New Perspectives on Gender in Shari‘a-Based Family Law Studies: Moving Beyond the Women’s Issue

*Radboud University Nijmegen/University of Amsterdam, the Netherlands, E-mail: B.dehart@jur.ru.nl. **Radboud University Nijmegen, the Netherlands, E-mail: n.sonneveld@jur.ru.nl. ***the Göttingen Institute for Advanced Study, Germany, E-mail: iris.sportel@zentr.uni-goettingen.de. This work is licensed under a Creative Commons Attribution License (3.0) Religion and Gender | ISSN: 1878-5417 | www.religionandgender.org | Uopen Journals Editorial New Perspectives on Gender in Shari’a-Based Family Law Studies: Moving Beyond the Women’s Issue


Introduction
This Special Issue is the result of a conference on Islamic Family Law that we organized in the Netherlands in 2013, entitled: Islamic Family Law in Modern Europe and the Muslim World -Legal and Empirical Approaches beyond the Women's Rights Issue. Most of the contributions in this volume were presented at this conference. But above all, this theme issue is the result of our discussions as colleagues with different academic backgrounds (anthropology, sociology of law, and law) and different links to the field of Islamic family law: as an insider (Sonneveld), newcomer (Sportel), and outsider (De Hart). Our discussions, questions, amazement, and at times concerns about the traditions, aims and future of Islamic family law studies revolved around recurring questions that we aim to address in this Special Issue. We believe that the field of Islamic family law could profit from similar dialogues across disciplines, especially sociology of law, gender studies, and critical legal studies.
The issues we address in this introduction are inspired by insights from these disciplines and made us wonder about assumptions and understandings underpinning the study of Islamic family law, most importantly: the stereotyping of Muslim men, the concept of gender, and the concept of law.

The Stereotyping of Muslim Men: Do Muslim Women Need
Saving? […] saving Muslim women is advertised as a purported aim for broad and varied campaigns that in actuality have little to do with them. In private conversations and in public forums on these issues, the questions on many lips are inevitably 'But doesn't Islam really oppress women?' or 'Doesn't Sharia law treat women as second class citizens?' Because these observers see Islam, Sharia, and Muslim women [as] undifferentiated monoliths, the answers to their questions consequently fit the binaries that produce them: good and bad, just and unjust, oppressive and liberating. The assumptions buried inside these perceptions rest on western law, in which gender equality is safe, while in Sharia law, its specter hung with images of hacked hands and stoned women, it is not (Zakaria 2011: 7) In the past two decades, the study of Islamic family law has taken a high flight, with an increasing number of researchers focusing on the practical implementation of family law reforms in the courts and its impact on women in Muslimmajority countries and the West (Al-Sharmani 2008;Bernard-Maugiron and Dupret 2008;Carlisle 2007;Caroll 1997;Giunchi 2014;Hirsch 1998;Jansen 2007;Khir 2006;Mehdi 2003;Mehdi and Nielsen 2011;Mir-Hosseini 2000;Moors 1999Moors , 2003Osanloo 2006;Sadiqi and Ennaji 2006;Salime 2009;Shaham 1999;Shah-Kazemi 2001;Singerman 2005;Sonneveld 2012;Van Eijk 2013Voorhoeve 2009Voorhoeve , 2012Zoglin 2009). While the importance of these studies, shedding light on the complex implementation practices of Islamic family law by courts, judges, lawyers, and family members can hardly be underestimated, they have kept Muslim women at the center of attention. The impact of law reforms on men and, to a lesser extent, children, is a question that few researchers have asked. 2 At best, men have been portrayed as a uniform category with too many shari'a-based rights from which women needed to be protected. 3 As studies focusing on men and masculinities in the Muslim world are rare (Inhorn 2012;Ouzgane 2003Ouzgane , 2006, the field of Islamic family studies may miss out on important developments in family life and family law. New forms of masculinity emerge not only in the 'western' but also in the Arab world (Inhorn 2012) and new family practices and relationship forms are continually being created. Ignoring the ways in which femininity and masculinity are being transformed by cultural, social, political, and economic processes, many of which are of a global nature, gives us a limited view of these processes (see also Inhorn and Patrizio 2015). Furthermore, ignoring men and masculinities may perpetuate the stereotypical portrayal of Muslim men as terrorists, religious zealots, and brutal oppressors of women, especially since 11 September 2001. These are stereotypes, which scholarship dealing with Muslim-majority countries should be keen to dismantle. If Muslim men are either absent or perpetrators, they remain without voice, and are denied humanity as well as vulnerability (Wray 2011). In the end, such images harm not only men, but also women.
Of course, adding men as subjects in the study of family law does not mean that power inequalities are ignored. 4 Like any other families, Muslim families are full of tensions, conflicts, power struggles and inequalities, and Islamic family law may work out differently for different family members. What may be opportunities for one family member may be the constraints for another.

The Concept of Gender
So far, Islamic family law studies have taken a rather traditional theoretical stand on the role of gender, and, by and large, have not taken into account the theoretical developments in the field of women and gender studies. At least since the 1990s, the field of gender studies has started to include the study of men and masculinities as well as women and femininities, and sexualities. It is probably needless to say in a journal like Religion and Gender, but in these approaches gender is not understood as a natural concept with a clearly demarcated content, but as a social construction, meaning that masculinity and femininity can have different meanings in different social and cultural contexts and times; consequently, these meanings should not be assumed but studied.
Furthermore, whether and which men are in an advantaged legal position, and whether and which women are in a disadvantaged legal position, and how, depends not only on gender, but also on intersections of gender with other inequalities such as class, ethnicity and sexuality (Crenshaw 1991). Intersectionality refers to the mutually constitutive relations among social identities such as gender and social class, which may reinforce and naturalize one another and are always interrelated. It means that social positing is connected to power and inequality in complex ways. One can be privileged in one social position but disadvantaged in another, or the way women or men are viewed may be informed by, for instance, their class position (Lutz et al. 2016;Phoenix and Pattynama 2006;Shields 2008;Verloo 2006). In studies on gender and Islamic family law, however, such an intersectional approach is largely missing (Charrad 2011). The danger is that the unitary category of women is naturalized and reified, and that important differences between women are being ignored, resulting in the exclusion of certain categories of women, such as rural women, non-Muslim women, and migrant women inside Muslim-majority countries. In this manner, the study of Islamic family studies is at risk of not fulfilling its emancipatory ambitions.

The Concept of Law
Our third and last point refers to the concept of law. Scholars tend to treat Islamic family law as inherently different and separate from family law in other parts of the world. 5 However, it is rarely questioned to what extent this othering is justified. Moreover, in times of globalization, which includes the circulation not only of goods, but also of people, norms, ideas as well as law, it seems hardly tenable to view Muslim-majority countries, including developments in Islamic family law, as disconnected from the rest of the world.
Studying Islamic family law as inherently different from family law in other parts of the world is not only in danger of confirming stereotypical othering of Islamic family law in the Western world. Moreover, the field of Islamic family law remains largely empirically descriptive and seems to be largely disconnected from theoretical insights and developments such as in sociology of law, critical legal studies, and feminist legal studies. We suggest that the field could profit from absorbing insights from the study of family law in other parts of the world, such as: a critical analysis of the role that perceptions of motherhood and fatherhood play in family law (Boor 1999;Boyd 2004;Collier 2009Collier , 2010; Collier of equality and rights discourses in family law (Diduck 2011); and studies on children's rights (VandenHole et al. 2015).
Monika Lindbekk's contribution in this Special Issue is a case in point. Father's rights movements that came up since the 1980s have been studied extensively for countries like the United Kingdom, United States, Canada, and Australia (Bertoia and Drakich 1993;Boyd and Young 2007;Collier 2009;Sheldon 2006, 2008;Crowley 2008;Dragiewicz 2008;Jordan 2009;Kaye and Tolmie 1998;Williams and Williams 1995). Lindbekk analyses the public emergence of the father's rights movement in Egypt after the Egyptian 25 January 2011 revolution. This raises fascinating questions for comparison. How do the discourses of the Egyptian father's rights movement compare to those in the other countries? What are similarities and differences and how can they be explained? Do notions of 'new fatherhood' (Collier 2009) play a role in this country that has the largest population in the Arab world?
One of the most important insights from sociology of law concerns the limitations of a 'law first' approach that characterizes many studies of Islamic family law. Such a 'law-first approach' entails a strong belief in the power of law in shaping people's lives. Law is seen as an instrument that can be used to bring about social change, such as better living standards for women. However, this approach neglects an important understanding in the sociology of law that has demonstrated time and again that the impact of law cannot be assumed, but rather should be the subject of study. Sociology of law questions if law has any impact at all, and in case it has, when, why, and how (Griffiths 2003). There is often a disconnect between 'law in the books' and 'law in action', that can only be understood by looking at the social and institutional context in which legal actors (including street-level bureaucrats and ordinary people) work with and address the law. Such a 'social working of the law' approach seriously questions the impact that law has in the social lives of people, and points to its often unintended, unforeseen, and contradictory consequences. In this approach, law is not an external factor working independently upon society, but rather part of social processes, and just one of the norms with which legal actors deal (Ewick and Silbey 1998;Merry 2006;Moore 1973;Silbey 2003). Hence, instead of asking how reform of shari'abased family law impacts on the position of (Muslim) women, a 'social working of the law' approach would ask how people of different backgrounds deal with such issues as divorce and what role (family) law plays a in this process.
The 'law first' approach is also remarkable because it centralizes the state as the actor that, through legal change, is instrumental in bringing about social change. This starting point has not only been seriously criticized by feminist and critical legal studies, but is especially questionable in the contemporary geopolitical context in which many regimes are not democratic. This is a point succinctly taken up by Nadia Sonneveld in her contribution to this theme issue. Sonneveld analyses gender inequality in authoritarian states by highlighting the case of family law in the Muslim-majority country of Egypt, both past and present. She asks why and to what extent notions of manhood and womanhood have changed over the course of almost a century of family law reform in Egypt. In answering this question, she draws on the work of two Egyptian intellectuals, who, in contrast to most studies dealing with Islamic family law, have analysed the effects of authoritarian leadership on men's position in the family and society.

Aim of the Special Issue
In this special issue, we aim to demonstrate what a critical, intersectional, and socio-legal approach to Islamic family law could look like and how dialogues with other disciplines could bring new perspectives into the field of Islamic family law studies. We aim to move beyond a women's rights perspective by which we mean two things. First, we do not limit ourselves to the study of women as a general unspecified category, but instead recognize that notions of womanhood are constructed in interaction with other social categories, such as class, race, age, religion, socio-economic status, and citizenship status (migrant/nonmigrant). Mulki Al-Sharmani's contribution is a clear example of how notions of womanhood change in a situation of migration. She shows how Somali migrant women's access to divorce is facilitated by the provision of state welfare resources as well as a new religious discourse emerging in the Somali migrant community in Finland. Second, we do not limit our focus to an analysis of different categories of womanhood, but analyze the construction of different categories of manhood as well. In our view, a complete gender analysis requires that we explain how different notions of manhood and womanhood are created and how they impact on the everyday lived experiences of men and women alike, both inside and outside the Muslim world. For example, where Al-Sharmani demonstrates how Muslim women's access to divorce is facilitated in a situation of migration to Finland, Iris Sportel's contribution shows how the opposite applies to divorced Muslim male migrants in The Netherlands who want to remarry but whose foreign divorce certificates are not recognized on the ground of violating the Dutch public order, as it is considered to violate principles of gender equality.
Through an intersectional approach we believe we can develop a more critical gender approach for the field of shari'a-based family law studies. Sportels' contribution demonstrates the importance of taking such a critical approach, as she demonstrates how perceptions of Muslim men and Islamic family law in European countries disadvantages Muslim migrant men to the extent that they have less possibilities to divorce than non-Muslim men, while at the same time upholding such perceptions serves the goals of restrictive migration policies.
We take into account the context of authoritarian and colonial and postcolonial contexts and their impacts on the development of Islamic family law. Both Sonneveld's and Lindbekk's contributions show the detrimental effects which top-down family law reforms can have on the position of men and women inside the family and society in a situation characterized by authoritarian rule and oppression. We propose a socio-legal approach to Islamic family law, which decentralizes the state and state laws and that takes into account men and women as active legal actors, who navigate law, state, social norms, and religious institutions. We consider law as a practice that can both constrain and enable agency, depending on other power constellations involved, including ethnicity and class (Chunn and Lacombe 2000). Especially in Al-Sharmani's contribution, the value of a law in the everyday life approach is demonstrated. Answering to a call, also outside the context of Islamic family law studies, to include men as involved in reproduction, as partners, lovers, fathers and decision makers, we include Muslim men as fathers. We do not only do this from a theoretical point of view, but also because, as all contribution clearly show, Muslim men themselves demand to be included and treated as fathers.

Editors
Betty de Hart (PhD Radboud University Nijmegen 2003) is Associate Professor at the Institute for Sociology of Law and the Centre for Migration Law at the University of Nijmegen, and Professor of Migration Law at the University of Amsterdam, the Netherlands. She is especially interested in the legal regulation of transnational families. In 2007, she received a Vidi grant from the Netherlands Organization for Scientific Research (NWO) for her research project 'Transnational families between Dutch and Islamic family law'. In 2016, she received an ERC Consolidator grant for the project 'Euromix: Regulating Mixed Intimacies in Europe'. She published nationally and internationally on citizenship law, family law, family reunification, international parental abduction. Her work is characterized by its interdisciplinary approach, and a focus on mixed-status families, gender, ethnicity and diversity, and the meaning of law in everyday life. Nadia Sonneveld (PhD University of Amsterdam 2009) has an academic background in anthropology, Arabic, and law. She works at the Radboud University in Nijmegen, The Netherlands. Generally, the common factor in all her research activities is the focus on shari'a as a lived and contested reality that must be studied against the black letter of state-codified Islamic law. She has conducted extensive research in Egypt and Morocco on the introduction and implementation of shari'a-based family law reform. Previously, she was a guest scholar at the School of Oriental Studies (SOAS) in London, and Al-Akhawayn University in Ifrane, Morocco. She authored Khul' Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life (2012), and has co-authored with Monika Lindbekk Women Judges in the Muslim World: A Comparative Study of Discourse and Practice (2017) and with Doris Gray Women and Social Change in North Africa: What Counts as Revolutionary?, which will be published by Cambridge University Press in the fall of 2017.
Iris Sportel (PhD Radboud University Nijmegen 2014) is an early-career fellow at the Lichtenberg Kolleg, the Göttingen Institute for Advanced Study in the Humanities and Social Sciences. She wrote Transnational Families and Divorce, Marriage, Migration, and Family Law (2016), on the interactions of transnational families with multiple legal systems in case of divorce. She has also done research on living conditions in reception centres for failed asylum seekers; forced marriages and marital imprisonment; the comprehensibility and acceptability of criminal court judgments; and conflict resolution in administrative law cases.