Religion, State Power and Domestic Violence

American Bar Foundation

Religion, State Power, and Domestic Violence in Muslim Societies: A Framework forComparative AnalysisAuthor(s): Lisa HajjarSource: Law & Social Inquiry, Vol. 29, No. 1 (Winter, 2004), pp. 1-38Published by: Blackwell Publishing on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/4092696Accessed: 25/02/2010 04:03

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Religion, State Power, and Domestic

Violence in Muslim Societies: A Framework for Comparative Analysis

Lisa Hajjar

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa, and Asia. The analytical framework is comparative, emphasizing four factors and the interplay among them: shari'a (Islamic law), state power, intrafamily violence, and struggles over women's rights. The comparative approach historicizes the problem of domestic violence and impunity to consider the impact of transnational legal discourses (Islamism and human rights) on "local" struggles over rights and law. The use of shari'a creates some commonalities in gender and family relations in Muslim societies, notably the sanctioning and maintenance of male authority over female relatives. However, the most important issue for understanding domestic violence and impunity is the relationship between religion and state power. This relationship takes three forms: communalization, in which religious law is separate from the national legal regime; nationalization, in which the state incorporates religious law into the national legal regime; and theocratization, in which the national legal regime is based on religious law.

1. INTRODUCTION

On March 12, 2000, some 300,000 demonstrators took to the streets of Rabat, Morocco, expressing their support for a new national action plan

Lisa Hajjar teaches in the Law and Society Program at the University of California- Santa Barbara. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, forthcoming). Hajjar would like to thank Bashar Tarabieh, Ngone Tine, and Patty Gossman for the research they contributed to this study and Abdullahi An-Na'im and Lynn Welschmann for their comments and suggestions.

? 2004 American Bar Foundation, 0897-6546/04/2901-003/$10.00

2 LAW & SOCIAL INQUIRY

that would expand women's rights, including reform of the Code of Personal Status (Mudawwana al-Ahwal al-Shakhsiyah). Simultaneously, a comparable number of demonstrators took to the streets of the nearby city of Casablanca to protest the plan as a deviation from shari'a (Islamic law).' These competing demonstrations, together, offer persuasive evidence of sharply divergent views on women's rights, and the ability of constituencies with different interests and perspectives to mobilize and compete for state support-and the likelihood that they will do so.

The background to the proposed plan that sparked these demonstrations includes two decades of prodigious efforts by women's rights activists to reform aspects of Moroccan family law that are discriminatory or otherwise harmful to women.2 In 1993, in response to this activism, King Hassan II had instituted some modest reforms of the Mudawwana, and in 1998, he authorized Prime Minister El-Yousoufi to propose further changes. When King Hassan died in 1999, the throne passed to his son, Muhammad VI, who, by his own account, was committed to bolder reforms to improve the status of women.

Opponents of the plan framed their position as a defense of religion and the family, claiming that the proposed changes conflict with women's duties to their husbands and contravene their shari'a-based status as legal minors. Supporters heralded the plan as an advance for women, not

(necessarily) a repudiation of shari'a. Indeed, the plan's significance, recognized by opponents and supporters alike, was its potential for eroding masculine privilege, albeit slightly. But the controversy marked by the huge competing demonstrations intimidated the government, leading to with- drawal of the plan, to the great disappointment of its supporters (Maghroui 2001, 16-17).

The controversy over the Moroccan plan focused in particular on the

proposal to expand women's right to divorce (HRW 2001). In Morocco, as elsewhere, the most common reason women seek to end a marriage is to extricate themselves from a situation in which they are vulnerable to domestic violence. Indeed, the plan was launched in response to the publication of a report with alarming statistics about the status of women,

1. Shari'a encompasses the ordinances derived from the Qur'an (which believers accept as the literal word of God), hadith (sayings by and stories about the Prophet Muhammad), and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence (fiqh). The two main methods of fiqh are ijma' (consensus among Muslim jurists) and ijtihad (interpretation based on accepted rules of logic and religious texts).

2. The Moroccan Code of Personal Status (Mudawwana al-Ahwal al-Shakhsiyah) was promulgated in 1958, two years after the country attained independence from France. It codified shari'a jurisprudence as national law. Among the provisions of this code is the husband's right to dissolve the marriage at will by means of talaq (repudiation), stating, "I divorce thee" three times, although the code instituted a "modern" reform requiring two witnesses. If a husband divorces his wife, she has no legal recourse, while her right to divorce is restricted and subject to confirmation by a shari'a court.

Religion, State Power, and Domestic Violence in Muslim Societies 3

including 28,000 reported acts of domestic violence between 1984 and 1998 (Maghroui 2001, 16).

Domestic violence can be defined as "violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood or law... [It is] nearly always a gender-specific crime, perpetrated by men against women" (Coomarswamy 1996, 53). One of the strongest predictors of domestic violence is the restriction on women's ability to leave the family setting.3 However, most women's rights activists would concede that while divorce can provide potential relief, it does not constitute an adequate protection or even an option for many women. Myriad factors discourage, impede, or prevent women from even contem- plating leaving a violent relationship (see Adelman 2000), including a lack of resources or support to establish alternative domestic arrangements and powerful social expectations and pressures to maintain family relations at any cost.

Domestic violence is distinguished from other forms of gender violence by the context in which it occurs (the domestic, or private sphere) and the relationship between perpetrators and victims (familial). When violence occurs within the context of the family, it raises questions about the laws and legal administration of family relations. Is intrafamily violence legally permitted or prohibited? In practice, is it tolerated or penalized by the authorities? Are civil remedies available to victims (e.g., right to divorce, restraining orders)? In contexts where intrafamily violence is not prohibited by law (i.e., criminalized), perpetrators enjoy legal impunity. In contexts where it is prohibited but the laws are not enforced, perpetrators enjoy social impunity.

The pervasiveness of impunity (whether de jure or de facto) is evident in the fact that domestic violence is reported as "common" in almost all countries, although estimated rates vary (Seager 1999, 26-27).4 Impunity suggests a reluctance or resistance to recognizing and dealing with intrafamily violence as violence. By imagining and referring to beatings, confinement, intimidation, and insults as "discipline" or "punishment" rather than "battery" or "abuse," the nature of harm is obfuscated. Moreover, if prevailing social beliefs about family relations include the idea that men have a right or obligation to punish and discipline female family members, then the tactics used to do so can be seen-and even lauded-as necessary to maintain order at home and in society at large. The problem of impunity

3. In a comparative study of gender violence in 90 societies (Levinson 1989), four sociocultural factors, taken together, were shown to be a strong predictor of spousal abuse in 75 societies: (1) sexual economic inequality; (2) a pattern of using violence for conflict resolution; (3) male authority and decision-making in the home; and (4) divorce restrictions for women.

4. The few countries where domestic violence is not reported as "common" include Cote D'Ivoire, Djibouti, Laos, Madagascar, and the Maldives (Seager 1999, 26-27).


is exacerbated by social and legal constructions of the family as private and

popular perceptions of male power (including to dominate and aggress against women) as normative.

In this regard, the problem of domestic violence in Muslim societies in

many ways resembles its counterpart elsewhere and so too do the difficulties in combating it, given the gender biases operative in all societies. However, the use of shari'a as the legal framework for administering Muslims' family relations (marriage, divorce, custody and inheritance) constitutes an im-

portant consideration. Shari'a functions both as specific legal rules and as a

general religio-cultural framework for Islamic norms and values. Therefore, efforts to implement law reforms to enhance the rights and protection of women within the family are bound up in contestations over the role and the jurisprudence of religious law, and social acceptance of reforms is

contingent on their perceived compatibility with religious beliefs. Although shari'a is critically important for understanding family

relations in Muslim societies, it does not constitute an explanatory device for the problem of domestic violence.5 Rather, explanations must be sought by analyzing the relationship between religious law and state power as it bears on the permissibility or prohibition of violence within the family and the rights of women.

2. FRAMEWORK FOR COMPARATIVE ANALYSIS

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa,and Asia.6 The aim is to present a

comparative analytical framework that emphasizes four factors and the

interplay among them: shari'a, state power, intrafamily violence, and

struggles over women's rights. The comparative dimension bears on simi- larities and differences not only across Muslim societies but also between Muslim societies and others.

While shari'a contributes to some commonalities in gender and family relations in Muslim societies, there are marked variations in the uses and

interpretations of shari'a that evince a lack of consensus among Muslims and should deter overgeneralizing about Islam.7 Many factors contribute to these

5. The notion that Islam (or any religion) can explain social relations is a hallmark of orientalist scholarship and has been subjected to vast and withering critiques. For an incisive critique of orientalism in Western feminist scholarship, see Mohanty 1991.

6. For the purpose of this study, the categories of domestic violence include beatings, battery, and murder; marital rape; and forced marriage. Domestic violence also includes psychological abuse, including behavior intended to intimidate and persecute, such as threats of abandonment, divorce or abuse; confinement and surveillance; threats to take away custody of children; verbal aggression and humiliation.

7. Many Qur'anic verses and hadith would seem inescapably discriminatory toward women. Yet there are also sections of these texts establishing the equality of men and women.


variations, including different schools of Islamic jurisprudence, and the histories and politics of religious institutions, conversions, reforms, and education. However, the most important variable is the state, and my analysis builds toward a state-centered comparative framework. The history and politics of the state-that is, the specific experiences and legacies of colonial rule and the trajectories of national independence, integration, and development-inform state projects and agendas in regard to gender and family relations and women's rights. "State formation affects the position of women in society in several ways. In 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 equality for women in the family and the society at large" (Charrad 1990, 20).

While the focus of this article is Islam, it is worth noting that the history and politics of all states are affected and influenced in some way(s) by religion, and no society could be described accurately as "post-religious." In the Middle East, Africa, and Asia, the relationship between religion and the state can be framed and compared using three general categories. In some countries, notably where the population is religiously diverse, the state communalizes religion by according religious authorities and institutions semi-autonomy from the national legal regime, the latter under the direct control of the state. In countries where Muslims constitute a majority and Islam is recognized as the official religion, the state nationalizes religion by incorporating shari'a principles into the national legal regime. And in a few countries, the state theocratizes religion by declaring itself Islamic and basing the national legal regime on shari'a.

The role of the state is particularly important to any discussion of domestic violence because states are vested with the responsibility to prohibit and punish violence. But, as suggested above, resistance or refusal to regard domestic violence as violence can shield or deter states from fulfilling this responsibility. Even in societies with robust legal rights for women, the prevalence of domestic violence signals an enduring difficulty to activate a legal solution. Thus, while the status and rights of women within the family vary significantly, the global scope of domestic violence suggests a cross-national complicity by state agents and the constituencies on which they depend for power and support to foster conditions in which impunity can thrive. Acknowledging this fact is an important rejoinder to cultural stereotypes that Muslim women are uniquely or exceptionally vulnerable. Rather, the objective of comparative analysis of domestic violence is to investigate the causes and means of impunity.

These seeming contradictions lend themselves to multiple readings, claims, and counter- claims about what Islam prescribes for women. These variations are reflected in shari'a, and their implications are prominent themes in the scholarly literature about women and Islam. See Engineer (1992); El-Solh and Mabro (1994); Mernissi (1991); Moghissi (1999); Yamani (1996).


In analyzing and comparing how states deal with domestic violence, the two most important issues are the administration and laws governing gender and family relations, and official commitment (or lack thereof) to women's rights. The kinds of questions that this raises include the following: Has the state signed and ratified the Convention to Eliminate All Forms of Discrimination against Women (CEDAW), and if so, has it registered any reservations? Is there a constitutional authority guaranteeing equal protection of law for women, and if so, is this authority used effectively to prohibit and punish domestic violence? Are there national laws and/or administra- tive sanctions prohibiting domestic violence? What measures, if any, has the state taken or authorized to deal with domestic violence and the protection of victims (e.g., provision of social services and health care, education campaigns)?

In Muslim societies across the Middle East, Africa, and Asia, struggles over women's rights have been influenced by transnational discourses and movements, especially Islamization and human rights. Since the 1970s, Islamist movements have mobilized in many countries to demand a (re)turn to Islam through the establishment of a system of government that adheres to and enforces shari'a (see Stork and Beinin 1997). The political agendas and influence of Islamist movements and their relations to state governments vary from country to country. However, there is a generally shared commitment between Islamists and regimes to preserve patriarchal family relations (see Zubaida 2001). Indeed, even in contexts where Islamists constitute a hostile opposition, states often are willing to accommodate their demands on matters of gender and family relations as a means of placating them (see Halliday and Alavi 1988; Kandiyoti 1988).

Since the 1970s, there has also been a mobilization across these regions to promote international human rights, including women's rights. Human rights organizations have been established in most countries, leading to greater awareness of the discourse and principles of international law and, consequently, more visibility and critique of violations. The kinds of activities that constitute this trend include monitoring and reporting on violations, networking with activists from other countries and regions, and advocating that governments adopt, adhere to and enforce international legal standards locally (see Abdel Hadi and Darwiche n.d.).

The relationship between shari'a and women's rights has been a central concern to both of these movements, albeit in often contradictory and even adversarial ways. The critical-and debatable-question is whether Islam and human rights offer compatible worldviews, and if not, which should prevail. This is not an abstract philosophical matter; it is a deeply charged political concern that informs the strategies that local actors pursue to institute their visions and goals, whether their priority is to promote women's rights in accordance with international law, to promote an "authentically Islamic" social order (however that is interpreted), or to


reconcile religious laws and beliefs with women's rights (see Afary 1998; Afkhami and Vazeri 1996; Ali 2000; Svensson 2000).

Domestic violence is strongly-and directly-related to inequality between men and women. But the contested legitimacy of gender equality impedes or complicates efforts to deal with domestic violence as a social problem in many parts of the world. There is strong and pervasive opposition to the notion that men and women should be equal in the context of the family. The corollary is the belief that domestic relationships are legitimately (i.e., naturally and/or divinely) hierarchical. In Muslim societies, this belief is both derived from and reinforced by shari'a, which tends to be interpreted to give men power over women family members. Thus, gender inequality is acknowledged and justified in religious terms on the grounds that God made men and women "essentially" different; that these differences contribute to different familial roles, rights and duties, which are complimentary; and that this complimentarity is crucial to the cohesion and stability of the family and society.

However, for analytical purposes, this study "brackets" the question of whether shari'a lends itself to or opposes formal equality for men and women in order to foreground the issue of violence. Specifically, the questions addressed here are whether shari'a is interpreted to construe violence against women as a harm or a right. The bracketing of gender (in)equality distinguishes the approach of this study from most mainstream feminist and human rights discourse, which tend to regard inequality as causal for domestic violence (see Dobash and Dobash 1980, 1992) and to prioritize the struggle for gender equality as the means of combating domestic violence (see Connors 1994; Coomarswny 1999). This is premised on the idea that if women were equal to men and had equal protection under the law, men would not be able to get away with perpetrating violence against them. While this is a valid assumption, it either fails to engage with or delegitimizes the beliefs and ideologies (in this case religious and cultural) that provide justification for inequalities.

Engaging seriously with religious beliefs and practices does not trans- late into a cultural relativist sanctioning of violence against women (see Mayer 1991, 1995b). The assumption that guides the analysis here is that domestic violence is a problem that demands recourse. Emphasizing violence, and the social and cultural context in which it occurs, focuses the analysis on a lack of rights for women in order to analyze and compare the rationales and justifications for that lack.

Defining violence in this way allows us to address the record of violence 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 only men but women-and society as a whole-act to


perpetuate systems which result in various forms of abuse. (Toubia 1994, 17)

Eradicating violence from women's family lives requires changes in laws and social attitudes that sustain or contribute to the problem of impunity. Exposing and criticizing domestic violence calls into question the legal structures and social discourses of familial authority. Seeking means of ameliorating the problem of domestic violence entails challenges and changes to the ways in which such authority is legitimated and enforced. A goal of this article is to contribute to the efforts of those struggling against domestic violence by seeking to identify instances and contexts in which such violence is--or can be-regarded as inimical to Islam.

3. THE PROBLEM OF DOMESTIC VIOLENCE

Domestic violence is a global phenomenon that affects millions of women annually. According to Human Rights Watch, it "has been one of the principal causes of female injury in almost every country in the world" (1998, 392). But domestic violence is also a hidden problem because of the dearth of reliable information. The reasons for this include: the inability or disinclination of victims to report violence; refusal or failure of authorities to document reports or make reports publicly available; and official and/or social acceptance of certain forms and degrees of intrafamily violence.

In Muslim societies in the Middle East, Africa, and Asia, available information about domestic violence is extremely limited and uneven. Egypt and Palestine are the only countries in the three regions for which national studies that focus on or include domestic violence have been undertaken (El-Zanaty et al. 1996; Yahia 1998). For some countries, there is virtually no statistical information. Most of the existing information about domestic violence comes from local and international organizations, including women's and human rights organizations, and certain bodies of the United Nations with mandates that focus on or include women's rights.8

Because domestic violence occurs within the private sphere of the family, making it visible (as a first step to making it redressable) is exceedingly difficult. It is the very intimacy of domestic space and relationships that makes such violence difficult to study and document. And it is the

8. The research for this study draws on secondary sources, including reports and studies by organizations, research institutions, and scholars who work on domestic violence. Three researchers, each working on a specific region (Bashar Tarabieh for the Middle East, Ngone Tine for sub-Saharan Africa, and Patty Gossman for Asia), have surveyed the secondary resources, and their research is incorporated in this study.


importance of the family in every society that makes the formulation of effective strategies to protect women from abuse so controversial.

In the 1970s, women's rights activists in many Western societies began pursuing an agenda (generally successfully) of bringing criminal law to bear on intrafamily violence (see Women, Law and Development International 1996). One outcome was to open up the private sphere to increased state intervention, at least in principle, by establishing prohibitions and punishments for violence between family members. Criminalization undermines the ability of perpetrators to claim that what they do at home is private. The model of criminalizing domestic violence has become a popular goal in other parts of the world as well.9

Advocates of the criminal justice approach point to the symbolic power of the law and argue that arrest, prosecution and conviction, with punishment, is a process that carries the clear condemnation of society for the conduct of the abuser and acknowledges his personal responsibility for the activity.... It is, however, critical that those involved in policy making in this area take into account the cultural, economic and political realities of their countries. (Coomarswamy 2000, 11)

The prospect of prohibiting and punishing domestic violence depends, foremost, on the state's willingness and capacity to reform criminal and family laws. But the possibility of state-sponsored reforms is strongly affected by social beliefs and ideologies about gender and family relations.

Law reform strategies work best... when the social value base is in concordance with the desired new norms. As long as the old regime of values is in effect, the tasks of making the new norms operative, or activating the educative function of law to change values, will be difficult and require action on many fronts. (Women, Law and Development International 1996, 37)

The challenges to promoting women's rights in societies where family relations are governed by religious law are daunting. As I elaborate below, in most Muslim societies, shari'a is interpreted to allow or tolerate some forms and degrees of intrafamily violence. This raises questions-and stimulates debates-about what religion "says" (or is believed to say) about the rights

9. But even in countries where a criminal justice approach has been adopted, for example, the United States, if the state lacks legitimacy, as it does for communities and populations subject to discrimination, victims are unlikely to see the state as a source of relief and protection and disinclined to bring the police into their homes or turn in family members. See Bumiller (1988); Crenshaw (1995); Mills (1999).


of women.10 It also raises questions about the willingness or ability of the state to prevent and punish violence within families, especially when prevailing views or powerful constituencies regard any curbs on male authority and prerogatives as a contravention of shari'a.

Dominant interpretations of shari'a accord men the status as heads of their families with guardianship over and responsibility for women.11 The complement to this is the expectation that women have a duty to obey their guardians. This hierarchical and highly patriarchal relationship is based on the Qur'anic principles of qawwama (authority, guardianship) and ta'a (obedience), from which gender-differentiated rights and duties are derived (see Al-Hibri 1997: 18-21; Sonbol 1998). The primary source of the Qur'anic principles of qawwama and ta'a is Sura 4, Verse 34. This same verse contains the most commonly cited reference used to assert men's right or option to beat disobedient women. Although this verse is translated and interpreted in a variety of ways (see An-Na'im 1996, 97; Engineer 1992, 46; Hassan 1987, 98-105; Stowasser 1998), a standard English translation, which captures dominant understandings about authority, (dis)obedience, and punishment, states:

Men have authority [qawwamal over women because Allah has made the one superior to the other, and because they [men] spend their wealth to maintain them [women]. Good women are obedient [ta'al. They guard their unseen parts because Allah has guarded them. As for those [women] from whom you fear disobedience [nushazl, admonish them and send them to beds apart and beat them. Then if they obey you, take no further action against them. Allah is high, supreme. (Dawood 1974, 370)

Engineer (1992, 47) reports the historical origin of this verse as the case of a man (S'ad bin Rabi') who slapped his wife (Habiba bint Zaid) because she had disobeyed him. She complained to her father, who complained to the Prophet Muhammad. Sympathizing with the woman, the Prophet told her that she was allowed the right to qisas (a form of legal retribution). Men in the community protested that this would give women advantages over them. Fearing unrest, the Prophet sought and received a revelation from God (4:34) that effectively reversed his earlier ruling giving women the legal right to retaliate.

In drawing interpretative meaning from this verse, several factors are at issue. First, because the Qur'an is revered by Muslims as a revelation, the verse lends itself to interpretation that God sanctions beating disobedient

10. For an excellent reading list, see www.brandeis.edu/departments/nejs/fse/ pdf%20Files/Islam.pdf

11. For an historical survey, see Sonbol 1996. For a contemporary country-by-country survey of Islamic family law, see www.emory.edu/IFL.


wives as a last option (after admonishing them and abandoning their beds). But because beating women was quite common in that place and time, it also lends itself to the interpretation that God intended to restrict the

practice. Moreover, to the extent that shari'a functions as "living law"

adaptable to changing circumstances (e.g., through ijtihad), even the explicit sanctioning of beating can be construed not as an ageless and divine right but as a circumscribed means to express anger and frustration, and one that gradually should be abolished. Al-Hibri (2001, 75-81) argues that the Qur'an imposed limits on the common practice of beating and transformed it into a symbolic act: Hitting was not to be a normative standard of spousal relations but used minimally if it could not be avoided entirely. She supports this reading by pointing to the Prophet's declaration to men: "The best among you are those who are best toward their wives" (see also Badawi 1995, 53).

Other Qur'anic verses and hadith condemn violence between spouses. For example, Sura 30, Verse 21, describes marital relations as tranquil, merciful, and affectionate, and the relationship itself as based on compan- ionship, not service or tyranny. In this vein, Riffat Hassan writes, "God, who speaks through the Qur'an, is characterized by justice, and.., can never be guilty of 'zulm' (unfairness, tyranny, oppression or wrongdoing). Hence, the Qur'an, as God's word, cannot be made the source of human injustice" (1995, 12).

The notion that beating constitutes a right available to men certainly contradicts the Qur'anic ideal of marital relations as companionable and

mutually supportive. It also runs contrary to the Qur'anic right of both men and women to dissolve a failed marriage, which would seemingly override the notion that women have a duty or obligation to submit to violence. Yet because there is a mention of beating in the Qur'an,12 Islamic jurists and scholars have grappled with the question of whether hitting constitutes a de jure right under shari'a or a de facto option (see Eissa 1999). For example, some jurists have proposed that men should be prohibited from hitting women in the face or hard enough to cause pain (see Badawi 1995).

Marital rape is another form of domestic violence for which justification on the basis of shari'a can be found. Although rape is a punishable crime in every Muslim society, nowhere is the criminal sanction extended to rape within marriage, because sexual access is deemed elemental to the marriage contract. Under shari'a, there is no harm-and thus no crime-in acts of sex between people who are married. Thus, marital rape is literally "uncriminalizable" under dominant interpretations of shari'a. For example, Sura 2, Verse 223, provides a Qur'anic basis for men's unabridged sexual access to their wives. This verse stipulates that "your wives are ploughing

12. Riffat Hassan argues that interpretations of Sura 4, Verse 34, that sanction "hitting" derive from a mistranslation "in order to make men masters and women the slaves" (1987, 101).


fields for you; go to your field when and as you like." Although other Qur'anic verses and hadith instruct men not to force themselves sexually upon their wives, this tends to be undermined by the principle of female obedience (see El Alami 1992; El Alami and Hinchcliffe 1996). Indeed, a wife's refusal to have sex with her husband can be construed as "disobedience," thereby triggering legalistic justification for beating.

Forced marriage is a form of psychological and emotional violence. Although the Qur'an does not expressly sanction this practice, the principles of male authority and female obedience create conditions that enable men to impose their will on matters of marriage. While the Qur'an recognizes "mature" (postpubescent) women's right to enter freely into marriage, their status as legal minors often undermines their ability to assert this right in the face of male opposition.

As the preceding discussion suggests, there are debates over whether shari'a should be interpreted to sanction, restrict, or prohibit domestic violence. In contexts where shari'a is interpreted to permit violence against women by family members, the harms women suffer not only go unpunished but also unrecognized as harms. However, such interpretations are neither universal across Muslim societies nor universally accepted even within societies where intrafamily violence is sanctioned on the basis of shari'a. I elaborate on these differences with examples from specific countries in the final section of this article. Here, I would stress the point that interpretations of religion are social and have a history. In this regard, the problem of domestic violence in Muslim societies and struggles against it are comparable to those in other societies, because they raise common questions about the relationship among religion and culture, the state, and women's rights. Moreover, in the contemporary era, the importance of comparative analysis is boosted by the ways that local contestations over women's rights are shaped and affected by the impact of global legal initiatives under the rubric of human rights to regulate and restrict violence.

4. INTERNATIONALIZING THE STRUGGLE AGAINST DOMESTIC VIOLENCE

In the 1980s, women's organizations around the world began cam- paigning for international recognition and prohibition of domestic violence as a human rights violation. In the 1990s, domestic violence became a major issue in a worldwide campaign to end violence against women, part of a larger ongoing effort to promote women's rights as human rights (Zorn 1999).

The international campaign against domestic violence seeks to redress the abuses that women suffer at home. It builds on earlier efforts to extend


international law into the private sphere to address needs and vulnerabil- ities specific to women.13 A major breakthrough was the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the United Nations General Assembly in 1979 and came into force in 1981. CEDAW, often described as the international bill of rights for women,14 clearly establishes the "indivisibility" of women's rights in public and private life, and brings violations by individuals within the purview of international law, at least indirectly, by making states responsible for the actions of private parties (article 2). While CEDAW recognizes the importance of culture and tradition in shaping gender and

family relations, it imposes on states the obligation to take "all appropriate measures" to modify social and cultural patterns of conduct that are discriminatory or harmful toward women.

However, CEDAW does not explicitly identify violence against women as a human rights violation. Thus, a campaign was mounted to rectify this lacuna. The UN responded to this campaign by adopting the Declaration on the Elimination of Violence against Women in 199315 and, in 1994, appointing Radhika Coomarswamy as the first Special Rapporteur on Violence against Women.16 In 1995, the Beijing Platform of Action (issued at the conclusion of the Fourth World Conference on Women) included an affirmation of the need to combat domestic violence (see Afkhami, Nemiroff and Vazeri 1998). More than any previous initiative, the Beijing platform

13. The campaign, generally referred to as "women's rights are human rights," sought- successfully-to redress weaknesses in the conventional framework of international human rights law. These weaknesses derive from: (1) the state-centered nature of international law; (2) the enduring emphasis in human rights discourse and practice on civil and political rights (i.e., "public" rights); and (3) deference to the family as a private domain.

14. As of April 1, 2000, CEDAW had been ratified or acceded to by 165 states. Only 17 states had not become signatories to CEDAW, but of these, 11 have majority Muslim populations: Afghanistan, Bahrain, Iran, Mauritania, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, and the United Arab Emirates (United Nation 2000, 151-52). Since then, Saudi Arabia has signed.

15. The Declaration on the Elimination of Violence against Women prohibits "any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." It explicitly includes violence occurring in the family, including wife battering and marital rape.

16. Coomarswamy has taken a leading role in formulating and clarifying the relevant legal doctrines to impose on states their responsibilities to prohibit and combat domestic violence in accordance with their international obligations. The doctrine of state responsibility and due diligence: States have an internationally recognized responsibility and obligation to exercise "due diligence" to prevent, investigate and punish acts by private actors that constitute violations of human rights. Moreover, where a state fails to assume this responsibility, it is complicit in the violations committed by private actors. Complicity includes pervasive nonaction. State responsibility includes the institution of effective legal measures, including penal sanctions, civil remedies, and compensatory provisions to protect women against domestic violence; preventive measures, including public information and education programs to change attitudes that contribute to the perpetuation of domestic violence; and protective measures to assist women who are victims or at risk of domestic violence. The doctrine of equal protection of the law: International law imposes a duty on states


articulates a clear set of factors that perpetuate domestic violence, all of which governments are expected to remedy.17

The campaign has heightened and focused international concern about the rights of women in their relations with family members. The resultant legal and policy initiatives have clarified states' responsibilities, thereby increasing the pressure on states to bring their own legal regimes into conformity with international law to provide women's rights and protect them from violence (see Bunch and Reilly 1999; Fried 1994). But the successes of this international campaign have generated criticism and reprisals to counter efforts to empower women and endow them with enforceable rights within the family.

5. CULTURES OF RESISTANCE, OR SAYING "NO" TO UNIVERSALISM

In many societies, official and popular aversion to enforcing international standards for domestic relationships is far more powerful and influential than the forces promoting them (see Ahmed 1992; Jeffrey and Basu 1998). Indeed, the issues associated with women's rights in the context of family relations constitute the quintessential challenge to the "univer- sality" of human rights. In many developing countries, critics of international human rights have seized upon the emphasis on individuals as rights-bearing subjects, charging that these are inherently Western values, and thus alien to societies that prioritize collective relations and mutual duties rather than competitive individualized rights claims (see Chatterjee 1995; Halliday 1995; Howard 1990; Panikkar 1982; Tibi 1990, 1994).

not to discriminate on a number of specified grounds, including gender. Failure to fulfill this duty constitutes a violation of international law by the state. This means that states must apply and enforce the same criminal sanctions and punishments in cases of domestic violence as are applied to any other types of interpersonal violence. Any pattern of nonenforcement amounts to unequal and discriminatory treatment on the basis of gender (Coomarswamy 2000). A third doctrine, promoted by some feminists and human rights scholars (Copelon 1994), equates domestic violence with torture on the grounds that these practices have four common elements: (1) both cause severe physical or mental pain; (2) both are intentionally inflicted; (3) both are utilized for specified purposes; and (4) both entail some form of official involvement, whether direct or tacit. Their aim is to bring the force and remedy of laws prohibiting torture to bear on domestic violence. The prohibition against torture is absolutely nonderogable under any circumstances and has acquired the status of customary law, which means that the power to enforce it and punish perpetrators is extraterritorial. However, conflating domestic violence with torture is problematic, because the international legal definition of torture hinges on the perpetration of violence by a public authority against people in custody (see Hajjar 2000).

17. The Beijing platform also identifies the lack of information and statistical data about domestic violence as an obstacle to combatting it (see UN 2000).


Resistance to international human rights cannot be understood as a regressive reaction to change. Rather, it must be understood as a relational response to globalization, one aspect of which is the articulation of increasingly detailed standards and norms of government that apply, at least in principle, to all states. Since rights are, by definition, legal, the internationalization of rights establishes expectations and obligations (e.g., through UN commission reporting mechanisms) to reform national legal regimes in conformity with international legal standards. The greater the expected changes, the more foreign and alien they can appear, and the more they provoke or exacerbate anxieties about cultural imperialism.

Women's rights have become the primary redoubts of anxieties about cultural imperialism. When women's rights are posited as part of a cultural onslaught emanating from "elsewhere," the disadvantages that women experience as women can be justified and defended-even glorified-as an aspect of that particular culture. Conversely, when the promotion of women's rights demands the revision or revocation of local laws and changes in local practices, it often provokes efforts to resist globalization and foreign influence by defending that which is (deemed) authentic and particular to a given culture or society.

Whether state agents are the authors of resistance to women's rights or are pushed in these directions by powerful constituencies, responsibility falls, ultimately, upon the state as the arbiter of law. Consequently, struggles over women's rights are, in many ways, contestations over legal jurisdiction and authority, namely, whether international legal standards will prevail to guide state policy, or whether other bodies of law (constitutional, religious, customary) are accorded precedence when there is a contradiction.

Although resistance to women's rights is strong and pervasive, it rarely manifests itself as an open defense of violence against women as a cultural value or end in its own right (see Mani 1989; Walley 1997). More commonly, resistance is framed as servicing other values or ends, including social stability, male authority, and, in some contexts, adherence to religion or tradition. But if this serves to enable practices that constitute domestic violence, whether by tolerating or ignoring them, it literally sacrifices women to some other culturally cognizable "social good."

In societies where resistance to women's rights is expressed as a defense of social traditions or religious beliefs, women's rights activists have been challenged to cultivate a persuasive distinction between culture and violence against women. Disrupting tacit tolerance for practices that constitute domestic violence requires efforts to make such practices visible as violence, to delegitimize justifications for the use of violence by bringing culturally relevant arguments to bear in the defense of women's safety and well-being, and to challenge laws, jurisprudence and ideologies that construe such practices as vital to the greater good of society.


6. SHARI'A AND (VERSUS?) WOMEN'S RIGHTS

In Muslim societies, there is a pervasive belief that international standards for women's rights-and efforts to promote them-are un-Islamic or even anti-Islamic because they contradict and conflict with shari'a. According to Deniz Kandiyoti (1991, 7), this has sparked countervailing attempts to maintain and reinforce hierarchical gender relations and male power over women as "authentically Islamic."

Islamic authenticity may therefore be evoked to articulate a wide array of worldly disaffections, from imperialist domination to class antagonisms. This opens up the possibility of expressing such antagonisms in moral and cultural terms, with images of women's purity exercising a powerful mobilising influence. (Kandiyoti 1991, 8)

What this reflects is not an unyielding or inflexible commitment to religion per se, but a responsive influence of conservative ideologies and interpretations of religious prescriptions about gender and family relations in the face of sweeping social transformations that characterize moderniza- tion.

Although Islamic rules have been reinterpreted, modified, or simply treated as inapplicable when dealing with changing circumstances in such issues as slavery and modem commercial practices, no such flexibility has been shown with regard to women's rights. For women, the trend of interpretation has worked almost exclusively in the opposite direction. (Abnel Halim 1994, 28)

This trend toward more conservative positions on gender issues can be traced through Muslim governments' participation in the international process to develop a legal framework for women's rights. In recent years, Muslim governments have consolidated their commitment to shari'a in response to pressures to incorporate international legal standards locally. This history reveals the fluidity of ideologies about rights and law and the interpenetration of local and global legal discourses.

In 1963, the countries that sponsored a resolution calling for the preparation of a Declaration on the Elimination of Discrimination against Women (the precursor to CEDAW) included Afghanistan, Algeria, Indo- nesia, Morocco, and Pakistan. The UN secretary general, pursuing the resolution's request for comments and proposals about the contents of such a declaration, received responses from the governments of Afghanistan, Egypt, Iraq, Morocco, Sudan, Syria, and Turkey, all of which were supportive of the idea of women's rights. For example, Afghanistan recommended that "intense educational efforts" be made to combat


"traditions, customs and usages which thwart the advancement of women" (cf. Connors 1996, 353). Egypt's response called for educational campaigns to overcome discriminatory customs and traditions (Connors 1996, 353).

During the process of drafting the declaration, a controversy arose over whether it should call for the abolition or the modification of customs and laws that perpetuate discrimination. This presaged the kind of controversy that would arise around the drafting and passage of CEDAW. But because the declaration was just that-a statement lacking contractual force-it passed unanimously. The drafting of CEDAW was a more difficult process, with a full week spent debating article 15, which gives women equal capacity before the law, and article 16, which calls for equality under marriage and family law. When the draft convention was voted upon, most of the abstentions on these articles came from Muslim countries. In the final vote, the convention passed 130 to 0, with 11 abstentions, including Bangladesh, Djibouti, Mauritania, Morocco, and Saudi Arabia.

Most of the countries with majority Muslim populations that have signed CEDAW have entered reservations intended to preserve shari'a on matters of personal status.18 But the reservations themselves vary in scope, terms and specificity. For example, Libya proclaimed that its accession to CEDAW is subject to a sweeping general reservation of any provisions that conflict with personal status laws derived from shari'a. Bangladesh reserved on article 2, the core of the treaty, on the grounds that it conflicts with shari'a. Egypt and Morocco entered reservations similar to that of Bangla- desh, but couched in a different language, namely, stating a willingness to comply with article 2 as long as it does not conflict with shari'a.

While some governments did not elaborate on their reasons for reserving, Egypt, Iraq, Jordan, and Morocco offered explanations that women are "advantaged" by shari'a (e.g., through payment of a dower, and men's obligations to support their wives financially). For example, Egypt's explanation states that the basis of spousal relations under shari'a is "equivalency of rights and duties so as to ensure complementarity which guarantees true equality between spouses, not quasi-equality that renders the marriage a burden on the wife" (cf. Connors 1996, 359).

The reservations by Muslim governments sparked a great deal of controversy. Some countries, notably Mexico, Germany, and the Nordic states, protested that the reservations are incompatible with the principles and provisions of the convention as a whole. These objections, in turn, generated counterobjections by reserving states that such discussion amounted to "an attack by the West on, first, the Islamic world and, by

18. The reservations of Indonesia and Yemen pertain to article 29(1), which allows reference of any dispute over the convention to the International Court of Justice. Turkey's reservations include article 29(1) as well as various paragraphs of articles 15 and 16 according women legal capacity identical to that of men in certain family matters (Connors 1996, 354- 55).


extension, the whole of the Third World" (Connors 1996, 361). Although Muslim governments were not the only ones to enter reservations (e.g., Israel and India also entered reservations on article 16), their reservations articulated a common commitment to shari'a, leading to a general sense that the controversy was a debate about Islam, which critics of the reservations lost.19 According to Ann Mayer,

The result was that, faced with appeals to cultural particularism, the UN tolerated a situation where some countries would be treated as parties to a convention whose substantive provisions they had professed their unwillingness to abide by. Implicitly, the UN acquiesced to the cultural relativist position on women's rights..., allowing parties to CEDAW to invoke Islam and their culture as the defense for their noncompliance with the terms of the convention. This was paradoxical, since... CEDAW was premised on the notion that, where cultural constructs of gender were an obstacle to the achievement of women's equality, it was culture that had to give way- not that women's rights should be sacrificed. (1995b, 179)

"Islamic resistance" to international human rights law has condensed around women's rights. In 1990, the Organization of Islamic States, to which all Muslim countries belong, issued a collective rejoinder to international efforts to establish women's rights in the domestic sphere as human rights. The Cairo Declaration on Human Rights in Islam established that all rights are subject to Islamic law, and where there was a contradiction between international law and shari'a, the latter would prevail.

In exercising their sovereign prerogatives, Muslim governments have sought to present themselves as defenders of Islam by building a firewall around shari'a. On the international level, despite the controversy that this provoked, it epitomizes the capacity of states to speak and act in the name of their societies. Moreover, criticisms of Muslim governments' policies by others, be they representatives of foreign governments or international organizations, can further entrench resistance to human rights within those societies.

But does such a stance actually represent a Muslim consensus? There is a substantial, albeit still marginal, discourse within Muslim societies that questions the putative incompatibility of Islam and women's human rights and, by extension, governmental positions that assume that they are irrec- oncilable (see Kandiyoti 1995). This alternative discourse includes efforts to

19. In 1994, the Committee for CEDAW revised its guidelines for the preparation of country reports, recommending that states that have entered reservations should explain why they consider such reservations necessary, how the affect national law and policy, and how reservations to this convention compare to reservations (or lack thereof) to other human rights treaties that guarantee similar rights.


reinterpret elements of shari'a to provide for more egalitarian gender relations, and the censure or prohibition of practices that harm or disadvantage women (see www.crescentlife.com/psychissues/domesticviolence.htm).

Yet the degree to which this discourse can get a public hearing or influence state policy is limited, because many governments have acted to repress scholars, activists, and organizations advocating women's rights, even when such advocacy seeks to show their compatibility with Islam. Najla Hamadeh (1996, 346) describes this as "the authoritarian discourse of silence," which produces a sterile "juridical monologue." The effect is to reify religion by conflating Islam with government positions. The means entails the use of state power to stifle and punish those offering dissenting views or alternative interpretations of religion. Such authoritarianism is perpetuated-even bolstered-by states' capacity to use religion (albeit in varying ways, as elaborated below) to justify the lack, restriction, or even outright violation of the rights of women.

7. SHARI'A, THE STATE, AND DOMESTIC VIOLENCE

The propagation of a collective transnational and official position on Islam belies variations in the role and interpretation of shari'a within Muslim societies, as well as differences between the three regions. To understand these variations, the most crucial issue is the relationship between religion and the state. In any given country, this relationship is informed by the particular history of state formation and development, as well as the demographic composition of the population.

In the Middle East, Muslims constitute a majority in every country except Israel. Islam is the dominant religion across the region, and most Middle Eastern governments identify it as the official religion. In Africa and Asia, Muslims constitute majorities in some countries, whereas in others Muslim populations coexist with populations of other religions. Another regional distinction is that all the sub-Saharan African countries that have signed CEDAW have done so without entering reservations. However, such willingness has not, generally, translated into a more activist stance by African governments on matters of women's rights (see Callaway and Creevy 1989; Green 1999). In all three regions, family and social relations are patriarchal, and shari'a has tended to bolster these arrangements.

One way of engaging a comparative approach to domestic violence in Muslim societies is to highlight variations in the relationship between religion and the state. This relationship can be divided into three categories: (1) communalization: religious laws, institutions, and authorities are accorded semi-autonomy from the state; (2) nationalization: religious laws


and jurisprudence are incorporated into or influential over the state's legal regime; and (3) theocratization: the state bases its own authority on religious law and jurisprudence.

A. Communalization

In countries where members of different religious communities are subject to separate systems of personal status laws, there are two tiers of law. In such contexts, the laws and legal institutions governing family relations are not only legally separate from the state but also are regarded ideologically as outside the state's domain.

Israel, India, and Nigeria are examples of countries where personal status laws are communalized. In all three, the populations are religiously diverse, and the national political and legal systems are (ostensibly) nonreligious. In Israel, every religious community (Jews, Christians, Mus- lims, Druze) has its own personal status laws administered by religious authorities, whereas in India, communalization of family law applies only to minorities, not the Hindu majority. In Nigeria, sectarian law is administered under the rubric of regional states rather than communalization on a national scale.

In Israel and India, this two-tiered system was instituted at the time of independence as part of a broader project of state building to accommodate religious and social differences, and encourage loyalty to-or dependency on-the state by religious authorities. The conflicts attendant in the establishment of these two countries were not religious per se, but the warring parties were of different religions, giving rise to state policies to institute communalization as a means of preventing religiously based strife or resistance to the new state by religious minorities. In Nigeria, recent political transformations, namely, the end of military rule under regimes dominated by Muslims, inspired an Islamist retrenchment in the 12 northern states of the country where Muslims are a majority.

In all three countries, communalization of personal status laws that are discriminatory toward women deprives them of equal citizenship rights. This extends to the issue of domestic violence by preventing or discouraging victims from seeking protection from the state, since what occurs in the family is legally constructed as a communal issue and hence not the state's concern (see Jayawardena and de Alwis 1997).

In Israel, the characterization of the state itself as Jewish both legitimizes and reinforces discrimination against all non-Jews, men as well as women. In this regard, Jewishness functions as a national identity, and all non-Jews are categorized-and discriminated against-nationally as Arabs. Moreover, the Jewishness of the state means that Arabs cannot claim it as theirs, despite their status as citizens. This exclusion reinforces the


significance of communal relations and institutions as sources of solidarity and protection (see Haj-Yahia 1995, 1996; Shalhoub-Kevorkian 1999). However, the relevance of the Jewish/Arab distinction is complicated by the subdivision of the Arab minority along lines of religion (Muslims, Christians and Druze). Moreover, the communalization of family laws in Israel divides all citizens communally and thus impedes efforts to forge a common struggle for women's rights (see Hajjar 1998; Swirski 2000). Indeed, the state willingly relinquished control over Arab communal relations as a strategic concession to offset resistance to discrimination and disenfranchisement on a national scale.20

Because the Israeli state sponsors and sanctions discrimination against Arabs, there is little appeal and much resistance to regarding the state as a legitimate source of relief or protection from domestic violence. Shalhoub- Kevorkian (1999, 202) quotes a women's group representative: "Being a minority group contributes toward oppression of women. Women feel reluctant to call the police partly because the Israeli police are perceived as hostile." This also explains why women's rights activists within the Arab sector have resisted appeals from Jewish women's rights activists to join forces in demanding the promulgation of secular civil family laws as an alternative to communal law because this would give the state more authority over the community (at the expense of communal institutions) without addressing the problem of discrimination. Arab Israeli women's struggles for rights as women are inextricable from their struggles for rights as Arabs living in a Jewish state (see Ibrahim 1998), both of which are informed-and impeded-by the enduring Arab-Israeli conflict.

The emergence and popularity of an Islamist movement within Israel signals a strategic use of communalization as a response and rejoinder to state-sponsored discrimination. The nonsectarian alternative represented by the Balad Party also deploys communalization strategically to demand more autonomy from the state for the Arab sector as a whole. Notwithstanding their strikingly different social agendas, both articulate efforts to minimize the power of the Israeli state over the community. This also characterizes the efforts of those seeking to combat domestic violence within the Arab sector; Arab Israeli women's rights activists often strive to formulate strategies and build institutional resources that do not rely on or appeal to the state for interventions against men within the community (see Welchman et al. 1999-2000, 445-46).

In India, communalism-and especially communal autonomy for Muslims-has been the subject of intense debate since independence (Engineer 1996). Secular nationalists, women's rights advocates, and

20. Even before independence in 1948, the Zionist leadership willingly relinquished control over Jewish religious law and institutions as a means of securing the cooperation of orthodox Jews, who were anti-Zionists.


right-wing Hindu activists have challenged communalization, albeit for different reasons, to advocate a uniform civil code that would apply to all Indians regardless of religion. The debate heated up in 1985 following the Shah Bano case. Shah Bano, a Muslim woman who was left destitute when her husband divorced her and refused to pay maintenance, took her case to the Indian Supreme Court. The court ruled that she had the right to maintenance under section 125 of the Criminal Procedure Code of India. This provoked conservative Muslim religious leaders and the All India Muslim Personal Law Board (the institution that oversees the administration of shari'a) to protest state interference in a communal matter. The Indian government, facing the threat of sectarian conflict, overturned the court's ruling by passing the Muslim Women [Protection of Rights in Divorce] Act, which affirmed the power and autonomy of Muslim religious authorities and institutions on personal status matters (see Kumar 1994; Pearl and Menski 1998, 209-21; Singh 1994).

The politics of communalization in India exacerbates the vulnerability of Muslim women to intrafamily violence, making them doubly disadvan- taged-as women and as Muslims. For example, the Indian parliament passed a law criminalizing "bride burning'"21 and other forms of dowry- related harassment in 1983 (supplementing a 1961 law). However, Muslim women are excluded from the protection of criminal sanctions for dowry- related violence and murder; the Dowry Prohibition Act (1986) explicitly exempts "persons to whom Muslim Personal Law (Shariat) applies." This exemption, like the state's response to the Shah Bano case, was instituted to placate leaders of the Muslim community and deter sectarian violence.

Communal politics and the risk of sectarian violence in India remain charged by the enduring conflict with Pakistan over Kashmir and the ascension of right-wing Hindu parties in national and regional governments. The vulnerability of the Muslim minority to political violence on the national level serves to entrench the power of a conservative religious leadership within the community. This communal vulnerability, in turn, fosters a rigid refusal by the All India Muslim Personal Law Board to reform shari'a (Engineer 1999) and excludes Muslim women from the protections that national laws and institutions might afford (Lateef 1998). However, even on the national level in India, prospects for combating domestic violence are dismal (Flavia 1999; International Center for Research obn Women 1999). In 2002, women's organizations urged the government not to pass the Protection from Domestic Violence Bill, already approved by the cabinet, because it was fundamentally flawed in its conception and goals and

21. Bride burning is the term that describes the killing of women, often staged as a "kitchen accident," for their failure or inability to provide additional dowry resources to the husband's family. Although the origin of this phenomenon is rooted in Hindu practice, it has spread to Muslim communities in India as well as Pakistan and Bangladesh.


failed to conform to international laws to which India is a signatory (Joseph 2002; Sharma 2002).

In Nigeria, communalization has undergone a dramatic transformation in recent years connected to Islamization in the north. In 1999, the enforcement of shari'a in northern states with Muslim majorities was extended into the domain of criminal law, whereas previously it had been limited to family law. The consequences have been deleterious for women and non-Muslim minorities (see Jefferson 2002). For example, shari'a and the Northern Nigerian Penal Code reinforce the permissibility of domestic violence and the legal impunity of perpetrators. Section 55 of the Penal Code provides:

[W]ife beating is permitted in so far as it does not amount to grievous injury... Nothing is an offense which does not amount to the infliction of grievous hurt upon any person and which is done by a husband for the purpose of correcting his wife, such husband or wife being subject to any native law or custom in which such correction is recognized as lawful. (Cf. Effah 1995)

Likewise, under this penal code marital rape is permissible because it is unrecognized as a crime. Conversely, the criminalization of adultery, fornication and other violations of shari'a have become subject to "Islamic" punishments, such as stoning, flogging, and amputations. The enforcement of conservative interpretations of shari'a has become the purview not only of regional state governments but nonstate groups as well. According to Human Rights Watch,

In the north, civilian groups were used by the [regional] state authorities to enforce Sharia (Islamic law) in those states [that] had extended its application to criminal law. Some administered instant punishments to those caught violating Sharia law. In January [2002], the governor of Zamfara state announced that he was giving powers of arrest and prosecution to local Islamic "vigilante" groups as the police had failed in their duties. (2002, 449)

On the national level, the Nigerian constitution guarantees equal rights to all citizens, including clauses that bar discrimination on the basis of sex. Moreover, Nigeria has ratified, without any reservations, CEDAW and other human rights instruments that guarantee women's rights. However, the national government has not instituted laws explicitly prohibiting domestic violence, and the relegation of family relations to shari'a laws and courts in regional states compounds women's vulnerability (see Atinmo 1997; Bukurta 1998; Cooper 1998; Ezeah 1993; Olawale 1996). Indeed, the very process of Islamization has been a rejoinder to a loss of Muslim power


on a national level, and the promotion of regional autonomy has been a means of carving out a domain of control.

As the examples of Israel, India, and Nigeria illustrate, in countries where family laws are communalized, the interpretation and enforcement of shari'a are the means through which religious authorities can exercise power "outside" the domain of the state. Communalizing family law-and by extension women's rights-makes it difficult or impossible for victims of domestic violence to seek or obtain protection from the state. Communal- ization also impedes women's rights advocates from using national legislation as leverage, since the state either has created or accepted this arrangement and has an interest in maintaining it, whether to avert inter-sectarian strife or to consolidate its own legitimacy among powerful constituencies in a religiously pluralistic society.

B. Nationalization

Any state that identifies Islam as the official religion and draws on religious law and jurisprudence to shape national legislation and policies, but does not derive or base its own authority on shari'a, would fall within this category. This includes much of the Arab world and some countries in Africa and Asia with Muslim majorities.

The nationalization of religion blurs the boundaries between religious law and state power. States with Muslim majorities have pursued this approach in order to consolidate a Muslim national community and to promote their own legitimacy among sectors of society who are inclined to see a commitment to Islam as a marker of "good government" in the form of an "Islamic social contract." This blurring strengthens the importance of religious law but also opens space for debate over the relationship between shari'a and other bodies of law. On matters of women's rights in general and domestic violence in particular, there is room for maneuver to seek state intervention and legal reform through reference to criminal and constitutional laws. However, there is also room for Islamist constituencies to mobilize pressure on the state to enforce shari'a in a conservative manner. The Moroccan example discussed above exemplifies these dynamics. When faced with demands for liberal reforms by rights activists, the state can justify its refusal or even resort to repression against them on the grounds that it has both the prerogative and the duty to "defend" Islam as an integral part of the national character (see Mayer 1995a, 180-81).

Egypt provides a good example of the nationalization of religion. Article 2 of the constitution affirms Islam as the state religion, and in 1956 shari'a courts were integrated into the national court system. In principle, Egyptian law, including the constitution, provides women with a right to equality. However, in 1981, under pressure from Islamists, the


Egyptian constitution was amended to provide that the principles of shari'a would constitute the main source of legislation. The Supreme Constitu- tional Court has been authorized to determine whether new legislation conforms to these principles. In practice, given the conservative ways in which shari'a is interpreted and applied in Egypt to maintain male authority and female obedience, women's rights continue to be lesser than those of men, and their vulnerability to domestic violence is implicitly sanctioned by the state.

Divorce illuminates well Egyptian women's limited rights and their vulnerability to domestic violence. Egyptian courts follow a number of

principles that function like legally binding precedents. For example, according to principle 22, "a husband's inappropriate conduct is not considered [by itself] grounds for divorce" (Tadross 1998, 18). Principle 59 states that "a wife's return back to the home after having been harmed means that life could continue between them, which does not constitute grounds for divorce later" (Tadross 1998, 18). Until recently, if a woman wanted to end a marriage because of violence, her only legal recourse was to apply to a shari'a court judge; in the interim she could not refuse to be "obedient" while continuing to cohabit the marital home. A judge would grant a divorce only if the wife could provide sufficient proof of physical harm, and only if efforts to reconcile the couple proved fruitless (Tadross 1995, 57).

Aside from the difficulties in meeting burdens of proof of domestic violence and the general reluctance on the part of judges to dissolve a marriage at the behest of women, other factors impede Egyptian women from pursuing divorce. Often, women's families would not support a decision to seek a divorce or be willing to take them in, and establishing separate homes for themselves is both socially unacceptable and economically unfeasible for the vast majority. Another significant deterrent is the likelihood that women who seek divorce will lose custody of their children.

In January 2000, a new law pertaining to personal status issues was passed in Egypt. This legal reform was inspired by pressure from women's and human rights advocates, but the new law was a significantly watered- down version of the original proposed law. One of its provisions allows for "judicial khul," a type of no-fault divorce relieving women of the obligation to prove any harm so long as they refund their dower and forfeit all financial claims from the marriage. While this does, in principle, provide recourse for battered women who might not be able to obtain a divorce through litigious means, in practice the option is limited to women with the financial ability to meet the repayment demands and renounce their financial claims (Negus 2000).

While shari'a figures considerably in allowing domestic violence to thrive in Egyptian society by perpetuating women's subordination to male family members and limiting their options to dissolve a marriage, there are


variations along lines of social class, region, employment, relationship to spouse, and years of marriage. The Egyptian Demographic and Health Survey, conducted by the National Population Council in 1995, studied a representative sample of Egypt's population to assess attitudes toward and practices of domestic violence. In terms of attitudes, according to this study, most women who were ever married agree that husbands are justified in beating their wives at least sometimes. "Women are most likely to agree that men are justified in beating their wives if the wife refuses him sex or if the wife answers him back" (El-Zanaty et al. 1996, 206). This finding indicates a high degree of tolerance for domestic violence in Egypt, even among women. However, factors such as being older, married longer, married to a relative, having consented to the marriage, living in urban areas, higher levels of education, and wage employment all reduce the probability that a woman would agree that a husband has the right to beat his wife under any circumstance. Among those factors, higher education and employment are the most statistically significant. Nevertheless, even among the most educated women, around 65% agree that a husband is justified in beating his wife at least sometimes. Similarly, around 69% of women who bring income to their families justify wife beating at least sometimes (El-Zanaty et al. 1996, 206-7).

In terms of the practice of domestic violence, the survey reported that one out of every three "ever-married Egyptian women has been beaten at least once since marriage" (El-Zanaty et al. 1996, 208). Of those women, 45% were beaten at least once in the past year, and 17% were beaten three or more times in the same period (El-Zanaty et al. 1996, 208). Like attitudes toward wife beating, frequency of beating also varies along lines of social, economic, and regional differences. For example, the same study found that the incidence of wife beating was much higher in rural areas.

The empirical findings of the Egyptian national survey are suggestive of the veracity of claims made by women's rights activists throughout the developing world: that women's rights and empowerment within the family are correlated to female literacy and education, employment opportunities, financial security, and the availability and accessibility of social services. Thus, the role of the state in directing, pursuing, and prioritizing social and economic development on a national scale is critical to reducing women's vulnerability to domestic violence.

But the difficulties and failures of countries to develop economically have contributed to the rise and strength of Islamist movements. In Egypt, Islamists have gained political ground and influence in no small part because of the state's incapacity to accommodate the economic needs and expectations of the population. Since the early 1980s, the state elevated the role of shari'a and vested religious authorities with greater influence over national legislation as a strategy of political accommodation to deflect criticism of failures and shortcomings in the pursuit of national development.


This accommodation has contributed to the vulnerability of women to domestic violence, not by mandating violence per se but by creating conditions in which it can be perpetrated with relative impunity. This impunity is related to sociopolitical pressures on the state by conservative constituencies who prioritize adherence to shari'a principles over concerns about women's vulnerability to intrafamily violence. The state's accommodation of Islamists on issues of family law undermines women's ability to seek state protection or intervention if this could be construed as violating Islamic principles of male authority and female obedience (see Al-Ali 2000). Thus, the challenges to instituting legal protections against and prohibitions of domestic violence are inextricable from national struggles over the power, priorities and laws of the state.

C. Theocratization

In countries where the state defines itself as Islamic, religious law is the law of the state. In such contexts, defense of religion can be conflated with defense of the state, and critiques or challenges can be regarded and treated as heresy or apostasy, which the state authorizes itself to punish. Iran and Pakistan are examples of theocratization.

The Iranian revolution in 1979 transformed the country into an Islamic Republic.22 The revolution was inspired, in part, by opposition to the Shah's reform of family laws, and one of the Islamic Republic's first acts was the cancellation of the 1967 Family Protection Law (see Pakizegi 1978), along with the institution of a wide array of policies that served to constrict women's rights in accordance with a conservative interpretation of shari'a. However, over time, the Iranian government found compelling needs to expand rights and protections for women to support the claim that Islamic government is good for its citizens.23 To these ends, in 1992, a new set of divorce amendments restored many of the elements of the abrogated 1967 law.

In Iran, the process of building and legitimizing a modern statist approach to Islam has opened up debates over women's rights under shari'a, including dissenting views of patriarchal interpretations from within the clergy ('ulama). This debate has taken a highly public form in the national media (see Esfandiari 1994; Mir-Hosseini 2000; Moghissi 1996). Ziba Mir- Hosseini writes,

22. The national legislature is an Islamic Consultative Assembly. The Council of Guardians, composed of clerics, is authorized to ensure that all national laws are based on or compatible with Islamic criteria. Iran's supreme leader is an ayatollah (religious authority), and its top legal authorities are mujtahids.

23. The country launched into an "era of reconstruction" after the Iran-Iraq war ended in 1988 and the Ayatollah Khomeini died in 1989 (see Kian 1998, 6-7).


[A] "feminist" re-reading of the shari'a is possible-even becomes inevitable-when Islam is no longer part of the oppositional discourse in national politics. This is so because once the custodians of the shari'a are in power, they have to deal with the contradictory aims set by their own agenda and discourse, which are to uphold the family and restore women to their "true and high" status in Islam, and at the same time to uphold men's shari'a prerogatives. The resulting tension-which is an inherent element in the practice of shari'a itself, but is intensified by its identification with a modem state-opens room for novel interpretations of the shari'a rules on a scale that has no precedent in the history of Islamic law. (1996, 285-86)

One forum for this debate has been a popular women's magazine, Zanan. The articles and views published in Zanan have raised questions about some of the most fundamental aspects of shari'a, including the assumption that men have authority over their families or the obligation of unwilling women to submit to sex with their husbands. Within the context of a broader discussion about spousal relations, rights and duties, Zanan has focused specifically on the issue of domestic violence, including a reading of Sura 4, Verse 34, that draws on 15 traditions of the Prophet and uses a variety of interpretative strategies to argue against the legitimacy of wife beating.

Reformist trends in Iran have been mounting in recent years, as evident in the election victories by reform-minded candidates (Kian 1998). However, these trends have been resisted and countered by a conservative clergy that exercises a great deal of national power. Tensions between conservatives and reformists continue to dominate Iranian national politics, and the (future) character of the state itself is at stake. But the popularity of reformists and their ability to command a majority in elections suggest a social openness to greater rights for women (see Kian-Thiebaut 1999; Mir-Hosseini 2001). To the extent that these rights claims are being articulated in terms of shari'a indicates the possibility that religious rationales can be deployed to prohibit violence against women. Homa Hoodfar writes:

[A] considerable sector of women's activism in Iran employs not secular debates but female-centered interpretations of Islam and of the political concept of "Islamic justice." Through this strategy, women not only derail the claim that feminism and issues of legal equity are Western paradigms which aim to undermine the authenticity of Iranian society, but they also break the male monopoly on interpreting Islamic texts. (1999, 3)

The kinds of liberalizing trends and female-centered interpretations of shari'a in Iran are strikingly absent in Pakistan, where the trend has been


toward more conservative interpretations of shari'a, to the detriment of women.24 Pakistan was created to provide a separate state for Muslims in South Asia to avoid minority status and subjection to a Hindu majority in India. The constitutional debates following independence in 1947 were dominated by arguments over the place of shari'a in the country's legal system, but it was not until the mid-1970s during the regime of Prime Minister Zulfikar Ali Bhutto that Pakistan's legal system began to be Islamicized.

Islamization was greatly expanded following the military coup that brought General Zia ul-Huq to power in 1979. Zia appealed to Islamic values to legitimize his regime and granted religious parties a power they had not previously had and a role in revamping the legal system. In the first year of his rule, Zia reversed virtually all of the reforms that had benefited women in the previous 30 years (Rouse 1998). He introduced the Hudood Ordinances, which changed the laws on rape and adultery and made fornication a crime, and the Law of Evidence, which renders the evidence of women equal to only half that of a man in some cases (see Haeri 1995; Mehdi 1990; Quraishi 2000). He introduced shari'a benches in the high courts, which became centralized as the Federal Shari'a Court in 1980. This court was authorized to review all laws to ensure their conformity with shari'a.

In the 1990s, Pakistan's elected governments were unable or unwilling to repeal any of the Islamic laws that had been enacted under Zia's martial law regime. On the contrary, every government has relied on Islam to bolster its own legitimacy. In his second term (1997-99), Prime Minister Nawaz Sharif proposed an amendment to the constitution that would have replaced the legal system completely with shari'a in an attempt to gain more support for his embattled government. However, he was removed from power by a military coup in 1999 before the law passed in parliament.

Extremely conservative Islamists are a powerful constituency in Paki- stan, including in the military that currently rules the country. If anything, their power has been heightened by popular opposition to the U.S. war in Afghanistan, launched in reprisal for the September 11, 2001, attacks, and by raging conflict with India in Kashmir. President-General Parvaz Musharraf has granted Islamists wide latitude within the country to offset anger over Pakistan's cooperation with the U.S. in its "war on terror."

In Pakistan, estimated rates of domestic violence are among the highest in the world, affecting from 70 to 90% of women (Amnesty International 1997, 1998; Human Rights Commission of Pakistan 1997; Women's Ministry 1985). Although the government of Pakistan ratified

24. Pakistan ranks near the bottom globally for almost every social indicator concerning the lives of women. Only 25% of women are literate, compared to 55% of men. See Amnesty International (1998); World Bank (n.d.).


CEDAW in 1996, nothing has been done to reform national laws and state practices to be in compliance with the convention, and recent events mitigate against the possibility of any liberalizing trends. In 1997, the Human Rights Commission of Pakistan reported:

Domestic violence remained a pervasive phenomenon. The supremacy of the male and subordination of the female assumed to be part of the culture and even to have sanction of religion made violence by one against the other in a variety of its forms an accepted and pervasive feature of domestic life. (1998, 185)

Despite the high incidence of intrafamily violence in Pakistan, impunity is legally sanctioned and socially tolerated. Yasmine Hassan (1995, 57-60) notes that in the absence of explicit criminalization, police and judges treat domestic violence as a nonjusticiable family matter or, at best, an issue for civil rather than criminal courts. If a domestic violence case does come before a criminal court, it falls under the Qisas and Diyat Ordinance of 1990,a body of Islamic criminal laws dealing with murder, attempted murder, and the crime of causing bodily "hurt" (see Gottesman 1992; HRW 1999). In effect, the qisas (retribution) and diyat (restitution) laws converted intrafamily violence into crimes against the individual rather than the state. In addition, women who have suffered domestic violence come under pressure by relatives to waive qisas altogether (HRW 1999, 41-42; Shaheed 1994, 217). Qisas may not even apply in cases of wife murder if the woman has any children, because under section 306(c) of the Penal Code, the child or heir of the victim would also be a direct descendant of the offender.

In many cases when a Pakistani woman is killed or injured by a family member, authorities refuse to investigate or prosecute the offender. In other cases, violence is excused as a legitimate response to "grave and sudden provocation." For example, in a case in which a man was tried for killing his daughter and a young man whom he found in a "compromising state,"the Lahore high court found that his actions were justified because his victims were engaging in immoral behavior that could not be tolerated in an Islamic state such as Pakistan (HRW 1999, 42).

Pakistan stands out as a context in which shari'a is interpreted and enforced in a relentlessly conservative way. Arguably, the "innovations" in shari'a instituted under various Pakistani governments over the years can be criticized as contrary to Qur'anic principles (Shaheed et al. 1998), but doing so within the country leaves critics vulnerable to state-sponsored repression and punishment, as well as social condemnation. The debates and liberalizing trends in Iran provide a salient contrast to Pakistan's approach to theocratization.


As the above discussion about communalization, nationalization, and theocratization demonstrates, the relationship between religion and the state is crucial to a comparative analysis of domestic violence in Muslim societies. While the use of shari'a to govern family relations contributes to certain commonalities, the variations across societies (and over time) are significant. Variations and transformations in the relationship between shari'a and women's rights can be understood as consequences of struggles over state power, authority, and legitimacy.

8. CONCLUSION

The problem of domestic violence is not the same in every society, but it is a problem common to almost all societies. Ultimately, the state is responsible for the regulation, restriction, and punishment of violence, including that which occurs within the family. Thus, even if states commit themselves to the principle of women's rights (e.g., nondiscriminatory clauses in national legislation, accession to international conventions), if they do not commit their resources to combat domestic violence, they fail as states to assume their responsibility to protect their subjects from violence. In many contexts, these failures actually serve to bolster patriarchal family relations (Mernissi 1995; Sharabi 1988) and to foster conditions in which impunity for domestic violence can thrive. According to Deniz Kandiyoti:

The failure of modern states to create and adequately redistribute resources intensified tensions and cleavages expressed in religious, ethnic and regional terms.... As the state itself uses local patronage networks and sectional rivalries in its distributive system, citizens also turn to their primary solidarities both to protect themselves and to compensate for inefficient administration. This reinforces the strangle- hold of communities over their women, whose roles as boundary markers become heightened. (1991, 13-14),

When the state is incapable or unwilling to represent the interests of members of society, the importance of family and kinship relations is inflated. Consequently, any challenges to patriarchal authority in the domestic sphere-including but not limited to challenges to the use of violence-can be construed as threatening to the family as an institution. This, in turn, lends itself to the idea that increasing the rights of women would corrode and menace the family, and, by extension, the social order. As the irony comes full circle, many states are willing to champion or accept the notion that women's rights-and those who advocate them-are threatening to society in order to shift critical attention from their own failings or to justify their own refusal to reform family and criminal laws.


Conceiving of women's rights as threatening to the social order is certainly not unique to Muslim societies, but in Muslim societies such conceptions can be derived from dominant interpretations of shari'a, and the legitimization and promotion of these interpretations has become a priority of conservative Islamists. When states accept or accommodate interpretations of shari'a that sanction or tolerate intrafamily violence, they bear responsibility for impunity for perpetrators. What varies are the reasons and implications for a state's willingness to sanction or tolerate such violence. In countries where religious law is communalized, the state vests religious leaders and institutions with autonomy over family law as a means of consolidating power or promoting stability in a religiously pluralist society. But the implications deprive women of rights as citizens and impede their capacity to seek protection from the state. In countries where religious law is nationalized, women's rights are subject to dominant interpretations of religious principles, and conservative religious constituencies can influence state policies by withholding their support or otherwise challenging the authority of the state. Where religious law is the law of the state, women's rights-indeed the rights of all citizens-are defined by interpretations of religion, articulated by religious authorities and enforced through state institutions.

This framework for comparative analysis seeks to explain and illustrate the importance of states in struggles over religion and women's rights as they bear on the issue of domestic violence. On the one hand, the sovereign prerogatives of states do provide for autonomy and independence on the legal character of rights within a country. In recent decades, many governments in the Middle East, Africa, and Asia have exercised their sovereign prerogatives individually and in cooperation with one another to fortify the importance of shari'a as the framework for family relations. On the other hand, the international nature of human rights standards and the jurisdiction of international law obligate states to conform under the doctrine of state responsibility (see An-Na'im 1994). In this regard, local interpretations and uses of shari'a have become implicated in internationalized struggles over women's rights.

Although shari'a is administered, interpreted and used in a variety of ways across Muslim societies, in many contexts it provides a potent justification for states to deny or limit women's rights. To the extent that this leaves women vulnerable to violence at home, their vulnerability marks a failure on the part of states to act responsibly to provide women the rights and protections that they are due as humans, as citizens, as women, and as Muslims. And to the extent that popular notions about shari'a conceive of certain forms of violence against women as normative or legitimate, this undercuts the efforts of those who seek to press their state to assume and exercise its responsibility to protect women from violence. In conclusion, because of the importance of the state to any struggle over rights, struggles


against domestic violence can be seen as part of a broader struggle for the

right of legitimate and representative government by a state that exercises its responsibility to protect all of its subjects from violence.

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Religion, State Power and Domestic Violence

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