The idea of bringing an end to the Code of Personal Status Code (CPS) seems « foolish », « improbable », and against the grain of the country’s political and constitutional consensus. Why shake up Pandora’s box? And do away with the CPS to replace it with what? In truth, « bringing an end to the Code of Personal Status » is not as absurd idea as we might think. The idea is not, of course, to disown the text’s virtues or to minimize its legal achievements and social performance. It is instead to show how, today, as Tunisia undergoes a socio-demographic and democratic transition, the code has exhausted its historical functions. The CPS has in fact become a glass ceiling, blocking women’s access to full and complete citizenship and preventing them from enjoying all of their human rights, a normative cap pushing them down them into positions of subjugation and inferior status. The code is, in effect, hostage to its « sacro-patriarchical » paradigm, from which it cannot be liberated except on the condition of doing away with what we have observed over the course of centuries and has continued to our present day as being THE personal status in Muslim countries.
The idea is to bring an end to personal status by revisiting the history of its colonial invention, welcoming studies on its origins, questioning its instrumental functions as a symbol of the nation’s political identity, and finally breaking with its spirit of preferential and asymmetrical treatment of men and women’s legal status in order to put the rights of individuals in tune with the new equality rights between sexes.
The Invention of Legal, Colonial Orientalism
Personal status is far from the embodiment of a natural anthropological right that is « truer than nature ». The concept of Ahwal Shakhsiya is, as its origin attests, an invention of legal, colonial orientalism. It took shape starting from the 19th century through an adaptation of Western, legal positivism to the normative realities of Muslim societies under colonial domination. It was subtly built upon the classic categories and divisions of European law: on one hand there was the « real status » [statut réel] and personal status; on the other hand was the theory of statuses and the« personality of laws » system and the theory of the territorial sovereignty of laws. Through their movement and transposition to law in Muslim countries, these categories enabled distinction between the property and land regime (« real status »)—made flexible for colonial interests to control economic riches and capital—and laws governing individuals (personal status) which were structured through the differentiation of groups by their links to « local laws », on the basis of communities or confessions. Exacerbated by the colonial relationship with otherness, this reincarnation of individuals in their communities fed on canonical, Islamic tradition in which individuals live according to their own personal law. The general codification of Islamic laws is an illustration of this. A new economy of Islamic law was to sprout and arise, influenced by compilations and other analyses of fiqh. The effects of this Islamic jurisprudence remain to this day.
In the 19th century, the first codifications—recognized as Ottoman and elaborated under the regime of capitulations—enabled, during the period of the Tanzimat (1839-1876) and the Mejelle (Ottoman Civil Code, 1877), a modernization-centralization tinged with secularization of the state, including its laws and judicial apparatus. Paradoxically, the most emblematic was the Qanun al jinayat wal ahkam al ôrfiya (1861). This « Penal Code of Criminal Procedure and Customary Civil Law » reorganized the jurisdictions between secular courts and Sharia jurisdiction, putting on one side personal status and on the other, public order along with its violations and penalties. The latter thus became the exclusive responsibility of the secular courts, newly set up by the Constitution of the State (Qanun al-Dawla, 1861) on the basis of territory as well as the principle of lawful punishment.
The second wave of codifications (19th – 20th centuries) had an ambivalent impact, helping to endow countries with the means of breaking with the former regime and also resubmerging « natives into their nativeness ». From that time on, modern-day codes began to emerge, tinged with « local exoticism » under the expertise of orientalist savants or simple colonial administrators and not without the collaboration of Muslim scholars as oriental or local interpreters and translators. These codes reflect a dualist vision of the law, between personal status and « real status ». The result of this vision was that personal status became established as a solid core of Islamic identity law, and « real status » as a flexible, adaptable, neutral ius in re [real right].
In Tunisia, the « general codification of Islamic laws according to the standard of French codes » (1896) gave rise to « Tunisian legislation » (al-tashriî al tunissy), positive legislation enacted in the form of Beylical decrees. The first period (1896-1921) was characterized by an impressive production of legislation, engaging the legal future of modern Tunisia and marking the global legal system with its new duality. Sidelining norms attributed to Sharia (personal status and inheritance), Tunisian legislation invaded new fields and annexed new territories in traditional law: land (land law of 1885), contractual obligations (Code of Obligations and Contracts, 1906), public order and penal sanctions (Penal Code, 1913 and the Code of Criminal Procedures, 1921). The codification of personal status was, in fact, conceived very early, but was quickly abandoned only to be revived, in vain, in 1949 when the fall of the colonial empires was on the horizon. The project was never carried to completion due to its « premature » and impractical nature, and due to lack of support from Muslim legal scholars, whose hostility rendered the reform unacceptable. The project resumed its trajectory after a period of dormancy, taken up by a commission under the presidency of Sheikh Abdel Aziz Djait (1886-1970), sheikh al-islam malikite (1945-1956) and the Minister of Justice (1947). The project was resumed at that time to « examine a Sharia draft code in anticipation of choosing texts which are suitable to apply before the Regency’s Sharia jurisdictions, texts drawn from Islamic jurisprudence documents of both Hanafi and Maliki schools [D.B. 16 June 1949]. It became a draft code, better known by the name « La’iha » (Tables). Its initiators, however, were not convinced by the final product. What is more, not a single allusion was made to it except with relation to promulgation of the Code of Personal Status (13 August 1956).
Under the colonial regime, the codifications set family law apart, exacerbating the sacred and untouchable character of its supposedly scriptural sources, the Quran and the Sunnah of the prophet. It is therefore not surprising that, with independence began an internal process of nationalization of personal status and revision of previous codes. How then can we understand the reproduction within sovereign States of the legal, colonial vulgate upon the Islamic personal status?
The Code’s Instrumentalization
With national independence, the country adopted a Code of Personal Status which was neither the exact transcription of classic Islamic law in a modern code, nor a total rupture with the prescriptions of classic fiqh. A lever for the new rights of women without ever breaking from the asymmetrical logic of Islamic personal status, it was the catalyst for the national laws around what was indeed a renovated and modernized family but that also reflected the political Islamic identity of the entire nation. The new leaders revisited personal status, subjecting it to an operation to internalize and nationalize the law. They invented the family (al usra, al â’ila) as the « basic unit » of the new national society, never the less restoring the Islamic identity model and structure. This logic underlying personal status and its « sacro-patriarchal » paradigm have so much power that beyond the CPS, they also rejected the new « egalitarian » norms of family law. These laws did not make it into the body of the Code’s text, ultimately constituting nothing more than meta-text of meta-law. Four main texts remained in the Code’s margins: the civil status law (1957) which established the certified act of marriage before an officer of the civil state, there by replacing the traditional private marriage contract; the law of 1958 on official guardianship, kafala and adoption which recognizes for both the adopted child and adoptive parent the same rights and responsibilities as for a legitimate child and biological parents—transgressing the canonical ban on full adoption; the law of 1998 on community of property between spouses, which represents a break from the principle of separating property; the law on attributing the patronymic name to abandoned children or children of unknown parents (1998) which requires recognition of paternity out of wedlock. Traditionally, this status is zina, the fruit of an illicit sexual act, and a grave depravity.
In another sense, numerous aspects of personal status remained intact, including, for example :mahr (nuptial gift), the marriage of a minor to which« the closest agnate relative…sound of mind, male adult » (article 8) must consent; marriage restrictions resulting from three divorces (article 19), the husband as head of the house hold whose obligation it is to maintain the family (article 23), marital duties according to practices and customs (article 23); waiting periods for widows and widowers and the abstinence of women after divorce or the death of their spouses (book 3); marriage consummation as a source of alimony (article 38); rupture of paternal line age so as to exclude children of incest, abolishing their right to alimony and inheritance (article 72); the inheritance regime and its agnatic privilege of the preeminence of male children by male parents following the rule of double share, its games of exclusions (hajb), apportionments, restrictions, etc.
It must be recognized that behind the legislative policies concerning the modern family and personal status codes, what is at stake is not so much the power of reforming traditional law, or even transgressing it through clever legal maneuvers and loopholes. Rather, what is at stake is conserving « the traditional asymmetry » between men and women’s rights in societies where demands for equality between the sexes are a permanent threat to public order that is gendered. Three approaches to action seem to characterize the general reform process: blocking the political system to produce common values by a democratic-type of regulation; the social demand’s burden of identity concerning the « radicalization of conflicts », and recourse to the supervising authority which « reverts to the scenario of authoritarian modernization » and questions the viability of recourse.
It is within this political arbitration that the reform of family law is perpetually at play. It was on display when the « circulaire » [executive legal memo] banning the marriage of a Muslim Tunisian woman to a non-Muslim man was retracted (September 8, 2017), just as it was when the COLIBE report on individual liberties and equality (June 1, 2018) was publicly announced. It was also on display when the presidency’s organic draft legislation on inheritance equality was submitted to parliament. The social demand for equality between men and women is politically denied, said to not constitute a real, massive and popular demand. Suspected of being an « elitist » claim- at best only in the interest of a group of radicalized and westernized feminists or the wealthy « bourgeois »- the demand is systematically « disqualified ». Often advanced is the argument concerning its « social inopportuneness », or even its western imposition. Many see it as the hidden hand of foreign intervention.
The debate around family law reform quickly assumed a religious tone in a dual dimension: split between legal doctrine and Sharia identity. The conflictual turn which came about during the summer of 2018 in the demand for [gender] equality in inheritance was indicative of the political scene’s polarization: one the one side, the supposedly secular defenders of family law reform, and on the other, its presumably Islamist opponents. The cleavage displayed a clear contrast between the two sides who argued in the public space.
The same is true elsewhere. From the Machriq to the Maghreb, a system of normativity and interpretation has been built around women, where positive laws appear to have nothing more than a subordinate and threatened existence so long as they remain outside of the religious legal bloc (fiqh and Sharia). In this sense, the constitutional orders of Arab and Maghreb states offer different registers of Islamic normalization. References to Islam or Sharia—and often to both—are in numerous constitutional preambles and provisions. Sharia is recognized, depending on the context, as the « principle source of all legislation » (Egypt), « one of the sources of law » (Mauritania), or simply as « source of law ». Presented in various formulas, Islam is proclaimed to be the « religion of the state ». It is therefore through the constitutional norm, which in modern-day, positive, legal systems occupies the highest level in the hierarchy of sources, that family and/or personal status codes are centered around Islam and its prescriptions. Indeed, these codes seal the bond between three orders of patriarchy and patrilineality: religion, politics and family. All such codes ultimately identify women as womb, guardian of the nation’s political identity and the patriarchal family as its basic unit.
Equality between Men and Women Obliterated
Tunisia’s entire legal order, propelled by the new rationale of a democratic constitution that emerged from the 2011 revolution, pushed towards a move out of the Code of Personal Status frame of reference. The objective was to establish the meaningful principle of equality between men and women as the basis of normativity. This principle is recurrent throughout the text of the constitution, in its preamble as well as its provisions. It structures the Constitution of 2014, which includes a series of provisions to accelerate the realization of this principle and to guarantee its efficacy with regards to women and minority classes.
Despite multiple references to it in the constitution, equality between men and women still struggles to be fully translated in family relations under the pretext of these relations’ attachments to Islamic personal status and the distinctions it imposes between justice and equality, between public and private space. Without needing to articulate all the criticisms that the justice-equality duality provokes—the two are not opposites and we cannot conceive of one without the other—it is necessary to point a finger at the rhetoric of « domestic privacy ». Not only does this logic erect inexistent borders across presumably natural statuses and attributes, but it also keeps certain subjects out of the public debate by personalizing them or by qualifying them as « family matters ». It rejects them as private, domestic, personal, or family-related as opposed to public and political subjects. In this context, equality in inheritance and domestic and marital violence do not merit public deliberation in a democracy.
These debates on Islamic normativity with regards to women and the family are not ready to be closed so quickly while the implications of attribution of perception and imagination remain beyond the scope and logic of the law. These endless debates force us out of the timeless universe of law, its abstractions and qualifications relating to Muslim families and the « understated » place that women occupy within them; they place us on the terrain of sociological reality to confront the overstated idea of « unsurpassable » sacred-patrilinear personal status. This stereotypical Muslim family, which emerged from Islamic personal status, does it still correspond to a sociological reality?
Observation shows us that the archetype of personal status is, in practice, far from being the exclusive model. If it is not absolutely out stripped by other ways of being in a couple (cohabitating), starting a family (interreligious partners), having children and parenting (single parents), owning property, asserting one’s homosexuality, personal status is certainly subject to significant variations. These mutations are unfolding everywhere and affect the institutions most solidly anchored to patriarchal society, such as inheritance distribution. Everything points to the discrepancy between legal status and social roles assumed by women and men within a family, as much as within society. The examples shown here inform us about the disjunction between, on the one hand, personal status laws and, on the other, new social practices and expectations relating to equality and liberty that such laws are supposed to regulate and anticipate.
The legal system cannot continue to ignore them, or else it will lose all legitimacy and be undermined by its anomie. How long will we hang on to personal status against history, law and society which, with each passing day, is practicing and demanding the principle of equality more and more.