Excerpted From: Caitlin Hanan Aladham, A Socialist Feminist Critique of Women's Marital Rights in Islam and an Examination of the Feasibility of Muslim Same-sex Marriage, 16 Washington University Jurisprudence Review 104 (2023) (247 Footnotes) (Full Document Requested)



NoPictureFemale.jpegThis Note utilizes socialist feminism as its primary mode of analysis. Socialist feminism focuses on the relation of women to the worlds of production and reproduction. Like other socialist ideologies, it advocates against capitalism, arguing in particular that capitalism props up the subjugation of women. In so doing, it decries the separate spheres ideology and upholds sexual equality. legal theory or jurisprudence, sometimes referred to as usul alfiqh, encompasses a large body of work deriving from multiple disciplines. This includes the traditional legal schools of Islamic thought, like the Shafi'i, Hanafi, Hanbali, Ja'fari, and Ismaili schools. These schools contribute to usul al-fiqh and thus make up traditional fiqh interpretations of Islamic sources and law. In recent decades, however, Islamic jurisprudence has broadened to include Islamic feminist jurisprudence, though this latter sub-discipline is not customarily understood as contributing to usul al-fiqh, the scholarship of which is dominated by the musings of men.

Given the focus of usul al-fiqh on men's interpretations of shari'a, it may come as no surprise that women's Islamic rights are a topic of frequent debate. These rights address women's lives in both the public and private spheres, and in the West, they are widely considered as being antiquated. However, this is largely the result of misconception. Islam granted all women, not just those of the upper classes, various rights over fourteen-hundred years ago. Nevertheless, traditional Islamic legal theories of women's rights have been critiqued by Muslim women's rights activists. These activists have taken reformist views of these rights and assert that because Islam sought to improve the rights and lives of all people, including women, at its introduction, these rights should be reevaluated and reformed again.

Though Muslim same-sex marriage is often treated as a hypothetical prospect for the future, to be examined for its possibility or permissibility in the present, already, same-sex couples have been married by Muslimimams. This simple fact does not take away from this Note's forthcoming analysis, considering that the real world is ubiquitously more complicated than the purity of theory. Most Muslim, same-sex, married couples likely do not consider their marriage as something that needs to comport perfectly with a socialist feminist critique or any other single way of thinking. Nonetheless, this Note examines the feasibility of such marriages following the socialist feminist critique contained herein.

In examining the two questions this Note poses--what women's marital rights in Islam look like under a socialist feminist critique and whether Muslim same-sex marriage remains feasible following this critique--this Note will begin by laying the foundations of the various legal and philosophical theories and historical backgrounds at issue. Section Two will explore socialist feminism. It will discuss the ideals of socialist feminism, as well as how socialist feminism is distinct from other feminist theories. There will also be a discussion of Islamic socialism and how it fits into this Note and the analysis herein. In Section Three, the introduction of Islam and the development of Islamic legal theories will be explored. This will include discussions of both traditional Islamic jurisprudence and Islamic feminist jurisprudence. In Section Four, this Note will take a closer look at women's marital rights in Islam, examining solely the traditional fiqh notions of these rights. Section Five, the analysis will begin by questioning whether the marital rights of women in Islam, in the frameworks of both traditionalist Islamic legal theories and alternative viewpoints, can stand up to a socialist feminist critique, and if not, how they should be revolutionized to do so. In keeping with socialist feminist theory, these rights will be examined with the understanding that the separation of the economic sphere, or public life, and the family, the private sphere, has been manufactured for the purpose of subjugating women so as to exploit our labors. As such, the line of questioning contained in the analysis herein will examine how Muslims might achieve sexual equality within marriage in accordance with the destruction of these separate public and private spheres. So, too, will this analysis contemplate the effects of the gender binary and gender essentialism on the justifications for the asymmetrical construction of these rights.

In Section Six, the analysis will continue with the question of whether, in keeping with the socialist feminist critique of women's marital rights in Islam, same-sex Muslim marriages are feasible. Queer theory will be utilized to determine whether relevant socialist feminist marital rights should apply at all. This will include applications of the right of divorce, the right of remarriage, and other rights to the not-so-hypothetical same-sex union. Most simply, this analysis will begin by looking at couples of two persons of the same biological sex. This will be followed by an examination of a marriage with more than two participants.

Ultimately, this Note finds that marital rights in Islam currently exist under an asymmetrical rights paradigm, skewed in men's favor. This is largely the result of a woman's right to provisions from her husband and a man's right to submission from his wife. These reciprocal rights come together to produce a trade-off largely at the benefit of the husband, which in turn unbalances the entire scheme of marital rights. In order to rectify this, as socialist feminism demands, balance is struck through the destruction of the aforementioned trade-off, thus creating a symmetrical rights paradigm. It is under this subsequent, improved paradigm that one can more feasibly apply Islamic marital rights to a same-sex marriage, regardless of the fact that these rights were initially introduced alongside a presumption of the gender binary.

The inquiries within this Note are significant as Muslim society reflects on the changing world of today and reimagines the world of tomorrow. Presently, when considering the condition of women, rarely do people look beyond liberal feminism and the existing traditional Islamic legal theories. Progress, as a result, is slow-going. In order to galvanize the world into the communist future, the equality of women--more than half of the proletariat class--must be secured from the hegemonic threats of patriarchy and capitalism. This progress must occur in all parts of the world, including the Muslim world, which encompasses nearly one-fourth of the world's population. Furthermore, the understandings of the forms of oppression at issue in this Note are incomplete without examining the full brunt of cis- heteropatriarchy and its threat against Muslim women, queer Muslims, and genderqueer Muslims. Though Islamic feminists have already commenced this endeavor by crafting reformist frameworks of Muslim women's marital rights, the need will soon arise for a move from reform to revolution as we anticipate the fall of the capitalist system.

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After undergoing a socialist feminist critique, it is perhaps surprising that the marital rights of women under Islam do not fall to pieces. Rather, while one of them, the right to provisions from one's husband, requires dispatch and the others require thorough rethinking, they hold up in large part, according to the 'amm principles that underlie them. Moreover, Muslim same-sex marriage, which is permissible under other analyses, does well within the symmetrical rights paradigm prescribed by a socialist, Islamic feminist reading of women's marital rights. Under a model of Islamic marital rights that touts sexual equality and dispatches the gender binary, many of the concerns about the feasibility of a same-sex Muslim union simply fade away. Furthermore, the idea that Islam stands contrary to the diverse spectrum of gender and sexuality that exists in-fact is not a reading of the Qur'an that comports with the tenets of Islamic feminist jurisprudence.

As the body of feminist examinations of women's Islamic rights continues to grow, it is important that we, as Muslims, as feminists, and as communists consider how our own worldviews intertwine. Socialist feminism is an important theory for examining the world, and Muslim societies, communities, and individuals continue to contribute to and be a part of this world. Thus, for socialist feminists, looking beyond Western schools of thought and of being is essential. As for Muslims, as we continue to expand our ways of thinking and examine religious texts and doctrine from new angles, we must consider how reform may be turned into revolution. Thus, one of the purposes of this Note is to express that Islamic rights and the Islamic way of life need not be locked into the current system of global capitalism. Rather, there is a way forward for Islam that does not denigrate the religion under socialist feminism or, ultimately, communism. It does not denigrate the religion to give women equal enjoyment to the rights conferred unto all of humanity by Islam, and any assertion to the contrary ignores the very universal principles that underlie Islam.