Islamic Studies Islamic Law and Gender
by
Natana DeLong-Bas
  • LAST MODIFIED: 24 April 2019
  • DOI: 10.1093/obo/9780195390155-0264

Introduction

Studies of gender in Islamic law combine methodologies from two distinct fields of study: Islamic law, and women and gender. While Western scholarly study of Islamic law began in earnest during the era of Orientalist scholarship (late 19th through mid-20th centuries), focusing largely on questions of origins and mechanics, particularly outlining rules and regulations and the rights and duties of various groups of people, the application of women and gender methodologies to Islamic law dates to the 1980s, with substantial work beginning in the 1990s. Since then, the field has expanded to include case studies of different times, places, and variations between law schools (madhhabs), comparative analyses, and attention to contemporary reform efforts, particularly in family law.

Orientalist Debates about the Origins and Development of Islamic Law

Orientalist debates about the origins of Islamic law are important to gender issues because they established the framework for scholarly analysis, raising fundamental questions about whether certain regulations and norms could be traced to Muhammad’s lifetime or were later developments. Because contemporary reform efforts in family law frequently appeal to the foundational era of Muhammad and the Companions, questions about origins and dates—of the Qurʾan, hadith (records of Muhammad’s sayings and deeds), and jurisprudence (fiqh)—can be crucial in supporting or opposing a given regulation. During the era of Orientalist scholarship, questions about the origins and mechanics of Islamic law—what it said, how it operated, what rules and regulations it established, and what rights and duties were assigned to whom—took precedence over concerns about value systems and gender role construction. In works such as Goldziher 1981 (first published 1910) and Schacht 1964, scholars argued that neither Islamic law nor the hadith literature existed during Muhammad’s lifetime or for the greater part of the first Islamic century, but were borrowed and developed from other cultures and civilizations under the Umayyad dynasty (661–750 CE) and projected backward to Muhammad and the Companions. Although this overall framework was initially well received by Western scholars, some disagreed. Coulson 1964 argued that the origins of Islamic law were present in Muhammad and the early community’s practices, although not fully manifested until later. Juynboll 1983 asserted that Islamic law dated to the second quarter of the 8th century, although Juynboll acknowledged that at least some hadith approximated what Muhammad said and did, even if not formally transmitted until forty to fifty years later. Calder 1993 concluded that hadith-based jurisprudence did not emerge until the 9th and 10th centuries. Yet other scholars have supported origins of the Qurʾan and hadith in Muhammad’s lifetime based on studies of Arabic literary papyri, as seen in Abbott 1964 and Sezgin 1996. Azami 1978 agrees with this finding, observing that many hadith were shared by groups with different theological and legal perspectives, suggesting earlier, common origins. Hallaq 1997 presents evidence of rudimentary legal theory as early as the end of the 8th century, along with reports dating to earlier times, including, in some cases, Muhammad’s lifetime. Hallaq 2009 gives greater attention to women and gender issues, including their many and varied roles in public life, albeit within a critique of the colonial era for reducing Sharia to family law with a patriarchal flavor. Many scholars today examine hadith individually or according to theme, rather than as collections. Afsaruddin 2013 analyzes hadith related to martyrdom and types of warfare, while al-Albani 1995 assesses individual hadith based on chains of transmission.

  • Abbott, Nabia. Studies in Early Arabic Literary Papyri. Vol. 2. Chicago: University of Chicago Press, 1964.

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    Argues in favor of hadith transmission in both oral and written form from the beginning of Islamic history, as well as care in scrutinizing and authenticating chains of transmission, so that the growth of hadith literature in the 2nd and 3rd Islamic centuries was not due to fabrication of content, but to an increase in parallel and multiple chains of transmission.

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  • Afsaruddin, Asma. Striving in the Path of God: Jihad and Martyrdom in Islamic Thought. New York: Oxford University Press, 2013.

    DOI: 10.1093/acprof:oso/9780199730933.001.0001Save Citation »Export Citation »E-mail Citation »

    Examination of early literature on jihad and martyrdom that concludes that certain hadith, such as those addressing apocalyptic events, martyrdom for death in battle, and those citing naval warfare, which was unknown during Muhammad’s lifetime, were fabricated by the Umayyad dynasty for political purposes. Methodology compares the content and orientation of the hadith to the Qurʾan.

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  • al-Albani, Nasir al-Din. Silsilat al-ahadith al-sahiha. Riyadh: Maktabat al-Ma’arif, 1995.

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    Example of al-Albani’s reexamination of the chains of transmission of canonical hadith. Although frequently critiqued by scholars as overly simplistic and literal in methodology, he has had great impact in popular circles.

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  • Azami, M. M. Studies in Early Hadith Literature. Oak Brook, IL: American Trust Publications, 1978.

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    Provides support for early origins of hadith literature, rooted in finding that certain hadith were shared by very different groups, including Sunnis, Zaydis, and Kharijites, which Azami argues bolsters the credibility of earlier, rather than later, origins.

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  • Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford: Clarendon, 1993.

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    Examination of the six major classical legal texts which concludes that hadith-based jurisprudence dates to the 9th and 10th centuries. Rather than origins, Calder’s analysis sought to trace the professionalization of jurisprudential writing.

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  • Coulson, N. J. A History of Islamic Law. Edinburgh: Edinburgh University Press, 1964.

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    Serious investigation into Schacht’s claims about hadith origins, arguing instead in favor of accepting as authentic the substance of traditions, particularly those dealing with daily life problems on legal matters, as likely to represent approximately prophetic rulings in the absence of evidence otherwise.

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  • Goldziher, Ignaz. Introduction to Islamic Theology and Law. Translated by Andras Hamori and Ruth Hamori. Princeton, NJ: Princeton University Press, 1981.

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    Originally published in German in 1910, this was the first Western scholarly study of the Islamic legal tradition, albeit through the lens of rabbinic law, and it raised questions about the authenticity of hadith literature. Although there is little direct attention to women, they are mentioned in discussions of various points of family law.

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  • Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh. New York: Cambridge University Press, 1997.

    DOI: 10.1017/CBO9780511801266Save Citation »Export Citation »E-mail Citation »

    Written in response to Schacht, this has become the new standard in the field of Islamic law for the development of the system of usul al-fiqh as a mix of pre-Islamic customary law and the Qurʾan, rooted in an understanding of the community as both a political and a social unit. Women and gender are studied within a broader discussion of legal structures and socio-religious reality, not as a separate subject of study.

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  • Hallaq, Wael B. An Introduction to Islamic Law. New York: Cambridge University Press, 2009.

    DOI: 10.1017/CBO9780511801044Save Citation »Export Citation »E-mail Citation »

    Discusses Islamic law as a direction and method of social morality, rather than a mechanical and interpretive manifestation of the divine will. Gives special attention to the presence of women, both free and slave, as legal agents in court records defending their reputation and honor, owners and managers of wealth and property, and plaintiffs and defendants in matters ranging from family law to civil damages and breach of contract.

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  • Juynboll, G. H. A. Muslim Tradition: Studies in Chronology, Provenance, and Authorship of Early Hadith. New York: Cambridge University Press, 1983.

    DOI: 10.1017/CBO9780511752155Save Citation »Export Citation »E-mail Citation »

    Work focused on the origins of the hadith, arguing in favor of 40–50 years of discussion of what Muhammad said and did before a formal process of transmission began.

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  • Schacht, Joseph. An Introduction to Islamic Law. New York: Oxford University Press, 1964.

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    Foundational work in the field of Islamic law, challenging the presumed origins and timelines of the Qurʾan, hadith, and Islamic law, and dating them to 100 years after Muhammad’s death. Although it notes the frequent disconnect between jurisprudence and actual practice, this issue is not explored in depth.

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  • Sezgin, Fuat. Geschichte des arabishcen Schrifttums. Vol. 1. Leiden, The Netherlands: Brill, 1996.

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    Examination of early hadith manuscripts and analysis of the formulas used for chains of transmission. Concurs with Abbott’s finding that recording of hadith literature began during Muhammad’s lifetime and continued through the compilation of the canonical hadith sources in the 3rd century.

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“Women’s Rights and Duties” in Islamic Law

Initial scholarly forays into Islamic law outlined the “rights and duties” of various categories of people as part of the broader project of defining and portraying the “ideal” Islamic society in which legal roles and status were determined by socioeconomic and political hierarchies, free or slave status, ethnic background, religious affiliation, and gender. The “rights and duties” structure used “women” as a category of analysis, although it soon became clear that this limited women to definition by relationship—typically to a man, and hierarchy within a presumed family construct, as well as asserting an “ideal” family role, regardless of the woman’s personal circumstances or how “ideally” the man fulfilled his role. Not only were women’s rights and duties subordinated to those of men as a matter of process, they were also conflated with reproductive and sexual obligations, complicating work toward gender equality in many Islamic contexts, as documented by Cesari and Casanova 2017. This distracted from women’s relationships with and accountability to God in favor of placing women in permanently submissive positions to other human beings. Sadeghi 2015, a historical study of women and prayer in Islamic law, redresses this prioritization error. The first serious contemporary Western scholarly work on Muslim women’s rights and duties in Islamic law was al-Hibri 1982, an article questioning whether patriarchy is a reflection of the divine will or a cultural accretion that can and should be removed as a matter of reforming/purifying Islam. Joining with other scholars such as Fatima Mernissi (see Mernissi 1975), al-Hibri denounced male interpretations that deliberately distorted the meaning of the Qurʾan to suit their own needs and called for rediscovery and recovery of the egalitarian spirit of the Qurʾan and hadith as the starting point for reform. She decried the primacy given to jurisprudence (fiqh) for reducing human relationships to mechanical fulfillment of duties and insistence upon hierarchy and obedience at the expense of the emotional needs of the couple and the mutuality of the relationship. Her initial five areas of concern for Muslim women—polygamy, divorce, supremacy of men over women, witnessing, and inheritance—were expanded in al-Hibri 1997 to include personal status codes granting men autonomy and authority over the female body, and education, particularly in women’s rights under Islamic law. Subsequent works have engaged feminist methodologies, beginning with Riffat Hassan’s call for restoration of women’s autonomy and personhood as guaranteed by the Qurʾan (see Hassan 1990) and Leila Ahmed’s critique of the distortion of the Qurʾanic egalitarian vision by “institutional” Islam as corrupted by patriarchy (Ahmed 1992), and continuing to Kecia Ali’s investigation of classical understandings of maleness, femaleness, sexuality, and power (Ali 2010). Chapters in DeLong-Bas 2018 outline historical developments in understandings of women and their rights, as well as contemporary challenges.

  • Ahmed, Leila. Women and Gender in Islam. New Haven, CT: Yale University Press, 1992.

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    Pioneering work in the field of women and gender studies in Islam. Examines legal and political structures to find changes in discourse over time and recover women’s experiences in the historical record, with particular attention to questions of agency and autonomy. Finds that adoption of Persianate culture into institutional Islam tended to limit women’s rights, rather than guarantee or expand them, turning Islamic family law into a system of male privilege, power, and control.

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  • Ali, Kecia. Marriage and Slavery in Early Islam. Cambridge, MA: Harvard University Press, 2010.

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    Uses classical legal discussions of marriage and slavery as a lens onto gendered expectations for marriage, agency, passivity, sexuality, and power that are ultimately defined by hierarchies, as men are expected to control women’s mobility and sexuality, and women are limited to expecting companionship and support, albeit as a higher priority than procreation.

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  • Cesari, Jocelyne, and Jose Casanova, eds. Islam, Gender, and Democracy in Comparative Perspective. New York: Oxford University Press, 2017.

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    Examination of the relationship between religion and the state and the impact this has on definitions and guarantees of women’s rights. Argues that equation of “women’s rights” with sexual and reproductive rights has complicated demands for gender equality in the law.

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  • DeLong-Bas, Natana J. Islam: A Living Faith. Winona, MN: Anselm Academic, 2018.

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    A comprehensive overview of Islam as a dynamic faith tradition, with attention to the development of Islamic law and gender attitudes, both historically and in the contemporary era.

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  • Hassan, Riffat. “An Islamic Perspective.” In Women, Religion and Sexuality: Studies on the Impact of Religious Teachings on Women. Edited by Jeanne Becher, 93–128. Geneva, Switzerland: World Council of Churches Publications, 1990.

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    Broad overview article analyzing women’s rights from the perspectives of status, right to life, rights within the family, sexuality, concerns about male honor, reproductive rights, and access to public space, and denouncing the tendency for male insecurity to override the egalitarian ethic of the Qurʾan.

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  • al-Hibri, Azizah. “A Study of Islamic Herstory: Or, How Did We Ever Get into This Mess?” In Special Issue: Women and Islam. Edited by Azizah al-Hibri. Women’s Studies International Forum 5.2 (1982): 207–219.

    DOI: 10.1016/0277-5395(82)90028-0Save Citation »Export Citation »E-mail Citation »

    The first serious Western academic study of women’s status in Islamic law, questioning the relationship between Islamic law and patriarchy and its impact on women. Identified major areas in need of rebalancing in women’s and men’s rights, including polygyny, divorce, witnessing, inheritance, and men’s superiority over women.

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  • al-Hibri, Azizah. “Islam, Law and Custom: Redefining Muslim Women’s Rights.” American University International Law Review 12.1 (1997): 1–44.

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    Builds upon and expands her earlier work to include attention to personal status codes and their disconnect from classical Islamic law, as well as the need for solid Muslim feminist jurisprudence to demand that the theoretical rights granted to women in Islam be fulfilled in practice.

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  • Mernissi, Fatima. Beyond the Veil: Male-Female Dynamics in a Modern Muslim Society. Hoboken, NJ: John Wiley & Sons, 1975.

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    Reads the foundational literature to construct a legal view of “women,” concluding that many jurists viewed women as powerful and dangerous beings who needed to be contained, particularly through veiling and seclusion.

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  • Sadeghi, Bahnam. The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition. New York: Cambridge University Press, 2015.

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    Analysis of rulings by thirty different Hanafi jurists on women and prayer from the 8th through the 18th centuries on the basis of their process of reasoning and examination of how they reconciled their legal rulings with the Qurʾan and hadith.

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Gender and Islamic Law in the Qurʾan

Since the 1990s, Muslim women have sought to determine the Qurʾanic intent toward women, investigating how women are defined according to autonomy, moral agency, status, contributions, victimization, biological and reproductive capacity, and relationship to God. Noting its centrality as a source of Islamic law, feminist scholars, beginning with Hassan 1990, have sought to establish the Qurʾan as the primary, authoritative source of normative Islam. Denouncing the tendency of men to claim the right to define the ontological, theological, eschatological, and sociological status of women and prevent women from participating in religious scholarship, Hassan demanded women’s full and equal participation in theology as a liberatory prerequisite for changing women’s status. She gave particular attention to Qurʾanic hermeneutics and grammar, establishing the creation and sexuality of men and women as inseparable from each other and thus interdependent. This line of reasoning was expanded by Wadud 1999, which acknowledged the importance of men and women living in mutual partnership with each other, yet asserted their primary roles as moral equivalents in worship and engaged surrender to God. Wadud concluded that granting certain rights and privileges to men over women historically was the result of context and experience, rather than divine will, making those rights and privileges subject to change when context and experiences change. She rejected any interpretation inconsistent with the basic Qurʾanic social principles of justice, equality, and common humanity, pointing the way toward a values-based approach to the Qurʾan and Islamic law focused on outcomes, particularly the upholding of human dignity, a line of reasoning later developed and expanded in Shahrur 2000. Al-Hibri 1997 (cited under Foundational Islamic Legal Texts) also questioned whether patriarchy was inherent to the text, reflected the surrounding context in which it was received, or just came to be customary. Al-Hibri called for holistic readings of the Qurʾan focused on mutuality between men and women. Barlas 2002 expands on the theme of mutuality and moral agency rather than power in the family, shifting the conversation from “rights and duties” to caring for life. Barlas further contests any reading of the Qurʾan that promoted oppression, sexual inequality, or degradation or abuse of women, and challenges interpretations privileging men’s relationship to God over women’s or asserting men’s unique ability to embody God’s attributes, noting that such interpretations are not inherent to the Qurʾan, but have been borrowed from Jewish and Christian tradition, an observation previously made in Stowasser 1994. Lamrabet 2016 marks the most recent liberatory and humanist interpretation of the Qurʾan by a woman. Although she maintains the construct of “rights and duties/responsibilities,” Lamrabet’s guiding principle is an outcome of justice that encourages women’s moral agency, particularly in the public sphere.

  • Barlas, Asma. “Believing Women.” in Islam: Unreading Patriarchal Interpretations of the Qur’an. Austin, TX: University of Texas Press, 2002.

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    Argues for judging any interpretation of the Qurʾan by the fruit it bears, namely the oppression it either promotes or relieves. Calls upon Muslims to engage the text directly and personally, rather than leaving interpretation exclusively to scholars and clerics.

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  • Hassan, Riffat. “An Islamic Perspective.” In Women, Religion and Sexuality: Studies on the Impact of Religious Teachings on Women. Edited by Jeanne Becher, 93–128. Geneva, Switzerland: World Council of Churches Publications, 1990.

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    A feminist interpretation that asserts the primary authority of the Qurʾan as a framework for normative Islam and gender equality. Calls for the inclusion of female voices in exegesis as a requirement for redressing gender inequality and rebalancing relationships between women and men.

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  • Lamrabet, Asma. Women in the Qur’an: An Emancipatory Reading. Translated by Myriam Francois-Cerrah. Leicestershire, UK: Square View, 2016.

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    Analysis of portrayals and roles of women in the Qurʾan by a Moroccan Islamic activist, focusing on the liberatory aspects rooted in the humanist spirit as guided by principles, such as women’s social and political participation. Calls for a holistic interpretation of the Qurʾan that encourages women to speak for themselves and claim knowledge, freedom, and power.

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  • Shahrur, Muhammad. Al-Kitāb wa al-Qur’ān: Qirā’a Mu‘āṣira. Beirut: Sharikat al-Matbu‘at lil-Tawzi‘wal-Nashr, 2000.

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    Written by a Syrian civil engineer to address contemporary challenges and call for ongoing interpretation of the Qurʾan in light of changing context and social realities. Presents a holistic, modern, and progressive view intended to lead to tolerance and expansion and rebalancing of women’s and human rights.

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  • Stowasser, Barbara Freyer. Women in the Qur’an, Traditions, and Interpretation. New York: Oxford University Press, 1994.

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    Examination of various female figures from the Qurʾan and Muhammad’s wives, and how they are portrayed in the Qurʾan, hadith, and exegetical literature. Finds inequality and discrimination in the status and rights of women rooted in the hadith and exegetical literature, rather than in the Qurʾan.

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  • Wadud, Amina. Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective. New York: Oxford University Press, 1999.

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    Originally published in 1993, a seminal linguistic study and reinterpretation of the Qurʾan by an African-American Muslim woman. Identifies key Qurʾanic concepts and explores whether they are inherently gendered, concluding that there is often a disconnect between what the Qurʾan actually says and how certain matters have been treated in Islamic law.

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Gender and Islamic Law in the Hadith

Similar to studies of the Qurʾan, feminist scholars have called for analysis of the hadith literature with attention to concerns about authenticity, authority, and the myriad roles played by women in the early Muslim community, particularly Muhammad’s wives. Although al-Hibri 1982 had commented that any hadith seeming to contradict the Qurʾan must necessarily be either declared false or reinterpreted to be consistent with the Qurʾan, al-Hibri nevertheless set aside the challenges of the hadith literature for a later time. Similarly, Hassan 1990 acknowledged the controversies surrounding the origins and proliferation of hadith literature, but remained focused on the primacy of the Qurʾan. Mernissi 1991 marked the first full-length study of state privileging of certain hadith restricting women’s autonomy, despite their relative weakness in transmission, because their content was deemed useful for preserving and expanding male elite power. Despite the broad evidence of women’s autonomy in religious affiliation, assured protection from sexual harassment and violence, and membership and participation in public affairs during Muhammad’s lifetime, which should have created a solid basis for women’s autonomy and full participation in political and social life as inherent to the Islamic tradition rather than a Western import, concrete changes in the law and religious interpretation with respect to women’s status have not been forthcoming. Mernissi’s work opened the door to other scholarly studies of hadith and the role of women as not only subjects of rulings, but also as questioners who often received favorable responses. Barazangi 2015 cautions against assigning too much authority to any particular hadith, analyzing instead gendered approaches to autonomy through self-identity, testimony, and witnessing through the lenses of sexuality, slavery, inheritance, and custody. Seeking to shift the discourse from a dogmatic worldview to a rational, religio-moral one emphasizing Sharia values and objectives over jurisprudence (fiqh) as human reasoning, Barazangi calls for expanding women’s participation in the interpretation of Islamic sources as a matter of gender justice and identity construction. Sayeed 2015 offers the most comprehensive analysis of categories of women portrayed in the hadith, as both transmitters and subjects, while also examining the roles women played in the ongoing process of hadith education and transmission through the 15th century. Sayeed’s contribution to both the database of knowledge and methodological approaches to manuscript analysis point to additional needed work, particularly more comprehensive analysis of biographical dictionaries (tabaqat) related to scripture and law in the ongoing project of restoring women to history.

  • Barazangi, Nimat Hafez. Woman’s Identity and Rethinking the Hadith. Farnham, UK: Ashgate, 2015.

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    Calls for reconsideration of authority levels assigned to the hadith, recognizing them as human records and memories, rather than divinely revealed texts. An investigation of women’s status as both transmitters and subjects of hadith, although not developers of theology.

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  • Hassan, Riffat. “An Islamic Perspective.” In Women, Religion and Sexuality: Studies on the Impact of Religious Teachings on Women. Edited by Jeanne Becher, 93–128. Geneva, Switzerland: World Council of Churches Publications, 1990.

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    Paper addressing relative levels of authority to be assigned to foundational sources of Islam, giving primacy to the Qurʾan over the hadith in light of challenges with respect to the transmission and proliferation of hadith, which can complicate knowing which hadith are authentic.

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  • al-Hibri, Azizah. “A Study of Islamic Herstory: Or, How Did We Ever Get Into This Mess?” In Special Issue: Women and Islam. Edited by Azizah al-Hibri. Women’s Studies International Forum 5.2 (1982): 207–219.

    DOI: 10.1016/0277-5395(82)90028-0Save Citation »Export Citation »E-mail Citation »

    Called for attention to assignment of levels of authority to different Islamic sources, particularly the challenge of reconciling the content of hadith with the content of the Qurʾan, although the main focus was on the Qurʾan.

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  • Mernissi, Fatima. The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam. Translated by Mary Jo Lakeland. Reading, MA: Addison-Wesley, 1991.

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    Pioneering work examining the hadith used to support state and religious policies with respect to women, particularly on family matters. Concludes that male elites are more concerned with preservation of their status and power than with examination of the full corpus of hadith.

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  • Sayeed, Asma. Women and the Transmission of Religious Knowledge in Islam. New York: Cambridge University Press, 2015.

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    Examines the various categories of women within the hadith as transmitters, questioners, and those acted upon or ruled in favor of or against, from Muhammad’s lifetime through the 15th century. Provides a trajectory for female participation in hadith transmission and teaching over time and space, examining gender dimensions of Islamic education over the centuries.

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Foundational Islamic Legal Texts

Al-Hibri 1997 had pointed to the importance of identifying central concepts such as independent reasoning (ijtihad) and diversity of opinions (ikhtilaf) as a mercy and a blessing, rather than a problem, in the foundational legal literature. Al-Hibri particularly noted that all of the major law schools, both Sunni and Shia, agreed that Islamic law was intended to change over time and space in order to avoid harm and protect the common good (maslahah). Recovery and rediscovery of the foundational texts are therefore crucial to reform, particularly for their worldviews and visions of gender. Key legal texts of founders of law schools (madhhabs) and, in some cases, some of their students, include Malik ibn Anas 2015, al-Tahnuki 2005, Brockopp 2000, Abu Hanifah 1905, Abu Hanifah 2006, Lowry 2015, Spectorsky 1993, al-Sadiq 2012, and al-Jaziri 1986. Spectorsky 1993 gives special attention to the use of legal stratagems to protect women and hold men accountable for what they said and did, using the “rights and duties” mechanical approach to Islamic law, although noting difference of opinion among early Hanbali jurists. Attention is also given to the impact of the woman’s status on her rights, such as whether she is a virgin, deflowered, or a minor. Spectorsky 2010 covers a range of foundational and classical Sunni materials from the 7th through the 12th centuries with a focus on family law, specifically marriage, divorce and guardianship, and how foundational sources were used in legal reasoning.

  • Abu Hanifah. Kitab al-Fiqh al-Akbar lil-imam al-a’zim Abi Hanifah al-Nu’man ibn Thabit al-Kufi. Wa-Sharhuh. Misr: Matba’at al-Taqaddum, 1905.

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    One of the earliest texts on Islamic theology and law, dating to the 8th century and attributed to the founder of the Hanafi law school.

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  • Abu Hanifah. The Kitab al-Athar of Imam Abu Hanifah. Turath Publishing, 2006.

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    English translation of one of the earliest compilations of juristic opinions attributed to Abu Hanifa and believed to have been recorded by his student, Abu Yusuf.

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  • Brockopp, Jonathan. Early Maliki Law: Ibn Abd al-Hakam and His Major Compendium of Jurisprudence. Leiden, The Netherlands: Brill, 2000.

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    Examination of early Maliki legal texts to determine the canonization process and “fixing” of editions of these texts, with attention to the reconstruction of earlier versions of these texts as source materials. Uses the Maliki tradition to study its own development while including some comparative analysis with other legal codes in the same area.

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  • al-Hibri, Azizah. “Islam, Law and Custom: Redefining Muslim Women’s Rights.” American University International Law Review 12.1 (1997): 1–44.

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    Calls for attention to foundational and classical elaborations of Islamic law with respect to gender and women’s rights, as well as attention to where contemporary personal status codes depart from them.

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  • al-Jaziri, Abd al-Rahman. al-Fiqh ‘alā al-Madhāhib al-Arba‘a. 5 vols. Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1986.

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    Compendium of the juristic opinions of the four major Sunni law schools by a major 20th-century Egyptian scholar. Topics covered include worship, doctrine, and ethics.

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  • Lowry, Joseph E., trans. The Epistle on Legal Theory: A Translation of Al-Shāfiʿīi’s Risālah. New York: New York University Press, 2015.

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    English translation of the oldest surviving Arabic work on Islamic legal theory and widely considered the foundational document of Islamic jurisprudence. First systematic treatment of Arabic language as language of revelation, principles of Qurʾan and hadith interpretation, legal epistemology, and rules of inference. Covers ritual, commercial, tort, and criminal law.

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  • Malik ibn Anas. Al-Muwatta’ of Imam Malik ibn Anas, Arabic & English. 4th ed. Edited by Abdalhaqq Bewley and Aisha Bewley. Norwich, UK: Diwan Press, 2015.

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    Arabic text with English translation of the foundational 8th-century Maliki text that presents Muhammad’s example, the practice of the Medinan community, and the opinions of respected Medinan jurists, including Malik’s.

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  • al-Sadiq, Jafar. Islamic Law According to Ja’fari School of Jurisprudence: Fiqh al-Imam Ja’far al-Sadiq. 2 vols. CreateSpace Independent Publishing Platform, 2012.

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    English translation of works by the 8th-century Shia Imam Ja’far al-Sadiq, who is credited with systematizing Shia jurisprudence. Volume 1 covers issues related to worship. Volume 2 addresses civil matters, including contracts, inheritance, bequests, public trusts, marriage, and divorce.

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  • Spectorsky, Susan. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh. Austin: University of Texas Press, 1993.

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    Translation of 9th-century texts on marriage and divorce compiled by Abu Dawud al-Sijistani, Abd Allah b. Ahmad b. Hanbal, and Ishaq b. Mansur al-Kausaj, highlighting the dynamic and flexible nature of Islamic legal reasoning in the foundational period. Includes discussions of marriage, guardianship, equality of status, dower, degrees of consanguinity prohibiting sexual intercourse and marriage, witnessing marriage, divorce, and the waiting period following divorce or widowhood.

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  • Spectorsky, Susan. Women in Classical Islamic Law: A Survey of the Sources. Leiden, The Netherlands: Brill, 2010.

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    Provides a broad overview of the development of juridical questions from the formational through the classical periods (7th through 12th centuries) for Sunni jurists. An introduction to reading legal literature, it differentiates between different types of texts and examines how Qurʾan verses and hadith are used for different legal purposes.

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  • al-Tahnuki, Sahnun ibn Sa’id al-Habib. Al-Mudawwana al-Kubra. 6 vols. Beirut, Lebanon: Dar Sader, 2005.

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    Arabic edition of Maliki text written in the early 9th century that claims to record conversations between two of Malik ibn Anas’s students, elaborating Malik’s views and those of his predecessors and followers. Although it is believed to reflect debates between Medinan and Kufan jurists, this is not stated explicitly.

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Fiqh versus Court Records

Legal literature (fiqh) presents an idealized view of the Islamic social order, including commonly understood and enforced gender roles, as a matter of theory and legal logic. Because fatwas (legal opinions) explain the legal reasoning behind conclusions, scholars use them to trace changing understandings of legal theory over time and space. Masud, et al. 1996 studies fatwas from different times and locations, demonstrating their social importance and analyzing the relationship between context and legal theory. Other scholars have questioned the utility of relying on fiqh, noting a frequent disconnect between theory and practice, the degree to which it upholds the proclaimed values and objectives of the Sharia (maqasid al-Sharia) with respect to women, and whether certain concepts, such as the common good (maslahah) or justice, pertained to women in the past. Knowing what the legal literature said or what laws were in place in a particular time or place tells us little about how, or even if, they were implemented, particularly if custom (ʿurf) varied from orthodox teachings. This is where comparison and contrast of the theoretical literature against the historical record, as recorded largely by the courts, archives, and other kinds of records, such as property deeds, comes into play. Sonbol 2005 demonstrates the value of such intertextual reading, providing a more complete picture of lived reality that is both descriptive and prescriptive and allows each type of source material to retain its purpose at the same time that it de-exoticizes “women” in their varied historical realities. Examination of the kinds of cases women brought to court further helps shift away from narratives of victimization and imprisonment in favor of demonstration of agency in issues ranging from divorce and child custody to property ownership and sexual violence. Women from all walks of life are represented in the record as knowing their rights and trusting the system to uphold them. At the same time, Tucker 2005 critiques the limitations of court records, particularly because the rulings rarely include the judge’s legal reasoning. Marin and Deguilhem 2002 recommends consideration of additional literature, such as literary works, chronicles, and biographical dictionaries, as well as artistic imagery, to circumvent biases that may be introduced if only a single type of source material is examined. At the same time, some scholars have noted that certain topics frequently mentioned in the legal literature, such as rape, do not seem to appear in the court records, although Semerdjian 2008 showed that trials of sexual crimes typically used linguistic tricks to avoid being tried as hudud crimes that would carry hefty punishments.

  • Marin, Manuela, and Randi Deguilhem, eds. Writing the Feminine: Women in Arab Sources. London and New York: I. B. Tauris, 2002.

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    Comparative analysis of legal literature against other literature, literary works, legal analysis, historical materials such as chronicles and biographical dictionaries, and artistic imagery to provide a more holistic view of the realities of women’s lives.

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  • Masud, Muhammad Khalid, Brinkley Messick, and David S. Powers, eds. Islamic Law and Legal Interpretations: Muftis and Their Fatwas. Cambridge, MA: Harvard University Press, 1996.

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    Discusses the role of fatwas historically as a legal tool and a reflection of social history, analyzing the use of fatwas across time and space, ranging from the early modern period to the present throughout the Muslim world.

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  • Semerdjian, Elyse. Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo. Syracuse, NY: Syracuse University Press, 2008.

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    Examines cases of illicit sex and sexual indiscretion, as well as use of the law to enforce public standards of morality against prostitution, rape, and other forms of sexual violence. Highlights usage of linguistic tricks to circumvent them being tried as hudud crimes.

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  • Sonbol, Amira el-Azhary, ed. Beyond the Exotic: Women’s Histories in Islamic Societies. Syracuse, NY: Syracuse University Press, 2005.

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    Edited collection examining a variety of source materials, including court records, archives, awqaf records, and deeds, to create a composite image of attitudes, conceptions, and actual practices of the law with respect to women and their lived realities based on indigenous source materials, rather than Western impressions.

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  • Tucker, Judith. “‘And God Knows Best’: The Fatwa as a Source for the History of Gender in the Arab World.” In Beyond the Exotic: Women’s Histories in Islamic Societies. Edited by Amira el-Azhary Sonbol, 165–179. Syracuse, NY: Syracuse University Press, 2005.

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    Critique of the limitations of court records in comparison to fiqh literature, which Tucker argues is more comprehensive in demonstrating continuity and change in legal constructs and rulings related to women and gender.

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Women and the Courts

Adding to the literature on women’s lived experiences are case studies of the rulings of specific courts. Jennings 1993 is a pioneering example of this kind of study, using local court and property records to reconstruct social and economic life in Ottoman Cyprus from the 16th through 18th centuries. Abdal Rehim 1994 studies the Moroccan diaspora community in 16th-century Ottoman Egypt through marriage and divorce records. Peirce 2003 analyzes local courts in 16th-century Anatolia, with stories ranging from child marriage to pregnancy out of wedlock and immoral behavior on the part of a teacher, highlighting intersections of gender and class, while Shatzmiller 2007 studies women’s property acquisition and claims in 15th-century Granada. Hirsch 1998 provides a 20th-century case study of marital disputes in an Islamic court in Kenya. An alternative perspective on women and the courts can be found in recent scholarship on female judges. Although opponents to women judges note that founding jurists al-Shafii, Malik, and Ibn Hanbal all disqualified women from serving as judges on the basis of the qawwamuna that men were declared to exert over women in Q 4:34, such that women could not serve in positions where they might potentially exert power over men, and their presumed intellectual deficiencies, as evidenced by their emotional nature, recent scholarship, such as Sonneveld and Lindbekk 2017, finds that direct engagement with the foundational source materials combined with case studies and quantitative data paints a very different picture. Sonneveld and Lindbekk challenge gender stereotypes that assume that women’s judgment is driven by an “ethic of care,” whereas men’s judgment is presumed to be driven by an “ethic of justice,” which necessarily leads women and men to judge situations differently, and they argue that practice, as evidenced in case studies, does not uphold these assumptions. Documentary coverage of a Palestinian female judge in the Sharia court in the West Bank can be found in Cohn 2018.

  • Abdal Rehim, Abdal Rehim Abdal Rahman. Documents of the Egyptian Courts Related to the Maghariba. 3 vols. Zaghouan, Tunisia: Centre d’Études et de Recherches Ottomanes, Morisques, de Documentation et d’Information, 1994.

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    Study of the Moroccan community in 16th-century Ottoman Egypt through marriage and divorce records, with special attention to dowers and stipulated conditions in marriage contracts.

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  • Cohn, Erika, dir. The Judge. San Francisco: ITVS and Idle Wild Films, 2018.

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    Documentary on Kholoud al-Faqih, one of the first female Palestinian judges in the Sharia court in the West Bank, working in family law cases, including child custody, honor killings, polygyny, and domestic violence.

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  • Hirsch, Susan F. Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court. Chicago: University of Chicago Press, 1998.

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    Case study of marital disputes between Swahili Muslims in Islamic courts in 20th-century Kenya. Argues that the manner of argumentation is influenced not only by Islamic law, but also by postcolonial gender hierarchies.

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  • Jennings, Ronald C. Christians and Muslims in Ottoman Cyprus and the Mediterranean World 1571–1640. New York: New York University Press, 1993.

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    A pioneer work in the use of records from local courts, charitable institutions, and public works to reconstruct history and society in Ottoman Cyprus.

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  • Peirce, Leslie P. Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley: University of California Press, 2003.

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    A study of the 16th-century court records of the city of Aintab, examining how cases of accused sexual impropriety were handled.

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  • Shatzmiller, Maya. Her Day in Court: Women’s Property Rights in Fifteenth-Century Granada. Cambridge, MA: Harvard University Press, 2007.

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    Examination of women’s property rights and equity through the Islamic court records of Granada, demonstrating women’s legal ability to acquire property and the construction of a Muslim woman’s legal persona through property ownership.

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  • Sonneveld, Nadia, and Monika Lindbekk, eds. Women Judges in the Muslim World: A Comparative Study of Discourse and Practice. Leiden, The Netherlands: Brill, 2017.

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    Series of case studies of female judges in Indonesia, Malaysia, Pakistan, Syria, Egypt, Libya, Tunisia, and Morocco, and their court practices and rulings. Includes a historical overview of gender and judicial authority in the Muslim world.

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Family Law

Family law has become the hallmark and essential credential of Islamic regimes, as well as a symbol of cultural authenticity and legitimacy in the Muslim world, rendering any decision or legislation related to family law rife with political implications. Anderson 1959 was one of the first works to connect discussions about Islamic family law, particularly marriage, divorce, and inheritance, to broader discussions about colonialism, reform, modernity, and national unity, highlighting the differences between Western and Islamic conceptions of law. Nasir 2009 outlines personal status codes by country and year, with attention to marriage, divorce, and inheritance, while Nasir 2009 focuses specifically on women’s status from the perspective of rights and duties in Islamic family law. Other works detailing family law throughout the Arab world include El Alami and Hinchcliffe 1996 and Welchman 2007. An-Na’im 2002 expands coverage to all Muslim majority countries. Unlike El Alami and Hinchcliffe, who connect contemporary developments to the Ottoman Law of the Family, neither Welchman nor An-Na’im investigate the roots of contemporary legislation in earlier sources, including the Qurʾan, Sunna, or classical fiqh. One of the earliest works in Western scholarship that did investigate the foundational status of women in Islamic family law according to different law schools with respect to marriage, divorce, child rearing and custody, and inheritance, followed by comparison and contrast to contemporary manifestations was Esposito and DeLong-Bas 2001. This work considered both mechanics and principles, where they have been included in debates about legislation and whether justice can be achieved simply by following the mechanics of the law. Mir-Hosseini, et al. 2013 examines debates about gender in family law through the lens of gender equality, while recognizing that the discourses of feminism and human rights informing the study are modern ideals. A recent study in a Q&A format that covers a broader range of issues related to women and Islamic law, including honor killings, rape and domestic violence, and their relationship—or lack thereof—can be found in Esposito and DeLong-Bas 2018.

  • Ahmad Nasir, Jamal J. The Status of Women under Islamic Law and Modern Islamic Legislation. 3d rev. and updated ed. Leiden, The Netherlands: Brill, 2009.

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    Written by an Arab lawyer, the volume addresses women’s status from the perspective of rights and duties in marriage, divorce, parentage, fosterage, and custody.

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  • El Alami, Dawoud Sudqi, and Doreen Hinchcliffe. Islamic Marriage and Divorce Laws of the Arab World. Cambridge, MA: Kluwer Law International, 1996.

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    English translation of codified and uncodified laws of Arab countries including Saudi Arabia, UAE, Qatar, Bahrain, Oman, Algeria, Egypt, Iraq, Jordan, Palestine, Kuwait, Lebanon, Libya, Morocco, Syria, Tunisia, and Yemen. Compares and contrasts different Sunni law schools on marriage and divorce, and provides background on the process of codification, noting its roots in the Ottoman Law of the Rights of the Family.

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  • Anderson, J. N. D. Islamic Law in the Modern World. New York: New York University Press, 1959.

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    Investigation of jurisprudential provenance of different family laws pertaining to marriage, divorce, and inheritance, and analyzing postcolonial legal trends in the Muslim world.

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  • An-Na’im, Abdullahi A., ed. Islamic Family Law in a Changing World: A Global Resource Book. London: Zed Books, 2002.

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    Compilation and analysis of Islamic family law related to marriage, dower, divorce, polygyny, child custody, and inheritance in Muslim-majority countries in Central Asia and the Caucasus, Africa, the Middle East, North Africa, and South and Southeast Asia, highlighting variations in practice.

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  • Esposito, John L. with Natana J. DeLong-Bas. Women in Muslim Family Law. Rev. ed. Syracuse, NY: Syracuse University Press, 2001.

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    A revision of the seminal 1982 work that was the first of its kind in English. Addresses sources of Islamic law, classical and modern Muslim family law, and impetus toward legal reform, including understandings of justice and revisioning of family dynamics, particularly related to marriage, divorce, inheritance, and child custody. Includes case studies of modernization of the law in Egypt and Pakistan.

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  • Esposito, John L., and Natana J. DeLong-Bas. Shariah: What Everyone Needs to Know. New York: Oxford University Press, 2018.

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    Question-and-answer formatted book with a chapter on “Women, Gender and the Family,” addressing issues such as marriage, polygyny, arranged marriages, child marriage, divorce, child custody, inheritance, gender segregation, and dress.

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  • Mir-Hosseini, Ziba, Kari Vogt, Lena Larsen, and Christian Moe, eds. Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition. London and New York: I. B. Tauris, 2013.

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    Uses a series of case studies of 20th-century reforms in Egypt, Morocco, and the global Musawah movement to investigate gender discrimination and gender equality in Muslim family law. Questions how to respect both difference and equality simultaneously.

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  • Nasir, Jamal J. The Islamic Law of Personal Status. 3d rev. and updated ed. Leiden, The Netherlands: Brill, 2009.

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    Originally published in 1990 and revised every decade, providing the first English outline of personal status codes from throughout the Islamic world by country and year.

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  • Welchman, Lynn. Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy. Amsterdam: Amsterdam University Press, 2007.

    DOI: 10.5117/9789053569740Save Citation »Export Citation »E-mail Citation »

    Analysis of the family law codifications of Arab League states up through 2005, particularly in relation to how the court system is structured. Focus is on how the judiciary interprets and applies statutory instruments, and on the intersection of the judiciary, legislature, and Arab women’s movements.

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Contemporary Reforms: Family Law

Because Islamic family law is considered a source of authenticity and connection to the past, those seeking to legitimate their rule or challenge existing laws often turn to historical precedents and mechanisms, particularly the Qurʾan or Muhammad’s example. Al-Hibri 1997 (cited under “Women’s Rights and Duties” in Islamic Law) opened this trend with questions about wifely obedience, observing that Muhammad’s granddaughter Sukayna stipulated conditions in her marriage contract that limited her husband’s right to demand obedience, and that Muhammad himself did not demand obedience from his wives. Other reformers have called for contextualization of rulings and mechanisms to recover their intended purpose, rather than simply asserting them as control mechanisms over women’s autonomy or access to public space, such as veiling and guardianship. Bucar 2013 provides a comprehensive history of veiling and its multiple meanings, depending on context, while Elver 2012 examines the headscarf as a contemporary political issue in Turkey, Europe, and the United States. Debates about guardianship over women, both qiwamah and wilayah, their historical purposes and contemporary manifestations, concerns about male authority and discrimination in family law and women’s rights, and recommendations for reforms upholding women’s dignity are outlined in Mir-Hosseini, et al. 2015. Quraishi 1999 focuses on guiding principles of Sharia, calling for justice and protection of women’s dignity, reputation, and privacy, rather than upholding male privilege. Asserting the Qurʾan’s protection of women from false accusations of sexual misconduct, Quraishi critiques Pakistan’s Zina Ordinance for treating rape as illicit sex (zina). Building on this approach, Women Living Under Muslim Laws (WLUML) has appealed to classical jurisprudence to critique existing laws, particularly use of pregnancy as purported evidence of sexual misconduct. The documentary film Outlawed in Pakistan (2014) addressed the challenges of proving a rape accusation in the Pakistani court system, noting the tendency to target poor, vulnerable women for punishment for zina. Promising work toward gender equality rooted in the Qurʾanic ideals of equality, justice, and political sovereignty has been undertaken in Malaysia by the NGO Sisters-in-Islam, explained in Othman 1994 and Basarudin 2016. However, as noted by Mir-Hosseini 1999, appealing to classical Islamic law does not necessarily advance women’s rights, as evidenced by challenges facing women in Iran today as they seek to advance women’s rights within the family and restore women to public office. Similarly, public debates in Morocco about updates to the Mudawana family status code met with opposition by Islamists, even though the nominal head of the movement is a woman, as noted by Charrad 2001. Assessment of outcomes and remaining work can be found in Harrak 2009. Dynamics of differences in goals and priorities among women’s movements in the Middle East and North Africa can be found in Arenfeldt and Gollay 2012.

  • Arenfeldt, Pernille, and Nawar Al-Hassan Gollay, eds. Mapping Arab Women’s Movements: A Century of Transformations from Within. Cairo: American University in Cairo Press, 2012.

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    Edited collection of country studies on women’s movements, activism, counter-activism, and international cooperation throughout the Middle East and North America, identifying developments, changing priorities, and challenges, particularly with respect to family law and engagement with Islamic jurisprudence and hermeneutics.

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  • Basarudin, Azza. Humanizing the Sacred: Sisters in Islam and the Struggle for Gender Justice in Malaysia. Seattle: University of Washington Press, 2016.

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    Analyzes the relationship between Islam, gender, and the state, focusing on social and legal reforms related to women within the framework of Islam and the work of Sisters in Islam to deny patriarchal interpretations of Islamic law and reshape national laws from the perspective of equality and justice to promote self-determination and human dignity within an Islamic framework.

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  • Bucar, Elizabeth. The Islamic Veil: A Beginner’s Guide. Oxford: Oneworld Publications, 2013.

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    Comprehensive history of the veil, including influences from surrounding non-Islamic cultures, intended purposes, and contemporary realities, particularly as the veil has become a contested symbol in many places.

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  • Charrad, Mounira M. States and Women’s Rights: The Making of Postcolonial Tunisia, Algeria, and Morocco. Berkeley: University of California Press, 2001.

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    Examination of precolonial and colonial history in Tunisia, Algeria, and Morocco through the influences of Islam, kin-based social structures, tribal culture, and gender roles and their impact on family law. Demonstrates that there is no singular monolithic “Islamic family law,” but that history, context, culture, and relationship to colonialism all influence development of the law.

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  • Elver, Hilal. The Headscarf Controversy: Secularism and Freedom of Religion. New York: Oxford University Press, 2012.

    DOI: 10.1093/acprof:oso/9780199769292.001.0001Save Citation »Export Citation »E-mail Citation »

    Engages questions about the individual right to veil in light of laws either supporting or denying such choice. Rooted in questions about religious pluralism, constitutional democracy, religious freedom, and human rights, addresses questions about the purported incompatibility between women’s rights and Islam.

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  • Harrak, Fatima. “The History and Significance of the New Moroccan Family Code.” Working Paper 09–002. Evanston, IL: Institute for the Study of Islamic Thought in Africa (ISITA), March 2009.

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    Analysis of the challenge of melding being Muslim and being modern with respect to the law. Concludes that the new Moroccan family status code is the most progressive in the MENA region.

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  • Mir-Hosseini, Ziba. Islam and Gender: The Religious Debate in Contemporary Iran. Princeton: Princeton University Press, 1999.

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    Traces the development of religious argumentation about women’s legal rights in a series of publications initiated by women’s rights activists, but in which male religious figures also offer support. Notes greater success in reforms working within Islamic parameters than those approaching the issues from a secular perspective.

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  • Mir-Hosseini, Ziba, Mulki Al-Sharmani, and Jana Rumminger, eds. Men in Charge? Rethinking Authority in Muslim Legal Tradition. Oxford: Oneworld Publications, 2015.

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    Examination of the historical record on questions of guardianship and their impact on family life and women’s rights in Islamic law and practice. Compares and contrast theoretical theorizing against case studies rooted in evidence to determine the practical impact of laws and make recommendations for meaningful change toward gender equality and marriage as an equal partnership under the law.

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  • Nosheen, Habiba, and Hilke Schellmann, dirs. Outlawed in Pakistan. Arlington, VA: Public Broadcasting Service, 2014.

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    Documentary filmed by a Pakistani-Canadian journalist, tracing the case and trial of Kainat Soomro and her accusation of having been gang-raped by four men at the age of thirteen. Highlights the challenges faced by women seeking justice for rape in the Pakistani court system. First aired on the PBS show Frontline.

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  • Othman, Norani, ed. Shari’a Law and the Modern Nation-State: A Malaysian Symposium. Kuala Lumpur: Sisters in Islam, 1994.

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    A self-labeled progressive approach to the Qurʾanic ideals of equality, justice, and political sovereignty that actively engages scripture for reinterpretation in a contemporary context with the goal of promoting social responsibility and modern, active, participatory citizenship.

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  • Quraishi, Asifa. Her Honour: An Islamic Critique of the Rape Provisions in Pakistan’s Ordinance on Zina. Islamabad, Pakistan: Islamic Research Institute, 1999.

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    One of the first critiques of the conflation of rape with zina in contemporary Pakistan, detailing legal considerations used in rape cases that are not applicable to zina.

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  • Women Living Under Muslim Laws (WLUML).

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    International solidarity network for women’s rights, tracking laws and customs around the world claiming inspiration from Islamic law and calling for action in specific cases.

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Ethical Approaches to Sharia and Fiqh

The appeal to distinction between Sharia as guiding principles and objectives, on the one hand, and fiqh as human reasoning about Sharia principles, on the other, has not only impacted specific reform efforts in family law, but has also had a broader impact on Islamic law in general, calling for the construction of an ethical framework, rather than just policies, procedures, and mechanics, for reconstructing the law today. Careful delineation of the differences between Sharia and fiqh and how this can help programs for reform, including with respect to women and gender issues, can be found in Ramadan 2009 and Esposito and DeLong-Bas 2018. A holistic approach to Sharia principles about life, death, and rights and duties with respect to the human body can be found in Sachedina 2009. Mir-Hosseini, et al. 2013 uses the Sharia principles of the common good (maslahah) and use of human reason to argue for the need for coherence in lived reality and balancing of difference and equality. An-Na’im 1990 argues that identification of Sharia principles does not go far enough in bringing Islamic public law into line with international human rights standards. Instead, An-Na’im calls for terminating those aspects of Islamic law that create legal dependency and inequality in order to assure that human rights, rather than religious belief, gender, or race serve as the guiding principles for constructing the social order. Concern for human rights is also addressed in Mayer 1995, a comparative analysis of restrictions on and deviations from human rights in specific countries, regardless of whether the regime claims to be Islamic or secular. Mayer specifically identifies a disconnect between the international standard of recognizing women as full and equal human beings with the same rights and freedoms of men and the exceptions claimed in the Universal Islamic Declaration of Human Rights (UIDHR). A more specific focus on sexual ethics, arguing for fundamental equality between women and men rooted in human dignity before God at the same time that it calls for acknowledgment that inequality, particularly in family law, is strongly present in classical jurisprudence, as discussed in Ali 2016. Shahrur 2015 seeks an ongoing interpretation of Islam, including with respect to women’s rights and status, that adjusts according to changes in social, political, and intellectual context.

  • Ali, Kecia. Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence. Expanded and revised edition. Oxford: Oneworld Publications, 2016.

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    Examination of the historical textual sources addressing the relationship between money and sex, whether through marriage or slavery and concubinage. Concludes that religion is used to justify both ethical and unethical approaches to sex, and calls for greater attention to developing an ethics of sex and sexuality rooted in protection of the body and contemporary social reality.

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  • An-Na’im, Abdullahi Ahmed. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse, NY: Syracuse University Press, 1990.

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    Seeks transformation of the foundations of traditional Islamic law in areas where it violates international human rights standards, such as by declaring slavery and polygyny lawful or by allowing male guardianship over women. Goal is to render Islamic public law compatible with modern standards of constitutionalism, criminal justice, international law, and human rights, while remaining grounded in religion.

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  • Esposito, John L., and Natana J. DeLong-Bas. Shariah: What Everyone Needs to Know. New York: Oxford University Press, 2018.

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    Discusses human beings as morally accountable and as objects and subjects of the law, expanding legal thinking about women beyond the standard field of family law to include multiple subdisciplines within the law, such as worship, commercial transactions, and criminal law.

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  • Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. 2d ed. Boulder, CO: Westview Press, 1995.

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    One of the earliest comparative analyses of Islamic law as practiced in Pakistan, Iran, the Sudan, and Saudi Arabia, including restrictions on and deviations from international standards of human rights. Mayer concludes that there is no willingness in these countries to recognize women as full, equal human beings who deserve the same rights and freedoms as men, which she attributes to sex stereotyping rather than to religion per se.

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  • Mir-Hosseini, Ziba, Kari Vogt, Lena Larsen, and Christian Moe, eds. Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition. London and New York: I. B. Tauris, 2013.

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    Roots solutions to issues related to respecting gender difference and gender equality simultaneously through the Sharia principles of the common good and use of human reason, ultimately questioning what justice should look like in practice.

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  • Ramadan, Tariq. Radical Reform: Islamic Ethics and Liberation. New York: Oxford University Press, 2009.

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    One of the most comprehensive and articulate calls for a revamping of understandings of Islamic law based on its foundational principles and objectives, including with respect to women’s rights and full participation in society as a matter of justice and responsible citizenship.

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  • Sachedina, Abdulaziz. Islamic Biomedical Ethics: Principles and Application. New York: Oxford University Press, 2009.

    DOI: 10.1093/acprof:oso/9780195378504.001.0001Save Citation »Export Citation »E-mail Citation »

    A bioethical approach to the human body from the perspective of Sharia values and objectives, from the creation of life through death. Focus throughout is on preserving human dignity and the body as God’s creation, rather than delineating mechanics based on gender.

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  • Shahrur, Muhammad. Fiqh al-Mar’ah: Naḥwa Uṣūl Jadīda li-al-Fiqh al-Islāmī. Beirut: Dar al-Saqi, 2015.

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    A Syrian civil engineer’s progressive approach to jurisprudence related to women, arguing that women’s liberation began with Muhammad’s preaching, but didn’t end there and must be continually renewed.

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Marriage

Because marriage between a man and woman is considered the ideal social institution for all members of an Islamic society, rights, duties, and responsibilities in marriage are central concerns in Islamic law. Marriage is a contractual relationship, requiring offer and acceptance of the marriage proposal and negotiation and signing of the marriage contract, including agreement upon a dower and stipulation of conditions favorable to the bride. Case studies of marriage contracts in different locations and times, as well as in comparison with Jewish and Christian practices, can be found in Quraishi and Vogel 2008. Cuno 2015 examines continuity and change in 19th- and 20th-century Egyptian marriage practices, particularly as the product of colonial influences and efforts toward modernization. Critiques of marriage as a legal institution in the contemporary era include questioning the disconnect often found between what the legal literature assumes and lived reality, as described in Mir-Hosseini 2000, a study of marriage and divorce in Iran and Morocco. Tucker 2008 finds that judges tend to defend women’s rights in property cases, but are more restrictive in cases of marriage and divorce, not allowing women to contract marriage for themselves or others or to take concubines, and assigning a woman’s sexuality to the exclusive dominion of a particular man. Building on prior works such as Peirce 2003, Hirsch 1998 (both cited under Women and the Courts), and Mir-Hosseini 2000, Ali 2010 is an investigation of 9th-century Islamic jurisprudence that also finds a disconnect between doctrine and the actual practices of courts, particularly as rulers often compromised between religiously grounded jurisprudence (fiqh) and state-generated law (siyasah al-Sharia) to ensure a reasonable approximation of justice. Ali believes this helps to explain the diversity of opinion in early legal texts, particularly as hierarchical social structures, including slave ownership, influenced jurists’ visions of marriage, the family, and gender roles. Because husband and wife had specific obligations toward each other, Ali argues that hierarchy was at the core of classical theories of marriage. She further notes that the contractual nature of marriage enabled jurists to make analogies between marriage and slave ownership and marriage and commercial transactions, emphasizing male control, ownership, and dominion. Ali’s main theoretical contention is that descriptions in the legal literature must be contextualized so that contemporary Muslims can move beyond the mechanics of imitation to reformulate male-female dynamics in fundamental equality and human dignity before God. Doumani 2017 examines a variety of family models presented in the records of charitable endowments (waqf) and family property disputes, arguing that many different models of the family beyond the traditional are represented, and questioning whether family law should continue to be revised in light of changing gender, generational, and economic realities.

  • Ali, Kecia. Marriage and Slavery in Early Islam. Cambridge, MA: Harvard University Press, 2010.

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    Examination of 9th-century texts on marriage and slavery, concluding that jurists conceived of the husband-wife relationship as a parallel to the master-slave arrangement. Marriage is thus based on a commercial transaction in which acquiring a bride is similar to acquiring a slave, and payment of the dower grants the husband the right to treat the wife’s sexual and reproductive capacities as commodities.

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  • Cuno, Kenneth M. Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt. Syracuse, NY: Syracuse University Press, 2015.

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    Brings together the fields of family history, Islamic law, and colonial studies to trace the evolution of marriage and marital relations in the modern era in both theory and practice. Examines both political and sociodemographic changes affecting marriage and family life.

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  • Doumani, Beshara. Family Life in the Ottoman Mediterranean: A Social History. New York: Cambridge University Press, 2017.

    DOI: 10.1017/9780511989605Save Citation »Export Citation »E-mail Citation »

    Analysis of a variety of legal source materials to examine how families are portrayed and presented in court records related to property and waqf, finding that jurisprudential assumptions about the traditional family do not match the reality encountered in the courts.

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  • Mir-Hosseini, Ziba. Marriage on Trial: Islamic Family Law in Iran and Morocco. Rev. ed. London: I. B. Tauris, 2000.

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    Originally published in 1993, a comparative study of marriage practices and the social anatomy of divorce as handled in the courts in Iran and Morocco. Particularly critiques how child custody issues are addressed and the varied parameters for validating and legally recognizing marriage and divorce.

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  • Quraishi, Asifa, and Frank E. Vogel, eds. The Islamic Marriage Contract: Case Studies in Islamic Family Law. Cambridge, MA: Harvard University Press, 2008.

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    In-depth series of studies of the Islamic marriage contract across time and space. Includes a survey of classical Islamic doctrines about the contract and a comparative analysis of Islamic marriage contracts with Jewish and Christian approaches to marriage.

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  • Tucker, Judith E. Women, Family, and Gender in Islamic Law. Cambridge, UK: Cambridge University Press, 2008.

    DOI: 10.1017/CBO9780511841316Save Citation »Export Citation »E-mail Citation »

    Finds that judges tend to uphold women’s agency in asserting their property rights as equal to men’s while still placing women in a lesser position with respect to family status matters, including limitations on agency in marriage and divorce.

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Divorce

Divorce, whether initiated by the husband (talaq), wife (khulʿ), or mutual oath-swearing (liʾan), is strongly present in the classical legal literature. Because the Islamic legal structure was built upon gender binaries and marital status, assuring that divorce had known procedures was crucial to the social fabric. Historically, khulʿ had to be pronounced by a judge, whereas talaq required no such public official in many places, often leaving women uncertain of their marital status and men abusing their right to claim or deny divorce. Many scholars have found a disconnect between theory and reality, and between historical and contemporary practices. Spectorsky 1993 found that classical treatises prohibited practices common today, such as the husband demanding more than he had offered in the original dower (mahr) in exchange for agreeing to khulʿ. Rapoport 2005, a comparative study of court records in late medieval Cairo, Damascus, and Jerusalem, finds that marriage and divorce in practice bore little resemblance to the juridical literature, particularly in cases where women had access to waged labor and owned property. As with Doumani 2017 (cited under Marriage), Rapoport 2005 reports multiple family models beyond the traditional, including single mothers, working women, and women heading Sufi lodges. Ibrahim 2018 also notes alternative family models through an investigation of child custody cases following divorce from the 16th century forward in Egypt, arguing that custom (ʿurf) played a larger role than fiqh in determining who became the custodial parent and that women were frequently named legal guardians of their children. DeLong-Bas 2008 shows there was a balance of rights between men and women in marriage and divorce in 18th-century Arabia. Sonbol 1996 documents many examples of women’s agency in Ottoman court records, including in cases of divorce, child custody, property rights, and accusations of sexual violence. Contemporary reformers have called for requiring all marriage and divorce proceedings to be recorded by the courts, in addition to notifying the wife. The documentary film Divorce Iranian Style (1998) highlights some of the challenges women face in divorce courts today, including limited grounds on which they can seek divorce, judges more interested in preserving marriage than in protecting women from bodily or psychological harm, and ongoing male control over divorce. Sonneveld 2012 provides coverage of contemporary Egypt after a 2000 law granted women the unilateral right to seek khulʿ following years of obstruction by men. MacFarlane 2012 examines contemporary divorce practices among Muslims in North America, noting the rising frequency of divorce as the surrounding stigma has dissipated, while at the same time calling for greater attention to issues such as domestic violence.

  • DeLong-Bas, Natana J. Wahhabi Islam: From Revival and Reform to Global Jihad. Rev. ed. New York: Oxford University Press, 2008.

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    Analysis of the theological and legal writings of the 18th-century scholar and activist Muhammad Ibn ʿAbd al-Wahhab, with a chapter dedicated to women and gender issues, finding support for women’s education, participation in public life, and assertion of rights in family law.

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  • Ibrahim, Ahmed Fekry. Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century. New York: Cambridge University Press, 2018.

    DOI: 10.1017/9781108648042Save Citation »Export Citation »E-mail Citation »

    Examination of rulings of Egyptian judges and child custody laws, arguing that greater consideration was given to age, gender, the mother’s marital status, and the custodial parent’s lifestyle and religious affiliation than to fiqh in ruling on cases of child custody. Posits that attention to the welfare of the child is not a matter of Euro-American exceptionalism, but has long roots in the Muslim world.

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  • Longinetto, Kim, and Ziba Mir-Hosseini, dirs. Divorce Iranian Style. New York: Women Make Movies, 1998.

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    Documentary film shot in an Iranian divorce court, following the cases of three women, some of whom ultimately gave up their right to collect on the dower owed them in exchange for divorce. Highlights the limited grounds on which a woman can seek divorce, such as impotence or infertility on the husband’s part, and the difficulty of getting men to comply with court orders.

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  • MacFarlane, Julie. Islamic Divorce in North America: A Shari’a Path in a Secular Society. New York: Oxford University Press, 2012.

    DOI: 10.1093/acprof:oso/9780199753918.001.0001Save Citation »Export Citation »E-mail Citation »

    Analysis of legal issues surrounding Islamic marriage and divorce in North America, with attention to marital conflicts and domestic abuse and their legal consequences for divorce. Considers how Islamic tribunals for family matters might serve alongside secular courts, as well as changing perceptions of divorce among Muslim populations.

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  • Rapoport, Yossef. Marriage, Money, and Divorce in Medieval Islamic Society. Cambridge, UK: Cambridge University Press, 2005.

    DOI: 10.1017/CBO9780511497506Save Citation »Export Citation »E-mail Citation »

    Comparative study of marriage and divorce in late medieval Cairo, Damascus, and Jerusalem, challenging the assumed economic dependence of women on men, and finding that women’s financial independence via access to waged labor, property ownership, and dower claims resulted in stronger demonstrations of agency in the courts, including in divorce proceedings.

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  • Sonbol, Amira El Azhary. Women, the Family, and Divorce Laws in Islamic History. Syracuse, NY: Syracuse University Press, 1996.

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    Edited collection on the status of women with respect to the state historically, with special attention to Muslim women and the kinds of cases they brought to the Sharia Courts during the Ottoman Era, examining both theoretical discussions about women’s rights and how those rights were applied in practice.

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  • Sonneveld, Nadia. Khulʿ Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life. Cairo: American University in Cairo Press, 2012.

    DOI: 10.5743/cairo/9789774164842.001.0001Save Citation »Export Citation »E-mail Citation »

    Examination of contemporary Egyptian public debates, particularly in popular culture, about khulʿ following the 2000 law. Documents and analyzes changes in legal proceedings and understandings of maintenance and obedience. Notes the stigma involved for men in khulʿ divorce and formal and informal mechanisms used to reach mutually agreeable divorce settlements that are less punitive financially for the wife and save the husband humiliation.

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  • Spectorsky, Susan A. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh. Austin: University of Texas Press, 1993.

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    Translation of 9th-century texts on marriage and divorce, including discussions of divorce and the waiting period following divorce or widowhood.

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Inheritance and Property

Islamic law guarantees women a share in inheritance and the right to both own and manage property. Khan 2008 outlines the historical and theological bases of inheritance law for both Sunnis and Shias. Although the legal literature developed a science of the shares of inheritance, some scholars have questioned its coherence with how inheritance was addressed during Muhammad’s lifetime, and if the end product was developed in the manner claimed by tradition. Powers 1986 was the first to investigate this topic, finding that the Qurʾan was not as clear-cut about portions as had been previously assumed. Unlike Schacht 1964 (cited under Orientalist Debates about the Origins and Development of Islamic Law), which argued that both the Qurʾan and Islamic law only came into existence 100 years after Muhammad’s death, Powers found that inheritance law began to develop during Muhammad’s lifetime, but continued to develop after that, with several shifts in direction. The underlying principle he found was division of property in an egalitarian way that was intended to promote social cohesion within the context of warfare and plague, highlighting its role as a social good at the same time that its development occurred in conjunction with contending interests of wealth, power, and politics, particularly as the Islamic Empire expanded and large amounts of wealth and property were acquired. His case study of medieval Islamic Spain found that property owners engaged a variety of legal fictions to circumvent certain aspects of inheritance law in favor of designated heirs. Doumani 2003 uses records from charitable institutions (waqf) as an alternative means of tracing how family wealth was kept intact as it was passed from one generation to the next, particularly favoring women as named trustees, and also finding that women founded between 30 and 50 percent of waqf in some locations and more than 50 percent in others by the 18th century. Doumani also found that women were more likely than men to name women as beneficiaries. Meriwether 1996 concurs that women were often favored in waqf-related rulings in 18th- and 19th-century Aleppo. Moors 1996 investigates court cases involving 20th-century Palestinian women seeking to claim property and inheritance rights, noting intersectionality of socioeconomic class and success rates.

  • Doumani, Beshara. Family History in the Middle East: Household, Property, and Gender. Albany: State University of New York Press, 2003.

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    Uses waqf records as a lens onto women’s status and property ownership and management by the 18th century, finding that women were not discriminated against, but knew their rights and were considered to be as qualified as men to be capable managers of charitable endowments.

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  • Khan, Hamid. The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries. 3d ed. Karachi, Pakistan, and Oxford: Oxford University Press, 2008.

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    Comparative study of Sunni and Shia inheritance law, and of challenges arising from their strict implementation in the contemporary era.

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  • Meriwether, Margaret L. “The Rights of Children and the Responsibilities of Women: Women as Wasis in Ottoman Aleppo, 1770–1840.” In Women, the Family, and Divorce Laws in Islamic History. Edited by Amira el-Azhary Sonbol. Syracuse, NY: Syracuse University Press, 1996.

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    Finds that women were often favored by premodern jurists in waqf-related rulings, particularly where they were responsible for children.

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  • Moors, Annelies. Women, Property and Islam: Palestinian Experiences, 1920–1990. New York: Cambridge University Press, 1996.

    DOI: 10.1017/CBO9780511558085Save Citation »Export Citation »E-mail Citation »

    Anthropological study of Palestinian women seeking to claim their property and inheritance rights, with particular attention to differing experiences based on socioeconomic status leading to more or less success in claiming rights.

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  • Powers, David S. Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance. Berkeley: University of California Press, 1986.

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    One of the first studies of Islamic inheritance law, with special attention to principles surrounding female inheritance, based on three sets of Qurʾanic verses and their “occasions of revelation.” Includes a case study of practice in medieval Islamic Spain, specifically how wealth and property were passed from one generation to the next to designated heirs in desired proportions, rather than according to the letter of the law.

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Sex and Sexuality

Control over a woman’s sexuality was a primary concern of Islamic legal literature. Islamic law was predicated on the basis of gender binaries and assumed heterosexuality as the only licit form of sexual expression either in marriage or concubinage. Although some concubines, such as Hurrem Sultan (Roxalena), managed to achieve wealth, status, and even marriage, Ahmed 1992 (cited under “Women’s Rights and Duties” in Islamic Law) cautions that material wealth and political position did not necessarily preserve a concubine from emotional or psychological insecurity. Ali 2010 argues that the commodification of the concubine’s sexuality resulted in the commodification of women’s sexuality across the board, owned by either a master or a husband. Ali 2016 continues the author’s investigation into whether and how sexual ethics should change in accordance with changes in social context, such as rising ages for marriage for both females and males, the abolition of slavery and concubinage, and rising social acceptance of sexual intimacy outside of marriage. Ali also questions whether matters of sexual conduct are most appropriately addressed in criminal law courts or should be a matter of personal conscience, a question also raised in Semerdjian 2008, an investigation of the reluctance to apply the hudud ordinances on illicit sex (zina) in Ottoman Aleppo. Although homosexuality was present and even celebrated in a variety of types of literature, particularly poetry, it was nevertheless largely prohibited in the legal literature. Kugle 2010 re-investigates the Qurʾan, hadith, and fiqh through the eisegetical lens of liberation toward a progressive approach of acceptance of homosexuality rooted in values such as equality and justice. Although hermaphrodites are present in the legal literature, the purpose of such discussions was for the jurist to demonstrate reasoning as to how the dominant gender was to be determined, thereby assigning the hermaphrodite to either male or female for the sake of the social order. Contemporary approaches to sex and sexuality often focus on questions of autonomy. Musallam 1983 studies contraception and abortion in medieval legal texts, concluding that while jurists believed that God retained ultimate creative power in determining whether an act of intercourse would produce progeny, human beings still retained responsibility for assuring that they did not harm other human beings in the process—whether a spouse, an existing child, or an as-yet unborn child. Despite this strong legal precedent for the permissibility of contraception, it remains discouraged in many places today. Shaikh 2003 confirms that eight out of nine classical law schools permitted contraception, and notes a diversity of opinions about abortion, guided by the Qurʾan and teachings of the different law schools, typically connected to the gestation stage.

  • Ali, Kecia. Marriage and Slavery in Early Islam. Cambridge, MA: Harvard University Press, 2010.

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    Uses classical legal discussions of marriage and slavery as a lens onto gendered expectations for marriage, agency, passivity, sexuality, and power that are ultimately defined by hierarchies, as men are expected to control women’s mobility and sexuality.

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  • Ali, Kecia. Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence Expanded and revised edition. Oxford: Oneworld Publications, 2016.

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    Interrogation of the Islamic legal foundational sources on contemporary questions of sexual ethics and the intersectionality of sex with location, race, class, and imperialism. Ultimately questions how to maintain sexual morality while adapting to the realities of contemporary life and whether definitions of sexual morality should change based on context.

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  • Kugle, Scott Siraj al-Haqq. Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender Muslims. Oxford: Oneworld, 2010.

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    The first scholarly analysis of homosexuality in Islam from a progressive perspective. Examines Qurʾan, hadith, and fiqh literature through the self-declared progressive theological lens of liberation, arguing that Islam does not inherently oppose same-sex love or relationships and extending this argument to call for reforming Sharia in order to establish an Islamic ethic of same-sex marriage based on the same legal parameters as heterosexual marriage.

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  • Musallam, B. F. Sex and Society in Islam. New York: Cambridge University Press, 1983.

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    Analysis of medieval Arabic legal manuscripts from Shia and Sunni law schools on contraception and abortion, noting parallels in language related to the marriage contract in discussions of male and female emissions necessary for the creation of life. Discusses male and female contraceptives, placing responsibility on the man to protect against unwanted pregnancy.

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  • Semerdjian, Elyse. Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo. Syracuse, NY: Syracuse University Press, 2008.

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    Examines the development of the concepts of zina as illicit sex and sexual indiscretion in Aleppo, Syria, as well as use of law to police threats to public morality presented by prostitution and concerns about domestic violence and rape. Semerdjian concludes that alternative terminology was used in order to circumvent the harsh punishments normally assigned through hudud, challenging the boundaries between theory and practice.

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  • Shaikh, Sa’diyya. “Family Planning, Contraception, and Abortion in Islam: Undertaking Khalifah.” In Sacred Rights: The Case for Contraception and Abortion in World Religions. Edited by Daniel C. Maguire, 105–124. New York: Oxford University Press, 2003.

    DOI: 10.1093/acprof:oso/9780195160017.003.0005Save Citation »Export Citation »E-mail Citation »

    Roots permission for contraception in eight out of the nine classical legal schools, with varying opinions on abortion to root contraception in Islamic thought and practice, rather than as a postcolonial concern about Western conspiracies to limit population sizes in the Muslim world.

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Violence against Women

Violence against women, both physical and sexual, has long posed a conundrum in Islamic law. Classical legal literature accepted slavery and concubinage as a normal state of affairs throughout the Mediterranean region, such that a master could not commit “rape” of an unmarried female slave because the master “owned” that slave’s sexuality. Similarly, there is no concept of marital rape in Islamic legal literature because the husband owns the wife’s sexuality in exchange for feeding, housing, and clothing her. Qurʾan verse 4:34 has long been cited in support of a man physically disciplining his wife for disobedience, as investigated by Chaudhry 2013. Various scholars, beginning with Wadud 1999 and al-Hibri 1997 (cited under Foundational Islamic Legal Texts), have called for unreading patriarchy from this verse. Hassan 1990 challenges the assumption of male superiority as rooted in Jewish and Christian understandings of the creation of man and woman at different times, while the Qurʾan teaches that they were created simultaneously from a single soul. Concerns about assumptions of male superiority leading to abuse of women had been particularly pronounced following the passage of the Hudud Ordinance of 1979 in Pakistan, which conflated rape with zina. Quraishi 1999 engaged the first detailed and substantive critique of the Ordinance on the basis of its failure to abide by Islamic law, specifically with respect to coercion, wounds, and lack of consent. Quraishi called for refocusing attention on the Sharia’s commitment to justice and protection of women’s dignity, reputation, and privacy, particularly from false accusations, in light of the tendency of Pakistani men to accuse women of sexual misconduct without evidence. This point was picked up by Intisar Rabb’s discussion of the “doubt canon” (in Rabb 2015), as cases based solely on circumstantial evidence cannot be assigned criminal punishment because a definitive conclusion cannot be reached. This approach has been completely subverted in many contemporary systems that place the burden of proof on the woman attempting to defend herself from zina accusations made on circumstantial evidence. Mir-Hosseini and Hamzic 2010 takes a comparative approach to zina laws in Indonesia, Iran, Nigeria, Pakistan, and Turkey, highlighting the intersectionality of violence with poverty, disproportionate application of the law, and the prevalence of violent punishments carried out through extrajudicial means, parallel legal systems, and nonstate actors, including family and community members, rather than the official criminal justice system. Case studies of women accused of sexual misconduct by their husbands culminating in acid attacks can be found in Junge and Obaid-Chinoy 2011. Azam 2015 offered a broad analysis of sexual violation and rape in Maliki and Hanafi law, finding that Malikis considered sexual violation a property crime for which financial compensation was owed, while Hanafis considered it a moral transgression. Azam also addressed crimes of “honor” and genital mutilation, often connected to misogynistic attitudes, poverty, economic stagnation, lack of education, absence of protective kinship structures, remoteness from judicial or governmental authority, and political unrest.

  • Azam, Hina. Sexual Violation in Islamic Law: Substance Evidence, and Procedure. New York: Cambridge University Press, 2015.

    DOI: 10.1017/CBO9781316145722Save Citation »Export Citation »E-mail Citation »

    Analysis of sexual violation in Maliki and Hanafi jurisprudence which concludes that, although both considered sexual violation a crime, Malikis considered it a financial crime for which compensation was owed, while Hanafis considered it a moral violation. Gives detailed attention to evidentiary requirements, including the woman’s testimony, admissibility of pregnancy, and concerns about changing rape claims into zina charges.

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  • Chaudhry, Ayesha S. Domestic Violence and the Islamic Tradition. New York: Oxford University Press, 2013.

    DOI: 10.1093/acprof:oso/9780199640164.001.0001Save Citation »Export Citation »E-mail Citation »

    Examination of Q 4:34 throughout Arabic-language exegetical and jurisprudential literature from the lifetime of Muhammad through the 20th century, concluding that jurists historically allowed a husband to physically discipline a disobedient wife, albeit with various cautions not to cause bruising or physical harm.

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  • Hassan, Riffat. “An Islamic Perspective.” In Women, Religion and Sexuality: Studies on the Impact of Religious Teachings on Women. Edited by Jeanne Becher, 93–128. Geneva, Switzerland: World Council of Churches Publications, 1990.

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    The first feminist work to address interpretation of gender in the Qurʾan, challenging the notion of female submission to male superiority as inconsistent with the Qurʾan’s assertion of equality of women and men before God.

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  • Junge, Daniel, and Sharmeen Obaid-Chinoy, dirs. Saving Face. New York: HBO Documentary Films, 2011.

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    Documentary film on female victims of acid attacks in Pakistan. The women fight back against their attackers through the legal system, working with attorneys and parliamentarians toward passage of a law criminalizing such attacks. Highlights women’s activism and the importance of having male supporters.

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  • Mir-Hosseini, Ziba, and Vanja Hamzic. Control and Sexuality: The Revival of Zina Laws in Muslim Contexts. London: Women Living Under Muslim Laws (WLUML), 2010.

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    Comparative study of implementation of zina laws in Indonesia, Iran, Nigeria, Pakistan, and Turkey produced by two women’s activism organizations—Violence Is Not Our Culture and Women Living Under Muslim Laws. Purpose is to try to assure that culture and/or religion are not used to criminalize women’s sexuality or subject them to cruel, inhumane, or degrading punishments.

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  • Quraishi, Asifa. Her Honour: An Islamic Critique of the Rape Provisions in Pakistan’s Ordinance on Zina. Islamabad, Pakistan: Islamic Research Institute, 1999.

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    One of the first critiques by an Islamic legal and feminist scholar of Pakistan’s Hudud Ordinance of 1979, focusing on issues related to evidence and witnessing in cases of zina and the conflation of rape with zina.

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  • Rabb, Intisar A. Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law. New York: Cambridge University Press, 2015.

    DOI: 10.1017/CBO9781139953054Save Citation »Export Citation »E-mail Citation »

    The first comprehensive history of the Islamic legal concept of doubt from the 7th through 16th centuries in both Sunni and Shia jurisprudence. Doubt as a legal maxim asserted that, in cases where there is no direct confession or direct witness testimony, criminal punishment could not be assigned. Historically, judges used this to circumvent hudud punishments, a practice Rabb believes should be reimplemented today.

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  • Wadud, Amina. Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective. New York: Oxford University Press, 1999.

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    Builds upon and expands the author’s earlier work to include attention to personal status codes, with particular focus on the question of domestic violence and linguistic analysis of Q 4:34.

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