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 Abstract

Excerpted From: Mehwish Shaukat, American Muslim Women: Who We Are and What We Demand from Feminist Jurisprudence, 31 Hastings Women's Law Journal 155 (Summer, 2020) (119 Footnotes) (Full Document)

Feminist jurisprudence speaks about American Muslim women, but it does not speak to [American Muslim women]. Sidelined since slavery, [American Muslim women] are paradoxically visible and invisible. In 2020, we expect to be recognized as a distinct and agentic group with an equal stake in American liberties. There is a gaping hole in feminist jurisprudence--[American Muslim women]'s inclusion. And this article takes one step toward filling this void with a first-person account. This article will define [American Muslim women]'s group identity, analyze [American Muslim women]'s intersectional marginalization, and highlight [American Muslim women]'s exclusion from feminist jurisprudence and the resulting harms.

When feminist jurisprudence excludes [American Muslim women], it inflicts harm on two parties: [American Muslim women] and feminist jurisprudence itself. These harms should be of special concern to legal academia at large, scholars of feminist jurisprudence, and those committed to ending the subordination of all women. The harm that feminist jurisprudence inflicts upon [American Muslim women] is further discussed in Part Three, but, it is critical to understand how the discipline engages in self-harm at the outset.

This self-harm is best understood through a study of feminist jurisprudence's own founding principles. If one purpose of feminist jurisprudence as a field of scholarship is “to map the contours of the ongoing legal supports in an era characterized by a liberal consensus on very basic norms of nondiscrimination and formal equality,” then, leaving [American Muslim women] off the map violates this foundational principle. If a second equally important aim of feminist legal theory is to give women the sort of agency “according to which all of us are defined primarily by our individual attributes and ambitions rather than by any socially mandated role or set of presumed characteristics, and the value of autonomy, by which is meant the irreducible importance of self-determination and the pursuit of one's own understanding of the good life without societal or state based censorial control,” then it follows that denying [American Muslim women] this sacred right to self-determination attacks the very ethos of feminist legal theory and threatens the integrity of the discipline as a whole.

Today [American Muslim women] are primarily defined by the socially mandated roles and characteristics foisted upon us by western culture and feminist legal theories, and we are excluded from critical conversations that shape feminist jurisprudence. This exclusion is an egregious harm, but, the remedy is within reach. Small changes can begin to realign both parties into a powerful coalition. In fact, some feminist legal theories are natural allies for [American Muslim women]'s integration into feminist jurisprudence--but, this coalition has yet to be widely discussed in legal academia.

Our complex intersectional marginalization is invisible to feminist legal theories. This invisibility compounded with the failure of feminist legal theories to affirmatively challenge [American Muslim women]'s subordination renders feminist jurisprudence complicit in assaults on [American Muslim women]'s bodies and liberties in a post-9/11 Trumpian world. As it stands, third party accounts dominate the scholarship and public discourse on [American Muslim women]. We are written about--our identities are constructed, reconstructed, and perverted to suit the writers' needs; but, we are not spoken to much less listened to. [American Muslim women] exist in extremes because dramatic characterizations supply the best ammunition for third party agendas. Today, feminist discourse marginalizes [American Muslim women] by singularly referring to us in relation to oppression.

Intersectional feminism is a force of change, and our inclusion is long overdue. This article seeks to combat essentializing by adding much needed nuance to narratives on [American Muslim women]. Instead of replacing one stereotypical image with another, my objective is to create a rich intersectional portrayal of [American Muslim women] that is currently wholly lacking in legal academia and popular culture. Every section of this article could be an entire book, and I introduce these topics to spark pressing discussions where the academy is silent.

Part One will define [American Muslim women]'s group identity by exploring how faith and agency unite our diverse group.

Part Two will offer a unique first-person perspective on the internal and external contours of [American Muslim women]'s intersectional marginalization.

Part Three will explain how feminist jurisprudence marginalizes [American Muslim women] today by analyzing how leading textbooks portray [American Muslim women]. I invite scholars of feminist jurisprudence to critically examine how their work harms [American Muslim women], either by exclusion or misrepresentation, and insist that they pivot to acknowledge [American Muslim women] as a distinct and agentic group with a right to self-determination.

[. . .]

It is curious how feminist jurisprudence can raise a war cry against subjugation in one breath, and, uphold the very structure it proclaims to detest in another. The paradigmatic oppressed Muslim woman is a firmly lodged fixture in feminist legal theory--she is installed, uninstalled, and moved to suit theoretical needs. Feminist jurisprudence's failure to acknowledge [American Muslim women] as a distinct and agentic group with an equal stake in constitutional liberties virtually guarantees the primacy of the oppression narrative; meanwhile, the credibility of the institution hangs in the balance. This serious problem has a simple solution--stop speaking about us and start listening to us.

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