Contemporary Islamic apologists such as Georgetown University Professor John Esposito, his protégé Dahlia Mogahed, and political activist Linda Sarsour constantly whitewash sharia as benign and pro-women. In this context, Georgetown University law Professor Lama Abu-Odeh provides a refreshingly critical outlook on sharia and women, as shown by her June 21 discussion of sharia at Washington, DC’s Middle East Institute (MEI).
Following a screening of The Judge, a film about the first female sharia court judge in the Palestinian Authority, Abu-Odeh analyzed a gradual “historic defeat of Islamic law” among Muslim countries. Sharia “used to just regulate practically everything, and then every other field of law, civil, commercial, criminal, started to be influenced by European codes and became secularized,” she noted. Yet beginning in the 19th century, a “shrinkage of the historic jurisdiction of Islamic law” had relegated sharia in these countries to family law issues such as marriage, divorce, and inheritance.
Abu-Odeh elaborated upon this family law and its understanding of a marriage contract whose “Islamicity,” she has previously written, “came to symbolize the last bastion of a dismantled legal system.” As stipulated in numerous Muslim personal status codes with their references to “obedience,” she stated at MEI, the “marriage of contract is a marriage of sexual access for the husband in return for financial obligations for the woman.” According to this arrangement, for a wife “there is no such notion as marital rape. You basically have to sleep with you husband to earn your maintenance,” or nafaqah.
Abu-Odeh delineated the limited ability women have to negotiate provisions in such Islamic marriage contracts. A woman could contract to use contraception during the marriage for a certain period, such as when she is pursuing a degree, or to receive a weekly quota of meat, but her contract cannot violate the Islamic definition of marriage. Thus a prospective wife “cannot say we will only have sex once a week”; nor can she forbid her husband from practicing Islamic polygamy, although she can demand a right to divorce in case her husband takes another wife. Abu-Odeh added the caveat that in reality, during Islamic prenuptials “most women don’t bargain, in fact you will have a bad reputation if you bargain.”
Abu-Odeh further explained Islamic marriage’s proprietary nature; wives “retain their own juridical personality; they don’t merge with that of their husbands.” Thus a wife retains her personal property vis-à-vis her husband; that forms a “circle around her that he cannot touch.” She has written that wives “are under no obligation to maintain the marital household except under limited circumstances when the husband is in need.”
On the flip side, Abu-Odeh noted, a divorced husband must only support his children; his former wife receives “no alimony in the system,” so that many Palestinian wives will avoid divorce and an impoverishing loss of nafaqah. Yet Muslim Palestinian husbands with multiple wives will often try to avoid maintenance and have, she has written, the sole right of talaq, a kind of no-fault divorce. She also noted at MEI that Palestinian husbands “have many privileges,” such as a right of approval over their daughters’ marriages, and choices in education and healthcare.
Most disturbingly, Abu-Odeh discussed Islamic doctrine sanctioning a husband’s wife-beating. She has written that this abusive power is among the “conspicuously brutal aspects of husband and father power typical of the Hanafi doctrine,” the most widespread Sunni Islamic school of jurisprudence. In this madhhab, “[i]f the husband beats his wife, her only resort is to go to a judge and request that he be reprimanded, in the case that the judge determines his exercise of his disciplinary powers is in excess, meaning he beats her too hard.”
Based upon her prior research, Abu-Odeh at MEI explained that Egyptian case law is conflicted over whether husbands may beat their wives in order to enforce obedience, an analysis that is often class-based. Many judges have ruled that “peasant women they are used to more beating than rich women, and therefore what you would consider intolerable for a rich woman you would actually tolerate for a peasant woman.” Additionally, Esposito himself has written that in Egypt a runaway wife “might be forcibly returned by the police and confined until she became more obedient.”
Abu-Odeh analyzed wife-beating within the wider context of Muslim culture, in which Islamic orthodoxy is the “overarching dominant group, and liberals are few in between.” She noted feminism’s poor prospects under Islamic law, as the film’s profiled female sharia judge was an exception, given a canonical saying (hadith) from Islam’s prophet Muhammad that “women have no reason.” This justified orthodox Muslims in rejecting female judges, for, Abu-Odeh asked rhetorically, “how can you leave a woman who is irrational by biology adjudicate your affairs?”
Abu-Odeh likewise has previously written about how Islamic norms have contributed to the so-called “honor killings” of sexually transgressive females. For some Muslims, Islamic “law excuses the man who finds himself in uncontrollable rage in the presence of his female relative’s sexual transgression.” Additionally, “killing one who has transgressed, amounts to exercising the religious duty of ‘fending off sin.’”
On the positive side, Abu-Odeh discussed various legal reforms. An Egyptian measure obliged a husband to inform a wife of any subsequent polygamous marriage, whereupon the first wife could divorce. She particularly praised the fact that in recent years “Tunisia is literally on its last leg of completely liberalizing Islamic law,” with “absolute total formal equality for men and woman at every level of the system.”
Abu-Odeh described Tunisia’s development, in which women share family responsibilities and no-fault divorce rights with men, as “absolutely revolutionary” and “incredible.” Tunisian law recognizes marital rape, while treating the husband and wife as a financial unit, such that the “circle around her has been broken.” Abu-Odeh also described as “huge” deviations from received Islamic orthodoxy the fact that Tunisian Muslim women can now marry non-Muslim men and have equal inheritance rights with men.
Abu-Odeh noted that Tunisian legal reforms have a long pedigree, on the basis of an analytical tradition that many Islamic doctrines are historically-based and that therefore “reason prevails over text.” Heavily influenced by Tunisia’s former French colonial masters, Tunisian dictator Habib Bourguiba in the 1950s “worked incredibly hard at limiting the power of and neutralizing the religious establishment.” He accordingly abolished polygamy and a wife’s duty of obedience to her husband.
Abu-Odeh characterized feminists throughout Muslim-majority countries as “going push, push, push, to get to” Tunisian standards of women’s rights. She concluded:
We are moving from a very conservative system, where it is hierarchical, men have financial obligations and in return for them they get a lot of privileges…to a liberal system, more like a market system, where you are now in it together, you are both responsible for the family, and there is no hierarchy, it is formal equality.
Abu-Odeh’s support for liberal ideas reflects the secularism of this Arab-American, who has called for a “liberal and constitutionalist” binational Israeli-Palestinian state. Yet her secularism means that she refreshingly dismisses politically correct excuses for the deplorable conditions of women under sharia. During a 2013 Library of Congress presentation, she scoffed:
It has become almost obligatory if one wants to talk about women, like women in the Arab world, to first denounce American imperialism, global capitalism, and the influence of foreign funding on local NGOs, and even then one has to be careful not to represent Arab women as victims, not to sound too alarmed, and not associate the situation of women with Islam, Muslims, or Muslim culture. If pressed, one has to blame it all on the history of colonialism, state laws, and neoliberal reforms.
Abu-Odeh’s studies show that people in Muslim-majority countries have recognized the abusive nature of various Islamic doctrines towards women, among others, and are trying to effect reforms. This reality of Muslims themselves rejecting sharia as immoral and impractical rebuts sharia apologists in the West such as Imad-ad-Dean Ahmad, who sat next to this author during the MEI event. In history’s stark judgement, if Muslims reject sharia, why should anyone else embrace it?