Hastings Journal on Gender and the Law


For the past few decades, Islamic reformists have attempted to reverse patriarchal set-ups in Islamic practices. In light of these efforts, the time is ripe to consider what role women's agency will play in the implementation of such reforms. The way we account for agency in advocating for women's rights is an issue with which feminist legal scholars struggle. It has been explored particularly when analyzing women's rights in the area of pornography and prostitution. As the reform movements in Islamic law become concrete, similar explorations will have to take place. Agencydriven explorations in the area of Islamic law will have to be tailored to issues of particular relevance to Islamic women. In addition, feminist legal scholars will have to take care not to project a western-based analysis into unique Islamic settings. Borrowing from transformative arguments advocated by feminist legal scholars like Martha A. Fineman, the author attempts to explore the implications of recognizing the possibility for agency in Islamic polygamous structures. The central idea is to analyze the potential for a feminist based form of polygamy for women who decide to live in a polygamous structure. This exploration in no way assumes that Muslim women are solely defined by their religion. On the contrary, it recognizes that women's identities are so diverse that, even when given options, a number of them might opt for polygamy rather than monogamy. In this context, an assessment of the value of monogamy compared to polygamy is irrelevant. What matters instead is the fact that women who choose polygamy, like those who make any other legitimate choice, must be protected.

The rising number of pro-polygamous movements indicates that it is imperative that we investigate the possibilities for a women-centric polygamy. Islamic women have diverse views regarding polygamy and seem to not all view it as detrimental. Muslim women exist who are unequivocally against polygamy, but want to remain faithful to Islam; others are not against polygamy but would like to reform the practice to fit their needs. The common denominator in these two camps, however, is that women in both camps yearn for more choice and control over the decisions that affect their family life. In their eyes, the desire to enter or remain in a polygamous union does not necessarily equate with a diminishment of their rights and privileges. This Article intends to show that equal rights for women and Islamic faith are not necessarily mutually exclusive if the allocation of rights is based on the spirit of Islam. Furthermore, this Article will demonstrate that Islam's inherent concern with justice and equality for women necessitates that women's desires and wishes serve as a foundation for any system of polygamy.