countries!12 *he prospect of prohibiting and punishing domestic iolence depends, foremost, on the state’s willingness and capacit# to reform criminal and famil# laws! :ut the issue@and possibilit#@of state+sponsored reforms is strongl# affected b# social beliefs and ideologies about gender and famil# relations! Jaw reform strategies work best<when the social alue base is in concordance with the desired new norms! 3s long as the old regime of alues is in effect, the tasks of making the new norms operati e, or acti ating the educati e function of law to change alues, will be difficult and re6uire action on man# fronts!13 (hen the administration of famil# relations is based upon or deri ed from religious texts and traditions, as is the case in Muslim societies where shari’a constitutes the framework for famil# law, the possibilit# for reform is contingent on a serious and respectful engagement with religious beliefs and practices! :ut the challenges to reform law in order to promote and protect the rights of women are daunting) in man# contexts, shari’a is interpreted to allow or tolerate certain forms of iolence against women b# male famil# members! *his raises 6uestions @and stimulates debates@about what religion 4sa#s5 %or is belie ed to sa#' about the rights of women! &t also raises 6uestions about the willingness or abilit# of the state to pre ent iolence within families, especiall# when pre ailing iews or powerful constituencies regard curbs on male authorit# as a contra ention of shari’a! +.A ,rame-or. for Comparative Analysis *o establish a framework for comparati e anal#sis of the relationship between domestic iolence and shari’a in Muslim societies, three factors must be taken into consideration! One is the marked ariation in the uses and interpretations of shari’a, which e ince a lack of consensus among Muslims and should deter o er generali,ing about &slam! 3cross and e en within these societies, there are differences in popular, scholarl# and official understandings as to whether &slam sanctions 4wife beating5 and other forms of intra+famil# iolence!1?
Radhika $oomarswam#, 4$ombating ;omestic EiolenceI Obligations of the "tate,5 in Domestic Violence a%ainst &omen and 1irls %0lorence, &tal#I &nnocenti Research $enter, CD&$A0, 2000', p! 11! 13 State $es onses to Domestic Violence, op! cit!, p! 3H!
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;omestic iolence includes ps#chological as well as ph#sical abuse! 1s#chological aspects that ha e a relationship to shari’a include beha ior intended to intimidate and persecute,

3 second factor is the relationship between religious law and state power. 0or comparati e purposes, this relationship can be di ided into three general categories %which are elaborated in greater detail below'I &n some countries, the state 4communali,es5 religion b# according its authorities and institutions semi+ autonom# from the national legal regime, the latter under the direct control of the state! &n other countries, the state 4nationali,es5 religious law b# utili,ing and incorporating its principles into the national legal regime! 3nd in a few countries, the state 4theocrati,es5 religion b# basing its own authorit# on religious law and functioning as its enforcer! 3 third factor to consider in assessing the relationship between domestic iolence and shari’a is the influence of trans+national discourses and mo ements. *wo in particular are worth noting because of their rele ance to the sub2ect of this stud#I &slami,ation and human rights! "ince the 1-H0s, &slamist mo ements ha e mobili,ed in man# countries across the Middle Aast, 3frica and 3sia to demand a %re'turn to &slam through the establishment of a s#stem of go ernment that adheres to and enforces shari’a.1. &n some countries, &slamists represent an opposition mo ement, in others the# represent an influential constituenc#, and in a few the# ha e assumed control of the state! 8owe er, regardless of the relationship between &slamist mo ements and regimes, there is a generall# shared commitment to the preser ation of patriarchal famil# relations! &ndeed, e en in contexts where &slamists constitute a hostile opposition, states often are willing to accommodate their demands on matters of gender and famil# relations as a means of placating them!1F "ince the 1-H0s, there has also been a mobili,ation of mo ements to promote international human rights! 8uman rights organi,ations ha e been established in most countries, leading to greater awareness of the discourse and principles of international law, and, conse6uentl#, more isibilit# and criti6ue of iolations! *he kinds of acti ities that comprise this trend include monitoring and reporting on rights iolations, networking with acti ists from other countries and regions, and ad ocating that go ernments adopt, adhere to and enforce international legal standards locall#!1H *he issues of women’s rights within the famil# and the role of shari’a ha e been central concerns to both of these mo ements, albeit in often contradictor# and e en ad ersarial wa#s! *he critical@and debatable@6uestion is whether &slam and human rights offer compatible world iews, and if not, which should pre ail! *his is not an abstract philosophical matter) it is a deepl# charged political concern that informs the strategies that local actors pursue to institute
such as threats of abandonment, di orce or abuse) confinement and sur eillance) threats to take awa# custod# of children) erbal aggression and humiliation! 1. "ee Loe "tork and Loel :einin, eds!, Political 'slam %:erkele#I Cni ersit# of $alifornia 1ress, 1--H'! 1F "ee 0red 8allida# and 8am,a 3la i, eds!, State and 'deolo%y in the Middle *ast and Pakistan %JondonI Macmillan, 1-//') ;eni, 7andi#oti, 4:argaining with 1atriarch#,5 1ender 2 Society, ol! 2, no! 3 %1-//'! 1H 0or information about DBO acti ities and initiati es in the 3rab world, see 3mal 3bdel 8adi and Dawla ;arwiche, Strate%ies to +i%ht Domestic Violence a%ainst &omen in the Arab Countries %DKI CD ;i ision on the 3d ancement of (omen, draft, n!d!'!

their isions and goals, whether their priorit# is to promote women’s rights in accordance with international law, to promote an 4authenticall# &slamic5 social order %howe er that is interpreted', or to reconcile religious laws and beliefs with women’s rights!1/ /.Aims and Methods of 0his Study *his thematic stud# on the relationship between domestic iolence and shari’a is part of a larger pro2ect on &slamic famil# law!1- *his stud# was designed with three main aimsI 1' to map the problem of domestic iolence in Muslim societies in the Middle Aast, sub+"aharan 3frica and 3sia) 2' to anal#,e and compare how states deal with this problem) and 3' to anal#,e and compare ariations in interpretations and applications of shari’a in regard to intra+famil# iolence! ;omestic iolence is an extremel# difficult sub2ect to stud# because of the dearth of reliable information! *his is the case not onl# in Muslim societies but irtuall# e er#where! *he reasons for this includeI the inabilit# or disinclination of ictims to report iolence) refusal or failure of authorities to document reports andGor make reports publicl# a ailable) and official andGor social acceptance of certain forms and degrees of intra+famil# iolence! 8ence, the 6ualit# and a ailabilit# of information about domestic iolence aries, from non+existent to partial at best! &n the societies that are the focus of this stud#, estimated rates of domestic iolence tend to be high! 8owe er, the a ailable information is extremel# limited and une en! Ag#pt and 1alestine are the onl# countries in the three regions for which national studies that focus on or include domestic iolence ha e been undertaken!20 0or some countries, there is irtuall# no statistical information whatsoe er! Most information about domestic iolence that does exist comes from local and international organi,ations, including women’s and human rights organi,ations, and certain bodies of the Cnited Dations with mandates that focus on or include women’s rights!21 *he lack and une enness of information is an important finding in its own right! :ut clearl#, it makes the first aim of mapping domestic iolence in Muslim societies all but impossible!
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"ee Mahna, 3fkhami and 8aleh Ea,eri, Claimin% 3ur $i%hts( A Manual !or &omen’s 0uman $i%hts *ducation in Muslim Societies %:ethesda, M;I "isterhood &s Blobal &nstitute, 1--F'! 1"ee www!law!emor#!eduG&0J 20 0atma Al+Manat# et al!, *%y t Demo%ra hic and 0ealth Survey 4556 %$airoI Dational 1opulation $ouncil, 1--.') M!M! Kahia, 4*he &ncidence of (ife 3buse and :attering and "ome "ociodemographic $orrelates as Re ealed in *wo Dational "ur e#s in 1alestinian "ociet#5 %Ramallah, 1alestinian 3uthorit#I :esan $enter for Research and ;e elopment, 1--/'!
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*he research for this stud# draws upon secondar# sources, including reports and studies b# organi,ations, research institutions and scholars who work on domestic iolence! *hree researchers, each working on a specific region %:ashar *arabieh for the Middle Aast, Dgone *ine for sub+"aharan 3frica, and 1att# Bossman for 3sia', ha e sur e#ed the existing resources, and their research is incorporated in this stud#!

&n regard to the second aim of anal#,ing and comparing how states deal with domestic iolence, the two most important issues are the administration and laws go erning gender and famil# relations, and official commitment %or lack thereof' to women’s rights! *he kinds of 6uestions that this research raises include the followingI 8as the state signed and ratified the $on ention to Aliminate 3ll 0orms of ;iscrimination against (omen %$A;3('N &f so, has it registered an# reser ations on the grounds that $A;3( conflicts with shari’aN &s there a constitutional authorit# guaranteeing e6ual protection of law for women, and if so, is this authorit# used effecti el# to prohibit and punish domestic iolenceN &s there national legislation andGor administrati e sanctions prohibiting domestic iolenceN (hat measures, if an#, has the state taken or authori,ed to deal with domestic iolence and the protection of ictims %e!g!, pro ision of social ser ices and health care, education campaigns'N "ome information about the role and acti ities of the state, such as ratification and reser ations to $A;3(, is publicl# a ailable! :ut information about the laws, policies and 2urisprudence pertaining to domestic iolence is far more difficult to gather! *he best sources tend to be organi,ations that work on women’s rights issues, and these ar# from countr# to countr#! &n regard to the third aim of anal#,ing and comparing interpretations and applications of shari’a as it impacts upon the issue of intra+famil# iolence, this stud# makes no claim to pro ide an authoritati e opinion on what &slam 4reall#5 mandates! Rather, the issue is what authorities and members of societ# belie e and accept, and how these beliefs are shaped, debated and transformed! ;espite ariations across societies, there are some commonalities, not least a general tendenc# to interpret shari’a as sanctioning gender ine6ualit# in famil# relations! "pecificall#, shari’a tends to be interpreted to gi e men power o er women famil# members! *hus, gender ine6ualit# is acknowledged, and 2ustified in religious terms on the grounds that Bod made men and women 4essentiall# different5) that these differences contribute to different familial roles, rights and duties, which are complimentar#) and that this complimentarit# is crucial to the cohesion and stabilit# of the famil# and societ#! ;omestic iolence is strongl#@and directl#@related to ine6ualit# between men and women! :ut the contested legitimac# of gender e6ualit# in Muslim societies impedes or complicates efforts to deal with domestic iolence as a social problem! *here is strong opposition to the notion that men and women should be equal in the context of the famil#! *he corollar# is the belief that domestic relationships are legitimatel# %i!e!, 4naturall#5 andGor 4di inel#5' hierarchical! *his belief is both deri ed from and reinforced b# shari’a! 8owe er, for anal#tical purposes, this stud# 4brackets5 the 6uestion of whether shari’a lends itself to or opposes formal e6ualit# for men and women in order to foreground the issue of iolence! "pecificall#, the 6uestion addressed here is whether shari’a is interpreted to construe iolence against women as a harm or a ri%ht! 3s a point of clarification, the 4bracketing5 of gender ine6ualit# distinguishes the approach of this stud# from most mainstream feminist and human rights discourse, which tend to see and treat ine6ualit# as causal for

domestic iolence!22 *his inclines feminists and human rights acti ists to regard the struggle for gender e6ualit# as the means of combating domestic iolence!23 *his is premised on the idea that if women were e6ual to men and had e6ual protection under the law, men would not be able to get awa# with perpetrating iolence against them! (hile this is a alid assumption, it either fails to engage with or delegitimi,es the beliefs and ideologies %in this case religious and cultural' that pro ide "usti!ication for ine6ualities! &ndeed, gender ine6ualit# and domestic iolence are integrall# related, and this understanding informs the anal#sis here! :ut in this stud#, the primar# emphasis is on violence, and the social and cultural context in which it occurs! *his relates domestic iolence to a lack of rights for women in order to probe the rationales and 2ustifications for that lack! ;efining iolence in this wa# allows us to address the record of iolence against women as one not composed of a series of instances of abuse<but as one located in a broad social and political context in which not onl# men but women@and societ# as a whole@act to perpetuate s#stems which result in arious forms of abuse!2? 0ocusing criticall# on the rationales that people actuall# utili,e to claim that men ha e the 4right5 to perpetrate iolence against women has the potential to alter gender ine6ualities in all social spheres! $on ersel#, establishing the illegitimac# of iolence against women undermines a tangible and harmful manifestation of masculine pri ilege! :ut such an approach is less contro ersial@ and hopefull# more persuasi e@because it targets iolent practices rather than gender ine6ualit#! Moreo er, it recogni,es that the priorit# and interest of most ictims of iolence would be to end the abuse, not their domestic relations! *he comparati e dimension of this stud# turns on the wa#s in which shari’a informs both official policies and, more broadl#, popular attitudes about intra+famil# iolence! 3mong Muslims, adherence to shari’a principles tends to be construed as a means of demonstrating a commitment %socio+cultural as well as religious' to &slam! *hus, this stud# stri es to engage seriousl# with beliefs and practices that underlie this commitment! 8owe er, this does not translate into a cultural relati ist sanctioning of iolence against women!2. *he assumption here is
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"ee R!A! ;obash and R!1! ;obash, Violence a%ainst &ives( A Case Study a%ainst Patriarchy %JondonI Open :ooks, 1-/0') idem!, &omen- Violence and Social Chan%e %JondonI Routledge, 1--2'! 23 "ee Lane $onnors, 4Bo ernment Measures to $onfront Eiolence against (omen,5 in Miranda ;a ies, ed!, &omen and Violence( $ealities and $es onses &orldwide %JondonI Med :ooks Jtd!, 1--?') Radhika $oomarswam#, 4Eiolence against (omen in the 0amil#,5 Report to the $ommission on 8uman Rights, March 10, 1--- %AG$D!?G1---GF/'! 2? Dahid *oubia, 4(omen’s Reproducti e and "exual Rights,5 in 1ender Violence and &omen’s 0uman $i%hts in A!rica %Dew :runswick, DLI $enter for (omen’s Blobal Jeadership, 1--?', p! 1H!
2.

"ee 3nn Ma#er, 'slam and 0uman $i%hts( #radition and Politics %:oulder, $OI (est iew 1ress, 1--1'!

that domestic iolence is a problem that demands recourse, and that such recourse is not inimical to &slam! &t is the hope of those in ol ed in this stud#, and in the larger &slamic 0amil# Jaw pro2ect of which it is a part, that this research will pro ide a resource for action and ad ocac# to combat the problem of domestic iolence, and to enhance legal and other remedies a ailable to ictims! 3lthough the problem of domestic iolence and efforts to deter and combat it are global in scope, an# possibilit# for success must in ol e strategies and anal#ses that resonate with cultural and religious norms and alues! *he remainder of this stud# is organi,ed as followsI *he next section la#s out a framework for anal#,ing domestic iolence as a legal and a social problem! *he following section focuses on domestic iolence and shari’a in general terms of the scriptural and interpreti e stances that inform their relationship! *he third, fourth and fifth sections focus, respecti el#, on efforts to establish an international legal framework for combating domestic iolence within a larger campaign for women’s rights, culturalist resistances to women’s rights, and manifestations of such resistance within Muslim societies that utili,e adherence to shari’a as their basis! *he final substanti e section presents a comparati e anal#sis of domestic iolence in Muslim societies, highlighting ariations in the relationship between religion and the state as it impacts upon the issue of intra+famil# iolence! 1.0he )ro*lem of Domestic Violence ;omestic iolence is a global phenomenon, and the seriousness of this problem cannot be o erstated. 3ccording to feminist geographer Loni "eager, it is reported as 4common5 in almost all countries!2F &t affects millions of women annuall#! 3ccording to 8uman Rights (atch, it 4has been one of the principal causes of female in2ur# in almost e er# countr# in the world!52H :ut domestic iolence is also a hidden problem! 0or man# countries, there is little or no statistical information, indicating that it is 4a crime that is under+ recorded and under+reported!52/ 0or countries where data is a ailable, the rates ar#!2- 0or example, in the Cnited "tates, an estimated 2/ percent of women ha e been ictims of domestic iolence at least once in their li es! &n "outh 3frica, the estimate is ?/ percent! &n 1akistan, estimates range from /0 to -0 percent!30 *he pre alence of domestic iolence is a powerful indication of the ine6ualit# and ulnerabilit# of women across cultures! ;omestic iolence is the
Loni "eager, #he State o! &omen in the &orld Atlas %JondonI 1enguin :ooks, 1--H', pp! 2F+2H! *he few countries where domestic iolence is not reported as 4common5 include $ote ;’& oire, ;2ibouti, Jaos, Madagascar and the Maldi es! 2H 0uman $i%hts &atch &orld $e ort 4557 %Dew Kork', p! 3-2! 2/ CD&$A0, Domestic Violence a%ainst &omen and 1irls %0lorence, &tal#I &nnocenti Research $enter, 2000', p! ?! 24Research on domestic iolence is fairl# new, and has been undertaken perhaps onl# in the last 2. #ears<3n increasing number of studies are now being undertaken in the de eloping world!5 4Cnderstanding the 1roblem %from the CD resource manual Strate%ies !or Con!rontin% Domestic Violence',5 in ;a ies, ed!, &omen and Violence, op! cit!, p! 2!
30 2F

"eager, #he State o! &omen in the &orld Atlas, pp! 2F+2H!

most common form of gender iolence, the latter encompassing all forms of iolent practices perpetrated on females because they are !emales! (hether gender iolence operates as direct ph#sical iolence, threat, or intimidation, the intent is to perpetuate and promote hierarchical gender relations! &t is manifested in se eral forms, all ser ing the same endI the preser ation of male control o er resources and power!31 (hat distinguishes domestic iolence from other forms of gender iolence is the context within which it occurs %the 4domestic5 or 4pri ate5 sphere' and the nature of the relationship between perpetrators and ictims %familial'! :ecause domestic iolence occurs within the 4pri ate5 sphere of the famil#, making it isible %as a first step to making it redressable' is exceedingl# difficult! &t is the er# 4intimac#5 of domestic space and relationships that makes such iolence difficult to stud# and document! 3nd it is the importance of the famil# in e er# societ# that makes the formulation of effecti e strategies to protect women from abuse so contro ersial! &n the case of intimate iolence, male supremac#, ideolog# and conditions<confer upon men the sense of entitlement, if not the dut#, to chastise their wi es! (ife+beating is, therefore, not an indi idual, isolated, or aberrant act, but a social license, a dut# or sign of masculinit#, deepl# ingrained in culture, widel# practiced, denied and completel# or largel# immune from legal sanction!32 (omen who are sub2ected to or threatened with iolence at home often are incapacitated by the violence itsel! %ph#sical, ps#chological, emotional' from seeking protection! *he# ma# be paral#,ed b# terror and the e er+present threat of attack! Eictims also often are deterred from e en imagining alternati es because of the importance of famil# as a social institution! *his ulnerabilit# is compounded b# economic dependence on male famil# members, and b# the fact that man# women’s principal identit# deri es from their membership and role in the famil#! *he problem of domestic iolence is exacerbated b# social and legal constructions of the famil# as 4pri ate,5 and popular perceptions of male power %including to dominate and aggress against women' as normati e! 3lthough domestic iolence occurs within families and o erwhelmingl# targets women, it is neither a 4pri ate5 matter nor a 4women’s5 problem) it is a societal problem, implicating both the ruling state and the communit# within which families are sociall# situated! Ket there is great reluctance or resistance in societies around the world to recogni,e and deal with this problem because of an unwillingness to see such practices as violence! :# imagining and referring to beatings, confinement, intimidation and insults as 4discipline5 or 4punishment,5 rather than 4batter#5 or 4abuse,5 the nature of harm is obfuscated! Moreo er, if
;ecember Breen, 1ender Violence in A!rica( A!rican &omen’s $es onses %Dew KorkI "t! Martin’s 1ress, 1---', pp! 1+2! 32 Rhonda $opelon, 4&ntimate *errorI Cnderstanding ;omestic Eiolence as *orture,5 in Rebecca $ook, ed!, 0uman $i%hts o! &omen( .ational and 'nternational Pers ectives %1hiladelphiaI Cni ersit# of 1enns#l ania 1ress, 1--?', p! 11F!
31

pre ailing social beliefs about famil# relations include the idea that men ha e a right or obligation to 4punish5 and 4discipline5 women famil# members, then the tactics used to do so can be seen@and e en lauded@as necessar# to maintain order both at home and in societ# at large! &f, howe er, the safet# and rights of women are@or can become@the priorit#, then the use of iolence against them can be seen and critici,ed as illegitimate! &n contexts where intra+famil# iolence is not explicitl# prohibited b# law %i!e!, criminali,ed', perpetrators en2o# le%al im unity. &n contexts where it is prohibited but the laws are not enforced, perpetrators en2o# social im unity! &n either situation, such impunit# constitutes a failure on the part of the state to exercise its powers and prerogati es to deter, punish and pre ent iolence against its sub2ects! &t is also a failure of societ# to re2ect and condemn the brutali,ation and intimidation of women at the hands of famil# members! 3s those in ol ed in efforts to eradicate iolence from women’s famil# li es attest, changing social attitudes and official policies that contribute to the problem are arduous tasks! Axposing and critici,ing domestic iolence calls into 6uestion the structures and discourses of familial authorit#! "eeking means of ameliorating the problem entails challenges and changes to the wa#s in which such authorit# is legitimated and enforced! &t entails, in short, changes in law and society! A en in societies with robust legal rights for women, domestic iolence is both commonplace and hidden, signaling an enduring difficult# to acti ate a legal solution! &n societies where women’s rights are weak, their ulnerabilit# to iolence is compounded b# a lack of options to seek protection from the law! 3nd in societies where gender and famil# relations are deri ed from religious law, if 2urists interpret and appl# the law to sanction iolence for specific purposes or under certain circumstances, demands for protections and greater rights for women can be condemned as heres# or apostas#! &n Muslim societies where famil# relations are administered in accordance with shari’a, intra+famil# iolence is connected to the discourse and practices of religion! *hus, it is crucial to consider the terms of this connection! 2.Shari’a and Domestic Violence &n Muslim societies, shari’a functions both as specific legal rules for organi,ing social relations, and as a general religio+cultural framework for norms and alues!33 &n both senses, dominant interpretations of shari’a accord men the status as heads of their families with guardianship o er and responsibilit# for women! *he complement to this is the expectation that women ha e a dut# to obe# their 4guardians5 %husbands, fathers or other male heads of famil#'! *his
33

"pecific legal rules that epitomi,e and maintain gender ine6ualit# include men’s right to marr# up to four women while women are restricted to marriage to one man at a time) differences in right to di orce, custod# and inheritance) and differences in legal competenc#! De ertheless, women are not entirel# disad antaged b# shari’a nor thoroughl# une6ual to men) women ha e legal and financial rights, including independence %at least in principle' to manage their own affairs! (omen are recogni,ed as e6ual to men before Bod, the critical issue being not gender but de otion and righteousness!

hierarchical and highl# patriarchal relationship is based on the shari’a principles of 4qawwama5 %authorit#, guardianship' and 4ta’a5 %obedience', from which gender+differentiated rights and duties are deri ed! *he primar# source of the 9ur’anic principles of qawwama and ta’a is "ura ?, Eerse 3?! *his same erse contains the most commonl# cited reference used to assert men’s right or option to beat disobedient women! 3lthough this erse is translated@and interpreted@in a ariet# of wa#s,3? a literal Anglish translation, which captures popular understandings about authorit#, %dis'obedience and punishment, statesI Men ha e authorit# =qawwama> o er women because 3llah has made the one superior to the other, and because the# =men> spend their wealth to maintain them =women>! Bood women are obedient = ta’a>! *he# guard their unseen parts because 3llah has guarded them! 3s for those =women> from whom #ou fear disobedience =nusha8>, admonish them and send them to beds apart and beat them! *hen if the# obe# #ou, take no further action against them! 3llah is high, supreme!3. 3sghar 3li Angineer reports the historical origin of this erse as the case of a man %"’ad bin Rabi’' who slapped his wife %8abiba bint Maid' because she had disobe#ed him! "he complained to her father, who complained to the 1rophet Muhammad! "#mpathi,ing with the woman, the 1rophet told her that she was allowed the right to qisas %a form of legal retribution'! Men in the communit# protested that this would gi e women ad antages o er them! 0earing social unrest, the 1rophet sought and recei ed the re elation %?I3?' which effecti el# re ersed his earlier ruling gi ing women the legal right to retaliate!3F &n drawing interpretati e meaning from this erse, se eral factors are at issue! 0irst, because this was a revelation, it lends itself to interpretation that Bod sanctions beating disobedient wi es as a last option %after admonishing them and abandoning their beds'! :ut because beating women was 6uite common in that place and time, it also lends itself to the interpretation that Bod intended to restrict the practice! Moreo er, to the extent that shari’a functions as 4li ing law5 adaptable to changing circumstances %e!g!, through i"tihad', e en the explicit sanctioning of beating can be construed not as an ageless and di ine right but as a circumscribed means to express anger and frustration, and one that graduall# should be abolished! 0or example, 3,i,ah 3l+8ibri argues that the 9ur’an imposed limits on the common practice of beating, and transformed it into a s#mbolic act!3H 8itting was not to be a normati e standard of spousal relations but
0or a discussion of interpretations of "ura ?I3? in medie al and modern &slamic thought, see :arbara "towasser, 4Bender &ssues and $ontemporar# 9uran &nterpretation,5 in 'slam- 1ender and Social Chan%e, eds! K onne 8addad and Lohn Asposito %Dew KorkI Oxford Cni ersit# 1ress, 1--/'! 3. *his translation is from #he /oran, trans! D!L! ;awood %DKI 1enguin :ooks, 1-H?', p! 3H0! 0or significantl# different translations of this "ura, see Angineer, #he $i%hts o! &omen in 'slam, op! cit!, p! ?F) 3bullahi 3n+Da’im, 4&slam and (omen’s RightsI 3 $ase "tud#,5 &omen ,ivin% under Muslim ,aw Dossier 1?G1., p! -H! 3F Angineer, #he $i%hts o! &omen in 'slam, p! ?H!
3H 3?

used minimall# if it could not be a oided entirel#! 3l+8ibri supports this reading b# pointing to the 1rophet’s declaration to menI 4*he best among #ou are those who are best toward their wi es!5 &ndeed, on numerous occasions he told men not to beat their wi es and condemned the practice! Other 9ur’anic erses and hadith condemn iolence between spouses! 0or example, "ura 30, Eerse 21 describes marital relations as tran6uil, merciful and affectionate, and the relationship itself as based on companionship, not ser ice or t#rann#! &n this ein, Riffat 8assan writes, 4Bod, who speaks through the 9ur’an, is characteri,ed b# 2ustice, and<can ne er be guilt# of O,ulm’ %unfairness, t#rann#, oppression or wrongdoing'! 8ence, the 9ur’an, as Bod’s word, cannot be made the source of human in2ustice!53/ &slamic 2urists and scholars ha e grappled with the 6uestion of whether hitting constitutes a de 2ure ri%ht under shari’a, or a de facto option! 0or example, some 2urists ha e proposed that men should be prohibited from hitting women in the face or hard enough to cause pain! :ut the lack of clarit# and consensus on this issue makes it difficult to mount a campaign against wife beating as un2ust in rinci le! (hile authorities responsible for the administration of famil# relations are not categoricall# indifferent to the beating or brutali,ation of women, the iolence usuall# has to be extreme to prompt inter ention, if that is a possibilit# at all! &n fact, most of what is known about wife beating emerges out of di orce cases in which women use iolence as a cause for seeking di orce! A en then, howe er, because of the importance of famil# relations, sa ing the marriage often is prioriti,ed o er sa ing or protecting women from iolence! &n man# contexts, for a woman to obtain a di orce from a shari’a court on the grounds of iolence, the harm would ha e to be so great@and pro able@that the 2udge would determine continued cohabitation to be impossible! Cnder shari’a, legall# pro ing harm in the face of denial b# the husband re6uires two witnesses, which often is difficult to pro ide because domestic iolence happens in pri ate! 3nd legall# pro ing the impossibilit# of cohabitation is difficult because women often ha e to remain in@ or return to@their marital home for lack of alternati es! *he notion that beating constitutes a right a ailable to men and enforceable b# law certainl# contradicts the 9ur’anic ideal of marital relations as companionable and mutuall# supporti e! &t also runs contrar# to the 9ur’anic right of both men and women to dissol e a failed marriage, which would seemingl# o erride the notion that women ha e a dut# or obligation to submit to iolence! Ket because there is a mention of beating in the 9ur’an, it has impeded efforts to prohibit and criminali,e domestic iolence, and contributes to social attitudes about beating as a legitimate reprisal for disobedience!
3,i,ah al+8ibri, 43n &ntroduction to Muslim (omen’s Rights,5 in &indows o! +aith( Muslim &omen Scholar-Activists in .orth America , ed! B! (ebb %"#racuse, DKI "#racuse Cni ersit# 1ress, 2000'! 3/ Riffat 8assan, &omen’s $i%hts and 'slam( +rom the '.C.P.D. to )ei"in% %Jouis ille, 7KI D&"3 1ublications, 1--.', p! 12, c!f! Lonas " ensson, &omen’s 0uman $i%hts and 'slam( A Study o! #hree Attem ts at Accommodation %Jund, Dorwa#I Jund "tudies in 8istor# of Religions, ol! 12', p! H3!

Marital rape is another form of domestic iolence that can find 2ustification on the basis of shari’a. 3lthough rape is a punishable crime in e er# Muslim societ#, nowhere is the criminal sanction extended to rape within marriage! Cnder shari’a, there is no harm@and thus no crime@in acts of sex between people who are married! *hus, marital rape is literall# 4uncriminali,able5 under dominant interpretations of shari’a. 0or example, "ura 2, Eerse 223 pro ides a 9ur’anic basis for men’s unabridged sexual access to their wi es! *his erse stipulates that 4#our wi es are ploughing fields for #ou) go to #our field when and as #ou like!5 3lthough other 9ur’anic erses and hadith instruct men not to force themsel es sexuall# upon their wi es, these tend to be superceded or o ershadowed b# the principle of female obedience!3- &ndeed, a wife’s refusal to ha e sex with her husband can be concei ed as a defiance of her duties, and can gi e rise to accusations of 4disobedience,5 thereb# triggering legalistic 2ustification for beating! 0orced marriage is a form of ps#chological and emotional iolence %with ph#sicall# iolent possibilities'! 3lthough the 9ur’an does not expressl# sanction this practice, the principles of male authorit# and female obedience create conditions in which women’s sub2ugation to their 4guardians5 can enable men to impose their will on matters of marriage! (hile the 9ur’an recogni,es 4mature5 %post+pubescent' women’s right to enter freel# into marriage, their status as legal 4minors5 under the authorit# of male guardians undermines their freedom or abilit# to assert this right in the face of male opposition! (ithin patriarchal societies in general, there is little normati e acceptance of social, legal or sexual autonom# for women! On the contrar#, women’s options and beha ior tend to be hea il# regulated and restricted! &n contexts where gender and famil# relations are go erned b# shari’a, wi es ha e a le%al dut# to concede to male authorit#, as long as this authorit# is exercised in a manner compatible with shari’a, and as long as the male fulfills his own obligations within the relationship! &f women should act in a wa# deemed 4de iant5 or 4disobedient,5 depending on the wa# in which shari’a is administered in a gi en context, punishment ma# be the prerogati e of the state, or ma# be left to the discretion of members of the famil# or the communit#! :ut under either circumstance, Muslim women’s ulnerabilit# to iolence is related to 2urisprudential traditions and social understandings of male authorit# and female obedience, and this pro ides fertile ground for domestic iolence to occur with near+total impunit# for perpetrators! Of course, Muslim women are not uniquely ulnerable to domestic iolence! Dor are social attitudes about female obedience and masculine prerogati es to 4discipline5 and 4punish5 women uni6uel# 4&slamic!5 (hat is uni6ue, or rather what is particular to the situation of Muslim women are rationali,ations deri ing from shari’a! &ndeed, the problem of domestic iolence in Muslim societies in man# wa#s resembles its counterpart elsewhere, and so too
3-

"ee ;awoud Al 3lami and ;oreen 8inchcliffe, 'slamic Marria%e and Divorce ,aws o! the Arab &orld %*he 8agueI $&MAJ and 7luwer Jaw &nternational, 1--F') and ;awoud Al 3lami, #he Marria%e Contract in 'slamic ,aw in the Shari’ah and Personal Status ,aws o! *%y t and Morocco %JondonI Braham P *rotman, 1--2'!

do the difficulties in combating it, gi en the gender biases operati e in all societies! *hese difficulties ha e gi en rise to efforts to de elop an international legal framework for dealing with a problem that is global in scope and harmful to women e er#where! 3. nternationali4in( the Stru((le a(ainst Domestic Violence &n the 1-/0s, women’s organi,ations around the world began campaigning for international recognition and prohibition of domestic iolence as a human rights iolation! &n the 1--0s, domestic iolence became a ma2or issue in a worldwide campaign to end iolence against women, part of a larger ongoing effort to promote women’s rights as human rights! (hile these initiati es are important and commendable, their timing raises some troubling 6uestions! 48uman rights5 were established in the aftermath of (orld (ar && through the promulgation of a new set of international laws 4uni ersali,ing5 the rights of human beings e er#where!?0 Eiolence@that is, the horrors and suffering that occurred during ((&&@was the dri ing concern to stimulate this re olution in law! O er the decades, there ha e been prodigious efforts@and achie ements @to prohibit numerous forms of iolence as human rights iolations! (hat, then, explains the dela# in recogni,ing and condemning domestic iolence as a human rights iolationN One ke# explanation deri es from the agueness and inconsistenc# of international law in regard to domestic relationships! *here are three general factors at issueI 1' the state+centered nature of international law) 2' the enduring emphasis in human rights discourse and practice on ci il and political rights %i!e!, 4public5 rights') and 3' deference to the famil# as a 4pri ate5 domain! *he dela# in recogni,ing domestic iolence as a human rights iolation can be explained b# the difficult# of framing abuses suffered b# women at home into the con entional framework of international law! 4*he distinction between public and pri ate life in international law is one of the principal theoretical barriers to this effort!5?1 3lthough the Cni ersal ;eclaration of 8uman Rights %1-?/' and other human rights instruments that came into force in the 1-F0s and OH0s %e!g!, the &nternational $on entions on $i il and 1olitical Rights, and "ocial, Aconomic and $ultural Rights' prohibit discrimination on the basis of sex, international law pro ed a weak resource for women! *his weakness inspired women’s rights acti ists to begin pressing to extend international law into the 4pri ate sphere!5 3 ma2or breakthrough was the $on ention on the Alimination of 3ll 0orms of ;iscrimination against (omen %$A;3(', which was adopted b# the Cnited Dations Beneral 3ssembl# in 1-H- and came into force in 1-/1! $A;3( often is described as the international bill of rights for women!?2 &t clearl#
?0

0or a histor# of human rights, see Jouis 8enkin, #he A%e o! $i%hts %Dew KorkI $olumbia Cni ersit# 1ress, 1--1'! ?1 ;onna "ulli an, 4*he 1ublicG1ri ate ;istinction in &nternational 8uman Rights Jaw,5 in Lulie 1eters and 3ndrea (olper, eds!, &omen’s $i%hts- 0uman $i%hts( 'nternational +eminist Pers ectives %Dew KorkI Routledge, 1--.', p! 12H!
?2

establishes the 4indi isibilit#5 of women’s rights in public and pri ate life,?3 and brings iolations b# indi iduals within the pur iew of international law, at least indirectl#, b# making states responsible for the actions of pri ate parties %article 2'! Ratification or accession to $A;3( obligates states to abolish all forms of discrimination against women! (hile $A;3( recogni,es the importance of culture and tradition in shaping gender roles and famil# relations, it imposes upon states the obligation to take 4all appropriate measures5 to modif# social and cultural patterns of conduct that are discriminator# or harmful toward women! ;espite the gains that $A;3( represents, it has some serious limitations! &t does not e9 licitly identif# iolence against women as a human rights iolation! 3nd it has e en less enforcement power than most other human rights treaties!?? *he $ommittee that administers $A;3( is limited to taking reports from state parties about their efforts to implement its re6uirements, and issuing recommendations! :ut the most glaring limitations deri e from the reser ations that man# states ha e attached to their ratification or accession to $A;3(! 3lthough $A;3( is the second most widel# ratified human rights treat# %after the $on ention on the Rights of the $hild', it is the one with the most reser ations! *o redress the limitations of $A;3( on matters of iolence against women, in the 1-/0s women’s rights groups 4began a worldwide campaign to make freedom from domestic and other forms of iolence a uni ersall# recogni,ed human right!5?. &n 1-/., the final document of the CD *hird (orld $onference on (omen %held in Dairobi, 7en#a' affirmed the seriousness of iolence against women and the need for international measures to combat it! &n 1--2, the $ommittee for $A;3( issued Beneral Recommendation Dumber 1-, which holds that gender+based iolence is a form of discrimination that states must take measures to eradicate! &n 1--3, women’s groups presented a petition with almost .00,000 signatures from 12/ countries to delegates at the (orld $onference on 8uman Rights %Eienna', demanding the recognition of iolence against women as a iolation of their rights!?F 3lso in 1--3, the CD adopted the ;eclaration on the Alimination of Eiolence against (omen, defining it as 4an# act of gender+based iolence that results in, or is likel# to result in, ph#sical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrar# depri ation of libert#, whether occurring in public or
3s of 3pril 1, 2000, $A;3( had been ratified or acceded to b# 1F. states! Onl# 1H states had not ratified or acceded to $A;3(, but of these, 11 ha e ma2orit# Muslim populationsI 3fghanistan, :ahrain, &ran, Mauritania, Oman, 9atar, "audi 3rabia, "omalia, "udan, "#rian 3rab Republic, and the Cnited 3rab Amirates! #he &orld’s &omen :;;;( #rends and Statistics %DKI Cnited Dations, 2000', pp! 1.1+.2! "ince then, "audi 3rabia has signed! ?3 "ee "usana 0ried, ed!, #he 'ndivisibility o! &omen’s 0uman $i%hts( A Continuin% Dialo%ue %Dew :runswick, DLI $enter for (omen’s Blobal Jeadership, 1--?'! ?? Lean Morn, 4(omen’s Rights 3re 8uman RightsI &nternational Jaw and the $ulture of ;omestic Eiolence,5 in ;oroth# 3#ers $ounts, Ludith :rown, and Lac6uel#n $ampbell, eds!, #o 0ave and #o 0it( Cultural Pers ectives on &i!e )eatin%- 2nd edition %Crbana and $hicagoI Cni ersit# of &llinois 1ress, 1---', p! 2//+/-! ?. Morn, 4(omen’s Rights 3re 8uman Rights,5 p! 2/-!
?F

'bid.

pri ate life!5 *his ;eclaration explicitl# includes iolence occurring in the famil#, including wife battering and marital rape! &n 1--?, the CD appointed Radhika $oomarswam# to ser e as the first "pecial Rapporteur on Eiolence against (omen! *he Rapporteur’s role is to build on and extend CD initiati es! 8er mandate includes domestic iolence and, more generall#, promotion of adherence to all international instruments and treaties establishing women’s rights as human rights! &n 1--., the :ei2ing 1latform of 3ction %issued at the conclusion of the 0ourth (orld $onference on (omen' included an affirmation of the need to combat domestic iolence!?H More than an# pre ious initiati e, the :ei2ing 1latform articulates a clear set of factors that perpetuate domestic iolence,?/ all of which go ernments are expected to remed#! ?- &t also identifies the lack of information and statistical data about domestic iolence as an obstacle to combating it! *his inspired the (orld 8ealth Organi,ation %(8O' to establish a database on iolence against women and de elop a 6uestionnaire and guidelines for undertaking national sur e#s, although this process is still in its nascent stages!.0 &n 1---, the CD adopted an Optional 1rotocol to $A;3(, which allows indi idual women or groups of women %from signator# states' who ha e exhausted domestic remedies to petition the $ommittee for $A;3( about iolations of the $on ention b# their go ernments! *his 1rotocol also grants the $ommittee the authorit# to conduct in6uiries into gra e or s#stematic abuses of women’s human rights in states that are part# to the $on ention and the 1rotocol!.1 $oomarswam# has taken a leading role in formulating and promoting legal rationales to clarif# states’ responsibilities to prohibit and combat domestic

0or an example of the wa# the :ei2ing 1latform has been utili,ed b# acti ists who work on or in Muslim societies, see Mahna, 3fkhami, Breta 8ofmann Demiroff and 8aleh Ea,eri, Sa!e and Secure( *liminatin% Violence a%ainst &omen and 1irls in Muslim Societies %:ethesda, M;I "isterhood &s Blobal &nstitute, 1--/'! ?/ *he factors identified in the :ei2ing 1latform of 3ction includeI 4social pressures, notabl# the shame of denouncing certain acts that ha e been perpetrated against women) women’s lack of access to legal information, aid or protection) the lack of laws that effecti el# prohibit iolence against women) failure to reform existing laws) inade6uate efforts on the part of authorities to promote awareness of and enforce existing laws) and the absence of educational and other means to address the causes and conse6uences of iolence5 %"ection ;, 1aragraph 11/'! ?Measures identified in the :ei2ing 1latform of 3ction for go ernments to institute includeI 4condemn iolence against women and refrain from in oking an# custom, tradition or religious consideration to a oid their obligations<) <exercise due diligence to pre ent, in estigate and, in accordance with national legislation, punish acts of iolence against women, whether these acts are perpetrated b# the state or b# pri ate persons<5 %"ection ;, 1aragraph 12?'! .0 #he &orld’s &omen :;;;, op! cit!, p! 1.H! *he internet address for the (8O database on iolence against women isI www!who!intG iolenceQin2ur#Qpre entionG
.1

?H

3s of 3pril 2000, onl# three countries with predominantl# Muslim populations ha e signed the 1rotocolI Bhana, "enegal and &ndonesia!

iolence in accordance with their international obligations!.2 *he two ma2or legal doctrines identified for these purposes areI 1! #he doctrine o! state res onsibility and due dili%enceI "tates ha e an internationall# recogni,ed responsibilit# and obligation to exercise 4due diligence5 to pre ent, in estigate and punish acts b# pri ate actors that constitute iolations of human rights! Moreo er, where a state fails to assume this responsibilit#, it is complicit in the iolations committed b# pri ate actors! $omplicit# includes per asi e non+action! "tate responsibilit# includes the institution of effecti e legal measures, including penal sanctions, ci il remedies and compensator# pro isions to protect women against domestic iolence) pre enti e measures, including public information and education programs to change attitudes that contribute to the perpetuation of domestic iolence) and protecti e measures to assist women who are ictims or at risk of domestic iolence! 2! #he doctrine o! equal rotection o! the law( &nternational law imposes a dut# on states not to discriminate on a number of specified grounds, including sexGgender! 0ailure to fulfill this dut# constitutes a iolation of international law b# the state! *his means that states must appl# and enforce the same criminal sanctions and punishments in cases of domestic iolence as are applied to an# other t#pes of inter+personal iolence! 3n# pattern of non+ enforcement amounts to une6ual and discriminator# treatment on the basis of sexGgender!.3 *he emphasis of these two doctrines clearl# links gender ine6ualit# and domestic iolence, and the obligations of states to combat both! *hese linkages are based on the following assumptions and principlesI 1' gender iolence is a form of discrimination, and as such, iolates international human rights standards which all states are obligated to adhere to in their own practices and to enforce within all relationships %public and pri ate' within their 2urisdiction) 2' women ha e a right to e6ualit# with men, and this encompasses all relationships, including those of the famil#) 3' local laws that sanction gender ine6ualit# must be reformed to pro ide e6ual protections for women and men, and enforcement must be non+discriminator#! *he de elopment of an international legal framework for women’s rights as human rights has contributed to the mobili,ation of an international struggle
Radhika $oomarswam#, 4$ombating ;omestic Eiolence,5 op! cit! 3 third doctrine e6uating domestic iolence with torture and cruel, inhuman and degrading treatment is being promoted b# some feminist legal and human rights experts! *heir aim is to bring the force and remed# of laws prohibiting torture to bear on domestic iolence! *he prohibition against torture is one of the strongest principles of international human rights law, since it is absolutel# non+derogable under an# circumstances! *he prohibition against torture has ac6uired the status of customar# law, which means that the power to enforce it and punish perpetrators is 4extra+territorial!5 &n other words, the courts of an# state can be used to tr# perpetrators if their own state fails to do so! *hose who ad ocate the e6uating of domestic iolence with torture argue that the practices ha e four common elementsI a' both cause se ere ph#sical andGor mental pain, b' both are intentionall# inflicted, c' both are utili,ed for specified purposes, and d' both entail some form of official in ol ement, whether direct or tacit! 8owe er, this doctrine transforms %some would argue misconstrues' the international legal definition of torture, which hinges on the perpetration of iolence b# a ublic authority against people in custody!
.3 .2

against domestic iolence!.? "uch efforts ha e heightened and focused international concern about the rights of women in their relations with famil# members! Making international standards of rights a realit# for women around the world, though, is an ongoing and difficult pro2ect! &t entails bringing local legal regimes into conformit# with international law! 3nd it entails reform of social attitudes to recogni,e the legitimac# of women’s rights and a need for laws and other measures to protect them from iolence! 5.Cultures of 'esistance, 6r Sayin( 78o9 to :niversalism *he successes in defining and promoting women’s rights, including the prohibition of domestic iolence as a human rights iolation, has generated criticism and reprisals! "ocial conser ati es around the world ha e responded negati el# to efforts to empower women and endow them with enforceable rights within the famil#, charging that such initiati es constitute an assault on 4famil# alues,5 traditions, national cultures, and so on! &n man# societies, official and popular a ersion to enforcing international standards for domestic relationships is far more powerful and influential than the forces seeking to promote and protect the rights and well+being of women! *he promotion of women’s rights as human rights, and the recent declarations and con entions to internationali,e and standardi,e those rights ha e become imbricated in raging debates o er the legitimac# of human rights in general! &ndeed, the rights of women constitute the 6uintessential challenge to the 4uni ersalit#5 of human rights! *hese debates ha e been particularl# igorous in man# de eloping countries! $ritics and opponents argue that international legal standards contra ene local customs and cultures andGor religious beliefs and practices! &ndeed, the emphasis on indi iduals as rights+bearing sub2ects, and the tendenc# to prioriti,e political and ci il rights o er social, economic and cultural rights lend weight to arguments that human rights are 4(estern5 and %thus' 4alien!5.. "uch arguments are bolstered b# the histor# of human rights) the ma2orit# of contemporar# states were, at the time human rights were created, still coloni,ed b# Auropean powers and thus did not participate in the earl# stages of establishing a framework for human rights!
.?

"ee $harlotte :unch and Diamh Reill#, Demandin% Accountability( #he 1lobal Cam ai%n and Vienna #ribunal !or &omen’s 0uman $i%hts %Dew :runswick, DLI $enter for (omen’s Blobal Jeadership, Rutgers Cni ersit# and Cnited Dations ;e elopment 0und for (omen, 1---') "usana *! 0ried, ed!, #he 'ndivisibility o! &omen’s 0uman $i%hts( A Continuin% Dialo%ue %Dew :runswick, DLI $enter for (omen’s Blobal Jeadership, Rutgers Cni ersit#, 1--?'! .. "ee 1artha $hatter2ee, 4Religious Minorities and the "ecular "tateI Reflections on an &ndian &mpasse,5 Public Culture, ol! / %1--.') 0red 8allida#, 4Relati ism and Cni ersalism in 8uman RightsI *he $ase of the &slamic Middle Aast,5 Political Studies, ol! ?3 %1--.') Rhoda 8oward, 4Broup ersus &ndi idual &dentit# in the 3frican ;ebate,5 in 0uman $i%hts in A!rica( Cross-Cultural Pers ectives, eds! 3bdullahi 3n+Da’im and 0rancis ;eng %(ashington, ;$I *he :rookings &nstitution, 1--0') R! 1anikkar, 4&s the Dotion of 8uman Rights a (estern $onceptN5 Dio%enes, no! 120 %(inter 1-/2') :assam *ibi, 4&slamic JawG"hari’a, 8uman Rights, Cni ersal Moralit# and &nternational Relations,5 0uman $i%hts <uarterly, ol! 1F %1--?') idem!, 4*he Auropean *radition of 8uman Rights and the $ulture of &slam,5 in 0uman $i%hts in A!rica, op! cit!

Resistance to the applicabilit# of international law can not be understood merel# as a regressi e reaction to change! Rather, it must be understood as a relational res onse to historic conditions and globali,ation! *he creation %and continuing expansion' of human rights is one manifestation of the globali,ation of distinctl# modern legal norms and political relations! &n broad terms, this process of globali,ation includes the establishment of modern %so ereign, bureaucratic' states, which had, b# the latter decades of the 20th centur#, become irtuall# uni ersal %albeit continuousl# sub2ect to local demographic and territorial shifts and challenges'! Blobali,ation also includes the articulation of increasingl# detailed standards and norms of go ernment that appl#, at least in principle, to all states! *he internationali,ation of a common set of rights for all human beings has pro oked a great deal of anxiet# about cultural homogeni,ation, especiall# in societies in the Middle Aast, 3frica and 3sia! *o the extent that human rights are erceived as a (estern construct, their legitimac# in non+(estern societies is debatable! Moreo er, the re6uirement to reform local laws and to transform local social and political relations to conform to international law is widel# construed as a manifestation of enduring (estern hegemon#, a neo+imperial twist on a centuries+old global power d#namic in which alues and norms are articulated and spread unidirectionall# from the (est to 4the rest!5.F (omen’s rights, and the issue of gender relations more generall#, ha e become the primar# redoubts of these anxieties about cultural and legal imperialism! (hile certain aspects of modernit#, such as national securit# and bureaucrati,ation, ha e been embraced b# states e er#where, the politics of culture@specificall# cultural difference@ha e marked women as a terrain for preser ing that which is %imagined to be' particular to a gi en societ#! &n the colonial era, women were made the principle targets for social transformation b# (estern administrators and $hristian missionaries %i!e!, the 4ci ili,ing mission5'! Moderni,ing reformers from these societies also targeted women as ob2ects for inter ention and change, whether to accommodate the imperati es of colonial administrations or to 2ustif# demands for self+rule! *hese ariants of 4colonial feminism5 made the liberation of women both a means and a goal of moderni,ation! 3ccording to ;eni, 7andi#oti, this created a close association in the minds of man# Muslims between the %changing' status of women and cultural imperialism, and sparked counter ailing attempts to maintain and reinforce 4authentic5 relations and roles for women to resist such imperialism!.H &slamic authenticit# ma# therefore be e oked to articulate a wide arra# of worldl# disaffections, from imperialist domination to class antagonisms! *his opens up the possibilit# of expressing such antagonisms in moral and
0or a discussion of the implications of this on women, see $handra *alpade Mohant#, 4Cnder (estern A#esI 0eminist "cholarship and $olonial ;iscourses,5 in #hird &orld &omen and the Politics o! +eminism , eds! Mohant#, 3nn Russo and Jourdes *orres %:loomington, &DI &ndiana Cni ersit# 1ress, 1--1'!
.H .F

;eni, 7andi#oti, 4&ntroduction,5 in &omen- 'slam and the State, ed! 7andi#oti %1hiladelphiaI *emple Cni ersit# 1ress, 1--1', p! H!

cultural terms, with images of women’s purit# exercising a powerful mobilising influence!./ (hen women are treated as markers of cultural authenticit#, and when cultural discourses posit that women’s human rights are an alien concept, part of a cultural onslaught emanating from 4elsewhere,5 the disad antages that women experience as women can be 2ustified and defended@e en glorified@as an aspect of that particular culture! $on ersel#, when the promotion of women’s rights is read as a sign@and imperati e@of moderni,ation %b# esting women with indi idual and inalienable rights', and when this goal demands the re ision or re ocation of local laws and practices, then it often pro okes counter ailing efforts to resist globali,ation and foreign influence b# defending that which is %deemed' authentic and particular to a gi en culture or societ#!.(hether state agents are the authors of such resistance, or are pushed in these directions b# powerful constituencies, it is the state@as both the arbiter of law and the representati e of societ# in the international legal order@that bears primar# responsibilit# for the pro ision and enforcement of rights for its sub2ects! *he struggles o er women’s rights are, in man# wa#s, contestations o er legal 2urisdiction and authorit#, namel# whether international legal standards will pre ail to guide state polic#, or whether other bodies of law %constitutional, religious, customar#' are accorded precedence when there is a contradiction! 3lthough resistance to women’s rights is strong, it rarel# manifests itself as an open de!ense of iolence against women as a cultural alue or end in its own right %possible exceptions being female genital cutting and satiF0'! More commonl#, concern about the safet# and well+being of women is subordinated to other alues or ends, including social stabilit#, male superiorit#, and, in some contexts, adherence to religion andGor tradition! :ut if this ser es to enable practices that constitute domestic iolence, whether b# tolerating or ignoring them, it literall# sacrifices women to some other 4social good!5 *here is@or should be@an understood difference between the perpetration of iolence against women because o! culture %i!e!, for reasons related to cultural ideologies and relations' and the conflation of this iolence with the culture itsel!! 3s Lean Morn points outI &f wife beating occurs in almost e er# societ# in the world, if it is almost uni ersal, then can it be said to be part of an# societ#’s uni6ue cultureN &t is certainl# not what sets that societ# apart from all others, that which gi es the societ# its special character! One could argue that, e en if
'bid!, p! /! "ee Jeila 3hmed, &omen and 1ender in 'slam( 0istorical $oots o! a Modern Debate %Dew 8a en, $*I Kale Cni ersit# 1ress, 1--2') 1atricia Leffre# and 3mrita :asu, eds!, A ro riatin% 1ender( &omen’s Activism and Politici8ed $eli%ion in South Asia %Dew KorkI Routledge, 1--/'! F0 "ee Jata Mani, 4$ontentious *raditionsI *he ;ebate on "ati in $olonial &ndia,5 in $ecastin% &omen( *ssays in Colonial 0istory, eds! 7umkum "angari and "udesh Eaid %Dew ;elhiI 7ali for (omen, 1-/-') $hristine (alle#, 4"earching for OEoices’I 0eminism, 3nthropolog# and the Blobal ;ebate o er 0emale Benital Operations,5 Cultural Anthro olo%y, ol! 12, no! 3 %1--H'!
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international law should recogni,e cultural differences, uni ersall# applicable rules of international law ma# go ern an# beha ior that is itself all but uni ersal!F1 &n societies where resistance to women’s rights is expressed as a defense of social traditions andGor religious norms, women’s rights acti ists ha e been challenged to culti ate a persuasi e distinction between 4culture5 and iolence against women! ;isrupting tacit tolerance for practices that constitute domestic iolence re6uires efforts to make such practices isible as violence- to delegitimi,e 2ustifications for the use of iolence b# bringing culturall# rele ant arguments to bear in the defense of women’s safet# and well+being, and to challenge laws, 2urisprudence and ideologies that construe such practices as ital to the greater good of societ#! ;.Shari’a and #versus<$ &omen’s 'i(hts &n Muslim societies, there is a per asi e belief that international standards for women’s rights conflict with shari’a! *his extends to the idea that women’s human rights@and efforts to promote them@are 4un+&slamic5 or e en 4anti+ &slamic!5 *hus, resistance %official and popular' to reform shari’a, whose sources are regarded as di ine, in order to accommodate international legal standards can be 2ustified as a refusal to sacrifice or subordinate the sacred to the secular! (hat this reflects is not an un#ielding or inflexible commitment to religion per se, but a res onsive influence of conser ati e ideologies and interpretations of religious prescriptions about gender and famil# relations in the face of sweeping social transformations that characteri,e moderni,ation! 3lthough &slamic rules ha e been reinterpreted, modified, or simpl# treated as inapplicable when dealing with changing circumstances in such issues as sla er# and modern commercial practices, no such flexibilit# has been shown with regard to women’s rights! 0or women, the trend of interpretation has worked almost exclusi el# in the opposite direction!F2 *he trend toward more conser ati e positions on gender issues can be traced through Muslim go ernments’ participation in the international process to de elop a legal framework for women’s rights! *his process has highlighted and sharpened differences o er women’s ri%ht to ri%hts. &n recent #ears, Muslim go ernments ha e consolidated their commitment to shari’a in direct response to pressures to incorporate international legal standards locall#! *his histor# re eals the fluidit# of ideologies about rights and law! &n 1-F3, the countries that sponsored a resolution calling for the preparation of a ;eclaration on the Alimination of ;iscrimination against (omen %the precursor to $A;3(' included 3fghanistan, 3lgeria, &ndonesia, Morocco

F1

Morn, 4(omen’s Rights 3re 8uman Rights,5 op! cit!, pp! 2-2+-3! 3sma Mohamed 3bdel 8alim, 4*ools of "uppression,5 in 1ender Violence and &omen’s 0uman $i%hts in A!rica, op! cit!, p! 2/!
F2

and 1akistan!F3 *he CD "ecretar# Beneral, pursuing the resolution’s re6uest for comments and proposals about the contents of such a ;eclaration, recei ed responses from 3fghanistan, Ag#pt, &ra6, Morocco, "udan, "#ria and *urke#, all of which were supporti e of the idea of women’s rights! 0or example, 3fghanistan recommended that 4intense educational efforts5 be made to combat 4traditions, customs and usages which thwart the ad ancement of women!5F? Ag#pt’s response called for educational campaigns to o ercome discriminator# customs and traditions!F. ;uring the process of drafting the ;eclaration, a contro ers# arose o er whether it should call for the abolition or the modi!ication of customs and laws that perpetuate discrimination! *his presaged the kind of contro ers# that would arise around the drafting and passage of $A;3(! :ut because the ;eclaration was 2ust that@a statement lacking contractual force@it was passed unanimousl#! *he drafting of $A;3( was a more difficult process, with a full week spent debating articles 1. and 1F, which gi e women e6ual capacit# before the law, and e6ualit# under marriage and famil# law!FF (hen the draft $on ention was oted upon, most of the abstentions on these articles came from Muslim countries! &n the final ote, the $on ention passed 130 to 0, with 11 abstentions, including :angladesh, ;2ibouti, Mauritania, Morocco and "audi 3rabia! $A;3( was opened for signatures in 1-/0! Most of the countries with ma2orit# Muslim populations that have signed $A;3( ha e entered reser ations!FH 3nd all of the reser ations except those of &ndonesia, *urke# and Kemen %former ;emocratic Republic of Kemen' relate to the preser ation of shari’a in matters of personal status!F/ :ut the reser ations themsel es ar# in scope, terms and specificit#! 0or example, Jib#a proclaimed that its accession to $A;3( is sub2ect to a sweeping general reser ation of an# pro isions that conflict with personal status laws deri ed from shari’a! :angladesh reser ed on article 2, the core of the treat#, on the grounds that it conflicts with shari’a! Ag#pt and Morocco entered reser ations similar to :angladesh, but couched in a different language, namel# stating a willingness to compl# with article 2 as long as it does not conflict with shari’a! 3s a matter of explanation, Morocco add=ed> that 4certain of the pro isions contained in the Moroccan $ode of 1ersonal "tatus according women rights that differ from the rights conferred on men ma# not be infringed upon or abrogated because the# deri e primaril# from the
F3

Lane $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 in Kamani, ed!, +eminism and 'slam, op! cit!, p! 3.3! F? $ited in $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 p! 3.3! F. 'bid. FF 'bid!, p! 3.?! FH *his comparati e discussion of reser ations to $A;3( draws from $onnors, 4*he (omen’s $on ention in the Muslim (orld!5 F/ *he reser ations of &ndonesia and Kemen pertain to article 2-%1' which allows reference of an# dispute o er the $on ention to the &nternational $ourt of Lustice! *urke#’s reser ations include article 2-%1' as well as arious paragraphs of articles 1. and 1F according women legal capacit# identical to that of men in certain famil# matters! $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 pp! 3.?+..!

&slamic shari’a, which stri es, among its other ob2ecti es, to strike a balance between the spouses in order to preser e the coherence of famil# life!5FMost of the reser ations b# Muslim countries pertain to article 1., which grants women e6ualit# with men before the law, and article 1F, which re6uires states to eliminate discrimination against women in matters of marriage and famil# relations!H0 3rticle 1F, along with article 2, constitutes the crucial core of the $on ention because it addresses relations and rights in the 4pri ate sphere,5 which is 4the fundamental site of discrimination against women which, effecti el#, sets the framework and opportunit# for discrimination in public life!5H1 :angladesh, Ag#pt, &ra6, Lordan, Morocco, *unisia and 7uwait all entered reser ations to article 1F! (hile some of these countries did not elaborate on their reasons for reser ing, Ag#pt, &ra6, Lordan and Morocco offered explanations that women are 4ad antaged5 b# the domestic legal regime %e!g!, through pa#ment of a dower, and men’s obligations to support their wi es financiall#'! 0or example, Ag#pt’s explanation states that the basis of spousal relations under shari’a is 4e6ui alenc# of rights and duties so as to ensure complimentarit# which guarantees true e6ualit# between spouses, not 6uasi+e6ualit# that renders the marriage a burden on the wife!5H2 *he substance and scope of reser ations b# Muslim countries sparked a great deal of contro ers#! "ome countries, notabl# Mexico, Berman# and the Dordic states, protested that the reser ations are incompatible with the principles and pro isions of the $on ention as a whole!H3 "weden was the most adamant, issuing a statement that such reser ations would render a basic international obligation of a contractual nature meaningless! &ncompatible reser ations<not onl# cast doubts on the commitments of the reser ing "tates to the ob2ect and purpose of the $on ention, but also contribute to undermine the basis of international contractual =i!e!, treat#> law!H? "uch ob2ections raised the issue of reser ations for international discussion! *his, in turn, generated counter+ob2ections b# reser ing states that such discussion amounted to 4an attack b# the (est on, first, the &slamic world and, b# extension,
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$onnors, 4*he (omen’s $on ention in the Muslim (orld,5 p! 3.F! *he pro isions of article 1F would e6uali,e men’s and women’s rights on matters of entering into and dissol ing marriages, custod#, inheritance, right to work, and control o er famil# decisions and resources! *his article also prohibits child marriage and re6uires states to establish and enforce a minimum age of marriage, and to make registration of marriage compulsor#! H1 $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 p! 3./! H2 $ited in ibid!, p! 3.-! H3 Dote that the $on ention on the Alimination of Racial ;iscrimination allows a ote %two+thirds' b# other parties to declare a state’s reser ations incompatible with the ob2ect of the $on ention!
H0 H?

$ited in $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 p! 3F0!

the whole of the *hird (orld!5H. *hese discussions about reser ations continued in arious sessions and committee meetings of the CD! 3lthough Muslim go ernments were not the onl# ones to enter reser ations, their reser ations articulated a common theme about the precedence of shari’a, leading to a general sense that the contro ers# was a debate about &slam! 0ollowing the submission of :angladesh’s first report to the $ommittee for $A;3(, and no doubt influenced b# the contents of that report, the $ommittee formulated Beneral Recommendation Dumber ? expressing concern about the significant number and potential incompatibilit# of reser ations as the# affect the ob2ect and purpose of the $on ention! *he $ommittee also re6uested the CD 4to promote or undertake studies on the status and e6ualit# of women in the famil#< taking into consideration the principle of Al &2tihad =sic> in &slam!5HF &n response, :angladesh as well as Ag#pt charged that this amounted to cultural imperialism and religious intolerance! "uch a charge resonated with other *hird (orld countries, not onl# those with ma2orit# Muslim populations! *his led to the passage of a CD resolution s6uelching the $ommittee’s proposal for studies about women in &slam! 3ccording to 3nn Ma#er, *he result was that, faced with appeals to cultural particularism, the CD tolerated a situation where some countries would be treated as parties to a con ention whose substanti e pro isions the# had professed their unwillingness to abide b#! &mplicitl#, the CD ac6uiesced to the cultural relati ist position on women’s rights<, allowing parties to $A;3( to in oke &slam and their culture as the defense for their noncompliance with the terms of the con ention! *his was paradoxical, since<$A;3( was premised on the notion that, where cultural constructs of gender were an obstacle to the achie ement of women’s e6ualit#, it was culture that had to gi e wa#@not that women’s rights should be sacrificed<HH 4&slamic resistance5 to international human rights law condensed around $A;3( in particular, and women’s rights in general!H/ &n 1--0, the Organi,ation of &slamic "tates, to which all Muslim countries belong, issued a collecti e re2oinder to international efforts to establish women’s rights in the domestic sphere as human rightsI *he Cairo Declaration on 0uman $i%hts in 'slam established that
'bid!, p! 3F1! Report of the $ommittee on the Alimination of ;iscrimination against (omen, "ixth "ession, ?2 CDB3OR "upp %Do! 3/', para! ./3, CD ;oc! 3G?2G3/ %1-/H', cited in $onnors, 4*he (omen’s $on ention in the Muslim (orld,5 p! 3F2! HH 3nn Ma#er, 4$ultural 1articularism as a :ar to (omen’s RightsI Reflections on the Middle Aastern Axperience,5 in 1eters and (olper, eds!, &omen’s $i%hts- 0uman $i%hts, op! cit!, p! 1H-!
HF H/ H.

*he $ommittee for $A;3( has persisted in seeking to minimi,e the impact of reser ations based on shari’a! &n 1--?, the $ommittee re ised its Buidelines for the preparation of countr# reports, recommending that states that ha e entered reser ations should explain wh# the# consider such reser ations necessar#, how the# impact upon national law and polic#, and how reser ations to this $on ention compare to reser ations %or lack thereof' to other human rights treaties that guarantee similar rights!

all rights were sub2ect to &slamic law, and that where there was a contradiction between international law and shari’a, the latter would take precedence! *he assertion on the part of go ernments that religious beliefs and 2urisprudence 2ustif# the disregard for international legal standards illustrates persisting and onerous obstacles to women’s rights! On the one hand, the so ereign prerogati es of states do pro ide for autonom# and independence on the legal character of rights within a countr#! On the other, the international nature of human rights standards and the 2urisdiction of international law obligate states to conform under the doctrine of state responsibilit#! &ndeed, to be a state is to be legall# sub2ect to the re6uirements and restrictions enshrined in international law! 3bdullahi 3n+Da’im argues that the most effecti e means of reconciling state so ereignt# and local culture with international legal standards entails the culti ation of a broader and deeper 4o erlapping consensus5 on the uni ersal cultural legitimac# of human rights, including women’s rights!H&n exercising their so ereign prerogati es, Muslim go ernments ha e sought to present themsel es as defenders of 4&slam5 b# building a firewall around shari’a! On the international le el, despite the contro ers# that this has pro oked, it epitomi,es the capacit# of states to speak and act in the name of their societies! &ndeed, such a conflation is characteristic of the state+centric international order! Moreo er, criticisms of Muslim go ernments’ policies b# 4others,5 be the# representati es of foreign go ernments or international organi,ations, can further entrench resistance to human rights within those societies! :ut does such a stance actuall# represent a 4Muslim consensus5N *here is a substantial, albeit still marginal, discourse within Muslim societies that 6uestions the putati e incompatibilit# of &slam and women’s human rights, and, b# extension go ernmental positions that assume that the# are irreconcilable! *his alternati e discourse includes efforts to reinterpret elements of shari’a to pro ide for more egalitarian gender relations, and the censure or prohibition of practices that harm or disad antage women! Ket the degree to which this discourse can get a public hearing or impact upon national polic# is limited b# go ernments themsel es! Man# go ernments ha e acted to repress scholars, acti ists and organi,ations ad ocating women’s rights, e en when such ad ocac# seeks to show their compatibilit# to &slam! Da2la 8amadeh describes this as 4the authoritarian discourse of silence,5 which produces a sterile 42uridical monologue!5/0 *he e!!ect is to reif# religion b# conflating 4&slam5 with go ernment positions! *he means entails the use of state power to stifle and preclude dissenting iews or alternati e interpretations of religion! :ut the problem of politicall# authoritarian states, which characteri,e the ma2orit# of regimes across the three regions, is perpetuated@e en bolstered@b# their capacit# to use religion %albeit in ar#ing wa#s, as elaborated in the following section' to 2ustif# the lack, restriction or e en outright iolation of rights of women!
"ee 3bdullahi 3n+Da’im, 4"tate Responsibilit# under &nternational 8uman Rights Jaw to $hange Religious and $ustomar# Jaws,5 in Rebecca $ook, ed!, 0uman $i%hts o! &omen( .ational and 'nternational Pers ectives %1hiladelphiaI Cni ersit# of 1enns#l ania 1ress, 1--?'!
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Da2la 8amadeh, 4&slamic 0amil# JegislationI *he 3uthoritarian ;iscourse of "ilence,5 in Kamani, ed!, +eminism and 'slam, op! cit!, p! 3?F!

1=.Shari’a, the State and Domestic Violence *he propagation of a collecti e trans+national and official position on the incompatibilit# of women’s rights and &slam belies ariations in the role and uses of shari’a within Muslim societies, as well as differences between the three regions! *o understand these ariations, the most crucial issue is the relationship between religion and the state! &n an# gi en countr#, this relationship is informed b# the particular histor# of state formation and de elopment, as well as the demographic composition of the population! &n the Middle Aast, Muslims comprise a ma2orit# of the population in e er# countr# except &srael! &slam is the dominant religion across the region, and most Middle Aastern go ernments identif# it as the official religion! &n sub+"aharan 3frica and 3sia, Muslims comprise ma2orities in some countries, whereas in others Muslim populations co+ exist with populations of other religions! &n Muslim societies in sub+"aharan 3frica, more so than the other two regions, isolating the role of shari’a from other bodies of law %customar#, colonial and national' is difficult because the spread of &slam was a gradual process, in man# places combining s#ncreticall# with local customs and cultures! 3nother regional distinction is that all the sub+"aharan 3frican countries that have signed $A;3( ha e done so without entering reser ations! 8owe er, such willingness has not, generall#, translated into a more acti ist stance b# 3frican go ernments on matters of women’s rights! &n all three regions, famil# and social relations are patriarchal, and shari’a has tended to bolster these arrangements! &t ma# well be that restrictions imposed b# &slamic and other forms of customar# laws are reinforced and magnified b# state structures that institutionali,e both (estern and indigenous elements of patriarch#! 3ll these elements come together to disad antage women is+୶ is men! *hese disad antages exist in all societies! *he degree and t#pe of disad antage differs from culture to culture but the fact of disad antage is uni ersal and certainl# not uni6ue to &slamic societies!/1 One wa# of engaging a comparati e approach to the relationship between domestic iolence and shari’a is to highlight ariations in the relationship between religion and the state! *his relationship can be di ided into three broad categoriesI 1' 4$ommunali,ation5I religious laws, institutions and authorities are accorded semi+autonom# from the state) 2' 4Dationali,ation5I religious laws and 2urisprudence are incorporated into or influential o er the state’s legal regime) and 3' 4*heocrati,ation5I the state bases its own authorit# upon religious law and 2urisprudence! Communali8ationI &n countries where separate s#stems of personal status laws are applied to members of different communities, there are 4two tiers5 of law, one under the direct control of the state, and the other based on religion
:arbara $allawa# and Juc# $ree e#, 4(omen and the "tate in &slamic (est 3frica,5 in &omen- the State and Develo ment, eds! "ue Allen $harlton, Lana A erett and 7athleen "taudt %3lban#I "CDK 1ress, 1-/-', p! /!
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%andGor custom' and semi+autonomous from the state’s legal authorit#! &n such contexts, laws and legal institutions go erning famil# relations are not onl# legall# separate from state law, but also are regarded ideolo%ically as 4outside5 the state’s domain! &srael, &ndia and Digeria represent examples of countries where personal status laws are communali,ed! &n all three, the populations are religiousl# di erse, the national political s#stems are 4non+religious,5 and each has a constitutionall#+ based legal s#stem!/2 &n &srael, communali,ation works to pro ide e er# religious group %Lews, $hristians, Muslims, ;ru,e' with its own personal status laws administered b# religious authorities,/3 whereas in &ndia, communali,ation applies onl# to minorities, not the 8indu ma2orit#! &n Digeria, sectarian law is administered under the rubric of regional states %rather than communali,ation on a national scale'! &n &srael and &ndia, this two+tiered s#stem was instituted as part of a broader pro2ect of national integration to accommodate religious and social differences and encourage lo#alt# to@or dependenc# on@the state b# religious authorities and constituencies) communal autonom# o er domestic matters formed an element of the 4social contract5 in these countries! &n Digeria, communali,ation@and more specificall# &slami,ation@is of a more recent intage! :ut in all three, communali,ation of personal status laws ser es to depri e women of e6ual citi8enshi ri%hts. *his extends to the issue of domestic iolence b# impeding or pre enting ictims from seeking protection from the state, since what occurs in the famil# is le%ally constructed as a 4communal5 issue, not the state’s concern! &n &ndia, the administration of shari’a is o erseen b# the 3ll &ndia Muslim 1ersonal Jaw :oard! $ommunal autonom# has been the sub2ect of debate since independence, challenged b# those who ad ocate a uniform ci il code for personal status issues that would appl# to all &ndians regardless of religion! *he debate heated up in 1-/. following the notorious "hah :ano case! *he &ndian "upreme $ourt ruled that "hah :ano, a di orced Muslim woman, had the right to recei e maintenance from her husband under "ection 12. of the $riminal 1rocedure $ode of &ndia! *his pro oked conser ati e Muslim religious leaders and the 3ll &ndia Muslim 1ersonal Jaw :oard to protest state interference in a 4communal5 matter! *he &ndian go ernment capitulated to the pressure and passed a new law %the Muslim (omen =1rotection of Rights in ;i orce> 3ct' negating the court ruling and fortif#ing the authorit# of &slamic law and the authorit# of religious institutions!/?
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(hile &ndia and Digeria ha e a constitution, &srael does not! 8owe er, &srael has a set of 4:asic Jaws5 that pro ide a constitutional framework for go ernment! /3 "ee :arbara "wirski, 4*he $iti,enship of Lewish and 1alestinian (omen in &srael,5 in 1ender and Citi8enshi in the Middle *ast, ed! "uad Loseph %"#racuse, DKI "#racuse Cni ersit# 1ress, 2000'!
/?

"ee 7irti "ingh, 4Obstacles to (omen’s Rights in &ndia,5 in 0uman $i%hts o! &omen, ed! Rebecca $ook, op! cit) Radha 7umar, 4&dentit# 1olitics and the $ontemporar# &ndian 0eminist Mo ement,5 in 'dentity Politics and &omen( Cultural $eassertions and +eminisms in

&n &ndia %like other "outh 3sian countries', estimated rates of domestic iolence tend to be among the highest in the world! Axperts and acti ists explain this b# emphasi,ing the link between iolence against women and low socio+ economic status, which characteri,es the situation for the ast ma2orit#! (hile po ert# itself is not causal for iolence against women, it can increase women’s ulnerabilit#! 0or example, one form of domestic iolence that is per asi e in "outh 3sia, but particular to that region, is 4bride burning!5 *his refers to the killing of women %often staged as a 4kitchen accident5' for their failure or inabilit# to pro ide additional dowr# resources to the husband’s famil#! 3lthough the origin of this phenomenon is rooted in 8indu practice, it has spread to Muslim communities in &ndia as well as 1akistan and :angladesh! &n &ndia, the parliament passed a law criminali,ing bride burning and other forms of dowr#+related harassment in 1-/3 %supplementing a 1-F1 law'! 8owe er, the communali,ation of shari’a has left Muslims be#ond the reach of these state inter entions, including criminal sanctions, for dowr#+related iolence and murder) the ;owr# 1rohibition 3ct %1-/F' exempts 4persons to whom Muslim 1ersonal Jaw %"hariat' applies!5 &n Digeria, the role of shari’a has been undergoing a rather dramatic transformation in recent #ears connected to political transition in the countr#! /. *he replacement of Muslim militar# leaders with non+Muslims in the national go ernment inspired efforts to 4&slamici,e5 northern states with large Muslim populations! *he primar# manifestation of this has been the enforcement of shari’a! &n Digeria, the issue of domestic iolence is bound up in cultural notions of masculine pri ilege, which conser ati e interpretations of shari’a reinforce!/F One stud# found that 31 percent of women ha e been sub2ected to ph#sical abuse at least once in their li es!/H 3 stud# sur e#ing rates of domestic iolence between 1-/2 and 1-// found an upsurge in the practice, with a total of 1220 women reporting batter# o er this period!// :ut it is unclear whether this indicates an increase in incidents of iolence or women’s willingness to report it! 3 1--H stud# found that domestic iolence is common in all regions and spans all social classes and groups!/'nternational Pers ective, ed!, Ealentine Moghadam %:oulder, $OI (est iew 1ress, 1--?'! /. "ee 3#esha &mam, 41olitics, &slam, and (omen in 7ano, Dorthern Digeria,5 in 'dentity Politics and &omen, ed! Moghadam, op! cit! /F "ee Milkah Alam :ukurta, 41attern of (ife 3buse within 0amilies in Kola 3damawa "tate Dsukka,5 M3 thesis, ;epartment of Eocational *eacher Aducation, Cni ersit# of Digeria, Do ember 1--/) 1eter $hukwama A,eah, 4"ociali,ation, "ocial $lass and Marital EiolenceI 3 "tud# of (ife 3buse in Dsukka Jocal Bo ernment 3rea, Anugu "tate Dsukka,5 M3 thesis, ;epartment of "ociolog#G3nthropolog#, Cni ersit# of Digeria, 1--3) 3lbert Olawale, &omen and Violence in /ano- .i%eria %"pectrum :ooks, Jtd!, 1--F'!
/H

O! Odu2inrin, 4(ife battering in Digeria,5 =ournal o! 1ynecolo%y and 3bstetrics, no! ?1 %1--3', cited in #he &orld’s &omen :;;;, o . cit!, p! 1.?! // 0! Omorodion, 4*he "ocial $ontext of (ife :attering,5 in >nequal $i%hts( Discriminatory ,aws and Practices a%ainst &omen in .i%eria , ed!, Losephine Affah et al!, 1--.! =DBODAI need full cite>

On the national le el, the Digerian constitution guarantees e6ual rights to all citi,ens, including clauses that bar discrimination on the basis of sex! Digeria has ratified, without an# reser ations, $A;3( and other human rights instruments that guarantee women’s rights! 8owe er, the go ernment has not instituted laws explicitl# prohibiting domestic iolence, and officials generall# tend to be unwilling to enforce criminal laws in cases of intra+famil# iolence! =BA* 3 RA0ARAD$A 0ROM DBODA> Shari’a and the Dorthern Digerian 1enal $ode reinforce the permissibilit# of domestic iolence and the legal impunit# of perpetratorsI "ection .. of the 1enal $ode pro ides that wife beating is permitted in so far as it does not amount to grie ous in2ur#<Dothing is an offense which does not amount to the infliction of grie ous hurt upon an# person and which is done b# a husband for the purpose of correcting his wife, such husband or wife being sub2ect to an# nati e law or custom in which such correction is recogni,ed as lawful!-0 Jikewise, under the penal code marital rape is effecti el# permissible because it is unrecogni,ed as a crime! &n Digeria, official tolerance of domestic iolence is further reinforced b# a lack of social ser ices and assistance for ictims! 0or example, in one stud# an official at the "ocial (elfare Office described that institution’s mandate as 4palliati e and ameliorati e rather than 2udgmental<=O>fficials tr# to appease both parties!5 8e continued b# reminding the inter iewer that the culture allows men to beat women! ="ocial (elfare Office officers> ask =women who report iolence> if the# are submissi e to their husbands, or if the# think their husbands are in a position to repro e them! (hen answers to these 6uestions are not straightforward or forthcoming, =the officers> ask the couple to settle their differences 4in bed!5-1 Official and popular tolerance for domestic iolence in Digeria has been bolstered b# the 4&slami,ation5 taking place in Muslim+ma2orit# states in the countr#! *he use of regional go ernmental power to enforce shari’a in states where it has been instituted makes it more difficult for women’s rights ad ocates to use national legislation as le erage) the er# process of &slami,ation has been a re2oinder to a loss of power on a national le el, and the promotion of regional autonom# has been a means of car ing out a domain of control! .ationali8ation( 3n# state that defines the official religion as &slam and draws upon religious law and 2urisprudence for its legislation and policies, but does not deri e or base its own authorit# exclusi el# on shari’a would fall within this categor#! :# linking the power of the state to the application and enforcement of religious law, religion is 4nationali,ed5 under the auspices of state institutions!
/Mora#o 3tinmo, 4"ociocultural &mplications of (ife :eating in Digeria,5 Men&omen and Violence %$O;A"R&3 Bender &nstitute, 1--H'! -0 $ited in Affah, >nequal $i%hts! -1 3tinmo, 4"ociocultural &mplications of (ife :eating in Digeria!5

*his includes much of the 3rab world and some countries in 3frica and 3sia with Muslim ma2orities! :lurring boundaries between religion and state power has been pursued in the interest of consolidating a national communit#, and as a means for states to promote their own legitimac# among sectors of societ# who are inclined to see a commitment to &slam as a marker of 4good go ernment5 in the format of an 4&slamic social contract!5 *his blurring lea es open some space for debate o er the relationship between shari’a and other bodies of law! On matters of women’s rights in general and domestic iolence in particular, there is room for maneu er to seek state inter ention and legal reform through reference to criminal and constitutional laws! 8owe er, there is also room for conser ati e constituencies to mobili,e pressure on the state to enforce shari’a in a conser ati e manner. 3nd when faced with critics pressing for liberal reforms, the state can resort to repression on the grounds that it has both the prerogati e and the dut# to 4defend5 &slam as an integral part of the national character! Ag#pt pro ides a good example of all of these aspects and d#namics!-2 &n principle, Ag#ptian law, including the constitution, pro ides women with a right to e6ualit#! 8owe er, in 1-/1, under pressure from &slamists, the Ag#ptian constitution was amended to pro ide that the principles of shari’a would constitute the main source of legislation! *he "upreme $onstitutional $ourt has been gi en the task of determining whether new legislation conforms to these principles! &n practice, gi en the conser ati e wa#s in which shari’a is interpreted and applied to maintain male authorit# and female obedience, women’s rights continue to be lesser than those of men and their ulnerabilit# to iolence is implicitl# sanctioned b# the state! *he issue of di orce is particularl# illuminating of Ag#ptian women’s limited rights and their ulnerabilit# to iolence! Ag#ptian courts follow a number of principles that function like legall# binding precedents to bolster the negati e implications of women’s restricted right to di orce, e en in cases of iolence! 0or example, according to 1rinciple 22, 4a husband’s inappropriate conduct is not considered =b# itself> grounds for di orce!5-3 1rinciple .- states that 4a wife’s return back to the home after ha ing been harmed means that life could continue between them, which does not constitute grounds for di orce later!5-? :eing beaten or hurt b# her husband does not necessaril# constitute grounds for a wife to lea e the home! &nstead, her option is to seek relief from a 2udge! Moreo er, e en if she pursues such a course, in the interim she must not refuse to be obedient to her husband while she continues to cohabit the marital home! &f the 2udge finds

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0or an example of a state’s attack on domestic critics of shari’a, see the discussion of the Ag#ptian go ernment’s treatment of the 3rab (omen’s "olidarit# 3ssociation, in Ma#er, 4$ultural 1articularism,5 pp! 1/0+/1!
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Marl#n *adross, $i%htless &omen- 0eartless Men( *%y tian &omen and Domestic Violence %$airoI *he Jegal Research and Resource $enter for 8uman Rights, 1--/', p! 1/! -? *adross, $i%htless &omen- 0eartless Men, p! 1/!

sufficient proof of harm, and if he is unable to reconcile the couple, he can grant a di orce!-. 3side from the difficulties in meeting burdens of proof and the general reluctance on the part of 2udges to grant women a di orce, other factors impede women from pursuing this option! Often, women’s families would not support such a decision or take them in, and establishing separate homes for themsel es is both sociall# unacceptable and economicall# unfeasible for the ast ma2orit#! 3nother significant deterrent is the likelihood that women who seek di orce will lose custod# o er their children! 3nd e en if women do successfull# obtain a di orce, di orcees become sub2ect to the authorit# of another male guardian, whether it is a father, brother, or another relati e! &n Lanuar# 2000, a new law pertaining to personal status issues was passed in Ag#pt) this reform was inspired b# pressure from women’s and human rights ad ocates, but the new law was a significantl# watered+down ersion of the original proposed law! One of its pro isions allows for 42udicial khul,5 allowing women to obtain a di orce without ha ing to 4pro e5 an#thing if the# refund their dower to the husband and forfeit all financial rights and claims from the marriage! (hile this does, in principle, pro ide recourse for battered women who might not be able to obtain a di orce through litigious means, in practice the option is limited to women with the financial means to meet the repa#ment demands and renounce their financial claims! (hile shari’a figures considerabl# in allowing domestic iolence to thri e in Ag#ptian societ# b# perpetuating women’s subordination to male famil# members, and b# reinforcing the 4pri ac#5 of famil# relations, it is important to emphasi,e that shari’a is not a cause of iolence! Rather, intra+famil# iolence deri es legitimac# from culture and the social context! *he ariation in the magnitude of domestic iolence based on social strata and class indicates that shari’a b# itself is not a sufficient factor to explain the se erit# and scope of the phenomenon! "ocial location, whether defined b# class, region, emplo#ment, relationship to spouse, or #ears of marriage, is significant in understanding domestic iolence in Ag#pt! 3ccording to a 1--. health sur e# that studied a representati e sample of Ag#pt’s population, most women who were e er married agree that husbands are 2ustified in beating their wi es at least sometimes! 4(omen are most likel# to agree that men are 2ustified in beating their wi es if the wife refuses him sex or if the wife answers him back!5-F *his finding indicates that there is a high degree of tolerance for domestic iolence in Ag#ptian culture, e en among women! 8owe er, when it comes to the reasons people would 2ustif# or tolerate wife+ beating, there is less agreement! 0actors such as older age, #ears of marriage, marriage to a relati e, the woman’s original free consent to marriage, li ing in urban areas, higher le els of education, and wage emplo#ment all reduce the
Marl#n *adross, 4(omen between Realit# and Jaw,5 in Partial Citi8enshi ( #he Mar%inali8ation o! &omen in *%y t =3rabic>, eds! *adrus, 3bdula,i, al+"habiti and 3mira 3bdulhakim %$airoI *he Jegal $enter and Resource $enter for 8uman Rights, 1--.', p! .H!
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Al+Manat# et al!, *%y t Demo%ra hic Survey 4556, p! 20F!

probabilit# that a woman would agree that a husband has the right to beat his wife under an# circumstance! 3mong those factors, higher education and emplo#ment are the most statisticall# significant! De ertheless, e en among those women who are most educated, around F. percent agree that a husband is 2ustified in beating his wife at least sometimes! "imilarl#, around F- percent of women who bring income to their families 2ustif# wife beating at least sometimes!-H Bi en these attitudes, it is not surprising that domestic iolence in Ag#pt is common!-/ (hile no studies ha e been conducted on ps#chological and emotional iolence, the few studies that ha e examined the incidence of ph#sical iolence are sufficient to reflect the per asi eness of this problem! *he *%y t Demo%ra hic and 0ealth Survey- conducted b# the Dational 1opulation $ouncil in 1--., reported that one out of e er# three 4e er+married Ag#ptian women has been beaten at least once since marriage!5-- Of those women, ?. percent were beaten at least once in the past #ear and 1H percent were beaten three or more times in the same period!100 Jike attitudes toward wife beating, fre6uenc# of beating also depends on the social, economic and regional locations of the woman! 0or example, the same stud# found that wife beating was less fre6uent among women under the age of thirt#, and much higher among women li ing in rural areas! 1regnanc# does not seem to matter in deterring men from beating their wi es! O erall, about one third of the women who ha e e er been beaten ha e been beaten during pregnanc#!101 *he case of Ag#pt illustrates the wa#s in which shari’a contributes to the ulnerabilit# of women to domestic iolence, not b# mandatin% iolence per se, but b# creating conditions in which it can be perpetrated with relati e impunit#! "ocio+political pressures on the state b# conser ati e constituencies ha e created a legal en ironment that undermines women’s abilit# to seek state protection or inter ention if this could be construed as iolating &slamic principles! 3nd popular and official understandings of these principles tend to construe female obedience as an imperati e that supercedes their right to be free from iolence! 3lthough the possibilities for reform exist, acti ists are constrained b# an atmosphere where commitment to shari’a is the priorit#, and this commitment is bolstered b# state power! #heocrati8ation( &n countries where the state defines itself as 4&slamic5 and bases its own authorit# on shari’a, religious law is the law of the state! &n such contexts, defense of religion is conflated@or conflatable@with defense of the state, and criti6ues or challenges can be regarded and treated as heres#, which
Al+Manat# et al!, *%y t Demo%ra hic Survey, p! 20F+0H! "ee "eager, #he State o! &omen in the &orld Atlas, pp! 2F+2H! -'bid!, p! 20/! 100 'bid. 101 43mong women beaten during pregnanc#, a little more than half %.F percent' reported being beaten less fre6uentl# during pregnanc# than otherwise! 0or the remaining women, pregnanc# did not protect them from iolenceI the# were beaten e6uall# often or more often while the# were pregnant compared with when the# were not pregnant!5 Al+Manat# et al!, *%y t Demo%ra hic Survey, p! 20/!
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the state authori,es itself to punish! &ran and 1akistan represent examples of theocrati,ation! &ran defines itself as an &slamic Republic! &ts official religion is "hi’i &slam %of the twel er La’afari school'! &ts legislature is an &slamic $onsultati e 3ssembl#! 3 $ouncil of Buardians comprised of clerics is authori,ed to ensure that all national laws are based on or compatible with &slamic criteria! &ran’s supreme leader is an ayatollah %religious authorit#', and its top legal authorities must be mu"tahids! *he &slamic re olution in 1-H- was inspired, in part, b# opposition to the "hah’s reform of famil# laws, and one of the new go ernment’s first acts was the cancellation of the 1-FH 0amil# 1rotection Jaw, along with the institution of a wide set of policies that ser ed to constrict women’s rights in accordance with a conser ati e interpretation of shari’a! 8owe er, o er time, the &ranian go ernment has found compelling reasons or needs to expand rights and protections for women, in part to support the claim that &slamic go ernment is good for its citi,ens! *o these ends, in 1--2, a new set of ;i orce 3mendments restored man# of the elements of the abrogated 1-FH law! &n &ran, the process of building and legitimi,ing a modern statist approach to &slam has opened up debates o er shari’a, including dissenting iews of patriarchal interpretations from within the ?ulama! *his debate has taken a highl# public form, notabl# in the pages of a women’s maga,ine, @anan. &n a stud# of this debate, Miba Mir+8osseini writes, =3> 4feminist5 re+reading of the shari’a is possible@e en becomes ine itable@when &slam is no longer part of the oppositional discourse in national politics! *his is so because once the custodians of the shari’a are in power, the# ha e to deal with the contradictor# aims set b# their own agenda and discourse, which are to uphold the famil# and restore women to their 4true and high5 status in &slam, and at the same time to uphold men’s shari’a prerogati es! *he resulting tension@which is an inherent element in the practice of shari’a itself, but is intensified b# its identification with a modern state@opens room for no el interpretations of the shari’a rules on a scale that has no precedent in the histor# of &slamic law!102 *he articles and iews published in @anan ha e tended to deplo# the method of i"tihad, raising 6uestions about some of the most fundamental aspects of shari’a, including the legal basis for the assumption that men ha e authorit# o er their families, or the obligation of unwilling women to submit to sex with their husbands! (ithin the context of a broader discussion about spousal relations, rights and duties, @anan has focused specificall# on the issue of domestic iolence! &ssue Dumber 1/ %1--?' is titled 4"ir, 8a e Kou A er :eaten Kour
102

Miba Mir+8osseini, 4"tretching the JimitsI 3 0eminist Reading of the Shari’a in 1ost+ 7homeini &ran,5 in Kamani, ed!, +eminism and 'slam, op! cit!, pp! 2/.+/F! "ee also her book, 'slam and 1ender( #he $eli%ious Debate in Contem orary 'slam %1rinceton, DLI 1rinceton Cni ersit# 1ress, 2000'!

(ifeN5 and &ssue Dumber 1- %1--?' is titled 4(ife+:eatingI 3nother $onse6uence of Men’s 8eadship!5103 Dumber 1/ includes inter iews with men, women and children about their personal experiences with domestic iolence, and commentar# b# a female law#er discussing the legal rights of a woman who is sub2ected to iolence! Dumber 1- discusses the 2urisprudential dimensions of domestic iolence, including a reading of "ura ?, Eerse 3? that draws upon fifteen traditions of the 1rophet and utili,es a ariet# of interpretati e strategies to argue against the religious legitimac# of wife+beating! 3lthough the situation in &ran remains one in which forms of domestic iolence are sociall# accepted, there are also concerted efforts to put into place religious reasonings for its prohibition! &n this regard, the situation in 1akistan is notabl# different! *he trend is toward more conser ati e interpretations and enforcement of shari’a, to the detriment of women! &n fact, estimated rates of domestic iolence in 1akistan are among the highest in the world!10? *hese estimates range from H0 to upwards of -0 percent!10. 1akistan was created to pro ide a separate state for Muslims in "outh 3sia, the nationalist aim being to a oid minorit# status and sub2ection to a 8indu ma2orit# in &ndia! *he constitutional debates following independence in 1-?H were dominated b# arguments o er the place of shari’a in the countr#’s legal s#stem! 3lthough religious leaders demanded that it become the basis for an &slamic state, the# settled at the time for language that defined 1akistan as an 4&slamic republic5 with a 2udiciar# that followed the :ritish colonial model! *he &slami,ation of 1akistan’s legal s#stem began with 1rime Minister Mulfikar 3li :hutto in the mid+1-H0s, but was greatl# expanded following the militar# coup that brought Beneral Mia ul+8u6 to power in 1-H-! Mia appealed to &slamic alues to legitimi,e his regime and granted religious parties, which did not en2o# much popular support, a power the# had not pre iousl# had and a role in re amping the legal s#stem! *he conse6uences were borne principall# b# women and minorities) in the first #ear of his rule, Mia re ersed irtuall# all of the reforms that had benefited women in the pre ious 30 #ears!10F 8e introduced the 8udood Ordinances, which changed the laws on rape and adulter# and made fornication a crime, and the Jaw of A idence, which renders the e idence of women e6ual to onl# half that of a man in some cases! 8e introduced shari’a benches in the 8igh $ourts,
103

Mir+8osseini, 4"tretching the Jimits,5 pp! 310+11! "ee "eager, #he State o! &omen in the &orld Atlas, pp! 2F+2H! 10. 8uman Rights $ommission of 1akistan %8R$1' as well as an informal stud# conducted b# the (omen’s Ministr# concluded that at least /0 percent of all women in 1akistan are sub2ected to domestic iolence! 8R$1, State o! 0uman $i%hts in 455A %JahoreI 8R$1, 1--H', p! 130) (omen’s Ministr# =1akistan>, )attered 0ousewives in Pakistan %&slamabadI (omen’s Ministr#, 1-/.'! 3mnest# &nternational has reported that some -. percent of women are belie ed to be sub2ected to such iolence! 3mnest# &nternational, &omen ’s 0uman $i%hts $emain a Dead ,etter %JondonI 3mnest# &nternational, 1--H', 3"3 33G0HG-H! 3mnest# &nternational has also reported findings b# women ’s groups in 1akistan that H0 percent of women are sub2ected to iolence in their homes! 3mnest# &nternational, Pakistan( .o Pro%ress on &omen’s $i%hts %JondonI 3mnest# &nternational, 1--/' =13**KI pageN>!
10? 10F

"ee "hahna, Rouse, 4*he Outsider%s' (ithinI "o ereignt# and $iti,enship in 1akistan,5 in A ro riatin% 1ender( &omen’s Activism and Politici8ed $eli%ion in South Asia , eds! 1atricia Leffre# and 3mrita :asu %Dew KorkI Routledge, 1--/'!

which became centrali,ed as the 0ederal "hari’a $ourt in 1-/0! *his court was authori,ed to re iew all laws to ensure their conformit# with shari’a. *hese changes to the legal s#stem ha e reinforced deepl# rooted attitudes about male domination!10H &n the 1--0s, 1akistan’s democraticall# elected go ernments were unable or unwilling to repeal an# of the &slami,ation laws that had been enacted under Mia’s martial law regime! &n his second term %1--H+--', 1rime Minister Dawa, "harif proposed an amendment to the $onstitution that would completel# replace the legal s#stem with &slamic law! 3t the time of the coup that remo ed "harif from power in October 1---, the bill remained stalled in parliament! 3ccording to 8uman Rights (atch, Dawa, "harif’s continuing &slami,ation efforts < reinforced the legitimac# of Mia ul+8u6’s discriminator# &slamic laws) the# ha e in effect also bestowed greater discretion and authorit# on 2udges to gi e legal weight, b# in oking &slamic precedents and references at random, to biased assumptions about women in a ariet# of ci il and criminal cases! 0or example, since 1--F courts ha e admitted cases challenging an adult woman’s right to marr# of her own free will, ostensibl# an established right under famil# laws!10/ &n 1akistan, iolence against women is endemic in all social spheres!10- Ket despite the high incidence of intra+famil# iolence, it is widel# percei ed b# the law enforcement s#stem and societ# at large as a pri ate famil# matter! *here is irtuall# no prosecution of crimes of assault and batter# when perpetrated b# male famil# members against women) e en intra+famil# murder and attempted murder rarel# are prosecuted!110 3lthough 1akistan ratified $A;3( in 1--F, it has done little to reform its laws and practices to be in compliance with the con ention! &n 1--H, the 8uman Rights $ommission of 1akistan %8R$1', an independent human rights organi,ation, reported that =d>omestic iolence remained a per asi e phenomenon! *he supremac# of the male and subordination of the female assumed to be part of the culture and e en to ha e sanction of religion made iolence b# one against the other in a ariet# of its forms an accepted and per asi e feature of domestic life!111 3ccording to a Cnited Dations report on domestic iolence, the famil# structure in 1akistan 4is mirrored and confirmed in the structure of societ#, which condones the

10H

1akistan ranks near the bottom globall# for almost e er# social indicator concerning the li es of women! Onl# 2. percent of 1akistani women are literate, compared to .. percent of men! "ee 3mnest# &nternational, Pakistan( .o Pro%ress on &omen’s $i%hts ) (orld :ank, 4Benderstats,5 www!genderstats!worldbank!org! 10/ 8uman Rights (atch %8R(', Crime or CustomB Violence a%ainst &omen in Pakistan %Dew KorkI 8R(, 1---'! 108R$1, State o! 0uman $i%hts in 455C %JahoreI 8R$1, 1--/', p! 130! 110 "ee generall# 3mnest# &nternational, Pakistan( &omen’s 0uman $i%hts $emain a Dead ,etter!
111

8R$1, State o! 0uman $i%hts in 455C, p! 1/.!

oppression of women and tolerates male iolence as one of the instruments in the perpetuation of this power balance!5112 *he &slami,ation of the 2udiciar# in 1akistan has exacerbated the problem! Ludges ha e broad discretion to use &slamic precedents and references in a ariet# of ci il and criminal cases!113 Kasmine 8assan reports that in the absence of explicit criminali,ation of domestic iolence, police and 2udges ha e tended to treat it as a non+2usticiable, pri ate or famil# matter or, at best, an issue for ci il, rather than criminal, courts!11? &f a domestic iolence case does come before a criminal court, it falls under the 9isas and ;i#at Ordinance of 1--0, a bod# of &slamic criminal laws dealing with murder, attempted murder, and the crime of causing bodil# 4hurt5 %both intentional and unintentional'! *he law awards punishment either b# qisas %retribution' or diyat %compensation' for the benefit of the ictim or his or her legal heirs 11. ! &n qisas and diyat crimes, the ictim or heir has the right to determine whether to exact retribution or compensation , or to pardon the accused! &f the ictim or heir chooses to qisas, or qisas is 2udiciall# held to be inapplicable, an offender is sub2ect to ta8ir or discretionar# punishment in the form of wai e imprisonment!11F &n effect, the qisas and diyat laws ha e con erted serious crimes, including murder and assault, into crimes against the indi idual rather than the state! &n addition, women who ha e suffered domestic iolence come under pressure b# relati es to wai e qisas altogether!11H <isas ma# not e en appl# in cases of wife murder if the woman has an# children, because under "ection 30F%c' of the 1enal $ode, the child or heir of the ictim would also be a direct descendant of the offender! &n most cases of spousal murder, the offender en2o#s total legal impunit#! 8onor killings represent a particular manifestation of domestic iolence in which women are killed because the# are seen as the repositories of famil# honor!11/ 3lthough such killings fall under the murder pro isions of the qisas and diyat laws, the courts generall# appl# the Anglish common law principle of 4gra e and sudden pro ocation5 and award little or no punishment! *he murder of "amia "arwar in her law#er’s office in Jahore on 3pril F, 1---, is a case in point! "he was shot to death b# a hit man allegedl# retained b# her parents, but to date, no one has been punished for the killing! &n another example, a man was tried for killing his daughter and a #oung man when he found them in a 4compromising state!5 *he 2udge sentenced the father to life imprisonment and a fine of Rs! 20,000 %C!"!R .00'! (hen the case came before the Jahore 8igh $ourt, the sentence was reduced to fi e #ears’ imprisonment and a fine of Rs! 10,000 %R2.0' on the grounds that the man’s actions were 2ustified because his ictims were engaging in immoral beha ior that could not
$e ort o! the &orld Con!erence o! the >nited .ations Decade !or &omen( *qualityDevelo ment and Peace, $openhagen, 1?+30 Lul# 1-/0 %CD 1ublication, "ales Do! A!/0!&E!3 and $orrigendum', p! 30, cited in Kasmine 8assan, #he 0aven
)ecomes 0ell %JahoreI "hirkat Bah, 1--.', p! F! 112

8R(, Crime or CustomB, p! 23! "ee 8assan, #he 0aven )ecomes 0ell, pp! .H, F0! 11. 0or a detailed discussion of the 6isas and di#at laws, see 8uman Rights (atch, Crime or CustomB) A an Bottesman, 4*he Reemergence of 9isas and ;i#at in 1akistan,5 Columbia 0uman $i%hts ,aw $eview 23 G2, pp! ?33+F1! 11F 3ccording to Bottesman, the 0ederal "hari’a $ourt %an &slamic appellate court' has indicated that onl# crimes against the rights of Bod should be sub2ect to ta8ir, not crimes against the rights of man!
11? ;istinguishing between the two categories of crimes in ol es determining whether the offender poses a threat to societ# at large! Bottesman, 4*he Reemergence of 9isas and ;i#at in 1akistan,5 pp!

113

NN
11H

8R(, Crime or CustomB, pp! ?1+?2! "ee also 0arida "haheed, 4*he Axperience in 1akistan,5 in ;a ies, ed!, &omen and Violence, op! cit!, p! 21H! 11/ 8R$1, State o! 0uman $i%hts in 455C, p! 1/H!

be tolerated in an &slamic state such as 1akistan!11- 3nother court used its discretionar# authorit# under "ection 33/+0 of the amended 1enal $ode which expressl# permits the court to assess culpabilit# on the basis of the 9urSan and hadith to decide that the right of self+defense could be in oked b# male defendants in honor killings because 4a man who kills another man for defiling the honor of his wife or daughter is protecting his propert# and acting in self+defense!5120 (omen who attempt to report domestic abuse encounter serious obstacles! 1olice tend to respond to such reports b# tr#ing to reconcile the concerned parties rather than filing charges and arresting the perpetrator! 0urther compounding the problem, doctors who perform examinations tend to be skeptical of women’s claims of abuse! 0or example, the head medicolegal doctor for the cit# of 7arachi claimed that 42. percent of such women come with self+inflicted wounds!5121 Of 21. cases of women being suspiciousl# burned to death in their Jahore homes in 1--H, in onl# six cases were suspects e en taken into custod#!122 ;omestic abuse in 1akistan takes man# forms, including being burned, disfigured with acid, beaten, threatened, and e en killed! &n its annual report for 1--H, 8R$1 reported, 4*he worst ictims were women of the poor and middle classes! *heir resourcelessness not onl# made them the primar# target of the police and the criminals, it also rendered them more ulnerable to oppressi e customs and mores inside homes and outside!5123 3ccording to 8R$1, The extreme forms it took included driving a woman to suicide or engineering an “accident” (fre uently the !ursting of a kitchen stove" to cause her death#usually#when the hus!and$ often in colla!oration with his side of the family$ felt that the dower or other gifts he had ex%ected from his in&laws in conse uence of the
marriage were not forthcoming$ or'and he wanted to marry again$ or he ex%ected an inheritance from the death of his wife.()*

+ccording to the Lahore %ress$ an average of more than four women were burned in their homes weekly in 1--H$ three out of four fatally.(), -n (../$ there was not a single conviction in a “stove&death” case in the country.()0 1ome )0, women were killed in other incidents of intra+family violence b# hus!ands, in&laws, !rothers and fathers.()/ *hese statistics, although partial, and accounts of the abuse of women pro ide powerful e idence of the failure on the part of the 1akistani state to defend women from iolence! &slami,ation of the countr#’s legal regime has increased their ulnerabilit#, and to the extent that these changes are acceptable to powerful constituencies, it is difficult for recent go ernments to institute law reforms, e en if the# were so inclined, because of the ine itable protests that this would pro oke!
11120

'bid. 8R(, Crime or CustomB- pp! ??+?.! 121 'bid., p! 2! 122 'bid!, p!1! 123 8R$1, State o! 0uman $i%hts in 455A, p! 1/?!
12?

8R$1, State o! 0uman $i%hts in 455C, p! 1/.! 'bid. 12F 'bid. 12H 8R$1, State o! 0uman $i%hts in 455C, p! 1/F!
12.

8owe er, the particular wa#s in which shari’a is interpreted and enforced in 1akistan@4inno ating5 to achie e the most conser ati e possible approach@is sub2ect to criticism that the 9ur’anic principles are being iolated! *he debates and liberali,ing trends %albeit limited' occurring in &ran pro ide a salient contrast to 1akistan’s approach to theocrati,ation! 3s the abo e examples demonstrate, the relationship between religion and the state is important in understanding the problem of domestic iolence! *he examples also demonstrate that the application of shari’a contributes to the problem, but ariations are significant! &n man# societies, increasingl# conser ati e interpretations of shari’a reinforce social and cultural norms of masculine authorit#, female obedience, and the legitimac# of iolence to maintain those arrangements! *o ar#ing extents, shari’a sustains official andGor popular indi!!erence to the interests and needs of women who are ictims or potential ictims! &n the context of famil# relations, women are legall# constructed %whether de 2ure or de facto' as 4legitimate targets5 if aggression can be construed as instrumental to the maintenance of order in the famil# and in societ# at large! 11.Conclusion Cltimatel#, the state is responsible for the regulation, restriction and punishment of iolence! &f shari’a functions legall# andGor sociall# as a basis for maintaining women as wards of 4their men5 rather than full legal sub2ects of the state, and if iolence against women within the context of families is not regarded as violence but as a legitimate means of 4social control,5 the harms women suffer go not onl# unpunished but unrecogni,ed as harms! *hus, e en if states commit themsel es to the principle of women’s rights %e!g!, non+discriminator# clauses in national ci il legislation, accession to international con entions', if the# do not commit their resources to protect women from iolence at home, the# fail as states to assume their responsibilit#! *he authoritarian nature of man# states in the Middle Aast, 3frica and 3sia bolsters patriarchal famil# relations, and fosters social and religious conser atism!12/ 3ccording to ;eni, 7andi#oti, *he failure of modern states to create and ade6uatel# redistribute resources intensified tensions and clea ages expressed in religious, ethnic and regional terms<!3s the state itself uses local patronage networks and sectional ri alries in its distributi e s#stem, citi,ens also turn to their primar# solidarities both to protect themsel es and to compensate for inefficient administration! *his reinforces the stranglehold of communities o er their women, whose roles as boundar# markers become heightened!12(hen the state is incapable or unwilling to represent the interests of members of societ#, the importance of famil# and kinship relations for social
12/

"ee 8isham "harabi, .eo atriarchy( A #heory o! Distorted Chan%e in Arab Society %DKI Oxford Cni ersit# 1ress, 1-//'! 127andi#oti, 4&ntroduction,5 o . cit!, pp! 13+1?!

sur i al is inflated! $onse6uentl#, an# challenges to patriarchal authorit# in the domestic sphere@including but not limited to challenges to the use of iolence@ can be construed as threats to the famil# as an institution! *his, in turn, lends itself to the idea that empowering women would corrode and menace the famil#, and that efforts to do so are, therefore, both dangerous and 4alien!5 $onser ati e interpretations of &slam, enforced through shari’a, pro ide a means of counteracting this 4threat,5 which, as the iron# comes full circle, the state is willing to champion as a means of shifting critical attention from its own failings onto the putati e dangers posed b# ad ocates of women’s rights! 3lthough shari’a is administered, interpreted and used in a multitude of wa#s across Muslim societies, it pro ides 2ustification for failures and refusals on the part of states to act responsibl# to pro ide women the rights and protections that the# are due as humans, as citi,ens, as women and as Muslims! 3nd to the extent that popular notions about shari’a concei e of certain forms of iolence against women as normati e andGor legitimate, this undercuts the efforts of those who seek to press the state to assume and exercise its responsibilit#! &n conclusion, because of the importance of the state@and the failure of so man# states to protect and ensure the rights of its citi,ens@struggles for women’s rights can be seen as part of a broader struggle against authoritarianism, not a re2ection of religion or culture! Man# rights acti ists throughout the three region are stri ing to culti ate and clarif# this distinction, and it is to them that this stud# is dedicated with the hope that it can contribute to their cause! Source( httpIGGwww!law!emor#!eduG&0JGindex2!html