Who am I? Where do I come from? In two sentences, I am a South African Muslim male from an impoverished working class background who was reared in a gang-infested area by a single parent. Many of our neighbours were Christians and the debt collectors – of which there were always many – were invariably Jewish.
The encounter of East and West has initiated a period of reforms in Muslim societies. Some of the legal reforms enacted by premodern and modern Muslim states have been hailed as victories for women’s rights in Islam. A historical and comparative perspective on the issue reveals that this is far from being true. Reforms constitute a far more complex issue. In many Muslim countries, Islamic law remained the main reference in matters pertaining to family and personal laws. To this day, women’s rights remain a sensitive issue. A look at some modern Muslim legislations regarding divorce and polygamy illustrates both the tension that exists between the duties of modern states to uphold women’s rights and their alleged Islamic principles and the tension that exists between state and religion. Paradoxically, recent developments in Iran illustrate aptly that some sort of reforms of family laws may be envisioned within the strictures of an Islamic society where Islamic law rules.
Article Outline :
2- The historical context
4- Reforms in family law:divorce and polygamy
5- The islamc law and family law : The “maquerade of reservations”
6- Iran : case study
The “resurgence” of Islam has brought to the fore a discourse that seeks to redefine women’s status, role, and rights in ways that are often confining and restrictive. The assumption on which this more traditional discourse rests is the idea of a monolithic and immutable Islam that dictates certain gender roles and rights (Haddad, Esposito, & Voll, 1991). A parallel discourse, elaborated by the older school of Orientalism, depicted Islam as an oppressive system on account of its application of Islamic law (shari’a) (Coulson, 1964 and Esposito, 1982). In this context, it is not surprising that the period of modern legal reforms in Islamic law––particularly with regards to family law or personal status––was hailed as the beginning of the “Eclipse of the Patriarchal Family in Contemporary Islamic Law” ( Anderson, 1968 and Anderson, 1976; see the excellent article by Moors, 1999).
Since the late 1970s, however, various studies on women’s social history have provided us with a more shaded, complex, and, at times, telling analysis of Muslim women’s status in society. This is particularly true with regards to our understanding of the application of “classical” Islamic law and its changing status through its encounter and confrontation with modernity and our understanding of its variable normative character according to various Muslim communities, e.g., the Shi’a Muslims (called the Ithna ’Ashara or Imamiyya) with their Ja’fari school of Islamic law and the Sunni Muslims with their four Islamic legal schools of law: the Hanbali, Hanafi, Maliki, and Shafi’i. Steering away from purely textual approaches that focus on the ideas of ideologues and intellectuals, a method privileged by Orientalists, which can at times prove enlightening (Musallam, 1983), researchers, of whom a great number are women and in many cases of Middle-Eastern origin, are studying women’s role, status, and rights in Islam, using a variety of methods: political science, historical, anthropological, sociological, etc. (Hegland, 1999; Kandiyoti, 1991a and Keddie, 1991). Their efforts have made it possible to better understand the complexity of the evolution of what was loudly and proudly hailed at the end of the 19th century and the beginning of the 20th century as the “emancipation” or “liberation” of women.
In light of recent studies, we now have a better historical perspective on reforms that purported to improve women’s rights in Islam and the way they have affected their lives. In this article, reforms are understood as the changes that have been introduced, often by the state and through legislation, to improve women’s role, status, and rights, and more specifically gender relations in Islamic law in a number of Islamic countries. This article provides a general survey of a varied literature and of the legal reforms that have affected Middle Eastern women for over a century in the realm of family law, especially the issues of divorce and polygamy. It is hoped that the historical and interdisciplinary features of this study will provide a better understanding of the difficulties involved in the study of the status of women in Islamic societies. No general account can be provided, since a “totalistic” history of Islamic society or, for that matter, of Islamic law only obliterates the real and distinct historical, cultural, political, economic, and religious particularities that have shaped and continue to shape various Muslim societies. There is no such thing as a monolithic Islamic law, something Mir-Hosseini (1993) has aptly demonstrated in her study on divorce in Morocco and in Iran.
This article tries to challenge the assumption that modern legal reforms enacted by Muslim states over the last century mark a transformation, in absolute terms, of women’s status in Islam. In historical terms, the truth about the state’s rhetoric regarding women’s “liberation” is far more complex than it is claimed to be. A discussion of the development and contemporary debates surrounding reforms in various Muslim states will illustrate that demands for reforms have always and still prevail. Iran can serve as a case study to show how the emergence of recent Islamic reforms are paving the way towards some legal rights for Muslim women within the strictures of a state that applies strict Islamic laws since the Islamic Revolution of 1979.
But why did Muslims come to believe that Muslim women fared worse than their Western sisters? The answer lies in the ever-increasing contact between Muslims and the West. Increasing economic ties have slowly encroached upon the Islamic world––from Tanger to Acheh. European merchants were present everywhere by the middle of the 17th century. At the political level, by the end of the century, the powerful Ottoman Empire was ceding Hungary to the Hapsburg, and, a century later, French troops led by Napoleon were able to occupy Egypt (1789–1801). The Islamic world was in crisis and it did not matter that a series of steps to reform Islamic society, a period Hourani (1983) labels a “Liberal Age,” were undertaken and that were to last till the end of the 1930s.
2- The historical context
A few years after the French occupation, Mehmet ’Ali succeeds in breaking away from the direct rule of Istanbul and to rule from 1805 to 1845 as governor over the Ottoman’s Egyptian province. Determined to reform Egyptian society, he multiplied contacts with the West and this took many forms: the first Egyptian printing press (1819), translations of European works, European private instructors and governesses for the elite, and the opening of missionary schools that were the first establishments to provide an education for girls (Beirut in 1835; Egypt in 1876; Iraq in 1899). During this period, the theme of “backwardness” popularized from within Islamic society and from the West begins to play an important role in the emergence of a Muslim auto-critique of Islamic society. Western intellectuals, colonial bureaucrats, missionary school administrators, and Muslim intellectuals and reformers all criticized Muslim society for its backwardness that was epitomized by Muslim women’s status (Ahmed, 1992, pp. 127–143).
The most noteworthy Western attack against Muslim society came from Ernest Renan, a professor at the Collège de France, who criticized Islam for its lack of rationality (Renan’s scienticism) at a Sorbonne conference (March 29, 1883) (Renan, 1947, pp. 944–960). A public debate ensued in the Journal des Débats (May 18 and 19, 1883) between him and Jamal al-Din al-Afghani (d. 1897), considered the father of modern reformism in Islam and who was then in Paris publishing his reformist journal (The Firm Bound) with Muhammad ’Abduh (d. 1905). As for the colonialists’ discourse on Muslim women’s status, the best example is Lord Cromer who has been shown to subvert the discourse on women’s status and rights for colonial purpose. On the one hand, Lord Cromer criticized Muslim women’s inferior status in Egypt to justify British colonialism over backward people, whereas, on the other hand, he opposed women’s right movements back in England (Ahmed, 1992, pp. 152–154).
An Account of Paris, written by Rifa’a Tahtawi’s (d. 1873) who served as the spiritual guide for Egyptian students in Paris during the reign of Mehmet ’Ali, constitutes perhaps the first indigenous Arab critique of Islamic society (Mehmet ’Ali even had it translated into Turkish). Tahtawi proposes a social critique of Egyptian society and of the status of Egyptian Muslim women that is voiced in terms of their backwardness vis-à-vis French society whose mores he meticulously reports (see Shissler, 2000). The Mother of Cities (Mekka), written in 1899 by the Egyptian ’Abd al-Rahman al-Kawakibi (d. 1902), is yet another social critique of Islamic society on the theme of backwardness (cf. Philipp, 1997), an internalization of colonial discourse.
During the same period, the Ottoman state was embarking on its own reform movement that was to culminate with the Tanzimat, begun at the beginning of the reign of Sultan ’Abd ül-Mejid I (1839–61) and that was to last till about 1880, only to be curtailed by the absolutist rule of Sultan ’Abd ül-Hamid II (1876–1909) (Gerber, 1994; cf. Ringer, 2000). The Tanzimat consisted of various administrative decrees enacted in an attempt to reform the state. However, it also represents the first attempt to modernize and codify a part of Islamic law (Kramers, 1934). The project arose out of debates over the nature of the new law to adopt (the French Civil Code was proposed). The outcome was the Mejelle (1869–1876), a partial codification of Islamic law undertaken without having recourse to secular borrowings. Legal reforms were the solution.The Ottoman sultan justified the application of such a controversial document on the basis of the powers invested in him, as the Imam or ruler of the Muslims. The Mejelle applied to all provinces under Ottoman rule, to be replaced only in 1932 in Lebanon, in 1949 in Syria, and in 1953 in Iraq.
The authors of the Mejelle claimed to have introduced reforms by resorting solely to the Ottoman official Hanafi Islamic school of law. That was not quite true. They had included into the Mejelle elements that belonged to the other three recognized Sunni Islamic schools of law, such as the Maliki, Hanbali, and Shafi’i schools of law. Their legal methodology consisted in the selection of judgments that belonged to the other schools of law (Findley, 1991). This process of “selection” of legal opinions to suit specific conditions lies at the heart of modern legal reforms in a number of Muslim countries. It was justified by appealing to the fact that, although the central Ottoman power was officially Hanafi, other schools of law flourished side by side throughout the Ottoman Empire. By selecting other legal opinions that belonged to other schools of law, jurists were proposing legal decisions that were recognized by any of the four Sunni schools of law in order to justify and legitimize reforms. They were, in fact, appealing to a notion of “imitation” that was never originally intended to be used in this manner. Traditionally, imitation was restricted to rulings within one legal school. What mattered was the introduction of reforms, yet it was necessary to frame them within the Islamic framework.
The Ottoman Tanzimat and the Mejelle initiated legal reforms that did not, however, extend to family law. ’Abd ül-Hamid II (1876–1909), the new sultan, deemed reforms in personal law a suspicious endeavor. Generally, early reformers did not consider women’s status and rights an important or necessary component for any type of modernization of the state. Moreover, family law has always been viewed, up to this date, as a sensitive issue (for a good introduction, cf. Tomiche, 1991), since it regulates gender relations that affect all members of society.
From about 1890 to 1920, early reformers attempted to provide a reply to both external and internal criticism of the backwardness of Islamic society. Reformers fell back on their religious and cultural tradition to seek ways to introduce reforms. With this new awareness, two complementary, yet opposing phenomena emerged: an intellectual renaissance and an Islamic revival. Islamic revival itself was subject to different tendencies: on the one hand, reformers proposed novel interpretations by appealing to personal endeavors, while, on the other hand, traditionalists struggled against all forms of innovations perceived as a menace to religious orthodoxy.
Change was, however, hard to come. Reformers often belonged to the religious class, or were schooled in a traditional religious fashion such as Ibn Badis (d. 1940), Rifa’a al-Tahtawi (d. 1873), Jamal al-Din al-Afghani (d. 1897) and his disciples Muhammad ’Abduh (d. 1905) and Rashid Rida (d. 1935) (Esposito, 1995; Keddie, 1983; Keddie, 1994; Merad, 1967 and Voll, 1994), whereas traditionalists often opposed any new reforms out of conservatism, especially those that had anything to do with women’s status and rights. Their opposition led to the transformation of the notion of heretical innovations into one that came to include any type of innovation that could then be rejected by appealing to the religious tradition. Traditionalists offered constant and multifaceted resistance to the reformers’ project providing legal opinions or interpretations (fatwas) to endorse, but more often, to condemn particular social changes. During the 1920s, 1940s, and early 1950s, their opposition against reforms forced governments to postpone their reforms, especially those pertaining to the status of women, as governments periodically sought the endorsement of traditionalist forces within society to legitimize particular social changes (Malek, 1993 and Merad, 1995).
The extent of reforms, the grounds on which they were argued, and the gains or setback that were achieved for Muslim women can be illustrated with the issue of polygamy. The Qur’an sanctions the practice where it states: “Marry women of your choice, two, or three, or four” (Q., 4:3). According to reports attributed to the Prophet, on several occasions, he ordered new converts to Islam who had many wives to keep only four.
Opposition of the traditionalists to a limitation of polygamy or its abolition was argued on the basis that, if it were forbidden, then the aforementioned Qur’anic verse that allows up to four wives would be obsolete. How could that be, when the Qur’an is the word of God? They argued that “justice” in verse Q., 4:3, “If you fear that you shall not be able to deal justly with orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly [with them], then only one, or [a captive] that your right hands possess. That will be more suitable to prevent you from doing injustice” refers to equality between wives in material and tangible matters, while “justice” in verse Q., 4:129 “You are never able to be fair and just as between women, even if it is your ardent desire…” refers to inner feelings over which men have no control, quoting the tradition to substantiate their opinion (Nasir, 1994, pp. 26–27). This interpretation goes back at least to al-Ghazali (d. 1111) who, in his Vivification of Religious Sciences, interpreted verse Q., 4:129 as a matter over which men have no control. Therefore, this Qur’anic injunction cannot have a legal weight; it can only have a moral weight. Equality between wives can, therefore, only be of a material nature and with regards to the number of nights the husband shares with them (Ghazâlî, 1989, pp. 81–82). Polygamy could then not only be legitimized, but it could also be legalized. A number of traditional arguments are proposed to justify polygamy: (i) it protects the sick, older, or barren wife from divorce, while ensuring progeny for the husband; (ii) it solves demographic problems, in times of war; and (iii) it is a practice far superior to the type of Western monogamy which allows extra-conjugal relationships that create social inequities and lead to social hypocrisy (Stowasser, 1994, p. 122). Noteworthy, however, is the fact that the Druzes of Lebanon prohibit polygamy (Nasir, 1994, pp. 26–27) as well as the Isma’ilis.
Reformers have, however, advocated for the restriction of polygamy, some for its abolition. Restriction of polygamy was argued on the basis of the injustice or harm it caused to women. Abolition of polygamy was argued based on the exact same verses that allow for polygamy, verses Q., 4:129 and Q., 4:3. Seeking to restrict the practice of polygamy, reformers considered the Qur’anic injunction of equality between the different wives and the inability of the husband to ever be equally just with his two or more wives a legal injunction and not merely a moral injunction imposed upon the husband.
Reform of polygamy was argued by appealing to the process of selection of legal opinions. Once more, the fiction of imitation served the purpose of legal reformation. In the Sunni Hanbali Islamic school of law, women can include a stipulation in their marriage contract against their husband taking a second wife, in which case they are entitled to obtain a divorce. Reformers argued that the notion of harm or prejudice that exists in the Maliki Islamic school of law applies to a second marriage, in instances where the husband cannot treat all his wives equally. Provisions against a second marriage could therefore be included in the marriage contract by selecting appropriate legal opinions. The major difficulty encountered by reformers was the legal status to give to a second marriage, since its validity has never been deemed unlawful religiously.
One of the first modern reformers, Muhammad ’Abduh, was able, in spite of his religious schooling, to be quite critical of women’s status in Islam and of polygamy (Esposito, 1982 and Gätje, 1976; cf. Idid, 248–261). He held that subsequent marriages should only be allowed if a necessity befalls upon society, for instance, at times of war. Even in such circumstances, polygamy could only be tolerated if the husband could be equally just with all his wives (Gätje, 1976, pp. 252–261). He took into consideration changes that societies necessarily undergo to argue against polygamy. Particular social conditions that had existed at the time of the Prophet (d. 632) and which may have justified the existence of such a practice were no longer prevalent in modern societies. He argued that polygamy could, in effect, lead to greater harm and corruption for society (Gätje, 1976: p. 251, 261). At times, ’Abduh even called for its abolition (Esposito, 1982, pp. 72–74). For ’Abduh, the original intention of the Qur’an was the implementation of monogamous relationships, based on the stipulation that justice must be rendered among the different wives, something he conceded was almost impossible to achieve (Esposito, 1982 and Gätje, 1976). Moreover, he noted that the context of the verse, in fact, pertained to orphans (children without fathers), enjoining the husband not to spend their wealth. The Qur’anic verse therefore could not be interpreted as merely enjoining Muslim men to be polygamous (Gätje, 1976, p. 248). Reformers of the Indian Subcontinent (before 1947) proposed similar arguments to limit polygamy. Among these were individuals such as Sayyid Ahmad Khan (d. 1898), Sayyid Mumtaz ’Ali (d. 1935), and Muhammad Iqbal (d. 1938) who proposed the reactualization of the Islamic marriage contract in which women could specify conditions such as those pertaining to their divorce or any other dispositions considered legal in Islam (Esposito, 1982, pp. 73–74).
By the end of the 19th century, the status of women had become––at least for the elite––a bone of contention. Muslim thinkers wrote a number of works to denounce the status of Muslim women that were instrumental in fostering greater awareness of the women issue and helped introduce later legal reforms. Noteworthy among these works are The Rights of Women (Lahore, 1898) written by Mumtaz ’Ali (Ahmad, 1967, pp. 72–74), Our Women in Islamic Law and in Society, written by Tunisian Tahir al-Haddad (at the beginning of the 20th century) and whose ideas found their way into the 1956 Tunisian Personal Status Law, and the two works of Egyptian Qasim Amin (d. 1908), The Liberation of Women (1899), soon followed by The New Women (1901) as a result of the huge controversy raised by his first work (Amin, 2000).
In his first work, Amin denounced unjustified polygamy, repudiation by the husband without a proper arbitration by a judge, and criticized the veil. Although Amin is hailed as the first feminist in Islam, a number of scholars are beginning to question the true meaning of emancipation for early reformers. Writers note that early reformers who belonged to the elite, whether secular or religious, were intimately involved in the dynamics in which colonizers and colonized were engaged. Muslim writers often adopted the prevalent Western discourse on Muslim women whose main purpose was to use the feminist discourse for colonialist aims, echoing Lord Cromer’s statements (Ahmed, 1992, pp. 144–168). Moreover, others note that the emancipation of women, as understood by early Muslim reformers, corresponded to a 19th century European ideal of women’s role and status in society. For instance, Qasim Amin advocated a basic education for both boys and girls, but this never went so far as to include access to higher education for women. Basic primary education was, in fact, sufficient to insure that women become better housewives and mothers. Muslim reformers were in fact proposing a new type of domesticity for Muslim women (cf. Clancy-Smith, 2000; Clancy-Smith & Gouda, 1998 and Kandiyoti, 1991b).
Already at the turn of the century, women themselves were proposing reforms of their own (Badran & Cooke, 1990 and Fleischmann, 1999). Paradoxically, early feminists such as Egyptian Bahithat al-Badiyya often sought social reforms by appealing to an “authentic” Islamic tradition. Women highlighted Qur’anic ethics as the true spirit of Islam in order to legitimize their demands for legal reforms in matters pertaining to polygamy and repudiation. They sought to rid society of legal and customary norms that were not in Islam, such as the idea of seclusion (Badran & Cooke, 1990; Baron, 1994 and Merad, 1995).
During the same period, reforms that affected women’s status found their first legal expression in the 1915 and 1917 Ottoman Family Laws. Again, the process of selection allowed jurists to choose rulings from the more liberal Maliki Islamic school of law for suitable provisions pertaining to divorce (Abadan-Unat, 1991). This process of selection proved useful for reformers who attempted to improve the status of women(Coulson & Hinchclife, 1979). In the 1917 Ottoman Family Law, polygamy was dealt in a similar fashion. The law proposed a set of stipulations restricting polygamy, although it did not address the issue of the validity of subsequent marriages. In 1926, exasperated with the proposal of meek reforms, Atatürk (d. 1938) adopted a slightly modified Swiss Civil Code of Law. From then on, equality of both spouses before the law was guaranteed. Women had equal rights to petition the court for divorce. More radical was the provision that banned polygamy.In spite of these radical reforms, women remained under patriarchal control in marriage: only men had legal status as head of the household (Tekeli, 1995).
In 1915, the Egyptian Mohammedan Law Court Organization and Procedure Regulation allowed rulings to be chosen from any of the four Sunni schools of law. This was the prelude to forthcoming reforms. In 1926, a committee was appointed to recommend reforms in marriage and divorce laws (Shahan, 1994). Similar attempts were made to curtail the practice of polygamy by appealing to the notion of harm or prejudice mentioned in the Qur’an. Polygamy was deemed a possible prejudice for the wife because of the possibility that the husband could not treat all his wives equally. The 1926 articles limiting polygamy were, however, excluded from the 1929 reform laws at the personal decision of King Fuad (ruled 1917–1936), in part because polygamy practiced by peasants could have a positive impact on the birth rate and on the economy(Anderson, 1951 and Baron, 1991).
The creation of modern Muslim states provided new opportunities for the improvement of Muslim women’s status and rights. Paradoxically, the same modern states that define themselves as Islamic have been unable and unwilling to do so. The enactment of personal and family laws by modern Muslim states can, in fact, illustrate the complex relation that exists between state and religion. Moreover, it provides a glimpse at some of the negative consequences some reforms actually have for women where the state tries to legislate according to what it considers the proper religious interpretation of the day. Most newly created Muslim states turned to European codes of law, but not in matters pertaining to family or personal law where Islamic law remained the central reference, albeit suffering small or large alterations.
Codification of Islamic law did have some negative consequences for women. Sonbol (1996) notes that early 19th century reforms in Egypt took away the possibility for women to terminate their marriages and, more drastically, introduced their forcible return to the marital home. Mir-Hosseini (1993) argues that law reforms enacted in 1957 in Morocco have reinforced certain patriarchal elements of Islamic law while eliminating classical leeway, such as the maximum duration of pregnancy of 5 years in Maliki law that was reduced to 1 year. Another example is the British attempts to codify Muslim law in the Indian subcontinent during the last part of the 18th century. This resulted in the production of the Anglo-Muhammedan Law that left intact the section on family law. Later reforms such as the section of the Dissolution of Muslim Marriages Act of 1939 which stipulated that “the rejection of Islam by a wife does not, alone, bring about the dissolution of her marriage…” proved, however, to be in complete contradiction with classical Islamic law (Coulson, 1964, chap. 13).
The last 50 years have brought major social (mass education, mass communication, rural exodus, etc.) and political (wars of independence, revolutions, military coups, invasions, civil wars, etc.) changes to Muslim countries that have and still continue to foster dreams of the advent of a “just” society (Merad, 1995, pp. 45–63). Successive generations are slowly giving rise (albeit unconsciously) to new social forms in the process of trying to adapt the old to new realities. In this context, the call for change advocated by earlier reformers was unfortunately unevenly heard (El Alami, 1994 and Nasir, 1994). Major legal reforms were introduced to improve women’s status, although most newly created Muslim states enacted family law that greatly varied in their respective attempts to remain within the Islamic framework. Again, this was achieved by resorting to a selection of rulings from the various schools of law and by introducing procedural measures (Hatem, 1999 and Shahan, 1994). What follows is but a sample of various reforms enacted by several Muslim states regarding divorce and polygamy.
4- Reforms in family law: divorce and polygamy
After the creation of Pakistan in 1947, only limited gains were achieved in family law. In the 1961 Muslim Family Laws Ordinance, following recommendations of the 1955 Commission, divorce and polygamy were subjected to procedural measures (Donohue & Esposito, 1982, pp. 201–208). Arbitration Councils were set up to settle divorce and polygamy cases. Nevertheless, polygamy remained lawful if deemed “necessary and just” by the court, such as in cases of infertility of the wife, although it still required the written permission of the first wife (Esposito, 1982, p. 84). A second marriage, taking place without the authorization of the Arbitration Council, was not, however, deemed invalid. In such a case, the husband would then face up to a year in prison and/or a fine; he would have to pay the totality of the dowries, and his first wife could ask for a divorce. In 1979, under the presidency of General Zia al-Haqq, changes were introduced into the legislation that further negatively affected women’s status. All laws were to conform to Islam, but no reference was made to particular Qur’anic verses or reports of the Prophet, leaving the task of interpretation to magistrates who had to resort to classical judicial Islamic works. At times, this resulted in contradictory verdicts by the Federal Shari’a Courts on account of the judges’ pragmatic and nonhierarchical approach to the sources that influenced their modern use of the sources in their attempts to achieve social and political justice (Haeri, 1995; Jones-Pauly, 2000; Mumtaz & Shaheed, 1987 and Rubya, 1990).
In Algeria, although women played an important part in the struggle for independence (1954–1962), after the war, they were invited to return to their home as “good Muslim mothers and wives” in order to “rebuild the Algerian family and nation” (Knauss, 1987, p. 154). The 1959 Ordonnance stipulated that men could petition for a divorce on simple request, while women had to provide a valid reason for doing so, according to specified grounds stipulated in the law. In 1981, new Family laws were proposed and ratified in 1984 by the National Assembly without much debate. The new family law included a number of provisions that clearly remained unfavorable to women. For instance, although all cases of divorce must go through the court system in order to prevent any arbitrary divorce, the man’s right to unilateral divorce is not challenged and neither is his right to polygamy. Polygamous marriages must be justified and existing wife/wives must be notified, in which case they can then petition for divorce on grounds of harm if their prior consent was not obtained. Reforms in the realm of family law consisted of administrative measures that did not depart greatly from traditional Islamic law.
In the 1958 Moroccan Code du Statut Personnel, polygamy was forbidden if there were any fears of unequal treatment between the co-wives, following the orthodox Maliki school of law position. In 1993, Morocco introduced an amendment that stipulated that the husband must notify the first wife of his intention to marry another wife and tell the second woman that he is already married. In addition, the woman can now stipulate in the marriage contract that her husband shall not remarry. In the event that he does remarry, she has the power to petition the courts for divorce. She can also petition the court for a divorce even if she had not included such a stipulation in her marriage contract on grounds of harm. The judge can also rule against a second marriage if he fears that injustice to co-wives may ensue, as was the case since1958 (Nasir, 1994, p. 27). Polygamy was not, however, abolished. Only procedural measures were introduced to curtail its practice.
In the 1959 Iraqi Personal Status Code and its 1978 Amendments, polygamy was restricted with similar procedural measures. Polygamy can only be granted by a court of law on two conditions: if the husband has the financial means to support two households and that he can prove lawful benefit. Moreover, the judge can rule against a second marriage, if it is feared that co-wives will not be equally treated. Someone who takes a second wife is subject to penalties of imprisonment and/or fines (Nasir, 1994, p. 27). After the Gulf War and in an attempt to appease popular discontent, some reforms were abolished.
The Syrian Law of Personal Status of 1953 and its 1975 Amendments tried to restrain the guaranteed freedom of the husband in Islamic law, such as unjustified repudiation, by stipulating that the wife could, in such cases, file for up to a year of financial support. This was again based on the Islamic tradition and argued with Qur’anic verses that enjoin the husband to be kind with his wife and with the divorced woman. She was also granted the right to petition the court for a divorce on a number of grounds that include grounds of discord causing such harm as making cohabitation impossible (after reconciliation efforts). Reform of polygamy was achieved by requiring that the husband demonstrate that he can financially support two households and provide a lawful reason for another wife. He should also be equally just to all his wives. The latter was argued, once more, by appealing to the moral exhortation of the Qur’an that enjoins the husband to be just with all his wives. Procedural reforms were introduced: a second marriage could only be decided and allowed by and registered through a court of law. The judge could forbid a second marriage, unless legitimate grounds for polygamy existed (cf. Marcotte, 1999; Marcotte, 2001 and Nasir, 1994). Syrian legislation illustrates quite nicely the ambiguous position which polygamy holds within modern legal systems. Although a second marriage might not be registered through a court of law, it is de facto recognized if the woman is pregnant or has children (Coulson, 1964, chap. 14).
In 1979, new reforms were introduced in Egypt by means of a Presidential Decree known as the “Jahan’s Laws” (the name of late president Anwar Sadat’s wife). In 1985, the Egyptian Constitutional Court declared the Decree unconstitutional. A few months later, a revised and diluted version was adopted as the Personal Status (Amendment) Law, again amended in 2000. The new law stipulated that polygamy could only take place once the husband declared in the marriage document his social status and a statement giving the name (or names) of the wife (or wives) living with him in matrimony. The Notary Public is then required under the law to notify her (or them) by registered mail with recorded deliver of the new marriage. The wife is then entitled to petition for divorce if she suffers a material or moral harm, even if it had not been stipulated in the marriage contract that her husband may not marry another wife. Meanwhile, the judge shall attempt reconciliation. She, however, loses the right to petition for a divorce on the grounds of injury on the lapse of one year from her knowledge of her husband’s new marriage (Nasir, 1994, pp. 27–28).
Along with Turkey, Tunisia is an exception in the Muslim world. Habib Bourghiba’s Code du Statut Personnel of 1956 introduced radical reforms. In 1959, the issue of polygamy was addressed and argued from an Islamic, albeit modernist perspective. It was argued that the husband must not only have the means to maintain financially two (or more) wives, but that he must also be perfectly equitable with his wives, following the Qur’an’s own injunction. Not satisfied with the moral character of this injunction, Tunisian legislators have made it a legal injunction, thus enabling them to conclude that polygamy must be abolished. Since then, polygamy constitutes a criminal offense and a second marriage is deemed unlawful, the husband being liable to one-year imprisonment and/or a fine (Nasir, 1994, p. 26).
The 1951 Jordanian Courts Establishment Law and its subsequent Law of Personal Status Law (1976) imposed no restriction on polygamy. The groom needs, however, to stipulate his status in the marriage contract, treat all his co-wives equitably and provide them with separate dwellings. Nonetheless, the wife can stipulate in the marriage contract that she is entitled to petition for divorce if her husband takes another wife (Nasir, 1994, p. 27).
In Indonesia, the Marriage Law of 1974 and its Implementing Regulation of 1975 do not prohibit polygamy (allowed under the 1952 Regulation No. 19) for Muslims, Hindus, and Buddhists. A polygamous marriage can only take place, however, with the consent of the wife/wives and work superiors, or face sanctions at work. In addition, a judicial permission is required, following fulfillment of a number of conditions (a valid reason, financial capacity, equality of treatment of co-wives and their children). These procedural and administrative measures were introduced to limit polygamy, but again not to outlaw it (Kyaw, 1998 and Parawansa, 2002).
5- The islamc law and family law : The “maquerade of reservations”
But why have the provisions of Islamic law remained the criteria for defining family law in most modern Muslim states? For Muslims, Islam and the Qur’an have remained at the core of their religious and social identity. This is even more so today as Islamists, politicized Muslims who seek a re-Islamization of Muslim societies, are becoming, since the 1970s, more vocal in their demands upon the state to reintroduce Islamic laws. These are the individuals that “use Islamic metaphors to narrate their political projects” (Sayyid, 1997, p. 151). More symptomatic is the fact that modern Muslim states are making more concessions to the religious demands of these new politicized Islamic individuals and movements in an attempt to co-opt popular support to legitimize their rule. These concessions have often been detrimental to women’s status and rights.
Modern states are too happily and easily willing to revise their legislations and constitutions and to forgo their international duties to uphold signed treatises and conventions without taking into consideration the consequences that this has on women’s status and rights. The latter phenomenon has created a tension between two different sets of rights––Islamic and international––that translates into contradictions (Mayer, 1991, chapter on Cultural Relativism). These contradictions arise, for instance, out of the conscious choice of terms used to translate the term “law” into Arabic, such that law usually became “Islamic Law” in the Arabic versions. Moreover, this tension is at the origin of what Mernissi (1992, pp. 87–102) calls the “masquerade of reservations.” One such example is Egypt’s 1980 reservations to Article 9of the 1948 Universal Declaration of Human Rights that excludes everything related to marriage, its duration or its dissolution. Egypt incoherently argued that these rights “cannot go against the dispositions of the shari’a, that guarantees the wife rights equivalent to those of her spouse, in order to ensure a just equilibrium between them,” and then states that there exists an equality of rights and duties found in Islam, along with the idea of “a complementarity that realizes true equality!” (Mernissi, 1992, p. 93).
Another example of such a “masquerade of reservations” pertains to the ratification and the application of the United Nations’ 1981 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Almost all Muslim states were quick to introduce a number of important reservations, mostly to provisions and articles that contradict classical Islamic law with regards to inheritance, custody of children, matters of evidence, and responsibility in marriage (Articles 1, 2 (f, g), 9 (1, 2), 14, 15 (4), 16 (1. c, d, f, g, h), 17, 21, 22, 29 (1, 2)). Such reservations, however, contradict Article 16 of CEDAW that requires states to eliminate discrimination against women in matters affecting marriage and family law (Connors, 1997, pp. 365–366). However, this is one of the articles that is not endorsed by most Muslim countries. A recent UNICEF publication highlights what it calls, for a lack of a more neutral terminology, the “compatibilities” and the “divergences” that exist between CEDAW and Islamic law of Iran (Ebady, 2000 and UNICEF, 1998). To justify their position, Islamic states decry the biases and insensitivity of Western countries towards Islam, while a number of Western countries argue that Article 28 (2) of CEDAW precludes reservations that are incompatible with the Convention’s object and purpose (Connors, 1997, p. 360). Muslim states justify these reservations by claiming that they are countries that uphold Islamic law or claim Islam to be the state religion and thus often subject conventions to the provisions of national constitutions.
6- Iran : case study
In 1931, the Iranian parliament had given women the right to petition for divorce under certain circumstances and divorces needed to be registered, but the absolute power of divorce remained in the hands of men. By 1967, the courts required the consent of the first wife to allow a second marriage. But what about present-day Shi’i Iran which claims to abide by and apply the Islamic Shi’i Ja’fari school of law? All reforms that had been introduced before the 1979 Revolution, and in particular the Family Protection Law of 1967 and its significant Amendments of 1975 in favor of women, with its strict limitation on polygamy, no extra judiciary divorce, etc., were abolished by the Supreme Judicial Council with the advent of the Islamic Republic, spearheaded by Khomeini (d. 1989) (Afary, 1996; Ferdows, 1985; Lambton, 1991; Madelung, 1979; Paidar, 1995 and Regan, 1985). A detailed analysis of the historical limitations of reforms in Iran prior to the 1979 revolution would, indeed, provide historical perspective of the legal and constitutional changes that have affected women’s lives throughout the 20th century. This is, however, beyond the scope of this general survey.
At the beginning of the revolution, an unreformed Islamic law was quickly instated that included polygamy, the typically Shi’i temporary marriage (mut’a or sighah), child marriage (9 years old for female brides), father or guardian’s control of the first marriage, custody to the father or his family, and unilateral divorce to the husband (Afkhami & Friedl, 1994). In Article 21, the Constitution appeared to adhere to principles of greater gender equality where it states that: “The State is duty-bound to guarantee the rights of women in all areas…” and in Section 14, Article 3, the state is responsible for the “…restoration of the full rights of women and men… and (ensuring) the equality of all before the law.” At first glance, the Iranian constitution might appear progressive, but its stated principle of equality is,however, subordinated to Principle 4 that stipulates that all laws must be based on Islamic criteria and that this principle has precedence over all and every other article of the Constitution, something that is again reiterated in Article 20 (UNICEF, 1998, p. 82).
The views on women of Khomeini, the spiritual leader of the Iranian revolution, appear to go well beyond traditional gender roles. Upon his return to Iran, Khomeini addressed a group of women in Qum (March, 1979), praising them for taking part in the revolution and calling upon them to rebuild the nation (Mayer, 1991, p. 81). In his spiritual will, he again praised women who are “…present and work side by side or even better than our men, in raising the status of Islam and achieving the ideals of Islam in cultural, economic, and military fields” (Mayer, 1991, p. 81), but he was quite reluctant to give them the right to vote and, at times, advocated traditional gender roles. The ideals of the Islamic revolution embodied in the Constitution and Khomeini’s own ambiguous views on women have set the stage for recent “Islamic” legal reforms within the Islamic Shi’i Ja’fari school of law (Sanasarian, 1982).
Recent reforms in Iran have been undertaken with the aim of increasing women’s legal rights in the context of an Islamic society (Higgins, 1985). In the 1992 Divorce Regulation Act, amendments that were rejected by the Council of Guardians (1993) and then reinstated by the Council of Public Interest (1994) ensured that divorce can no longer be extra judiciary (Afshar, 1998, pp. 186–191). Special civil courts were set up to settle family disputes. Unfortunately, the judge has little discretion in the matter (Mir-Hosseini, 1993 and UNICEF, 1998). The most important reform, however, was the introduction in the official marriage contract of 12 conditions that promote greater awareness of some of the rights the Islamic state seeks to guarantee women and that it considers in line with the Islamic Shi’i Ja’fari school of law. Although men must consent to and sign individually all of these different clauses, it is hoped that their inclusion in the marriage contract will increase women’s awareness of their rights to initiate divorce, albeit under prescribed conditions. Paradoxically, the conditions found in the marriage contract are similar to the provisions that existed in the annulled Family Protection Law enacted before the 1979 Revolution. These conditions have come to include the following two major articles:
At the time of signing the marriage contract, or through a separate binding contract, the bride has made it a condition that in case her husband asks for a divorce and should the court decide that this request does not arise out of the wife’s failure in her marital duties or her misconduct or misbehavior, the husband shall be bound to transfer to her half the wealth accumulated during the marriage.
The husband gives the wife a permanent power of attorney to obtain a divorce through the court under any of the following conditions.
Among the conditions that the couple can agree upon that give the wife a permanent power of attorney to petition the court for divorce (Article B) are failure of maintenance or desertion (now for 6 months), maltreatment or disrespectful behavior on the part of the husband towards his wife, and polygamy. Condition 12 explicitly states that: “If the husband takes another wife without the consent of the first wife, or if the court finds that he does not treat his wives fairly,” she is then able to ask for a divorce through the courts (UNICEF, 1998,pp. 84–85), a possibility that existed in Iran prior to the revolution, but that had been deemed un-Islamic by the new Islamic Republic. In addition to these new regulations affecting divorce, by 1996, women were granted 4 months of maternity leave, back housework wages (Article A) for women divorced unfairly by their husband, legalized abortion to save the mother’s life, 10 days to 2 months in jail, instead of 74 lashes, for not being covered properly; and by 1997, the differed dowry was subjected to inflation and women legal advisory centers were created (Afshar, 1998 and Sciolino, 1997).
In spite of these recent reforms, abuses still occur where guaranteed rights cannot or are not enforced. Official registration of marriages enables women to petition the courts at a later date if their husbands decide to take another wife without their consent. However, in 1997, about 2% of marriages taking place in the Tehran region were not officially registered, whereas in less developed rural areas of the southeast province, the figures rose slightly higher than 40%, followed closely by the southwest province (UNICEF, 1998, p. 70), thus greatly diminishing women’s legal rights. Moreover, Iranian women are generally cynical about these guaranteed rights, knowing that the judiciary system does not usually work in their favor (Mir-Hosseini, 1993).
On the whole, Ramazani (1993) notes that the essentially theocratic state has been quietly introducing progressive reforms affecting women, even in areas of law pertaining to marriage, divorce, and child custody, areas traditionally most resistant to change. In these particular circumstances, the advancement of women issues becomes compatible with the clerical leaders’ interests. They have become a pragmatic political elite that attempts to co-opt women’s support in order to guarantee the survival of their rule. It may be argued that pre-1979 reforms have had more impact than is sometimes acknowledged. Iran’s new reforms are partaking in a process of redefinition of what should constitute a proper “Islamic” interpretation of women’s rights. This new process of interpretation is embodied in the various reforms that are slowly reintroducing some earlier reforms that had been quickly abolished for their perceived non-Islamic character and their association with the previous regime (e.g., contraception, age of marriage, etc.). Future developments in Iran that will be introduced because of their endogenous character to the Islamic Shi’i Ja’fari school of law may prove to be, in an odd way, beneficial to women within the context of an Islamic society and the strictures of Islamic law.
In the last 20 years, Muslim women themselves have attempted to foster greater awareness of their plight outside the realm of the state and of its legal institutions (Hegland, 1999). In 1984, Marie-Aimée Hélie-Lucas was instrumental in establishing an international solidarity network called Women Living Under Muslim Laws (WLUML) which holds that women’s “…lives are shaped, conditioned and governed by laws, both written and unwritten, drawn from interpretations of the Koran tied up with local traditions.” The committee monitors laws that affect the status of women as they hold that: “…men and the State use these laws against women, and have done so under various political regimes” (Moghadam, 1993, p. 145). Since the mid-1980s, another group situated at the other end of the ideological spectrum has emerged called Sisters in Islam and to which Islamist thinkers such as Amina Wadud-Muhsin (1998) belong. They too attempt a reinterpretation of Islamic tradition in light of contemporary expectations. These civil and NGO women’s organizations are trying to bring their voices to the attention of the state in an attempt to pave the way for more changes in the legal and political institutions in which they do not partake.
As paradoxical as it may seem, the Islamist discourse on Muslim women, their role, status, and rights can be shown to correspond to a modern construct that incorporates traditional elements. Although thinkers such as Abu al-`Ala’ Mawdudi (c. 1979), Sayyid Qutb (d. 1966), `Ali Shari” ati (d. 1977), ’Ali Bulaç, and Ismet Özel have turned against modernists to refute their arguments of accommodation and strategies of assimilations (Sivan, 1985, pp. 50–82), many Islamists today actually take for granted that Islam provides Muslim women more rights than any other type of secular society, while simultaneously espousing classical interpretations of women’s roles as mothers and wives (Zuhur, 1992). Contemporary values such as education and the possibility to engage in social and political activities for women––especially for the Islamic cause––are wholeheartedly adopted (Hardacre, 1993 and Hoffman, 1985). A survey of young Algerian women attending university in the early 1990s revealed that they believed that Islam improves their social status and gives them more rights. Their conviction rests on the belief that Islam is the means to greater liberation. The same is true of veiled Egyptian university women who belong to the recently urbanized and educated generation (Bucaille, 1994 and Zuhur, 1992). In this context, women’s reading of the Islamic tradition does appear to differ quite radically from men’s reading of the same tradition.
Mir-Hosseini (2000, p. 6) summarizes quite eloquently modern developments that have affected women’s rights in Islam. Women’s rights are neither fixed, nor given, nor absolute, “…they are negotiated and changing cultural constructs, produced in response to lived realities, through debates…” Muslim countries have only half-heartedly addressed women’s issues as was highlighted with legal reforms that have affected divorce and polygamy. Moreover, there are crucial discrepancies with the normative legal order, on the discourse level, in the context of the diverse legal traditions of historical Islam trajectories of each individual Muslim society. Legal reforms find themselves in the midst of this heterogeneous context.
Undeniably, progress has been achieved, but much more remains to be done. Twenty years ago, the trend was for outright denunciation of Islamic law and Muslim society (e.g., Mernissi, 1991a). More writers are, however, now challenging traditional interpretations of Islamic law and reevaluating Islamic history and the development of Islamic law from an endogenous perspective (e.g., Ahmed, 1991; Ahmed, 1992; Mernissi, 1991b; Mernissi, 1993 and Moors, 1999).
Muslim women do, nonetheless, remain the most powerful symbol of what constitutes an “Islamic” identity. Women are, therefore, readily used as a bargaining chip in the struggle that takes place within Muslim societies. An appeal to Islam as the only reference to what constitutes a true Muslim “authenticity” takes, however, a variety of forms (Lee, 1997). Hence, although Islamic resurgence is often interpreted as a rejection of modernity and the values it prays, such as democracy, secularism, human rights, and individual and mass integration to the political life, this apparent discourse of rejection must be weighed against its true logic which conceals a process of reconciliation between some of these modern values and the Muslim normative system (Burgat, 1995a; Burgat, 1995b and Kepel, 2000). Muslim intellectuals often make theirs elements of contemporary Western discourse while remaining quite critical of rationalist and universalistic conceptions of modernity (Boroujerdi, 1996; Kepel & Yann, 1990; Marcotte, 1997; Mardin, 1994 and Meeker, 1991). Implications for women’s issues in this debate between Islam and modernity remain to be addressed and to be studied.
In a way, Muslims are in the process of writing their own modernity at the hands of an educated modern Islamist elite that questions the universalistic idea of “civilization” or “rights” based on the exclusion of the Islamic difference, in a fashion not so different than feminist critique, or as Göle (1996a, pp. 26 and 39) puts it: “…Islamism indicates the critical re-appropriation of the Muslim identity. Islamism is the formation of the Muslim subject and agency which has been excluded from modernist definitions of civilization and history-making.” Muslims are attempting to sort out the terms with which they will define their own modernity. Women have been brought into the arena and are themselves now engaged in what Badran (1994a, p. 202) has called “gender activism”, in an effort to push on all front for greater progressive legal reforms.
Recent developments in the process of this reappropriation in Iran demonstrate that a feminist reading of Islamic law is in fact inevitable (Mir-Hosseini, 1997; Mir-Hosseini, 2000 and Moghissi, 1999). Feminist Muslims such as Amina Wadud view documents such as CEDAW in light of their relevance to Muslim women in the context of the “various strategies for postcolonialist identity development.” They can hold that the elimination of all forms of discrimination against women “does not lie within nor necessarily contradict the efforts of international bodies such as the United Nations forming CEDAW” (Wadud, 2000, p. 20). Although they may denounce the universalistic pretensions of such endeavors and adopt the perspective of cultural relativism, feminist Muslims can also consider CEDAW as an extra-Islamic method to establish unconditional human dignity for Muslim women in the quest for a just and moral social order (Wadud, 2000). Moreover, a number of writers are demonstrating that novel readings of the Islamic tradition can be achieved from both an Islamic (Amini, n.d.; Doi, 1989; Doi, 1993; Haddad, 1998; Khan, 1995; Lemu & Heeren, 1976; Mesbah et al., 1985; Mutahhari, 1981; Nazlee, 1996; Stowasser, 1994 and Stowasser, 1998) and a feminist perspective (secular: Afshar, 1998; Badran, 1994b; Göle, 1996b and Shahed, 1994; and Islamist: Hassan, 1996; Hassan, 1998 and Wadud-Muhsin, 1992). Hopefully, new interpretations will be proposed to provide women with more rights that may eventually become valid and prevalent Islamic interpretations.
A shorter version of this article was presented during a seminar at The University of Queensland, Brisbane, Australia (Nov. 9, 2001) held in The School ofHistory,Religion, PhilosophyandClassics.I would like to thank Professors Conrad, Almond, Stuart-Fox, and Hume for their warm welcome. This text could not have been completed without generous financial assistance provided by the Quebec Government, in the form of a FCAR (Formation de chercheurs et aide à la recherché) Postdoctoral Fellowship that made possible my residency at the Institut Français d’Études Arabes à Damas, IFEAD (June 2000 to June 2001), at the Institut Français de Recherche en Iran, IFRI, and the University of Tehran (Aug. 2001 to May 2002) as a Visiting Researcher. Finally, I would like to thank the two anonymous referees (especially reviewer A) for their insightful remarks, which I hope I have been able to address.
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Women’s Studies International Forum
Volume 26, Issue 2 , March-April 2003, Pages 153-166
Women’s Studies International Forum
Volume 26, Issue 2 , March-April 2003, Pages 153-166
Elsevier Science Ltd. All rights reserved.
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