Review of M. A. Failinger, E. R. Schiltz, and S. J. Stabile, Feminism, Law, and Religion. Burlington, VT: Ashgate Publishing Company, 2013. 444 pp. $59.95.

By Aviva Richman

Reflecting a wide range of religious perspectives, the seventeen essays in this collection address what the editors describe as the problem of the “invisibility” of religious women’s experience from feminist legal theory (xvi).  The editors seek to respond to two opposite critiques of religious feminism, the critique from religionists who vilify feminism as a foreign threat, and the critique from secular feminists who vilify religion as a source of patriarchal practices.  Rather than viewing religion as an obstacle to feminist goals, most of the essays presume that religion is (or can be?) a resource for the creation of a more equitable social structure, especially in the wake of limitations and perceived failures of liberal feminism.  The overall project of the book, then, is based on the claim that religion has a role to play within a larger contemporary critique of liberal feminism particularly because religious traditions often stress concerns with human vulnerability rather than power, interdependence rather than autonomy, and responsibility to others rather than self-entitlement.

In any compendium volume such as this, a mark of success is that the whole is more than the sum of its parts.   To read these essays as a larger, multi-textured discourse on the nature and interaction of feminism, law and religion, rather than as discrete essays, one must consider the extent to which the contributors work with similar or diverging definitions of feminism, religion and law.  To the extent that they diverge, do the authors consciously explain their choices regarding the way they employ and construct these key categories?  I will consider each of these terms independently, and then summarize the different models presented for the interaction between feminism, law and religion.

The contributors show a wide variation in the extent to which they explicitly engage with feminism and consciously reflect on the feminist methods they employ.  Some situate their own approach to feminism within a history of feminist theory (i.e., Preston), while others do not even use the term feminism (i.e., Butler) and one is explicitly anti-feminist (i.e., Barazangi).  A few of the essays reflect a liberal feminist perspective, primarily focused on increasing women’s power and autonomy, but are concerned with the unique problems related to achieving these goals for women in religious communities.  For example, Frances Raday (“Modesty Disrobed – Gendered Modesty Rules under the Monotheistic Religions”) is skeptical of a woman’s consent to restrictive religious practices, such as modesty rules, and advocates for state support of women’s exit options from oppressive religious communities.  Similarly, Ayelet Shachar (“Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law”) is skeptical of a woman’s consent to arbitrate a divorce in a religious court rather than a civil court because this “consent” may be born of social pressures from the religious community, yet she also acknowledges that the possibility for exit from the oppressive religious environment is not necessarily a choice that will be taken by religious women.  This leads her to discuss other ways the state can protect these vulnerable women.  Many of the essays (i.e., Preston, Failinger, Cantrell) fall into a second wave feminist approach and suggest that religious feminism offers alternative ways of understanding women’s dignity and empowerment rooted in  vulnerability, service, or relationship as opposed to autonomy and power. For example, Preston, a Mormon scholar, deconstructs liberal feminism’s deconstruction of women’s oppression (“Deconstructing Equality in Religion”), which in her assessment was based on criteria enshrined in the male-dominated secular Enlightenment movement.  She asserts the importance of defining liberation and equality in terms that are meaningful to religious women.  In her view, being on the margins of institutional power in the Mormon church does not warrant political advocacy to increase women’s roles; she sees her marginal role as an asset in cultivating Christian values of humility, patience, and service.  Only one essay is explicitly focused on third wave feminism.  Green (“From Third Wave to Third Generation: Feminism, Faith, and Human Rights”) offers biographical sketches of third wave feminist activists who drew on their faith traditions to advocate for “third generation” human rights, shifting away from exclusive concern with sexuality and reproduction, and even exclusive focus on women, towards more global considerations of peace and sustainability.  This essay contrasts with nearly all of the other essays in the book that do in fact focus on issues of sexuality, family, reproduction and women’s social position.  Perhaps also best categorized in a third wave feminist camp, two essays argue for far-reaching epistemological revolutions that reach beyond the particularities of women’s experience and social status.  Hartigan’s analysis of Antigone, in light of Judith Butler’s interpretation of the play, draws on female experience to claim that written, codified law must see itself as secondary to an unwritten sacred law that always eludes articulation.  Barazangi suggests that one’s understanding of Islam should be based on individual engagement with the Qur’an itself rather than through mediated (mis)interpretations (“the time has come for a transformative move to build a new structure for Muslim societies through an egalitarian interpretation of the Qur’an that restores the religio-moral rational authority of interpretation to each individual Muslim” [264]).  Though both Hartigan and Barazangi employ what one might call a third wave feminist epistemology, ironically, Barazangi does not frame her work as an Islamic version of feminism even as she uses terminology familiar to feminism, such as “egalitarian.”  Instead, she chooses to describe her approach in terms internal to Muslim discourse: “each individual is responsible to balance [the spiritual, intellectual and social] roles in a specific time and at a specific place within the guidelines and the spirit of Tahwid” (273).  In her judgment, feminist attempts to liberate Muslim women have only resulted in worsening conditions and violence. While Barazangi is the most explicit in her harsh rejection of feminism, there are also essays that seem to be non-feminist.  Butler’s close reading of Catholic Canon Law does not engage with feminist concepts in any explicit way; her main (rather apologetic) interest is to show that women’s dignity is not affronted by Catholic restriction against ordination.

Clearly these essays have widely varying understandings of feminism, and some contributors, let alone many readers, would likely question whether some of the essays are in fact feminist at all.  Is there any way that acceptance of restrictions on women’s leadership roles can be interpreted as feminist?  Can acceptance of a marriage system that includes a “bride-price” coincide with a feminist outlook?  A less controversial title of the book could have been Women, Religion and Law, since all of the essays relate to women in some way even as they differ widely on the meaning of feminism, but that would have undermined a main point of the book.  The book suggests that these are in fact exactly the debates and conversations that need to occur across religious and secular lines in order to complicate and advance feminist discourse.  Thus, some of the essays aim to educate secular feminists about other models of feminism that come out of religious approaches and might be effectively employed in wider, even secular, contexts (i.e., Schiltz) while others suggest that secular feminists who want to work within a particular religious community need to be cognizant of how these women approach feminism differently (i.e., French, Shachar, Hammer) and should withhold misplaced judgment in order to be most effective in these communities.  Barazangi’s essay is certainly an outlier in its message that non-Muslim feminists should simply “get out” and stop trying to intervene in Muslim women’s affairs.

Another point of divergence, perhaps more severe in terms of the extent to which the essays are involved in the same project, is how to define religion, a contested term that very few essays address explicitly.  In the first section, “Feminist Legal Theory – Religious and Secular Encounters,” all four essays reflect Christian perspectives.  As such, religion is largely understood in theological terms (and law is mostly understood as American civil law).  Jewish or Muslim perspectives in this section might have contributed alternative theories on the nature of religion and law, such as by understanding religion in terms of normative texts or practices.  Indeed, the essays by Graetz and Quraishi-Landes in section three on Scriptural Texts relate to religion in terms of sacred legal texts, as does Butler’s analysis of Canon Law in the last section.  It is unfortunate that the Scriptural Texts section is so thin (only three essays) and that there are not more essays that engage in rigorous analysis of religious law related to women.  Considering the title of the book it would only be logical for religion to be addressed more thoroughly in terms of its internal legal discourse.

In many of the essays, the careful definition of what counts as “authentic” religion is a critical factor in constructing a feminist religious approach. Many distinguish between institutional religion, which is subject to historical and cultural influences such as patriarchal practices, as opposed to an authentic religious core that transcends the vicissitudes of time and remains accessible and usable for religious feminists. For example, in the beginning of her essay, Preston explicitly excludes “individual spirituality” from her definition of religion, yet throughout the piece she stresses multiple times that personal prayer is a valuable tool offering women unmediated access to God, as opposed to the church where religious matters are mediated through male leadership.  Stabile contrasts the ideal found in Catholic texts that actually permit women a number of leadership roles with social practice that limits women’s participation in ways that simply aren’t mandated.  Making a distinction between law on the books and attitudes of Muslims, Quraishi-Landes suggests that religious texts allow for reconceptualizing marriage along more equitable lines than popular conservative attitudes would allow.  Barazangi is especially adamant about the difference between authentic Islam, rooted in the Qur’an and one’s personal endeavor to understand its meaning, and misrepresentations of Islam which reflect that Islamic authority has been “hijacked by Muslim males” (271).  All of these examples reflect a similar process of isolating “real religion” from its historical-cultural garb. While this strategy of differentiation is certainly useful for feminist reclamations of their religious traditions, it is difficult to define and can be quite subversive.  Is the authentic core defined through personal spiritual experience or through acceptance of certain texts as opposed to others?   Barazangi’s focus on the Qur’an as the authentic representation of Islam leads her to go so far as to dismiss even hadith as products of male misrepresentation.

For the most part, the essays treat the term “law” in two ways, some addressing civil law or civil legal authorities with others focusing on religious legal texts.  In Christian contributions, where religion is generally confined to theology, the role of law is generally understood as civil law and policy issues, and how issues such as maternity leave in the workplace and same-sex marriage might be affected by theologically informed feminism.  Of the essays that treat religious law, a few present religious law as anti-feminist (Shachar, Raday) and argue for intervention by state legal authorities to protect women from the oppressive rigidities of religious law.  However, many essays that focus on religious law suggest that feminism should catalyze internal development within religious law itself.  These essays stress the dynamic nature of religious law, in contrast to the essays that see religious law as anti-feminist, in part due to its rigidity.  Graetz traces divergent positions on domestic violence within the canon of Jewish legal sources, and her account of diverse interpretations is implicitly geared towards the possibility for different responses in Jewish law today (it is strange that Graetz does not mention Avraham Grossman’s important work on domestic violence in medieval Jewish texts).  In one of the most rigorous and compelling essays in the collection, Azin is more explicit than Graetz about the feminist motivation behind her approach to Islamic law; her careful analysis of creativity and constraint in rape law is meant to pave the way for future creativity within the constraints of the Islamic tradition that can “augment sensitivity and justice” to women as both a “preservation and continuation of the juristic tradition” (338-339).  In her portrayal, religious law is not the obstacle but the vehicle for furthering feminist goals.  Quraishi-Landes agrees with this legal hermeneutic of possibility in theory but also recognizes that conservative social attitudes make fundamental change in Islamic law unlikely. Her pragmatic approach seeks out resources within a religious law that is not, and may not ever be, ideal.  The two essays that focus on Catholic Canon law (Stabile, Butler) both identify the gap between relatively permissive laws regarding women and restrictive social practices and attitudes within the contemporary Catholic church, ultimately suggesting that religious legal texts can be an asset in formulating a religious feminist agenda.  It is unfortunate that discussions of law are not informed more deeply by legal theory in any of the essays.  None apply contemporary analytical categories of legal theory to religious legal texts (or to civil law for that matter).  Perhaps this is because the book privileges religious women’s experiences as a core lens of analysis over and above abstract analytical categories born of a specific intellectual discourse, but this makes it difficult for the book to be immediately useful in the discourse of legal theory.  The essays more directly engage with the fields of feminism and religion.

To summarize, as the essays employ differing understandings of the terms feminism, law and religion, they also present models for differing kinds of interaction between these realms.  In the essays that address secular law there are two main poles:  those who argue for a role for “secular” law and legal authorities to intervene in religious community (Shachar, Raday)and others who argue that religious feminist perspectives and experiences should affect “secular” law.  Christian contributions especially stress that theological concepts of humanity and gender should be brought into broader civil discourse on contemporary issues of law and policy.  This is also the approach taken by Cantrell in her argument that Buddhist perspectives on anger could inform legal responses to domestic violence.  Essays that deal with religious law also fit into two camps.  Some suggest that feminism can initiate new legal interpretation.  Others suggest that religious texts can aid internal feminist critiques of social practice within a given religious community, because often social practices and attitudes that negatively affect women do not align with the directives in sacred legal texts.

The essays that discuss ordination offer a telling demonstration of the strengths and weaknesses of the book.  Here, cultural and geographical differences lead to vastly differing circumstances and analyses of how feminism, law and religion interact.  Sister Sara Butler (“Catholic Women and Equality: Women in the Code of Canon Law”) offers a close reading of 1983 revisions in Canon Law that increased the role of the laity in the Church, thereby also increasing the roles for women.  Even as the restriction against women being ordained as priests remains in effect, Butler argues that this does not reflect devaluation of women’s dignity; in the hierarchical structure of the Church everyone has a specific religious vocation and for the vast majority of men and women this is as a member of the laity.  Rebecca French (“Daughters of the Buddha: The Sakyadhita Movement, Buddhist Law and the Position of Buddhist Nuns”) also deals with the issue of women’s ordination, but her focus is on Buddhist nuns.  Unlike Catholicism, Buddhist law allows for ordination of women, but this law has been neglected in many communities.  Also unlike Catholicism, the social implications of non-ordination are quite stark; without the possibility of official ordination women lack access not only to full education but also to communal support for food and provisions.  As a result, many non-ordained women in a number of East Asian countries are quite impoverished.  The essay traces the advocacy work of one particular Buddhist nun to push for ordination of nuns on an international scale.  Butler’s apologetic stance defending the law on the books differs markedly from French’s focus not on the law but on social circumstances of non-ordination.   These essays raise the question of the extent to which lack of ordination reflects marginalization in religious community and leadership, but this question is not thoroughly addressed.  The section would have benefitted from analysis of recent developments in women’s ordination or quasi-ordination in the Orthodox Jewish world in both Israel and America.  This example shows that the book includes perspectives from differing religious, cultural and geographic worlds that lead to quite disparate analyses of what is at stake in the interaction of feminism, law and religion.  Yet, the book does not supply comprehensive or even thoroughly representative data to consider the larger questions that inevitably arise from the juxtaposition of the far-ranging approaches it presents.  Most importantly, the theoretical work of unpacking the various models presented for the intersection between feminism, law, and religion is largely left to the reader.  Future compendia of this sort would do well to focus on specific issues (i.e., marriage and divorce) and include more sustained engagement with religious legal texts through more explicit usage of legal and feminist theory, both within individual essays and in editorial introductions and conclusions.

Below is a brief summary of each essay:

Part 1 is entitled “Feminist Legal Theory – Religious and Secular Encounters,” and all four essays reflect Christian perspectives. Tackling an element of Catholic theology, Schiltz (“A Contemporary Catholic Theory of Complementarity”) discusses the theory of “integral complementarity,” an understanding of gender that acknowledges both the differences and unique wholeness of men and women (she characterizes this equation as 1+1=3) and at the same time when combined with the Christian notion of free will leaves room for individual agency to express gendered identity in a personalized way.   She suggests that the theory of integral complementarity can serve as a corrective to both the liberal notion of equality as sameness and the rigidities of gender essentialism, and would affect legal issues such as parental leave in the work place.  From a perspective more focused on Catholic policy and practice, Stabile (“The Catholic Church and Women: The Divergence Between What is Said and What is Heard”) addresses the gap between Catholic theology that respects the dignity of men and women and the general perception of the Catholic Church as discriminatory towards women, in large part due to social practices of the Church that diverge from its teachings.  This gap has resulted in the exodus of women from the Catholic Church, and the Church’s loss of credibility in contemporary public policy debates on issues of gender and family.  Preston, a Mormon scholar, deconstructs liberal feminism’s deconstruction of women’s oppression,(“Deconstructing Equality in Religion”), which was based on criteria enshrined by the secular Enlightenment movement.  Alternatively, she asserts the importance of defining liberation and equality in terms that are meaningful to religious women.  In her view, being on the margins of institutional power in the Mormon church does not warrant political advocacy to increase women’s roles; she sees her marginal role as an asset in cultivating Christian values of humility, patience, and service.  These three essays are deeply embedded within specific religious denominations.  In contrast, this section’s closing essay (“What is the Matter with Antigone?”) is not denominationally confined (though Hartigan does contextualize her argument within a religious tradition that has “a distinct incarnational slant,” i.e., Christianity).  The most theoretically dense contribution to the volume, this essay offers a fundamental critique of western law rooted in an epistemological argument.  Drawing on Judith Butler’s interpretation of Sophacles’ play Antigone, Hartigan contends that public, codified law can never be complete without making room for unwritten, sacred law (sometimes equated with morality) which at the same time necessarily destabilizes the certainty and authority of written law but also gives it life, love, and humanity without which the law would essentially become cruel and irrelevant.  On a more concrete level, she critiques the excising of religious language and motivation from American legal discourse when religion is such a powerful aspect of most American’s identities.

The second section, by far the longest, is entitled “Theological Insights Applied to Dilemmas of Woman’s Social Existence.”  Five of the seven essays relate to women and family – particularly marriage and divorce and domestic violence.  Ayelet Shachar critiques the concept of religious privatization as a model for the relationship between civil courts and religious law.  Instead she calls for coordination between the civil and religious spheres of law in order to protect the women most vulnerable to potentially oppressive marriage and divorce law while simultaneously honoring these women’s religious commitments.  Asifa Quraishi-Landes (“A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law”) proposes two responses to the sale-transaction model at the basis of Muslim marriage in which the husband technically buys the wife.  Her ideal response is to entirely recategorize Muslim marriage in terms of partnership law, but she acknowledges that this will require difficult interpretive work by legal experts and might not ever be socially accepted.  In the interim she also advocates a more pragmatic response that strategically, if ironically, utilizes structures deeply embedded within the patriarchal marriage framework, such as the “bride-price,” to ensure financial protection to women.  Marie Failinger (“Co-Creating the Family: A Lutheran View of Marriage and Divorce Law”) stresses the dynamic nature of family in the Lutheran tradition as a unit with an important and distinct role in service of God that must be continuously redefined based on particular social circumstances and ongoing acknowledgement of the ways in which people sin and harm each other.  This dynamic model has implications for contemporary questions such as the state recognizing “nontraditional” partnerships, whether extra-marital, non-monogamous, or non-heteronormative.  These three essays on marriage offer three different views of religious marriage.  Shachar assumes that religious procedures are unlikely to change internally so that a state apparatus must intervene to effectively protect women, Quraishi-Landes sees possibility for internal religious change but acknowledges that religious social attitudes are conservative, and in Failinger’s approach religious models of marriage are so dynamic that religion has a role at the forefront of social changes.

Juliane Hammer’s essay on domestic violence (“‘Men are the Protectors of Women’: Negotiating Marriage, Feminism, and (Islamic) Law in American Muslim Efforts against Domestic Violence”) exposes a pragmatic/ironic approach similar to that described by Quraishi-Landes’ on marriage.  Hammer discusses her surprise at the discovery that grass roots Muslim organizations utilize, rather than reject, patriarchal ideology in the Qur’an to respond to domestic violence in their communities.  This gives her reason to question whether her liberal feminist assumptions are necessarily effective in religious communities that operate with very defined gender roles.  In one of the few essays venturing outside the monotheistic traditions, Cantrell also addresses domestic violence (“With Compassion and Lovingkindness: One Feminist Buddhist’s Exploration of Feminist Domestic Violence Advocacy”), contrasting the concept of “empowerment” in liberal feminism with Buddhist thought.  Instead of stressing autonomy and valuing expression of anger in the face of violence, Buddhism focuses on the inter-connectedness of all beings and sees anger as disempowering in any context, whether by an abuser or by a victim.  Rather than glorifying anger and immediately enacting a legal recourse toward separation and punishment, a Buddhist response to domestic violence would stress flexibility in the law so as to address the various and often changing needs of the multiple parties affected by violence.

The other two essays in this section come from entirely different perspectives that shift away from a focus on women in the role of wives.  Green (“From Third Wave to Third Generation: Feminism, Faith, and Human Rights”) offers biographical sketches of third wave feminist activists who drew on their faith traditions to advocate for legal and social change.  She suggests a connection between their third wave feminist perspectives and their push for “third generation” human rights, especially in looking beyond issues of sexuality and reproduction  and turning toward issues of diversity and pluralism, the material and cultural dimension of rights, and peace and sustainability.  Nimat Hafez Barazangi’s essay (“Why Muslim Women are Re-interpreting the Qur’an and Hadith: A Transformative Scholarship-Activism”) is quite different from the rest.  She does not address specific family or social rights in any direct way, but rather calls for a revolution in epistemology, describing the importance of recent efforts for Muslim women to interpret Qur’an on their own terms.  The purpose of this shift is to liberate the authentic Muslim tradition from its history of misrepresentation through transmission by male scholars embedded in patriarchal contexts.

Part 3, entitled “Feminist Readings of Scriptural Texts on Women and Women’s Rights,” has only three essays.  Frances Raday (“Modesty Disrobed – Gendered Modesty Rules under the Monotheistic Religions”) examines texts related to modesty in the accounts of Joan of Arc, legal rulings against the Jewish movement Women of the Wall, and the case of a Muslim schoolgirl in England wearing a headscarf to school.  She compares these religious discourses to contemporary “secular” discourse on the issue of women breastfeeding in public.  In her analysis, gendered modesty discourse in all of these contexts is designed to restrict women’s access and role in the public sphere.  She advocates various kinds of state intervention to respond to religious suppression of women’s rights, especially if women can make the claim that there is an internal basis within their religious traditions for the practices being condemned by religious authorities.    Naomi Graetz (“Jewish Law: The Case of Wifebeating”) summarizes the history of Jewish legal treatment of wife-beating, showing the range of approaches adopted in Jewish law and highlighting contemporary attitudes of denial and apologetics.  Hina Azam (“Competing Approaches to Rape in Islamic Law”) gives a sustained analysis of the legal debate between two Islamic schools – Hanafi and Maliki – in whether to characterize rape as solely a divine offense or also as a property offense.  The differing approaches have implications in both procedural and evidentiary realms, making it much easier to prosecute rape in the Maliki school.  The larger goal of this analysis is to show the dynamic nature of Islamic law which creates the possibility for further legal developments that could respond more fully to the needs and experiences of women.

The last section addresses “Women’s Leadership and Standing within Religious Communities.”  Here, cultural and geographical differences lead to vastly differing circumstances and analyses.  Sister Sara Butler (“Catholic Women and Equality: Women in the Code of Canon Law”) offers a close reading of 1983 revisions in Canon Law that increased the role of the laity in the Church, thereby also increasing the roles for women.  Even as the restriction against women being ordained as priests remains in effect, Butler argues that this does not reflect devaluation of women’s dignity; in the hierarchical structure of the Church everyone has a specific religious vocation and for the vast majority of men and women this is as a member of the laity.  Rebecca French (“Daughters of the Buddha: The Sakyadhita Movement, Buddhist Law and the Position of Buddhist Nuns”) also deals with the issue of women’s ordination, but her focus is on Buddhist nuns.  Unlike Catholicism, Buddhist law allows for ordination of women, but this law has been neglected in many communities.  Also unlike Catholicism, the social implications of non-ordination are quite stark; without the possibility of official ordination women do not have access to full education but also do not have communal support for food and provisions.  As a result, many non-ordained women in a number of East Asian countries are quite impoverished.  The essay traces the advocacy work of one particular Buddhist nun to push for ordination of nuns on an international scale.  This chapter could have benefitted from analysis of recent developments  in women’s ordination or quasi-ordination in the Orthodox Jewish world, especially in comparison to Butler’s work, and the question of whether ordination is or is not an indicator of full participation in religious life and leadership.  In the final essay, Mary Szto (“Chinese Women Lawyers and Judges as Priests”) offers an analysis of the gendered differential in China’s legal marketplace, where women predominantly become judges rather than lawyers, suggesting that this pattern may be traced to longstanding religious tradition.  Chinese religions involved parallel earthly and heavenly realms of justice, and this granted a role to priests to petition gods in legal cases.  She sees women’s role as judges to be parallel to the role of Daoist priests, a priesthood that was in fact open to women, while at the same time reflecting a religious preference for women to be in the stability of the home.  Law firms, on the other hand, often involve practices that women see as antithetical to their roles such as heavy drinking and frequent business trips.  Instead of religious influence serving only as a restriction on women’s choices, Szto suggests the possibility that it may also allow women the possibility to “revive” religious rituals in the realm of law that can engender “trust, confidence, and ultimately justice.”

 

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