The earlier discussion on ideas of gender justice brings into the frame questions of agency, gender and orientalism. As mentioned above, how people think of gender justice in the British-Muslim legal field is that it is not necessarily dependent on full equality of rights between men and women (see section 6.2.). This is important for understanding British-Muslim family law as a site of citizenship because it means that this hybrid legal field also configures the formulation of differentiated rights and claims to justice based on gender. However, the dominant conception of a modern form of occidental citizenship excludes rights claims that are not framed in terms of individual secular autonomy and equality. This exclusionary dynamic affects Muslim citizens in Britain who conduct their family affairs within British-Muslim family law. For example, in an interview with the BBC, Shaista Gohir, who is the chair of Muslim Women’s Network UK, criticised the government-led review of Sharia law and the Home Affairs Select Committee inquiry into Sharia councils in Britain as patronising women. She forcefully argued that ‘everyone wants to listen to Muslim women when highlighting their terrible experiences. However when it comes to the solutions, everyone thinks they know what is best for them…I do feel that there are people who are anti-faith, particularly anti-Islam, who are using women’s rights as a guise, wanting to abolish Sharia councils’ (Bashir 2016).58 Yet, the ‘One Law for All’
58 Gohir continues to describe possible consequences of a ban of Sharia councils: ‘if tomorrow or next
campaign in Britain proclaims that ‘Sharia councils and Muslim Arbitration Tribunals are discriminatory, particularly against women and children, and in violation of universal human rights’ (Namazie 2016). However, the constantly changing realities of social phenomena such as culture and religion pose complex challenges. To designate culture and religion as either supporting or hindering women’s agency is simplifying the very complexity at work. ‘Cultural and religious beliefs are often edifying and potentially oppressive at the same time…[they can be] simultaneously the source of vulnerability, prejudice and meaningful existence’ (Mookherjee 2009, p. 103).
As Gohir’s and Namazie’s arguments exemplify, women’s rights and women’s agency are a crucial elements in discussions taking place as part of the Sharia debate. At this point, I would like to emphasise that agency is never free from power and instead needs to be situated in, and is thus dependent on, a complex web of
opportunities, relations, and contexts of the individual. A Foucauldian understanding of power relations is useful here as it reminds us that any social interaction is imbued with power relations always involving a negotiation of degrees of freedom and submission rather than a separation of the two. Madhok et al. argue for shifting ‘the focus away from simpler oppositions of agent or victim, and towards the complex ways in which agency and coercion are entwined, often in a non-antithetical
relationship. We want to think of these, not as separately constituted, or existing only in a relationship of achieving/overcoming, but as connected in a dynamic continuum of simultaneity’ (Madhok et al. 2013, p. 3). Agency is therefore not something that exists in opposition to power but rather as embedded in it. As Butler emphasises, ‘subjection consists precisely in this fundamental dependency on a discourse we never chose but that, paradoxically, initiates and sustains our agency’ (Butler 1997, p. 2). Brady and Schirato explain how the formation of the subject – even in its more agentic conception following Dezalay and Madsen – is dependent on remaining to some degree within existing power relations and social contexts. They maintain that ‘in order to have, gain, claim or be assigned an identity, one must be recognisable and explicable within a particular grid of intelligibility that makes subjects appear (Brady and Schirato 2011, p. 6). Specifically in relation to postcolonial feminist scholarship, Mahmood argues for a conceptualisation of agency not as simply equating to
marriages sometimes, and the Sharia divorce service would actually go underground. That would result in less transparency, higher prices and more discrimination’ (Bashir 2016).
resistance against existing social norms but as a ‘modality of action’ (Mahmood 2005, p. 157). Korteweg supports an understanding of agency as ‘embedded agency’ which allows to see Muslim women’s agency as possibly embedded in ‘social forces like religion, which are typically construed as limiting agentic behaviour. The capacity to act is not contingent upon adopting liberal “free will” and “free choice” approaches to subjectivity’ (Korteweg 2008, p. 437). This thesis thus builds on an understanding of an embedded agency of Muslim women in the development of hybrid subjectivity constituted in the practices of British-Muslim family law.
A discussion of gender and agency in the field of British-Muslim family law also touches upon the question of orientalism and how the conceptualisation of the legal subject as male and occidental in contrast to its oriental counterpart, results in the Muslim legal subject being seen as less able of agency (Haldar 2007; Ruskola 2013). Indeed, in current debates on women in Muslim law, Muslim women are often
orientalised in the sense that they are portrayed as the opposite to Western women and in need of rescuing from their own laws and cultures (Abu-Lughod 2013, pp. 6-7; Razack 2008). Here, the inequalities of orientalism intersect with those of gender in the production of the subjectivities of citizenship. Muslim women are portrayed as not able to choose freely, being either openly oppressed by men or implicitly understood as more ‘religious’, with the effect of being more susceptible to making irrational judgments. Ghobadzadeh calls this the ‘portrayal of ethnic minority women as perpetual victims of patriarchy’ (Ghobadzadeh 2010, p. 302). Abu-Lughod calls this representation of Muslim women ‘gendered Orientalism’, whereby ‘Muslim women are portrayed as culturally distinct, the mirror opposites of Western women’ (Abu- Lughod 2013, p. 88; see also Yeğenoğlu 2008). In their juxtaposition against Western women, images of the latter are sustained as complete and genuine agents, conscious of their situation and able to make rational decisions. Thus, rather than engaging with Muslim women’s agency such orientalising ‘rescue narratives’ impose a
homogenised, static gender role of the woman legal subject in Muslim law, which effects a disavowal of their agency (Bracke 2012, p. 241).
When we put together orientalised conceptions of Muslim law and modern
conceptions of citizenship, we observe the exclusionary dynamics of citizenship in ‘neoliberal’ narratives of autonomy as ‘free and unconditioned choice’ (Sabsay 2015, p. 18) – a dynamic at work also in the Sharia debate. Indeed, ‘the fact of belonging to
citizenship’s inside is made intelligible, through citizenship’s outside’ (Volpp 2017, p. 173). Sabsay argues that ‘at the intersection of certain interpretations of gender and cultural background, the neoliberal idea of autonomy as free and unconditioned choice serves the purpose of disavowing these enactments of citizenship’ (Sabsay 2015, p. 18). Put in a different way, Motha aptly argues that attempts ‘to universalise the emancipated feminine subject…[undo] the very important negation of the abstract, autonomous liberal subject exposed by an earlier feminist critique’ (Motha 2007, p. 146; see also Young 1990, pp. 124-130 on a critique of the claim of modern reason to universality and neutrality). The neoliberal idea of choice is contested through those practices and subjectivities evolving in the field of British-Muslim family law that do not exercise gender equality. This creates a dilemma for public policy and
emancipatory politics as well as professionals and clients engaged in the field, which is very well expressed by Rania when she says that ‘on the one hand, the government is cutting legal aid because they want people to go to alternatives; but when they choose alternatives such a Sharia council, they close down and say that’s not an alternative you can go to’ (Rania). These ‘choices’ for Sharia councils or Islamic legal services are excluded from the political realm because they do not conform to an occidental modern understanding of citizenship which pre-supposes the autonomous, secular (legal and) political subject.
Dominant conceptions of citizens as ‘unencumbered’ subjects also rely on the assumption of their secularity in political life (Isin 2005, p. 34). Thus, the idea of the free subject tends to exclude notions of faith or religion. Indeed ‘the role of faith in women’s everyday life [is] often ignored, even more often seen as symbol of
traditionalism and backwardness, an obstacle to emancipation, and seldom recognized as an inspiration in women’s struggles for social justice and women’s rights’ (Žarkov 2015, pp. 5-6). It must be noted here that the conceptualisation of modern citizens as purely secular subjects is paradoxical as secularism as an idea itself emerged out of a particular religious context (W. Brown 2012). As Brown argues ‘secularism cannot govern religions and subjects without stipulating their form and content, and this stipulation necessarily emerges from within particular religious histories and predicaments—there is no religiously neutral outside’ (W. Brown 2012, no page number). Faith and religious practice are of great personal importance to many people engaging in the field of British-Muslim family law and lie at the very heart of why this hybrid field is developing in the first place. The significance of Muslim law – or what
is considered ‘religion’ in the view of English law – is related to the observation that a considerable number of Muslims in the UK do not register their Muslim marriage. While the reasons for couples not registering their Muslim marriages are of course very complex (as well as under-researched), the idea of a right to differentiated citizenship in the legal field, at its intersections with gender justice, brings to light important political contestations and how they impact on Muslim women’s citizenship in the everyday. A statement by Rania exemplifies well how the politicisation of Muslim legal practices and gender relations implicated therein frames her political- legal subjectivity. Rania ‘chose’ (in her own words) not to register her Muslim marriage and to have a nikah ceremony only. She wondered ‘why are they picking on Muslims? Why is it a problem when we don’t register our marriage while everyone else is just cohabiting and no one is bothered about it?’ (Rania). As mentioned above, modern citizenship does not recognise as political any claim that is not formulated in terms of individual secular autonomy. ‘One particular mechanism of the orientalist logic of citizenship is to deny political agency to those who make wrong choices…. One particular way in which this occurs is by defining wrong choices as those that do not express the autonomy of the person who chooses, and therefore as non-choices’ (Sabsay 2015, p. 19). This logic is also based on what Mahmood terms ‘normative liberal assumptions about human nature’ that ‘all human beings have an innate desire for freedom’, that ‘we all somehow seek to assert our autonomy when allowed to do so’ (Mahmood 2005, p. 5). Thus, it is not considered the wrong choice only, it is questioned as being a free choice, i.e. choice at all. The discussion in this section attempted to demonstrate how, from certain perspectives, women’s agency in
practicing Muslim law as a right to differentiated citizenship is not considered genuine agency and hence not citizenship.
To sum up, the purpose of this section is to highlight and analyse different discursive and political forces (of orientalism) at play, which determine what practices come to be perceived as citizenship practices and what practices remain excluded. The lens of the ‘right to differentiated citizenship’ serves here both as a research finding and a mode of inquiry that I will come back to again in discussions of citizenship practices and subjectivities in the subsequent chapters. This viewpoint helps us understand a number of intense tensions in British-Muslim family law as a site of everyday citizenship: the creative tension between the claim to do things differently and the desire to be part of the same; the difference between conceptions of gender equality
and how gender justice is enacted in the field; and how a neoliberal idea of choice is contested by Muslim practices of women. Looking at British-Muslim family law from the angle of a right to differentiated citizenship also raises important questions
regarding the limits of citizenship; it illustrates not only the inclusionary struggles of everyday practices but also the exclusionary dynamics of a modern conception of citizenship, which relies on the idea of an unencumbered, equal and secular political subject.