The paradox of rights through the lens of Muslim women's rights in family law

This chapter engages with the paradox of rights in the context of Muslim women's status in family law. Using the lens of relational autonomy, it places women's rights in the context of patriarchal societal structures, posing the question: how useful is the formal equality paradigm in analysing Muslim women's rights within a structurally hierarchical framework? To this end, the chapter engages in a critical debate reflecting the limits of formal rights as conceptualised in Western liberal discourse. Formal rights start from the assumption that all persons interact and co-exist on a level playing field and have had equal access to resources, are equally valued irrespective of gender and will have equal opportunities to make claims on their families, communities, society and state. ‘Bare’ equality provisions sometimes fail to translate into real and actual equality on the ground for Muslim women. Conversely, entitlements informed by male superiority have been used by women to empower themselves. Using a fluid and gradualist framework of corrective, protective and non-discriminatory rights, it is argued that an unequal departure point of women's rights in the Islamic legal traditions does not imply that these inequalities are fixed and permanent. On the contrary, they may also be understood as the beginning of the non-discrimination and gender justice journey in Muslim communities. The chapter thus calls for a more nuanced understanding of rights and entitlements within Muslim communities and the various forms of resistance from within the Islamic legal traditions. Whilst this chapter uses a specific category of Muslim women (i.e. from Pakistan and South Asia) to articulate questions and propose ways forward, its general conclusions are relevant to broader women's rights issues