Osanloo-Islamico-Civil_Rights_Talk

Islamico-Civil "Rights Talk": Women, Subjectivity, and Law in Iranian Family Court

Author: Arzoo Osanloo

Osanloo describes how Iran’s legal system oscillates between cultural relativism and universalism, rather than settling into a stable “intermediary myth” as Panikkar suggests. The article traces the way women’s rights discourse in Iran has shifted—first rejected after the 1979 revolution, then later reintroduced in hybrid legal spaces that blend Islamic and civil law. This pattern mirrors Dembour’s idea of an unstable back-and-forth movement rather than a fixed middle ground.

• Before the passage of the Family Protection Law in 1967, Iranian family law was primarily governed by Islamic jurisprudence (shari’a)

• Iran introduced the Family Protection Law in 1967. This law aimed to:

  • Restrict men’s unilateral right to divorce by requiring court approval.

  • Limit polygamy by making it conditional on the first wife’s consent and proof of financial stability.

  • Grant women custody rights under certain circumstances.

• Following the 1979 Iranian Revolution, the newly established Islamic Republic under Ayatollah Khomeini repealed the Family Protection Law, viewing it as a Western-inspired intrusion that contradicted Islamic values

  • The rejection of rights discourse post-1979 represents a swing towards cultural relativism, where women’s rights were framed entirely within an Islamic framework.

• public pressure and legal challenges led to gradual reinstatement of some aspects of the Family Protection Law.Women increasingly petitioned courts for divorce based on abandonment, financial neglect, and abuse.By the 2000s, women’s legal activism and international human rights discourse influenced further changes in family courts, allowing more women to successfully claim their rights within the legal system.

  • The gradual reintegration of codified legal rights (e.g., procedural fairness in divorce cases) represents a swing towards universalism, as women strategically use civil laws to assert individual rights.

• Today, Iran’s family law system represents a hybrid structure, where Islamic law (shari’a) coexists with civil legal procedures. While men still hold primary power in marriage and divorce, women have found ways to navigate the legal system through strategic legal claims, as seen in Osanloo’s research. Some protections from the original Family Protection Law have been reinstated in modified forms, but they remain contingent on court interpretation and legal activism.

  • The current hybrid legal system is not a stable intermediary position but rather a context-dependent oscillation where women’s legal subjectivity is shaped by both Islamic and individualist rights-based frameworks.

• This reflects Dembour’s view that legal concepts of human rights do not rest in a fixed place but shift depending on the political and cultural moment.

Why Not Panikkar?

Panikkar’s model suggests that different cultures view human rights as distinct windows—each legitimate within its own context but ultimately separate. In his via media, cultural perspectives engage in a dialogical dialogue to form a stable, universalized middle ground.

However, Osanloo does not suggest that Iran has settled into such an intermediary “new myth.” Instead, she highlights the dynamic and unstable nature of rights discourse in Iran—sometimes leaning towards shari’a, sometimes towards civil legalism. Women like Goli do not passively accept a fixed legal framework but actively negotiate their rights within an evolving system. This aligns with Dembour’s rejection of a stable middle ground, favoring instead a legal and social system that continuously moves between Islamic tradition and universalist rights claims.

The reversal of Roe v. Wade in the U.S. (2022) sent shockwaves worldwide, signaling that even in a country that positioned itself as a beacon of universal human rights, women's rights are not guaranteed. This has ripple effects beyond U.S. borders:

• Western human rights discourse loses legitimacy: Iran and other nations that resist Western influence may use the U.S. backslide as proof that universalism is not absolute—if even America is reversing women’s rights, why should Iran be expected to advance them?

The reversal of Roe v. Wade may embolden Iran’s hardliners, but it will not erase decades of Iranian women’s legal and social activism. Osanloo’s research shows that even within an Islamic legal framework, women continue to leverage civil laws to claim rights. This means:The future likely holds a period of regression, but if history is any guide, women will continue to find ways to assert their rights, even within an increasingly restrictive system. Eventually, another swing toward legal rights will come—but not without struggle.

Conclusion

Osanloo’s work better exemplifies Dembour’s pendulum, as it captures the fluid, shifting nature of women’s rights discourse in Iran rather than positioning it as a fixed cultural “window” as Panikkar might argue. The legal system does not simply reconcile universal and cultural perspectives but oscillates between them, depending on the sociopolitical climate.

1. The Power of Legal Rights and Entitlements

Osanloo explores how women in Iran use the legal system to claim their rights, demonstrating a shift from religious to civil entitlements in matters of family law.

Sally Engel Mary examines the use of law and legal mechanisms among battered women in Hawaii and finds “the adoption of a rights consciousness requires experience with the legal system “2003 344. Give them a height and sense of their rights. 

• Goli’s Divorce Case

  • Goli sought divorce due to her husband's failure to provide maintenance and his prolonged absence.Sense of entitlement and justice and dignity

    • "This is my right; no one will give you your rights, you have to go after them." (p. 192)

    • "I am not asking you to extend me any favor. I am only asking for my right, what the law provides." (p. 193)

    • "My rights are mine. That is mine and no one can take away from me, such as my education or my son." (p. 194)

    • Sahar employed, “I have followed my duties in this marriage, and I have a right to my future. This is what I was promised. “ 197

    Legal Rights as a Tool for Bargaining in Marriage

  • Women strategically use courts to renegotiate marriage terms, employing legal mechanisms as bargaining tools.

  • Courts provide a small but significant space for maneuvering within restrictive Islamic structures.

  • The ability to invoke legal codes grants women some degree of agency, even when societal norms remain patriarchal.

2. The Difficulties of Navigating the Legal System

Despite their growing legal awareness, women in Iran face significant barriers in accessing justice.

• Bureaucratic Obstacles and Procedural Burdens

  • Women must adhere to strict procedural rules, requiring multiple filings, sworn statements, and witnesses.

  • Sahar lamented the complexity of the system:

    • "If you do not follow what they say precisely, you cannot obtain the result." (p. 194)

• Sahar’s Case: Learning the Law through Experience

  • Women often become legal experts out of necessity due to repeated interactions with the court system. Sahar, who sought a divorce, emphasized:

    • "I have been in and out of the court, up and down the stairs so much that I know more about the law than the lawyers. Who needs a lawyer?" (p. 194)

    • "Each time I come here, the judge tells me I need another filing, another sworn statement, a witness, or a different form. This is how I learned the law." (p. 194)

  • This aligns with Sally Engle Merry’s study, which found that "the adoption of a rights consciousness requires experience with the legal system." (Merry, 2003, p. 344).

• INEQUALITY AS MEN DO NOT HAVE TO PROVIDE REAOSN FOR DIVORCE.

• Judicial Gatekeeping and Male Authority

  • Women must convince male judges of their suffering to obtain favorable rulings.

  • Judges often emphasize religious or societal expectations, as seen in Goli’s case

  • Women must navigate both legal and cultural resistance in their pursuit of justice. Women aware of their presentation and submitted to the judge, downplayed their competence, portraying themselves as submissive and compliant in order to align with traditional gender roles, which they believed would enhance their chances of receiving a favorable judgment.

• Legal Loopholes That Favor Men

  • Even when women make valid legal claims, men can avoid consequences.

  • In Azadeh’s case, she argued:

    • "If you are not aware of the laws, how can you defend yourself?" (p. 199)

  • Awareness of legal rights does not always translate to enforceable justice.

• Legal Rights and Awareness: The Struggle for Entitlement

  Despite certain legal recognitions of women’s rights, women in Iran are not always officially entitled to them in practice. The legal system still requires modifications to ensure that women can fully exercise their legitimate rights.

  • A 1999 Iran Daily article stated:

    • “Even if women had certain rights and recognition, they were unfortunately never officially entitled to them. The laws of the country have to be modified to enable women to truly exercise their legitimate rights.” (p. 197)

    • Additionally, the article emphasized the importance of legal awareness, stating that as long as women are not fully informed about their governing laws, they cannot effectively stand up for their rights.

• Azadeh, a law student, saw legal knowledge as the only way for women to understand their rights and expose injustice:

  • “This is the only way a woman can learn what her rights are and expose injustice in the system.” (p. 199)

  • She argued that many people are unaware of penalties and that it is unjust to fine or punish someone without first informing them of the offense and its consequences. Through her understanding of law and due process, Azadeh was able to significantly reduce her fine, demonstrating how legal knowledge translates into practical empowerment.

  Courts as a Space for Legal Negotiation

  • Women use courts not only to resolve disputes but also to bargain for their rights as entitled subjects within Iran’s blended Islamic-civil legal system.

  • Although the space for legal intervention is small, it has allowed women room to maneuver and use political and legal institutions to demand state-sanctioned protections.

  A Shift in Legal Consciousness

  • This emerging legal awareness reflects a broader historical shift in rights discourse, rooted in global human rights ideals since the Universal Declaration of Human Rights (1948).

  • Women are now increasingly turning to the law, rather than religious or patriarchal structures, to assert their rights and navigate legal challenges.

3. Purpose of the Author: Examining the Role of Legal Structures in Women's Rights

Osanloo argues that the legal system shapes women’s subjectivity and creates new opportunities for rights discourse.

“I do not contend with the agent of possibilities of rights talk but, instead, I am interested in the conditions that allow what appear as right sparing subjectivities to emerge in a very different legal order. “195.

• Courts as a Site of Legal and Political Change

  • Osanloo does not just describe court procedures; she examines how courts serve as a mechanism for women’s legal empowerment.

  • Legal processes position women as entitled subjects:

    • "My concern with the procedural administration of divorce shows that the court's civil process positions women petitioners in a particular kind of subjectivity." (p. 192)

  • The judiciary, despite being clerically controlled, increasingly enforces civil rather than strictly religious principles.

• The Shift Toward Civil Law Over Religious Law

  • Women now frame their claims in terms of civil law, rather than religious obligations.

  • "Women reclaiming legal rights over religious reasons, even in a religious society, couching their pleas in constitutional entitlements guaranteed by the Republican state, not by Islamic tenets or gendered essences." (p. 197)

  • The legal system has become a hybrid space, where women can invoke civil law protections even within an Islamic framework.

• Legal Documentation as a New Source of Authority

  • Women increasingly value legal documentation as proof of their rights.

  • This marks a shift away from informal or religious arbitration.

4. Civil Rights as a Western Ideal or Western Influence

Osanloo examines how civil rights discourse in Iran is shaped by global human rights ideals but also emerges within Iran’s own historical and political context.

• Post-World War II Influence on Rights Discourse

  • The 1948 Universal Declaration of Human Rights (UDHR) emphasized individual autonomy and free will, influencing Iranian discourse on rights.

  • Iranian women's rights activists have strategically used this language to frame their claims within civil legal structures.

• Backlash Against Western Rights Ideals

  • The 1967 Family Protection Law, which granted women limited divorce rights, was denounced as Western imperialism.

  • Women who protested the repeal of the law were called:

    • "Western puppets"

    • "Western-struck" (gharbāzdeh), a term implying contamination by Western influence. (p. 197)

  • The state initially rejected individualistic rights as incompatible with Islam, but over time, these rights have become partially legitimized through civil law.

• Motahhari’s Rejection of Western Individualism

  • Motahhari, an influential Islamic scholar, rejected the UDHR, not because of gender inequality, but because:

    • "Islam does not agree with identicalness, uniformity, and exact similarity." (p. 197)

  • He prioritized collectivism over individualism, arguing that women’s roles should align with family and motherhood.

• The Conflict Between Islam and Republicanism

  • Women’s rights are caught between Islamic legal traditions and the civil legal framework of the Republic.

  • Osanloo describes this as a "pendulum between Islam and Republicanism."

• The Family Protection Law: A Compromise Between History and Reform

  • The 1967 Family Protection Law limited men’s unilateral rights rather than granting full equality:

    • Restricted polygamy

    • Placed conditions on men’s right to divorce

    • Allowed women to petition for divorce as part of their marriage contract, maintaining shari’a compliance.

  • It was a legal compromise, rather than a full adoption of Western rights norms.

• Islamic Law’s Gradual Shift Toward Formal Legalism

  • Over time, legal systematization has taken precedence over religious moralism:

    • "The need for a uniform system of administration was taking precedence over the moral idealism of Islamic law." (p. 202)

  • This shift has created a new space for women to assert rights within an evolving legal framework.

Conclusion

Osanloo’s study highlights the gradual legal transformation in Iran, where women use courts to claim rights traditionally denied to them. Despite obstacles, their persistence demonstrates how legal systems—rather than religious structures—have become the primary battleground for women’s rights. The hybridization of civil and Islamic law has opened small but meaningful opportunities for legal agency in a deeply patriarchal society.