Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

• DOI: http://doi.org/10.1111/lasr.12346
• Published date: 01 September 2018
• Date: 01 September 2018

Are Women Getting (More) Justice? Malaysia’s

Sharia Courts in Ethnographic and Historical

Perspective

Michael G. Peletz

Religious law is commonly understood as deeply conservative and unfriendly

to women, even when it is reform oriented and “this-worldly.” This essay

challenges that understanding. It does so by engaging the practice and lived

entailments of Islamic family law and gender pluralism in Malaysia, based on

ethnographic fieldwork conducted since the late 1970s. My research reveals

that sharia courts are more timely and flexible in responding to women’s

claims than in decades past, and that these courts are more inclined to pun-

ish husbands who transgress sharia family law bearing on women. In addi-

tion, women nowadays have far more access to resources for negotiating

marriage, its dissolution, and the aftermath. This is not to say that women

and men experience marriage, divorce, or the sharia juridical field as social

equals; they do not. But this situation is changing in ways that benefit

women as long as they embrace increasingly salient and restrictive codes of

obedience and heteronormativity. Morebroadly, the essay problematizes ten-

sions and oppositions between Islamic law and women’s rights that are the

subject of considerable scholarly debate and contributes to our understand-

ing of the complex entanglements of religion and law.

[A ] history of family law, written from an anthropological

perspective, is a history of narrative strategies engaged in by

the state to influence the life course of its nationals. These

maneuvers ultimately aim to fix the meaning of kin relations

essential to the constitution of citizens as subjects, meaning

that the citizens themselves should preferably desire to

I would like to thank Monika Lindbekk, Tamir Moustafa, Dominik Mu

¨ller, Arzoo

Osanloo, Jeffrey Sachs, Patricia Sloane-White, Amanda Whiting, anonymous reviewers,

and LSR editors for helpful comments on earlier versions of this essay. Recent research in

Malaysia was funded by the National Endowment for the Humanities, the Koninklijk Insti-

tuut for Taal-, Land- en Volkenkunde (KITLV), Emory University, and the University of

Malaya (UM). At UM I am indebted to Ahmad Hidayat Buang, Azirah Binti Hashim, Rai-

hanah Abdullah, and Siti Zubaidah Binti Ismail for welcoming me during the Fall of 2013

as Visiting Professor in the Department of Syariah and Law at the Academy of Islamic

Studies and inviting me to participate in the UM research project on Islamic Law in

Practice.

Please direct all correspondence to Michael G. Peletz, Department of Anthropology,

Emory University,1557 Dickey Drive, Atlanta, GA., USA, 30322; e-mail: mpeletz@emory.edu.

Law & Society Review, Volume 52, Number 3 (2018)

©2018 Law and Society Association. All rights reserved.

652

structure their lives according to the official rules…. In this

attempt at nation-building -- to define, regularize, institu-

tionalize, and normalize the domestic practices of the self --

the state codifies and legalizes the desires for specific kinds

of relations and specific kinds of selves. (John Borneman,

Belonging in the Two Berlins [1992:75])

Family law ostensibly grounded in religion comprises an

important and deeply contested domain of legal practice in much

of the world, including India, South Africa, Israel, Egypt, and

Lebanon, to mention just a handful of well-studied examples.

Why is this realm of religiously inflected law frequently repre-

sented by Western scholars, local activists, journalists, novelists,

and the international human rights community as deeply conser-

vative and unfriendly to women if not backward looking and

anachronistic? One set of reasons is that it was historically segre-

gated from other areas of law and otherwise “traditionalized” by

modernizing elites (Halley and Rittich 2010:771–772); it is often

all that remains of an historically male-dominated religious com-

munity’s “collective right to religious liberty and … their sover-

eignty over a domain in which they are understood to have

religious jurisdiction” (Mahmood 2012:56). Another set of rea-

sons, especially germane to Islamic family law, has to do with the

thrust of recent academic scholarship. This scholarship tends to

highlight three themes: the resonance between the current instan-

tiations of the relevant laws and normativities and their classical

antecedents; the incommensurabilities that distinguish their core

elements from key (“liberal”) features of the more encompassing

secular legal regimes in which they are typically embedded; and

the need to bring about feminist-oriented or other reform. Schol-

arship driven by the latter concerns (advocacy, activism, reform)

commonly underscores the other themes mentioned here. And it

often involves largely synchronic perspectives, a focus on women

as distinct from the more encompassing domain of gender, and a

kind of (broadly construed) strategic essentialism that emphasizes

dynamics of kinship, marriage, gender, and sexuality in terms of

the proverbial glass that is half-empty rather than half-full.

1

One goal of this essay is to complicate this imagery by describ-

ing and analyzing a relatively “female-friendly” pattern of histori-

cal shifts in the domain of Islamic family law in the Muslim-

majority nation of Malaysia based on ethnographic fieldwork and

1

See Abu-Lughod (2013) for a discussion of this literature and a delineation of pro-

ductive tensions within the scholarship produced by reform-minded feminist activists and

human-rights advocates writing about family law and related matters in the Muslim

world; for alternative perspectives, see Zainah Anwar (2009) and Mir-Hosseini

et al. (2015).

Peletz 653

archival research I have conducted since the late 1970s. A second,

related goal is suggested by the epigraph drawn from John Bor-

neman’s research on kinship, family law, and belonging in Berlin

shortly before the reunification of the city in 1990. To borrow

from Borneman, this goal involves illustrating how states

endeavor to define, codify, and normalize particular kinds of rela-

tions and particular kinds of selves that political and religious

elites see as essential to the constitution of citizens as subjects. I

focus partly on women’s prerogatives to obtain divorce/annulment

without their husbands’ consent. The more encompassing

dynamic under study is the role played by sharia courts, which are

integral features of the state apparatus that I foreground in this

essay, in the cultural politics of marriage and in gender pluralism

as a whole.

2

More specifically, I describe and analyze how Malay-

sian women have fared in sharia courts since my earlier research

in the 1970s and 1980s and problematize various tensions and

oppositions between Islamic law and women’s rights that have

been the subject of considerable scholarly debate in recent

decades. My research reveals that due partly to initiatives under-

taken by progressive non-governmental organizations (NGOs),

women receive more timely and flexible responses to their legal

claims than in times past (the 1970s/1980s and previously),

3

and

that the courts are less indulgent and more punitive when

2

I spell most Malay terms including those of Arabic origin in accordance with the

conventions of standard Malay. The exceptions involve citations of published material

and formal organizations that follow other guidelines, and references to sharia (variably

rendered syariah,syarak,shariah, etc. in Malay), a designation I use interchangeably with

Islamic law. Ethnic Malays, nearly all of whom identify as Sunni Muslims adhering to the

Shafi’i legal tradition, constitute 50–51% of Malaysia’s population of approximately

32,000,000 people (http://worldpopulationreview.com/countries/malaysia-population/).

The two other major ethnic groupings are the Chinese, the majority of whom are Bud-

dhist; and the Indians, who are predominantly Hindu. All Malays are Muslims and

around 85% of Malaysia’s Muslims are Malay (the others are mostly of Indonesian or

South Asian origin). Hence I use the terms Malay and Muslim (and non-Malay and non-

Muslim) interchangeably when discussing the Malaysian context.

3

It is important to emphasize that my frame of comparison takes as its point of

departure the 1970s/1980s and previously, before the introduction of the Islamic Family

Law Enactments of 1983/1984 (the state-specific implementation of which occurred dur-

ing the period of 1983–1991) rather than the 1990s or the early years of the new millen-

nium. I utilize this optic because I am interested in long-term change and because I

conducted my original fieldwork in Rembau in 1978–1980 and began doing research on

Rembau’s Islamic court in 1987–1988 when the new enactments had not yet been imple-

mented. Some of the reforms contained in the Islamic Family Law Enactments imple-

mented in the period of 1983–1991, hereafter usually referred to as the “Islamic family

law reforms of 1983–1991,” were diluted by amendments passed in the 1990s and early

2000s. This situation has led some scholars to suggest that “Polygamy and divorce have

been made easier for men” (Norani Othman, Zainah Anwar, and Zaitun Mohamed

Kasim, 2005:91). These contentions are true if one if one is comparing the original word-

ing of the Islamic family law reforms of 1983–1991 with their subsequent dilution or the

situation at present. But, importantly, these contentions do not hold up if one is viewing

the relevant dynamics from the longer-term historical perspective adopted here.

654 Are Women Getting (More) Justice?