The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law and the Modern Muslim State

Part III

Instead of a Conclusion

11

Gender Equality, Islamic Law and the Modern Muslim State1

Anver M. Emon

1. Introduction

The pursuit of gender equality in Islamic family law, as codified in various Muslim states, is neither a new phenomenon nor one that is lacking considerable study. Indeed, many scholarly monographs, edited collections and academic journals present thoughtful, well-researched and passionate contributions that are animated by the goal of gender justice in the Muslim world.² This chapter is indebted to that vast body of literature, and, indeed, is a humble offering that stands in the shadow of all that has come before. The aim of this chapter is to bring the reader’s attention to a subtle irony that underlies the pursuit of justice. That irony has everything to do with what is often called the ‘paradox of equality’. If equality requires the same treatment of those who are similarly situated, the paradox of equality reminds us that we cannot treat similarly those who are not similarly situated. Indeed, there are times when justice demands that we legally differentiate between people because of their differences.³

Legal differentiation is a common feature of the law, a sine qua non of justice. To take a rather mundane and perhaps indelicate example, we often find separate bathrooms for men and women.⁴ Furthermore, in the interest of accommodating the needs of those who are disabled, we may create yet a third bathroom that is specially designated for them and equipped with certain devices designed to aid those who might require assistance. We may even argue (and convincingly so) that differentiation in these cases is right, good and just. In all these cases, though, we cannot deny that men and women are treated differently, and that the disabled are treated differently again. For some, this example might seem silly; it is so banal that they might think it takes us away from the hard cases of equality that find expression in the contributions to this volume. However, this example is offered to emphasise an important dynamic that underlies the paradox of equality. Arguably, this example is only banal because we consider the differences between men, women and the disabled in this specific situation so obvious, indeed so very natural, as to require virtually no argument or rationale to explain why differentiation occurs and is laudable. The presumption of naturalness is key to understanding the basis by which differentiation is often justified and legitimated. From a critical perspective, though, that presumption demands our greatest attention and vigilance lest it be used as post-hoc justification to discriminate. As Joan W. Scott reminds us, ‘maternity was often given as the explanation for the exclusion of women from politics, race as the reason for the enslavement and/or subjugation of blacks, when in fact the causality runs the other way: processes of social differentiation produce the exclusions and enslavements that are then justified in terms of biology or race’, or, in other words, in terms of presumptions of what we consider obvious, unavoidable and natural.⁵ For example, the banality of the example above disappears once we consider access to bathrooms in the Jim Crow era in the twentieth-century United States, when African Americans had to use separate, and often deficient, facilities.⁶ The recent novel, The Help, which has become a major motion picture, depicts how presumptions of natural differences could justify what would now be considered highly discriminatory allocations of access to washrooms.⁷

In this simple, if admittedly vulgar, example, we see the paradox of equality at work – sometimes people have to be treated differently in order for justice to be served.⁸ They are treated differently because of some characteristic or feature that is deemed so natural as to warrant differentiation. Yet, the example also illustrates how presumptions of natural difference must be subjected to vigilant scrutiny lest differentiation become unjust because it is discriminatory. Differentiation, as used in this chapter, is distinct from discrimination. Discrimination is an evaluation that a particular differentiation constitutes disadvantages against a particular group and that such disadvantages render the differentiation illegitimate. Legal differentiation by itself is, therefore, a common and expected feature of the law. The paradox of equality offers analytic bite by asking whether the presumptions under which a particular factual difference leads to a legal differentiation may be discriminatory, and thereby illegitimate under the law.

This chapter approaches the question of gender equality from the vantage point of the paradox of equality. Instead of focusing narrowly on whether and how women are discriminated against, and challenging the role of patriarchy in animating such discrimination, this chapter will step back and instead inquire whether and why differentiation in the law is justified and legitimated, and explore how legal differentiation in one context can be discrimination in another. The chapter will, thereby, distinguish between factual difference, legal differentiation and discrimination. These distinctions are significant because they beg important questions that all too often remain unaddressed: what makes certain factual differences irrelevant as a matter of law, while others are legitimate bases for legal differentiation, and yet others are deemed discriminatory and thereby illegitimate as a basis for legal differentiation? For instance, the factual difference between a 5-year-old and a 6-year-old boy may not matter in terms of how one measures the relevant standard of care in the Common Law of Tort, where the boy is sued for negligently injuring another child. But the factual difference between a 5-year-old boy and a 17-year-old boy provides a basis for legal differentiation: the 17-year-old will be held to a higher standard of care.⁹

This chapter contributes to the existing literature on gender, equality and Islamic law by interrogating the nuances of equality from the vantage point of the paradox of equality. Part 2 examines the different strategies used by those advocating gender equality in the Muslim family. Part 3 illustrates how the paradox of equality is an ancient concept with roots in both Greek and Islamic philosophy. Part 4 shows how the vantage point of the paradox of equality allows us to critically question and explore the assumptions that animate the development of legal rules that differentiate and discriminate against people on different grounds. Parts 5 and 6 examine how Islamic law has legitimated differential treatment of men and women by reference both to the law and to extra-legal factors associated with the post-colonial condition of Muslim societies. Part 7 brings the analysis to a close by suggesting that to shift what the historical tradition represents as legal differentiation between men and women to be discriminatory, and thereby illegitimate as a matter of Islamic law, will involve both legal and extra-legal factors. Drawing upon scholarship about the women’s movement in the United States, this chapter suggests that legal change in the Muslim world will require more than just attentiveness to the intricacies of legal texts and legal reasoning. It will require social movements to occupy the streets and articulate alternative legal outcomes to expand the scope of what is legally intelligible, meaningful and possible. This chapter implicitly suggests that social movements would do well to bear in mind the paradox of equality as they design their research and activist agendas. The paradox of equality helps to identify the unstated assumptions that make legal differentiation possible, thereby quietly justifying what is tantamount to discriminatory treatment against women under the law in some Muslim countries.

2. Equality in Muslim reformist writings

A review of literature concerning gender and justice in Islamic law shows that Muslim writers begin from the starting point of a patriarchy that is either considered embedded in the tradition or imposed upon it from outside. For instance, Fatima Mernissi, in her path-breaking work, writes in an autobiographical moment: ‘When I finished writing this book I had come to understand one thing: if women’s rights are a problem for some modern Muslim men, it is neither because of the Koran nor the Prophet, nor the Islamic tradition, but simply because those rights conflict with the interests of a male elite.’¹⁰ Others note that patriarchy can certainly be read from the main source-texts of Islam, such as the Qurʾan, but are keen to suggest that patriarchy is separable from the Qurʾan’s message. Asma Barlas acknowledges that describing the Qurʾan as patriarchal is anachronistic at best. Rather, the aim of her book is to ‘challenge oppressive readings of the Qurʾan’ and ‘to offer a reading that confirms that Muslim women can struggle for equality from within the framework of the Qurʾan’s teachings’.¹¹ Acknowledging that patriarchal readings of the Qurʾan abound, Barlas nonetheless seeks to find a way to gender equality through the sacred text. A third approach, complementary to Barlas’, is the hermeneutic approach of Farid Esack. Rejecting predominant paradigms of gender relations that perpetuate existing power imbalances between men and women, Esack reads the Qurʾan through the hermeneutic lens of justice, and not mere kindness, given that the former proffers modes of redress while the latter does not necessarily do so, and as such perpetuates the existence of oppression.¹² Theories of interpretation are proffered, building on hermeneutic principles of justice in light of the relationship between the reader, the text and meaning.

At the heart of these writers’ concerns is the need to recognise and articulate a conception of gender equality as a character of justice in Islam. However, the meaning and implications of gender equality are not always shared between them. For Mernissi, equality is captured in the language of common and shared ‘rights’ at the political, social and sexual level. She correlates this rights-oriented view of equality with the historic independence of Muslim states from colonial subjugation. These new states were ‘born’ into an international system of equal and sovereign states, where the aspiration to democracy, constitutionalism and rule of law forced a recognition of the individual as citizen. As new Muslim states entered the international community and redefined themselves, ‘in the eyes of their former colonizers, they were forced to grant their new citizenship to all their new nationals, men and women … The metamorphosis of the Muslim woman, from a veiled, secluded, marginalized object reduced to inertia, into a subject with constitutional rights, erased the lines that defined the identity hierarchy which organized politics and relations between the sexes.’¹³ Mernissi’s equality, arguably, is one that draws upon presumptions about the state, constitutionalism and the citizen as rights bearer. Likewise, Esack’s passionate plea for gender justice perpetuates the language of rights.¹⁴ When writing about the rights ‘given’ to Muslim women, he asks: ‘Are human rights a gift awarded to well-behaved little children as if women … exist outside the world of Islam … in the same way that children are seemingly external to the world of adults?’¹⁵ Esack uses the language of rights to characterise his agenda of gender justice, which is constituted by a commitment to equality: ‘The right to self-respect, dignity, and equality comes with our very humanness.’¹⁶ When Mernissi and Esack write about ‘equality’, they have in mind a particular substantive content that arguably echos the language of classical liberal notions of rights. Whether defined by a constitution that grants rights pursuant to general human rights norms, or even human rights treaties such as the Universal Declaration of Human Rights,¹⁷ equality for both authors reflects a certain content (namely, a liberal one), expressed in terms of rights.

Departing from the rights-based models of equality, Barlas’ approach recognises that justice may, in fact, require legal differentiation; in other words, she invokes the ‘paradox of equality’. In her attempt to unread patriarchy in the Qurʾan, Barlas argues that the Qurʾan is egalitarian and antipatriarchal.¹⁸ But she cautions that this does not mean that the Qurʾan does not treat men and women differently. Rather, sexual equality need not mean the absence of differential treatment. She writes:

[W]hile there is no universally shared definition of sexual equality, there is a pervasive (and oftentimes perverse) tendency to view differences as evidence of inequality. In light of this view, the Qurʾan’s different treatment of women and men with respect to certain issues (marriage, divorce, giving of evidence, etc.) is seen as manifest proof of its anti-equality stance and its patriarchal nature. However, I argue against this view on the grounds both that … treating women and men differently does not always amount to treating them unequally, nor does treating them identically necessarily mean treating them equally.¹⁹

To be anti-patriarchal does not mean that factual difference must be obscured, or that legal differentiation must be avoided at all times and places.

The examples of Mernissi, Esack and Barlas are offered to show different ways in which gender justice and equality are framed in contemporary debates on Islamic law. The specific agenda of each author is less relevant for this chapter; what is more significant are their different approaches to the notion of equality. One approach implicitly conveys a liberal-sounding rights-based approach to the content of equality. Another views equality and justice as requiring a determination of whether differences exist in fact, and whether those factual differences justify differential treatment, or whether such differential treatment might actually be discriminatory, and thereby illegitimate. This latter approach to equality is particularly important for this chapter, as it explores the analytic contribution of the ‘paradox of equality’ to the future of gender equality in the Muslim world.

3. The paradox of equality

The paradox of equality is that, as a principle of justice, it recognises that equality is not merely about being treated the same. Rather, the paradox reveals that equality as a matter of law is not only about treating two things equally because they are the same or share a quality of sameness. Equality as a matter of law must also treat two people differently when they are deemed to be sufficiently different, as a matter of fact, to warrant or justify such legal differentiation. Indeed, to treat different people as the same might lead to injustice or, at the very least, considerable discomfort. By bringing forward the contrasting tendencies in equality, the paradox of equality requires us to distinguish between the fact of sameness and difference, and the normative implications given to that factual sameness or difference. That distinction then begs certain fundamental and difficult questions: when and under what conditions should a certain factual difference between two people lead to and justify legal differentiation that entails different distributions of resources and different sets of rights claims? And under what circumstances does that legal differentiation become discriminatory? For instance, in various constitutional democracies, both men and women have the right to vote. In this case, gender difference is irrelevant (although that was not always the case). On the other hand, because of the factual difference of gender, public toilets are generally gender segregated – a normative differentiation. In contrast, a rule that prohibits abortion is discriminatory given the undue burden such a rule places upon women, while men suffer no such burden. In all three cases, the normative or legal implication of factual difference resonates differently; the paradox of equality alerts us to the different registers, and begs important questions about the conditions under which a factual difference matters or not.

This chapter interrogates the nature of equality by interrogating the dynamics of the paradox of equality. Equality, differentiation and discrimination are terms of art that alert us to the fact of difference. They prompt us to inquire whether and why a particular factual difference can or must imply legitimised forms of differentiation, and the conditions under which such differentiation may actually be discriminatory. This approach to equality and discrimination allows us to unpack the assumptions of justice that underlie rules which differentiate between people, and subject those assumptions of justice to critical scrutiny. In doing so, this chapter will make plain the need for multiple strategies to counter the presumptions that perpetuate the legitimacy of legal differentiations which have discriminatory features and impact.

a. Islamic philosophy, musāwa and the paradox of equality

Approaching the issue of equality in light of its paradoxical quality allows us to adopt a critical stance on the pre-modern Islamic legal tradition without, at the same time, uncritically reading into that critique liberal notions of equality. Furthermore, to think about equality in terms of the paradox draws upon a principle of justice that, arguably, is shared across traditions. For instance, in his Nichomachean Ethics