The international research collaboration deals with aspects of gender and judging in Muslim courts in the context of the Middle East and South (East) Asia. The issues addressed are: 1) the gendered construction of the judiciary, and 2) gender aspects of judging in Muslim courts. Do male and female judges on state courts and religious courts (re)produce or challenge gender hierarchy in their dispensation of justice? In elaboration of this point, which sources are used to underpin gender norms (legislation, precedent, Islamic jurisprudence, principles of justice, etc.)?

Session Organizer
Monika Lindbekk, University of Oslo

Chair
Monika Lindbekk, University of Oslo

Discussant
Monika Lindbekk, University of Oslo

Papers

Gender and the Judiciary in Africa: A Perspective from Nigeria
Enibokun Uzebu, University of Benin

Within the last four decades or so, a wealth of scholarship on women in the judiciary has emerged. While most of these contributions concern the issues and experiences of women judges in most countries of the Western world, it was not until recently that women judges in Africa began to engage the attention of scholars. Women are being appointed in record numbers as magistrates, judges and justices across Africa, this phenomenon is yet to fully attract the intellectual engagement of historians on Africa. Although, Nigeria was the first in Africa to appoint a woman to the judiciary in 1942, little attention has been paid to entrance of women into the judiciary in Nigeria in these emerging scholarships on women judges in Africa. This paper contributes to the growing literature on women in the judiciary in Africa. Focusing on Nigeria, the first African country to elevate a woman to a superior court as a High Court judge in 1969, it historicised the entrance of women into the judiciary in the largest black nation in Africa. Drawing on interviews with judges, lawyers and court registrars as well as government gazettes and archival documents from the High Court archives in purposively selected states in Nigeria, it analyses the effects of the selection and appointment processes of judicial appointments on women’s representation and access to courts as judges.

Women and Divorce for Sexual Dissatisfaction within Indonesian Religious Courts
Ayang Utriza Yakin, Catholic University of Louvain

The paper will delineate the ‘new and current’ trend and cause of an increasing number of women who have been petitioning for divorce on the ground of unsatisfactory sexual relationship. A dissatisfactory sex life leads to trivial irritation, then quarrels between married couples that culminate in divorce. I attempt to answer the following questions: what are the leading causes for filing a divorce on the ground of sexual dissatisfaction? How do judges adjudicate the issue of divorce on the cause of a lack of sexual enjoyment? How do the courts deal with this type of issue? What particular point of law is at issue? What formal (national law) and informal legal (fiqh, tradition, local norms, foreign legislation, etc.) sources they referred to? How do judges identify the rulings to resolve the uncertainty or fill the gap when law is silent or uncertain? And to what extent is sexual dissatisfaction an indicator for irreconcilable discord or a broken marriage? Is there any difference when male or female judges adjudicate the case? To answer these questions, I follow a praxiological approach, which suggests “to proceed to the re-specification of the study of the law by observing, in context, how real people apply, in the exercise of their profession or their activities, to establish facts, to implement rules, to refer facts to rules, in the routine course of their work or, in the less ordinary way, of their encounter with justice” (Dupret, 2010, 334). The paper will demonstrate two things: judge’s relation to rule (how judges interpret and interplay the rule) and judge’s reference management (how judges fill the gap when law is silence).

Adjudicating Islamic Family Law in Egypt: Continuity and Rupture
Monika Lindbekk, University of Oslo

Relying on ethnographic fieldwork, the paper investigates adjudication of Muslim family Law by five Cairenese family courts during the period 2008-2015, a critical juncture in modern Egyptian history. Egypt is an interesting case in point worth dwelling on since it illustrates the complexity of normative pluralism in contemporary Muslim family law. Family courts are important sites for the cultivation of religious subjectivities by promoting definitions of family, marriage, and gender which differs from the discourses elaborated in the manuals of fiqh. Here, judicial discourse is in dialogue and interaction with ideas developed by 19th century Muslim reformists, as well as global discourse promoting the conjugal family. While the family codes and their implementation differ in important respects from fiqh, it is also important to point out that there were important continuities with traditional Islamic jurisprudence. The paper explores how judges and other court personnel construct idealized notions of family, marriage, and gender relations by drawing upon sources as diverse as legislation, custom, Quran, hadiths, uncodified fiqh in a way that is sensitive to context.

Is Palestine Ready for a New Gender-Balanced Family Law?
Mutaz M. Qafisheh, Hebron University College of Law and Political Science

The applicable family laws in the West Bank and Gaza are chiefly derived from millennia-old sacred sources. In the last few decades, the Palestinian society has undergone social and economic transformations that affected family construct and the relationship between women and men. Women became more independent. The level of education has dramatically increased. Female engagement in the workforce is on the rise. Family laws, however, remain intact. Women largely continue to be subordinate to men: early and forced marriages of girls continued, polygamy legitimized, inheritance and divorce rules favor brothers and husbands, respectively. While the accession of Palestine to CEDAW on 1 April 2014, without reservations, can be considered as a breakthrough towards gender equality in general, certain indications show that the country is still far from achieving full or even blanched inter-sex relationships. The Palestinian Constitutional Court, for example, ruled on 12 March 2018 that CEDAW, among other treaties, should be implemented “without contradiction with the cultural and religious principles of the Palestinian society”. The president of the Court explained on 2 May 2018 that this decision constitutes a reservation that specifically targets CEDAW provisions that conflict with family law. Drawing on the writer’s earlier studies and taking into account the recent debates, particularly the submission of Palestine’s report to CEDAW Committee and the Committee’s concluding observation on that report; the paper explores the prospects of reforming the family laws in Palestine in light of CEDAW and the legal and social challenges thereof. The paper will go beyond the formal discussions and try to analyze opportunities and propose modalities for family law reform. It underlines obstacles that might hinder reform potentials and suggest ways for mitigation.