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The question of Muslim women's rights and the Ontario Shari'ah tribunals: examining liberal claims.

INTRODUCTION

Much western discourse on Islam has figured the "Muslim woman" as a victim of her patriarchal religion, views that gained increased currency in the post-9/11 period. (1) In the context of the War on Terror, for example, saving Afghan women from the "oppression" of Islam became a discourse that reinforced the idea that Muslim women require emancipation into the liberal social customs of the West. A similar perception of the "Muslim woman" emerged in late 2003, when the Ontario-based Islamic Institute of Civil Justice (IICJ) made the announcement that, under the Ontario Arbitration Act, S.O. 1991, Muslims could resolve their family disputes through faith-based arbitration. (2) This announcement quickly garnered international attention, and certain women's rights organizations launched a global campaign to ban this kind of faith-based arbitration. Such private resolutions had been previously permitted under the Arbitration Act, and family matters had for several decades been arbitrated based on religious teachings in Jewish, Muslim, and Christian settings even before the passing of the act in 1992. (3) Despite this long-standing practice, because of the increasing pressure from women's rights organizations, the government of Ontario decided to call for a full review of the Arbitration Act. The premier formally asked for the advice of the attorney general, Michael Bryant, and the minister responsible for women's issues, Sandra Pupatello. In June 2004 Pupatello appointed Marion Boyd, a former New Democratic Party attorney general, to look into the concerns that different organizations had raised with regards to the Ontario Arbitration Act. (4) This review and the global campaign contributed to the February 2006 government decision to amend the act. According to its amendment, if family arbitrations were not conducted exclusively in accordance with the law of Ontario or another Canadian jurisdiction, the decision would have no legal effect. (5)

The legal and public discussions about the act raised significant questions pertaining to Islam and gender discourse. A major focus of the campaign to ban faith-based arbitration was the idea that Islamic laws, as interpreted and understood in the global North, did not embody gender equality; hence Muslims ought to employ Canadian civil laws when resolving family disputes to assure (and secure) women's rights. The opponents of the Ontario Shari'ah tribunals considered Canadian civil laws the best mode to safeguard the rights of women, because, they argued, these laws were founded on liberal-secular ideals and not religious principles. This logic suggested that liberal-secular regimes are inherently " progressive" and religious establishments are intrinsically "repressive" for women. Further, Muslim women were deemed to have only two options: either resolve family disputes through liberal-secular laws and consequently enjoy the promise of gender equality or accept inequitable religious resolution. On an epistemic register these articulations were rooted in a sharply binary made of thought, as they invoked a religious/secular dichotomy that historically shaped western social traditions and institutions. On an empirical register such a formation made possible a series of benevolent interventions, including convincing subjects, to save Muslim women from their patriarchal religion. [text incomplete in original source]

In this article I unpack the epistemic and pragmatic composition of the notion of "saving" Muslin' women in the debates about the Ontario Shari'ah tribunals. I argue that on both registers the idea of "saving" Muslim women was coupled with major axes of power and coupled with processes of colonization and imperialism. Colonial and imperial representations of Muslim women were primarily secured by employing the notions of rights, freedom, and equality. I call these nations "liberal sensibilities" because in their formation they were embedded in liberal thought. Further, since such tropes enabled the opponents of the Ontario Shari'ah tribunals (henceforth referred to as "opponents" or "critics") to assert the supremacy of liberal sensibilities and sustained an image of a victimized Muslim woman, I identify them as agents of a "liberal violence." I argue that while both Muslim and non-Muslim interlocutors ended up privileging a liberal order to protect Muslim women's rights, such a conclusion ignored (indeed foreclosed consideration of) gendered and racial discriminations that many Muslim women experience when resolving family disputes through the court system. Further, the critics' approaches contributed to reproducing both the Orientalist discourses that underwrote the figure of the Muslim woman victim and an ethnocentrism that reduced life to a single set of liberal-secular values. Nevertheless, alternate frameworks regarding how to conduct social relations remain thinkable. To that end, in the last section of this article I highlight some key differences between a broadly liberal orientation and an Islamic ontological and epistemological orientation to emphasize why it is imperative to articulate the rights of Muslim women within the parameters of Islam. (6)

THE ONTARIO SHARI'AH TRIBUNALS AND THE LIBERAL GAZE

During a 2005 legislative session, Sandra Pupatello (the minister responsible for women's issues) reiterated that the Ontario government is committed to principles of equality and to the rights of women. She remarked:
  This proposed legislation gives us the opportunity to reflect on the
  importance of the rights that are guaranteed to all Ontarians and to
  all Canadians. The proposed legislation is one specific case, but it
  points to a greater, much more fundamental truth: It reminds
  Ontarians that our government is firmly and completely committed to
  equality principles and women's rights as guaranteed by the Charter
  of Rights and Freedoms. ... Section 15 of Canada's Charter of
  Rights and Freedoms holds, "Every individual is equal before and
  under the law." Section 15 guarantees all individuals "the right to
  the equal protection ... of the law without discrimination." In
  particular, no discrimination may be "based on race, national or
  ethnic origin, colour, religion, sex, age or mental or physical
  disability." It's important that we remember that these rights
  belong to every Ontarian. (7)


In these comments she emphasized that the Canadian Charter of Rights and Freedoms upholds the rights of all Canadians, regardless of their social markings of race, class, ethnicity, age, or gender, and that the Charter guarantees the treatment of every individual equally under the law. Pupatello thus situated the proposed legislation in a broader context of rights discourse, asserting that the amendment to the Arbitration Act would secure the rights of all women. Other critics articulated the amendment to the act in a similar manner. For instance, Nuzat Jaffri, a spokesperson for the Canadian Council of Muslim Women, argued: "we don't need another legal system in Canada. We think Canadian laws protect us adequately. ... Canadian laws and politics are more progressive, unlike religious laws, especially regarding women." (8) The International Campaign against Shariah Court in Canada was a coalition of groups and individuals drawn together by Homa Arjomand, whose purpose was to advocate, in Canada and internationally, against the use of Islamic family laws. (9) In a report Arjomand stated: "We need a secular state and secular society that respects human rights. ... The introduction of a Shariah tribunal ... would discriminate against ... women and children. It would deny them the Canadian values of equality and gender equity." (10)

These critics identified the Canadian Charter of Rights and Freedoms and the notion of gender equality with women's human rights. More important, they considered rights discourse a necessary condition for the attainment of gender equality and a conceptual framework of universal relevance, despite social or material difference. This standpoint corresponds with the historical construction of rights discourse: as Talal Asad notes, in the eighteenth and the nineteenth centuries "liberals invoked nature as a realm more real than the social world," and the terminology of "natural rights" served to explain that social inequalities and constraints were "unnatural" because equality prevailed in the "natural" world. (11) This dichotomization of the social and the natural worlds proposed that all have equal rights and that everyone within this "natural" sphere embodied an equality that could be materialized through rights discourse. Such a construction constituted rights discourse as neutral and universal: if everyone was naturally entitled to human rights, then liberals were merely revealing what "nature" itself indicated. To that end rights discourse emerged as the most suitable framework to ordain, prescribe, and determine how social relations should be organized and lived in order to ensure equality. The above-cited statements by Pupatello, Jaffri, and Arjomand extended these liberal epistemic assumptions to the idea of gender equality as they insisted that the rights of all women were best protected under the Canadian Charter of Rights and Freedoms and rights discourse. But to what extent did this claim hold credibility for Muslim women (and men) on an experiential register, when resolving family disputes through the court system?

ARE MUSLIM WOMEN REALLY EQUAL?

Although the opponents of the Ontario Shari'ah tribunals argued that the rights of Muslim women would be guarded under the law, much evidence reveals that family courts are not free from discriminatory practices. The Boyd report, as well as many legislators and debaters in various legislative sessions, pointed out that resolving family disputes through the court system entailed a relationship between unequally fortunate subjects (the "lucky" subject having access to the resources to hire a more experienced lawyer). (12) By this standard Muslim women seem to be "unlucky" subjects due to the socioeconomic disparities they experience in Canada. According to statistics released by the Canadian Council of Muslim Women, nearly one in three Canadian Muslim women had a university degree in 2004, compared with one in five among all Canadian women, but the rate of unemployment among Muslim women was 16.5 percent, more than double the rate of 7.2 percent for all women. Further, despite their higher levels of education Muslim women were concentrated in low-paying clerical, sales, and service occupations, and the average annual income from all sources was $16,010 for a Muslim woman compared with $22,885 for all women in Canada. (13) These figures pointed to class inequalities. They indicated that Muslim women might not be economically situated to access the court system or to hire a qualified lawyer to adequately defend their rights. Their chances of winning a favorable resolution were therefore remote. (14) Critics like Pupatello, Jaffri, and Arjomand, who maintained that the Canadian law treated all equally, ignored the unequal effects of liberal regimes. In other words, while expressing the rhetoric of human rights, gender equality, and freedom, the critics effectively concealed the way class-based discrepancies have detrimental effects on many Muslim women.

The issue of economic disparities and the resolution of family matters in the court system also needs to be examined in the context of systemic and racial biases that Muslims in general experience in Canada. A study showed that, although Iranians, Afghans, Pakistanis, and Palestinian immigrants worked in managerial, professional, and other white-collar occupations in their countries of origin, only a segment of the study respondents were able to continue working in such capacities in Canada. The participants experienced a sharp decline in their professional status because of the stringent requirements of professions like medicine, law, and engineering, often due to the lack of Canadian recognition of foreign credentials. (15) As a result, according to the 2001 census, Canadian Muslims, despite postsecondary education levels twice the national average, had an unemployment rate also twice the national figure and median incomes 37 percent below the national average. (16) As borne out by these studies, Muslims experience social inequalities and marginalization in Canada, whether by not being granted equal access to the labor market and state institutions or by the failure to generate conditions allowing them to thrive and develop further. Despite these barriers the language of liberal sensibilities--freedom, rights, and equality--helped critics of faith-based arbitration to constitute Canada as a land of equal opportunities. From this critical perspective such liberal representations emerge suffused with asymmetrical power relations; despite the fact that these systemic discriminations affect the lives of many Muslims, the tropes of liberal sensibilities helped avert attention from them. More directly, liberal sensibilities became a significant instrument for the establishment of imperial practices as they assisted to maintain social hierarchies and stratifications in Canada.

The issue of racial profiling in the post-9/11 world was also rooted in power relations between the Muslim communities and the larger society. It is a well-documented phenomenon that security certificates imposed upon Muslims lifted the legal protections previously accorded them, and racial profiling has increased in Canada. (17) Within this extremely imbalanced power structure some Muslims expressed concerns during the debates about the Ontario Shari'ah tribunals regarding racial bigotry in the court system, including in family courts. Boyd stated:
  Many of the Muslims who responded to the Review, talked about how
  severely stressed their community has been since the terrorism
  attacks of 9/11 and the subsequent incidents that have arisen from
  security measures taken by the Canadian government. Some spoke of
  increased fear of discrimination against their community in the court
  system. Many are very aware of the criticisms raised in the
  Cole/Gittens Report on Systemic Racism in the Criminal Justice System
  and made the point that similar issues of discrimination have been
  experienced in the civil justice system, particularly in family
  courts. This fear of discrimination in the mainstream society may
  make private arbitrations under Muslim law seem more attractive and
  safer, especially to younger people seeking to establish their
  identity as a minority within a larger community that is seen as
  hostile. (18)


As reflected in this excerpt, many Muslims viewed faith-based arbitration as a declaration of their right to Muslim identity and as a recognized alternative to racial discrimination anticipated from the court system. The Islamophobic environment of these public debates (especially as generated in the post-9/11 period) should have raised the essential question of how racial profiling affects Muslim women when engaging the court system. Nonetheless, as with socioeconomic issues, opponents of the Ontario Shari'ah tribunals neglected these issues of racism. They drew on "abstract, genderless, colorless" understandings of the subject and a concept of a neutral law regime to argue that Muslim women were equal under the law. (19) This liberal assumption--"equality before the law"--did not coincide with Muslim women's lived experiences. The critics' claim that the Canadian Charter of Rights and Freedoms and the associated rights discourse would sufficiently protect the rights of all was thus deeply problematic.

THE NORMALIZATION OF THE LIBERAL ORDER AND THE ONTARIO SHARI'AH TRIBUNALS

Conventionally, liberals endorse the naturalization of a liberal order through rendering cultural and religious membership as optional. As Wendy Brown explains, liberal societies position culture as the "background" of the subject, as something one might deliberately opt in or out of; that is, the individual not only must choose entrance to her cultural or religious membership but also should have the right to exit. (20) From this viewpoint culture and religion are privatized and individualized and are established as second-order affiliations of individuals. Many opponents of the Ontario Shari'ah tribunals drew on these liberal regimes. In addition to arguing that the rights of all individuals would be equally protected, they considered religion--specifically Islam--as secondary within a rights framework. For instance, one critic insisted that "we all deserve ... basic human rights" regardless of "our religious persuasion." (21) Jonathan Schrieder, a Toronto civil litigation lawyer, remarked: "When you come to Canada, you are a human being with full rights." (22) Another critic wrote that Muslim women might not know that under the Charter they would "be dealt with not as women, but as persons truly equal under the law." (23) These statements proposed that, upon immigrating to Canada, Muslim women categorically come to possess rights; they implied that these women would no longer be discriminated against, either as women or as "immigrants." Moreover, these defenders of human rights presupposed that all Canadian Muslim women would choose to assert their rights under and within rights discourses, abstracted from their religious and cultural background.

However, Muslim women (and men) are not "blank slates" upon which social upbringing has no impact. When the critics argued that "we all deserve ... basic human rights" despite "our religious persuasion," they disregarded the possibility that some Muslim women might not wish to employ Canadian civil laws to resolve their family disputes and might indeed prefer to employ Shari'ah law because of their religious convictions. Some supporters of the Arbitration Act expressed these concerns. Uzma Ashraf, representative of the Canadian Islamic Congress, argued, "Faith-based arbitration processes have a spiritual component inherent in family dispute resolution which essentially restores peace of mind to all parties who once shared harmony within the relationship." (24) Likewise, a September 9, 2005, Globe and Mail editorial stated: "Because marriage is considered sacred by all religions, observant members of faith communities naturally want religious sanction for ending that marriage. ... Freedom of thought and religious expression are inseparable." (25) Nonetheless, critics ignored these arguments for the spiritual dimension of the human life and the interconnected relationship between social conduct and religious beliefs. Like the description of liberal regimes above, they considered religion a secondary aspect of Muslims' lives; by rendering Muslim women neutral subjects before the law, they presumed such women would adopt liberal ways of living once they set foot on Canadian soil.

Not only did the above-cited critics relegate religion to an insignificant status, but the consideration that Muslim women might find resolving family disputes through Shari'ah law economically more beneficial seems to have been inconceivable. The schools of Islamic law stipulate that any property that a Muslim wife contributes toward family assets remains hers alone and is not subject to division or sharing by the husband in the event of a divorce. In contrast Ontario family law provisions may require the wife to give away a half share of her wealth, perhaps also including the mahr (the dowry given her by the husband) that Islamic law secures her. (26) A Muslim woman would thus be vulnerable to suffering an economic loss under Ontario family law because she could have retained some assets under Islamic law. In addition, according to Islamic law a woman would have no legal obligation to contribute to child support, which would be solely the father's responsibility. In certain situations, then, a Muslim woman might be financially better off by resolving divorce issues through Shari'ah law. Boyd's report also underscored these differences. She stated that some women who advocated for arbitration argued that "under the Family Law Act, they would be held accountable for supporting a spouse and children" and that "they would be financially better off under Muslim family law than under Ontario law." (27) The critics nonetheless presented the Ontario Shari'ah tribunals as a starkly black-and-white issue: the rights of Muslim women could only be shielded under thoroughly liberal regimes. On the one hand this position discounted the significant differences between Islamic and Canadian civil laws (I discuss this further in the last section of this article); on the other hand it became difficult to examine the stakes, tensions, and challenges between these two worldviews when articulating the rights of Muslim women. The critics presented the tropes of liberal sensibilities not only as desirable by all subjects but also as natural and hence universal. In contrast they articulated an Islamic identity as culturally specific and thus able to be rejected at will. This configuration, inflected by the tropes of liberal sensibilities briefly described above, silently organized forms of domination and systemic violence because it legitimized the subordination of culture and religion to politics and to other governing factors of the public realm, such as law. This arrangement also limited the conception of gender equality to that of a single (liberal) framework by overriding the possibility that Islamic law might legitimately have different views on the matter. In raising these concerns regarding liberal violence, my argument is not to support those who advocated for the Ontario Shari'ah tribunals. As I have argued elsewhere, it was unclear how the supporters anticipated utilizing Shari'ah tribunals in Ontario, particularly since the Canadian Muslim population is very diverse and follows different schools of law. To employ Shari'ah tribunals effectively, the Muslim community would have had to organize a forum of competent jurists and scholars versed in multiple systems of law, but such resources were not adequately available. Moreover, the proponents of the Ontario Shari'ah tribunals ignored the contemporary circumstances in which many Canadian Muslim women live, and so their specific proposals did not themselves assure the rights of women. (28) The argument here, therefore, has not been to support the proposed Shari'ah tribunals, but to draw attention to the liberal violence that ran through and occluded any alternative resolution to the debates.

RENDERING MUSLIM WOMEN "VICTIMS" AND THE NOTION OF FREEDOM

Edward Said famously argued that "without examining Orientalism as a discourse one cannot possibly understand the enormously systematic discipline by which European culture was able to manage--and even produce--the Orient politically, sociologically, ideologically, scientifically, and imaginatively." (29) For Said the discourse of Orientalism reflected and maintained the power relations between the "Occident" and the "Orient." The embedded violence in the debates about the Ontario Shari'ah tribunals also manifested itself through power relations that then became ethical claims. The critics seemed to exercise and also consolidate their own power by "outlawing" the Ontario Shari'ah tribunals and by framing Muslim communities as repressive toward women, in turn constituting Muslim women as "victims." Such an operation is evident in the following statement of the Canadian Council of Muslim Women: "We are concerned that ... some Canadian Muslim women may be persuaded to use the Muslim family law/Sharia option, rather than seeking protection under the law of the land." (30) Similar comments were made by other critics: "For a Muslim family that faced marriage breakdown, there would have been enormous and unrelenting pressure brought to bear on the woman to make the choice for sharia." (31)
  The vast number of the Islamic women who would be involved in these
  disputes ... may be intimidated into accepting decisions that go
  against their own best interests. The Islamic community can
  intimidate the women with fears of exclusion, verbal abuse and at the
  very worst physical violence. With these fears, the women would agree
  with any decision made by these courts [i.e., the Shari'ah
  tribunals]. (32) The most vulnerable individuals--women accustomed to
  patriarchal dictates and their children--would likely find it
  extremely difficult to assert their civil rights, particularly if
  they are new to this country, unfamiliar with our legal system, and
  living within an ethnic cocoon. ... The reality is
  that, for so many women, especially immigrant women who lead
  insular lives, they do not share, are often not permitted to
  share, in the values and rights so vital to our society. (33)


These accounts proposed that Muslim women experienced disproportionate family and community pressures and that they were forced to live restricted and isolated lives in which they were not permitted the "values and rights so vital to our society." More precisely, they argued that it was difficult for Muslim women to assert their autonomy and enjoy their civil rights because they were accustomed to patriarchal dictates. This line of reasoning represented Muslim women as "childlike" subjects unable to protect themselves and incapable of advocating for their best interests. The critics situated themselves as compelled to speak for Muslim women and to tell the world that they lived oppressed lives, subjected to violence, intimidation, and seclusion. While these rhetorical and discursive moves epitomized Muslim women as vulnerable "victims," they (by contrast) defined non-Muslim Canadian women as agentive and competent. This contrast closely resembles those found in Orientalist discourses. As Edward Said argued, the Orient helped to define the West as its mirror image, and Orientalism was a Western style for dominating, restructuring, and having authority over the Orient. (34) Similarly, the Shari'ah tribunal critics arrogated the authority to construct Muslim women as docile and powerless and to typify Muslim communities as inherently patriarchal by constituting Canadian society as their inverse. Such a representation of the Muslim woman and Muslim communities reinforced the way that the Orient is constitutively defined by the superiority of the Occident. The tropes of liberal sensibilities became crucial in the heated public debates over the proposed Ontario Shari'ah tribunals as they helped frame concerns over Muslim women's rights in a manner resembling Orientalist discourses.

The above-cited critics' remarks pointed to an ethnocentrism that generally has been an instigator for the production of Orientalist discourses. Isolation due to sexism remains a reality for women generally and did not warrant singling out Muslim women for this kind of critique. (35) The issue of male violence in immigrant communities cannot be understood outside of colonial habits of thought, as it was "interpreted by white society as 'another sign of backwardness." (36) In the case of faith-based arbitration Shari'ah law became a signifier of the backwardness of Muslims. That is, as the critics upheld "the law of the land" as superior and depicted Muslim women as "victims: as they described Muslim communities as exceptionally (pathologically) conservative, they participated in a certain ethnocentrism. Further, the supposed religious backwardness of Muslim communities was coupled with the idea of gender oppression. In order to be substantiated, that is, the critics' assertions required that one consider Islam itself a coercive religion, because what characterized Muslim women as different from other women was their religious identity (rather than their often racialized or disadvantaged status within broader Canadian society, for instance). Put simply, there was a series of discursive logics at work in addressing issues of gender equality in the Ontario Shari'ah tribunal debates, logics that sustained a violent ethnocentrism that embodied "us" and "them" dichotomies and constituted Muslim women as vulnerable. Their conclusion, that Muslim women must be protected by Canadian laws, could not be drawn without positioning Islam (in classic Orientalist fashion) as an inherently tyrannical religion.

This deployment of Muslim women as "victims" reflected a typical depiction of immigrant women. As Tania Das Gupta observes: "A popular accepted reason for the isolation of immigrant women [in Canada] is ... 'lack of information.'" (37) However, this attitude lays the blame for isolation and exclusion only on the supposed ignorance of the "victim" and assumes that immigrant women's liberation from oppression will be achieved through education or information. This explanation abstracts analysis from the power relations existing in society, which systemically deny women in general, and immigrant women in particular, equal opportunities. (38) Similarly, the views of Shari'ah tribunal opponents masked the power relations and racism that undergirded the question of such arbitration; they shifted attention from structural barriers and suggested that the secluded lives of Muslim women were primarily due to the patriarchy of Muslim communities rather than, for instance, institutionalized economic disparities and racial profiling.

The arbitration being discussed was based on the premise that people voluntarily opt for it; the notion of voluntary participation implied that people were "free" to make decisions. Since the critics had already constituted Muslim women as "victims," the underlying assumption was that women could not freely and voluntarily participate in faith-based arbitrations. This situation thus required that the critics act "responsibly" to protect the "victimized" women. To that end one opponent of the Shari'ah tribunals wrote: "While the process would be voluntary, critics question whether women will be pressured by their religious leaders and their communities into participating." (39) Similar concerns were expressed in a Toronto Star editorial and article, which included the following argument:
  They [the proponents] said sharia arbitration would be voluntary for
  women, that they would have a choice whether to seek a settlement
  through the provincial courts or through a sharia court. Maybe so in
  theory, said the detractors, but definitely not in practice, and this
  was the nub of the question. This was where politicians needed to
  listen closely. ... There would be no such thing as "optional" They
  [Muslim women] would have no real-life option to deny the sharia
  route. The Canadian Council of Muslim Women and the National
  Organization of Immigrant and Visible Minority Women made that very
  clear. (40)


In these accounts critics expressed reservations about the voluntary nature of Muslim women's participation in Ontario Shari'ah tribunals and whether or not they could freely choose to participate in them. Since this doubt rested on the notion that Muslim women were unable to assert their autonomy because of extensive community pressure, one must in turn ask: to what extent are non-Muslim women in Canada "free" to decide about their family disputes?

Some legislators during the debates over the Ontario Shari'ah tribunals pointed out that they had been in family courts where women who had been abused were sitting six feet away from their abusers, waiting to resolve their family disputes. They also observed that many women accepted unequal resolutions because the court system was costly and slow and some women feared experiencing male violence. (41) In Lorne Wolfson's words:
  The court system is a very poor place to go if you're a vulnerable
  person. If you do not have a deep pocket, if you're a woman who
  perhaps is intimidated by your spouse, if you are not someone who is
  able to play the aggressive litigation game, then court is a very
  unfriendly place for you. That is why ... arbitration has become
  such a popular alternative, particularly with parties who are more
  vulnerable. (42)


This excerpt highlights that women are in a vulnerable position when resolving disputes through family courts. As opponents of the Ontario Shari'ah tribunals singled out Islamic laws in their criticisms, they obscured the realities of the broader legal system. When they argued that Muslim women would "be pressured by their religious leaders and their communities into participating" in faith-based arbitration and that "they would have no real-life option to deny the sharia route," they overlooked what women generally experience in family courts. Further, such critics assumed the power to decide whether or not Muslim women would be able to partake freely in faith-based arbitrations. The moral and epistemic claims they made were thus a mode of domination and hegemony. The critics claimed the authority to determine what constitutes free will and under which set of laws--civil or religious--Muslim women could most freely exercise their rights; they also assumed the authority to decide what was in the best interests of Muslim women. To that end liberal theoretical and epistemological assumptions about rights and freedom did not remain at the abstract realm but justified a moral claim to protect those who were deemed to be incapable of exercising their rights. Thus, though there might not necessarily be a causal relationship between liberal theoretical/epistemological and ethical assumptions, when the former materialized in the debates about the Ontario Shari'ah tribunals, they rationalized why Muslim women should be "saved" from the "oppression" of Islam and its patriarchal communities.

THE ONTARIO SHARI'AH TRIBUNALS AND AN ISLAMIC ORIENTATION

Although critics--Muslims and non-Muslims alike--insisted on employing the tropes of liberal sensibilities to protect the rights of Muslim women, they were inconsistent with an Islamic orientation as advanced by advocates. There was thus an incommensurability at work in these debates. Above I discussed certain discernible differences between Islamic and Canadian civil laws with regard to family law provisions. More broadly, however, there are also decisive ontological and epistemological differences between certain Islamic and liberal sensibilities. These differences were overlooked not only by non-Muslim critics but also by those who identified themselves as Muslims. For instance, the "Position Statement" of the Canadian Council of Muslim Women (CCMW) read:
  CCMW holds that human rights as declared in the United Nations
  Universal Declaration are consistent with the ideals of Islam, and as
  believing Muslim women we can adhere to the Quran and to the U.N.
  Declaration. We see no contradiction between the rights and
  responsibilities as expressed in the divine message and those
  articulated by the nations of the world. As Canadian Muslim women we
  uphold the Charter of Rights and Freedoms and expect it to apply to
  us as fully as to any other Canadian. ... CCMW sees no compelling
  reason to live under any other form of law in Canada, as we want the
  same laws to apply to us as to other Canadian women. We like the
  Charter of Rights and Freedoms, which safeguards and protects our
  equality rights. We know that the values of compassion, social
  justice and human rights, including equality, are the common basis of
  Islam and Canadian law. (43)


The council here stated that both the declaration of human rights and Islamic ideals are premised on the values of compassion, social justice, and equality, without incongruity between them. Because of this, and "as Canadian Muslim women," they "upheld the Charter of Rights and Freedoms and expected it to apply to [them] as fully as to any other Canadian." Yet, if there was no difference between the rights discourse and Islam, why did the council actively take recourse to the former and not the latter? Further, this statement was contrary to the council's fundamental position, for its representatives consistently argued that religious laws should not be employed to resolve family disputes: "most faiths, whether we like it or not, are not fair to women because they are based on a patriarchal tradition." (40) To assert that the United Nations' Universal Declaration was consistent with the canon of Islam exposed a theoretical contradiction in the council's position. Regardless of their argument, it might be true that both rights discourse and Islam seek to cultivate compassion, social justice, and equality but diverge in their fundamental points of reference, given the latter's transcendental orientation. Discussing the United Nations' human rights documents, and more specifically the Convention on the Elimination of All Forms of Discrimination against Women, Nimat Hafez Barazangi notes that the development of those documents does not consider the Islamic concept of human existence, its purpose, and its concomitant rights and responsibilities. The prevalent philosophy guiding the very concept of a universal organization was in itself an indication that human beings and human relations were viewed from within the philosophical architectonics of the secular "nation-state." (45) In contrast to these liberal-secular regimes, however, most contemporary Islamic traditions do not differentiate in this way between the secular and the sacred, the religious and the social; civil life cannot be divorced from religious principles because laws regulating social life represent an integral part of the religious itself. To that end considering an Islamic social order that does not compartmentalize social affairs would fundamentally disrupt the critics' arguments. Both ontologically and epistemologically, rights discourse does not coincide with such Islamic ethics. Since an Islamic worldview requires Muslims to conduct social affairs, including family disputes, according to Islamic laws, to argue otherwise (as did the CCMW, among others) means compelling Muslims to comply with liberal sensibilities as against those of these other Islamic traditions. This coercion reflected the ethnocentrism of the debates and highlighted that the council violently privileged liberal practices.

Prominent Egyptian Muslim activist Sayyid Qutb (1906-66) argued that such anthropocentric lines of reasoning suggested that people had the right to create values, to legislate rules for collective behavior, and to define how life ought to be lived. (46) Within this organization God ceased to interfere in the formulation of our epistemological, ethical, and signifying systems because people became the "measure of all things" and the judges of their own conduct. In contrast to the external/transcendental reference point of Islamic traditions, humans decided what was right and wrong. This perspective was linked to a rationalist epistemology; it assumed that truths about the world could be reached by way of our faculties. Our comprehension thus came to determine how we know the world and what constitutes legitimate knowledge; reason became at once a method and a justification for the completeness of our knowledge production." (47) Converse to this position, as articulated by Qutb and manifold others, the principle of tawhid (oneness of God, the primary article of Islam) insists that the supreme source of knowledge is wahy (revelation), not rational thought. The purpose of engaging in rational activity is thus to reach out to transcendental knowledge; reason alone is insufficient to generate knowledge for the political and moral conduct of human relations. In other words, a tawhidi orientation symbolizes the idea of God's Indivisibility and thus Divine sovereignty. From this perspective, when critics of the Ontario Shari'ah tribunals asserted that the council "sees no compelling reason to live under any other form of law in Canada," they overlooked the significant differences between Islamic and liberal epistemologies. Once again the argument here is not to vindicate the criticisms of Qutb or others against liberal-secular regimes, but to note how seriously considering such alternate orientations would interrupt the logics at work in the Ontario Shari'ah tribunals debates. This shortsightedness undermined, and in fact dismissed, an Islamic way of organizing social relations, against the arrangement proposed in conducting faith-based arbitration within the broader structure of the liberal nation-state.

To be direct, because of fundamental ontological and epistemological differences in orientation, Muslims cannot endorse or adopt the tropes of liberal sensibilities without relinquishing the Islamic orientation broadly sketched above. As Maysam al-Faruqi states, how we tackle issues of women's rights (the adopted lens) will provide a particular reading of the problems at hand, and the proposed solutions themselves are going to be determined by the way the problem is identified and defined. (48) That is, our theoretical and methodological approaches will propose not only what the concerns are but also which criteria, standards, and value system we use when addressing Muslim women's rights. For this reason, among others, it is conceptually and strategically imperative to articulate the question of Muslim women's rights within the parameters of Islam. As opponents of the Shari'ah tribunals considered the tropes of liberal sensibilities to be neutral and desirable and consequently opposed anything outside of the liberal framework, they dismissed the essential difference between the liberal regimes and Shari'ah law. However, by replacing one moral system with another or one worldview with another in structuring social relations, the critics would be hard-pressed to argue that liberal epistemic assumptions regarding human rights, freedom, and equality are neutral and universal. To the contrary, they appear as one discourse alongside any other, informed and shaped by particular histories, trajectories, ideas, and desires. Since discourses are ingrained in certain epistemic frameworks that constitute them as desirable, legitimate, and even "right," they can be neither conceived nor created without involving moral dimensions. That is, what the critics knew was not merely a product of constructed histories, accounts, and impulses. Rather, this knowing was shaped by their perceptions of the social array and directed them as to how to make judgments between competing discourses. Once these critics were in the realm of "judgment," they were also standing on the territory of the moral conception of the world. As a liberal discourse is also not without its moral conceptions and claims, it cannot be deemed cultureless and neutral. The liberal accounts that often informed the question of Muslim women's rights in the debates about the Ontario Shari'ah tribunals, from this critical perspective, obscured the reality that the tropes of liberal sensibilities were a frame of reference that formed an approach to the fundamental questions surrounding the logic of social relations. The self-assurance of critics (both Muslim and non-Muslim) that liberal-secular law and techniques were the best way to protect the rights of Muslim women, whatever the thoughts of the Muslim women themselves, discounted the equally legitimate (but fundamentally different) reference points of Shari'ah law as to how life should be lived. (49) To that end the critics ran the risk of reproducing Orientalist discourses and of generating ethnocentrism by shrinking life into one set of values.

CONCLUSION

In the debates about the Ontario Shari'ah tribunals the majority of Muslim and non-Muslim interlocutors' supported and sustained a hegemonic liberal order as they shared its epistemic and ethical claims. Through the notion of gender equality opponents reproduced the notion of the "vulnerable" Muslim woman who was a victim of her religion and in need of the protection offered by the tropes of liberal sensibilities. This position veiled the reality that the alternative offered to faith-based arbitration was a family court system that was already difficult to access for many women, particularly those with fewer economic resources. Critics overlooked the social realities of Muslim women (and men) and argued that state laws were the best mode available to protect the rights of Muslim women. This claim characterized the tropes of liberal sensibilities as neutral, as if such techniques would shield Muslim women from racism and sexism and as if Muslim women would automatically embrace civil laws over religious laws upon immigrating to Canada. In essence critics posited the question of Muslim women's rights as analogous to the liberal conception of the notions of freedom and rights. Liberal conceptions of rights then emerged as a frame of reference for social conduct and became normative values that were supposed to guide and direct the daily conduct of subjects, regardless of their social differences. Such an approach disregarded ontological and epistemological differences between the tropes of liberal sensibilities and Islamic traditions and was rooted in ethnocentrism and in asymmetrical power relations. In Foucault's terms the latter functioned as a "discourse of truth" by which Muslims were "judged, condemned, forced to perform tasks, destined to live and die in certain ways." (50) Since these "certain ways" were embedded in the tropes of liberal sensibilities, imposing liberal epistemic and ethical worldviews onto Muslims did not amount to liberality, equality, and freedom--but rather a form of oppression. This should trouble all who care about contemporary hegemonies.

ACKNOWLEDGMENTS

I would like to thank Dr. Anna M. Agathangelou and Dr. Lesley Biggs, as well as other colleagues who read earlier drafts of this article. Thanks also to Basit Kareem Iqbal for his editing assistance.

NOTES

(1.) Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven CT: Yale University Press, 1992); Lila Abu-Lughod, "Introduction: Feminist Longing and Postcolonial Conditions," in Remaking Women: Feminism and Modernity in the Middle East, ed. Lila Abu-Lughod (Princeton: Princeton University Press, 1998), 1-31; Lila Abu-Lughod, "Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and Its Others," American Anthropologist 104, no. 3 (2002): 783-90; Mohja Kahf, Western Representations of the Muslim Woman: From Termagant to Odalisque (Austin: University of Texas Press, 1999); Bernadette Andrea, Women and Islam in Early Modern English Literature (Cambridge: Cambridge University Press, 2007); Sherene Razack, "The 'Sharia Law Debate' in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture," Feminist Legal Studies 15 (2007): 3-32; and Sherene Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008).

(2.) Syed Mumtaz Ali, a retired lawyer and the key supporter of the Ontario Shari'ah tribunals, was reported to have said that a new organization had been established under the name of the Islamic Institute of Civil Justice (IICJ) and that its approximately fifty members included at least ten women. Cited in Marina Jimenez, "Islamic Law in Civil Disputes Raises Questions: Judicial Tribunal Based on Sharia to Decide Disagreements among Ontario Muslims," Globe and Mail, Dec. 11, 2003.

(3.) Marion Boyd, "Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion," review submitted to the Ontario Ministry of the Attorney General (Dec. 2004). Also see the Arbitration Act, Family Law Statute Amendment Act, 2006, S.O. 2006, C. 1.

(4.) Boyd, "Dispute Resolution in Family Law."

(5.) Family Law Statute Amendment Act, 2006, S.O. 2006, c. 1. For further historical background on the Ontario Shari'ah tribunal, see Tabassum Fahim Ruby, "Muslim Women and Shari'ah Tribunals: Examining Liberal-Secular Hegemonies" (PhD diss., York University, 2010).

(6.) To analyze the debates, I examined Ontario's Family Law Act legislative debates (2004-6); Marion Boyd's Dec. 2004 report ("Dispute Resolution in Family Law"); and the Position Statement of the Canadian Council of Muslim Women (CCMW), because it played a crucial role in the banning of faith-based arbitration. The Canadian Council of Muslim Women (est. 1982) is a national nonprofit organization with chapters across the country; see http://www.ccmw.com/about_ccmw.html. I also reviewed the Canadian Society of Muslims' position regarding faith-based arbitration and Syed Mumtaz Ali's articles about the Muslim Civil Justice System in Canada, because Ali was a key advocate for the implementation of Muslim Personal Family Law (PFL). The Canadian Society of Muslims is also a nonprofit organization; see http://muslim-canada.org. In addition I analyzed the Toronto Star and the Globe and Mail (Jan. 2004 to Mar. 2006) to engage how contentious issues regarding the Ontario Arbitration Act were articulated. I chose these two newspapers because they are major national newspapers published in Ontario. Close readings of these newspapers helped me to see how issues around Shari'ah law were discussed and contested. Besides the newspaper analysis I examined a video titled Sharia in Canada (dir. Dominique Cardona, 2005). This documentary, produced by the National Film Board of Canada, was made following the intense Shari'ah law debates in Ontario.

(7.) Sandra Pupatello, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Nov. 23, 2005), at 1550.

(8.) Cardona, Sharia in Canada.

(9.) In an effort to maintain the distinct voices of different authors and organizations, I have not altered the cited or quoted spelling of the word "Shari'ah."

(10.) Boyd, "Dispute Resolution in Family Law," 47.

(11.) Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), 57.

(12.) Michael Bryant, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Nov. 23, 2005), at 1530; Robert Runciman, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Nov. 23, 2005), at 1640; Peter Kormos, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Nov. 28, 2005), at 1620; Jim Flaherty, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Nov. 28, 2005), at 1710; and Lorne Wolfson, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Jan. 16, 2006), at 1530, 1540.

(13.) Canadian Council of Muslim Women, "Muslim Women in Canada: Fact Sheets," Nov. 2004, http://www.ccmw.com/documents/FactSheeti.pdf.

(14.) It would be worth noting that even though arbitration might also be expensive, many mosques in Ontario offer arbitration services voluntarily as part of their community services.

(15.) Haideh Moghissi, Saeed Rahnema, and Mark Goodman, Diaspora by Design: Muslim Immigrants in Canada and Beyond (Toronto: University of Toronto Press, 2009), 155-56.

(16.) Saeed Rahnema, "Unholy Alliance on the Right," Toronto Star, May 10, 2005.

(17.) See, for instance, Sunera Thobani, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto: University of Toronto Press, 2007).

(18.) Boyd, "Dispute Resolution in Family Law," 67.

(19.) Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995), 142.

(20.) Brown, States of Injury, 153. Since liberals considered religious beliefs on the same plane as cultural practices, I discuss both categories together here.

(21.) Angela Behboodi, "A Matter of Faith," letter to the editor, Globe and Mail, Sept. 13, 2005.

(22.) Jonathan Schrieder, cited in Lynda Hurst, "Protest Rises over Islamic Law in Ontario; Muslim Women's Groups Vow to Stop Sharia Courts; Lawyers Say It Will Lead to Injustices to Most Vulnerable Toronto Star, June 8, 2004.

(23.) Audrey Thomas, "Applaud Quebec's Stand on Sharia," Toronto Star, Mar. 28, 2005.

(24.) Uzma Ashraf, Ontario Legislative Assembly, Standing Committee on General Government, Official Report of Debates (Hansard) (Jan. 17, 2006), at 1110.

(25.) "Muslim Arbitration: Don't Ban, Surprise," editorial, Globe and Mail, Sept. 9, 2005.

(26.) Canadian Society of Muslims, "An Update on the Islamic Institute of Civil Justice (Darul-Qada)," Aug. 2004, http://muslim-canada.org/newso4.html. Although it would vary from case to case, women would usually be obliged to support their spouses as per the Family Law Act, section 30, which stipulates that "every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need." For further discussion of the ways in which the civil court system was not adequately dealing with issues concerning Mahr, see Ayele Shachar, "Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law," Theoretical Inquires in Law 9, no. 2 (2008): 574-607.

(27.) Boyd, "Dispute Resolution in Family Law."

(28.) For further discussion see Ruby, "Muslim Women and Shari'ah Tribunals."

(29.) Edward Said, Orientalism (New York: Pantheon Books, 1978), 3.

(30.) Canadian Council of Muslim Women, "Position Statement on the Proposed Implementation of Sections of Muslim Law [Sharia] in Canada," rev. May 25, 2004, http://www.ccmw.com/activities/act_arb_muslimlaw_sharia.html.

(31.) Andrew Cardozo, "Multiculturalism versus Rights," Toronto Star, Sept. 15, 2005.

(32.) Marvin Nelson, "Against Creation of Islamic Courts," Toronto Star, Dec. 22, 2004.

(33.) Rosie DiManno, "Sharia Solution a Fair One, and not Racist," Toronto Star, Sept. 16, 2005.

(34.) Said, Orientalism, 1-2.

(35.) Tania Das Gupta, "The Politics of Multiculturalism: 'Immigrant Women' and the Canadian State," in Scratching the Surface: Canadian Anti-Racist Feminist Thought, ed. Enakshi Dua and Angela Robertson (Toronto: Women's Press, 1999), 187-205.

(36.) Sherene Razack, Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 2006), 57.

(37.) Gupta, "Politics of Multiculturalism."

(38.) Gupta, "Politics of Multiculturalism."

(39.) Richard Brennan and Kerry Gillespie, "Sharia No Threat, Premier Says; Vows Women's Rights Won't Be Compromised; Province Considering Family Arbitration System," Toronto Star, Sept. 7, 2005.

(40.) Cardozo, "Multiculturalism versus Rights." For the editorial see "Sharia Tribunals Bear Watching," Toronto Star, May 30, 2004.

(41.) Bryant, Official Report of Debates (Hansard) (Nov. 23, 2005), at 1530; Runciman, Official Report of Debates (Hansard) (Nov. 23, 2005), at 1640; Kormos, Official Report of Debates (Hansard) (Nov. 28, zoos), at 1620; Flaherty, Official Report of Debates (Hansard) (Nov. 28, 2005), at 1710.

(42.) Wolfson, Official Report of Debates (Hansard) (Jan. 16, 2.006), at 1530, 1540.

(43.) Canadian Council of Muslim Women, "Position Statement."

(44.) Cited in Prithi Yelaja and Robert Benzie, "McGuinty: No Sharia Law; Move Stuns Sharia Foes, Supporters," Toronto Star, Sept. 12, 2005.

(45.) Nimat Hafez Barazangi, "Muslim Women's Islamic Higher Learning as a Human Right: Theory and Practice," in Windows of Faith: Muslim Women Scholar-Activists in North America, ed. Gisela Webb (Syracuse: Syracuse University Press, 2000, 34-35.

(46.) Sayyid Qutb, cited in Roxanne Euben, "Premodern, Antimodern or Islamic and Western Critiques of Modernity," Review of Politics 59, no. 3 (Summer 1997): 443-44.

(47.) Euben, "Premodern, Antimodern or Islamic and Western."

(48.) Maysam al-Faruqi, "Women's Self-Identity in the Qur'an and Islamic Law," in Webb, Windows of Faith, 72.

(49.) For further discussion see Ruby, "Muslim Women and Sharfah Tribunals."

(50.) Michel Foucault, "Society Must be Defended": Lectures at the College de France, 1975-76, trans. David Macey, ed. Mauro Bertani and Alessandre Fontana (New York: Picador, 2003), 25.
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Publication:Frontiers: A Journal of Women's Studies
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Date:May 1, 2013
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