Academic journal article Law & Society Review

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Academic journal article Law & Society Review

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Article excerpt

[A] history of family law, written from an anthropological perspective, is a history of narrative strategies engaged in by the state to influence the life course of its nationals. These maneuvers ultimately aim to fix the meaning of kin relations essential to the constitution of citizens as subjects, meaning that the citizens themselves should preferably desire to structure their lives according to the official rules.... In this attempt at nation-building - to define, regularize, institutionalize, and normalize the domestic practices of the self -the state codifies and legalizes the desires for specific kinds of relations and specific kinds of selves. (John Borneman, Belonging in the Two Berlins [1992:75])

Family law ostensibly grounded in religion comprises an important and deeply contested domain of legal practice in much of the world, including India, South Africa, Israel, Egypt, and Lebanon, to mention just a handful of well-studied examples. Why is this realm of religiously inflected law frequently represented by Western scholars, local activists, journalists, novelists, and the international human rights community as deeply conservative and unfriendly to women if not backward looking and anachronistic? One set of reasons is that it was historically segregated from other areas of law and otherwise "traditionalized" by modernizing elites (Halley and Rittich 2010:771-772); it is often all that remains of an historically male-dominated religious community's "collective right to religious liberty and ... their sovereignty over a domain in which they are understood to have religious jurisdiction" (Mahmood 2012:56). Another set of reasons, especially germane to Islamic family law, has to do with the thrust of recent academic scholarship. This scholarship tends to highlight three themes: the resonance between the current instantiations of the relevant laws and normativities and their classical antecedents; the incommensurabilities that distinguish their core elements from key ("liberal") features of the more encompassing secular legal regimes in which they are typically embedded; and the need to bring about feminist-oriented or other reform. Scholarship driven by the latter concerns (advocacy, activism, reform) commonly underscores the other themes mentioned here. And it often involves largely synchronic perspectives, a focus on women as distinct from the more encompassing domain of gender, and a kind of (broadly construed) strategic essentialism that emphasizes dynamics of kinship, marriage, gender, and sexuality in terms of the proverbial glass that is half-empty rather than half-full.1

One goal of this essay is to complicate this imagery by describing and analyzing a relatively "female-friendly" pattern of historical shifts in the domain of Islamic family law in the Muslimmajority nation of Malaysia based on ethnographic fieldwork and archival research I have conducted since the late 1970s. A second, related goal is suggested by the epigraph drawn from John Borneman's research on kinship, family law, and belonging in Berlin shortly before the reunification of the city in 1990. To borrow from Borneman, this goal involves illustrating how states endeavor to define, codify, and normalize particular kinds of relations and particular kinds of selves that political and religious elites see as essential to the constitution of citizens as subjects. I focus partly on women's prerogatives to obtain divorce/annulment without their husbands' consent. The more encompassing dynamic under study is the role played by sharia courts, which are integral features of the state apparatus that I foreground in this essay, in the cultural politics of marriage and in gender pluralism as a whole.2 More specifically, I describe and analyze how Malaysian women have fared in sharia courts since my earlier research in the 1970s and 1980s and problematize various tensions and oppositions between Islamic law and women's rights that have been the subject of considerable scholarly debate in recent decades. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.