Legal Experience: Islamic Law and Gender in South Africa (Associate Professor Fatima Seedat)

This project focuses on women’s experiences of Muslim personal law in South Africa, through a study of gender and sexuality in contemporary legal interpretations of Muslim marriage and divorce law and the forms of legal subjectivity they produce.
The legal Experience Project is conceptualised in a decolonial epistemological framework that brings critical legal studies and feminist philosophy together with African feminist theorising on gender difference in Islamic law practices in South Africa. It advances an investigation of the experiences of Muslim women as wives, to examine the forms of gendered legal subjectivity produced as they apply Muslim personal laws to their daily lives. Thus, it expands the discussion from theorising legislative processes and legal texts to the contextualized and lived experiences of women with Muslim family law in South Africa.

The project builds on Seedat’s research focusing on “Sex and the Subject of Law: A Study of Gender and Legal Subjectivity in Hanafi Law”. The theoretical framework for the project lies where Islamic laws of marriage and divorce intersect with ideas of legal subjectivity and feminist philosophy. The project works with the theoretical premises that first, historical texts of legal jurisprudence do not produce a definitive concept of legal capacity for women because women do not feature as a definitive historical legal subject of jurisprudence. Rather  the law works with a discursive subject produced through various legal situations. Second, in the absence of a category woman, historical texts produce a distinctive category ‘wife’. And third, by contrast, contemporary texts produce a definitive category of female legal subject characterized variously as either oppositional to male subjectivity or indistinct; in both instances, however, these texts conflate the concept woman with wife (see Seedat, 2014).

The current project inquires, through lived experiences of South African Muslim women, how those historical and contemporary understandings of gendered legal subjectivity function.