In recent years, scholars and students from a wide variety of disciplines and fields have become interested in women and Islamic law. The need for an informed and intelligent survey of this subject has become increasingly apparent. Judith Tucker is perhaps the most appropriate scholar to fill this void. Her own research experience with Islamic court records (sijillāt) and legal opinions (fatāwā) as well as her familiarity with other pertinent scholarship on the subject and a sensibility for theoretical aspects of the issues involved serve her well in undertaking this challenge. The result is an excellent, well-balanced survey of gender and Islamic law, from the foundation texts through the developments that led up to modern innovations and contemporary legal issues. Every effort is made to reflect not only the four schools of Sunni Islamic law (madhāhib) but also that of Shiʿi Islam.
The book opens with several useful introductory sections, the first of which deals with the universal issue of feminism and law. The next section is devoted to Islamic law and reflects the differing approaches to and disciplines concerned with the study of this subject. This is followed by a section in which Tucker provides an excellent introduction to Islamic law and gender that addresses four themes. The first theme relates to the degree and pattern of discrimination against women in Islamic law as evaluated by the standard of liberal notions of equality. By making her criteria of discrimination apparent, Tucker avoids the usual double-standard approach to the study of Muslim and Middle Eastern women. The second theme Tucker deals with is the marginalization of women by male norms embedded in Islamic law and societies. The third theme is the impact of linguistic representations of women and men on legal discourse. Finally, Tucker addresses the fourth theme of female agency in legal institutions and processes.
The substantive chapters of the book are devoted to classic subjects related to gender: marriage and divorce, the important but often neglected topic of woman as a legal persona, and the more recently raised issues of gendered space and sexuality. Tucker analyzes legal theory alongside actual “lived experiences” of the law throughout the text. She emphasizes the flexibility and fluidity of the Islamic legal system, a refreshing change from previous books on Islamic law that describe it as static.
Tucker subtitles the chapter on marriage as “making the marital bargain.” The term “bargain” refers to the marriage contract between legally competent persons and to the rights and duties of husbands and wives. It highlights the fact that women are not without rights in the contract and during the marriage. A section on pre-20th-century practices draws primarily on the many quantitative and qualitative studies of the Ottoman period. The part of the chapter on reform and marriage builds on research on the 19th and 20th centuries. Tucker regards the oft-praised “modernization” of this period as bringing minimal changes and even having negative results (such as the house of obedience in Egyptian laws of 1897 and 1931 to punish “rebellious” wives). One particularly valuable section deals with more recent developments in Islamic marital law. As Tucker points out, various aspects of Islamic marriage have been the subject of debate in recent years, and she has singled out two for elaboration: the campaign against polygamy and reservations of Islamic states to signing the Convention for the Elimination of Discrimination against Women. The discussion of these two issues signals some of the forces and actors involved in current debate on other aspects of Islamic marital law as well.
Chapter 3, dealing with divorce, tends to be a bit legalistic for my taste. Admittedly, there are a number of legal formulae that permit dissolution of a marriage aside from the frequently used and informal repudiation, and some of these have relevance for modern legal reforms, but I am not certain that the minimal use of annulment or women's initiated divorce in the past justifies delving into these legalities. I would opt for more emphasis on the economic and social aspects of divorce.
The oft-neglected yet important subject of women's legal capacity is the focus of Chapter 4 and is discussed in an illuminating manner. Women's and men's property rights, inheritance, and legal testimony reflect the Islamic construct of woman's agency. On a practical level, property ownership and management determine economic and sometimes social standing. Tucker points out that the issue of female testimony was highly susceptible to social pressure and the notion of female disability. Similarly, in the Ottoman territories, women's inheritance of land was circumscribed by state law. Tucker ably summarizes the issues that have emerged from studies of the Islamic endowment (waqf) but concludes that more research on patterns of endowment will be required in order to determine whether this Islamic institution was a vehicle of empowerment or discrimination against women. In sum, Tucker argues that the interplay of legal rights and social reality determines women's agency according to Islamic law.
Gendered space is one of the most prevalent preconceptions about Muslim societies, and the separation of men and women is frequently attributed to Islamic law. However, Tucker points out in Chapter 5 that much to our surprise, gender segregation, female seclusion, and veiling were not much featured in classical Islamic legal discourse and premodern legal practices. The issue of gendered space appears primarily in the context of religious duties such as communal prayer and pilgrimage. Nevertheless, Tucker has managed to shed light on other aspects of gendered space from some primary legal texts and existing studies. In one of the most intelligent conclusions on the subject, she states that in the past Muslim women (and men) dressed modestly for the most part, but there existed a wide range of degrees of covering, which reflected differences in class and setting. Seclusion also seems to have been determined by local custom and individual choice rather than legal judgments. Illicit sexual relations (zināʾ), in contrast, were the subject of much attention in the foundational texts, the courts, and among jurists, partly because of their criminal definition in the Qurʾan. The hijab polemic in the reform period is finely described, covering a variety of voices in various locations. Most Islamic jurists, Tucker concludes, abandoned seclusion and the face veil in the first half of the 20th century. However, she pointedly notes the contributions of journalists, social reformers, and political activists to the debate over appropriate dress and modesty in the context of colonialism and nationalism. Recently, a resurgence of Islamic piety has brought about a return to the face veil. At the same time, the dispute about wearing the hijab and the niqab has become global, and the discourse has centered on the question of freedom of religion.
In her conclusion, Tucker addresses the four themes posed at the outset: gender discrimination, the marginalization of women, the impact of linguistic representations of men and women on legal discourse, and female agency. Relating to the first, Tucker argues that the inequalities of marriage and divorce in Islamic law are offset by financial guarantees for women (the marital bargain of the husband's material support for the wife's obedience), while formal legal inequity is less evident in property issues, space, and sexuality. Concerning the second theme, Tucker points out that Islamic law recognized the special needs of women and their vulnerabilities but correctly asserts that this paternalistic attitude can work against contemporary women's interests. The notion that women required special protection also impacted their status as legal subjects, particularly in contracting marriage and to a lesser extent in property rights. In the area of dress and sexuality, women's difference was viewed as a great danger to society, and in recent times, this view has been used to legitimize the most severe restrictions. On the third theme, Tucker argues that patriarchal constructs of women as dependent and weak impinged on Islamic law but were at odds with female legal capacity. Addressing the fourth theme, Tucker points out that there is ample evidence of women taking an active part in legal institutions and processes in premodern, modern, and contemporary times.
Although overly dense at times, this valuable book will serve students and scholars alike. Its main thesis is the complexity, diversity, and fluidity of Islamic law and gender across time. A list of recommended readings provides an excellent point of departure for further study of these issues. This book will certainly be an important addition to everyone's bookshelf.
