Abstract
The codification of shari‘a-derived Muslim family law was an important aspect of state-building in post-colonial Middle Eastern and North African states. This has included legislation specifying permissible divorce forms. Governments have subsequently pursued state feminist reform towards equalising men and women’s access to divorce and increasing the courts’ powers to rule on gendered behaviour in marriage. These reforms have been contested by conservative and Islamist critics who are opposed to political elites, arguing that they undermine the family and misinterpret the shari‘a. The legislation resulting from these debates is interpreted by Muslim family court judges in response to litigants’ claims during the legal process. This book discusses the production of gender regimes during Syrian, Moroccan, and Libyan divorce cases and assesses the impact of post–Arab Spring proto-states on divorce law.
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Notes
- 1.
‘Moroccans and Women: Two Rallies’, The Associated Press, New York Times, 13/3/00 http://www.nytimes.com/2000/03/13/world/moroccans-and-women-two-rallies.html; ‘Rival Rallies over Women’s Rights’, BBC, 12/3/00 http://news.bbc.co.uk/1/hi/world/africa/675182.stm.
- 2.
Ibid.
- 3.
‘Rival Rallies over Women’s Rights’, BBC, 12/3/00 http://news.bbc.co.uk/1/hi/world/africa/675182.stm.
- 4.
Mhadhbi, A ‘State Feminism in Tunisia: Reading between the Lines’ https://www.opendemocracy.net/5050/amira-mhadhbi/state-feminism-in-tunisia-reading-between-lines.
- 5.
Nicola Pratt ‘How the West Undermined Women’s Rights in the Arab World’, Jadaliyya, 25/1/16 http://www.jadaliyya.com/pages/index/23693/how-the-west-undermined-women%27s-rights-in-the-arab.
- 6.
There were possibly 15 Sunni schools of law in the first four centuries of the development of Islam, but only 4 have survived into the modern day. The Sunni Zahiri school, which rejected analogical reasoning, is considered to be extinct, but has an influence on members of the Ahl-al-Hadith. Shi‘a denominations each also have their own legal schools, in which the methods that scholars employ to formulate the law differ from those in Sunnism.
- 7.
There are three main additional, almost obsolete forms of divorce: ila‘ , in which a husband swears not to have intercourse with his wife for at least four months, which, under Hanafi fiqh, if honoured results in divorce; zihar, in which the husband compares his wife to any of his close female blood relatives and then refuses to have sexual intercourse with her for four months, in which case Maliki jurists would consider them divorced; and li‘an , in which a husband swears that he is not the father of his child and attributes paternity to his wife’s sexual infidelity and the wife swears that she has not been unfaithful, in which case all four schools consider that the couple either are directly divorced (Malikis and Shafi’is) or must be divorced by the judge (Hanafis and Hanbalis). Both īlāʿ and li‘an are understood in Islamic tradition to have been types of divorce practice before the coming of Islam.
- 8.
The ḥādīth) is reported in the collection of Sahih al-Bukhari as: ‘The wife of Thabit bin Qais came to the Prophet and said, “O Allah’s Messenger! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike behaving in un-Islamic manner (if I remain with him).” On that Allah’s Messenger said (to her), “Will you give back the garden which your husband has given you (as mahr)?” She said, “Yes.” Then the Prophet said to Thabit, “O Thabit! Accept your garden, and divorce her once.”’
- 9.
Article 6 of Morocco’s 1972 Constitution and Article 2 of Libya’s Interim Constitutional Declaration of 1969 all make Islam the state religion. The shari‘a is made the source of legislation (although this has not been honoured in practice) in Article 3(2) of Libya’s 1973 Constitution. Article 3 of Syria’s 1973 Constitution (amended in 2012) states that the president should be a Muslim and that Islamic jurisprudence is the main source of legislation.
- 10.
Most MENA states have a government-affiliated Grand Mufti with an office equipped to issue fatāwa. These figures are frequently consulted for opinions regarding political policy by governments; however, their authority is challenged by religious scholars who either are not state employees, are located in bodies sponsored by other states, or are affiliated to international bodies answering ethical queries, such as Shaykh Yusuf al-Qaradawi, the Islamic Fiqh Academy of the Organization of the Islamic Conference in Jeddah, Saudi Arabia; the Islamic Research Council based at Al-Azhar in Cairo, Egypt; and the Islamic Fiqh Council of the Muslim World League in Mecca, Saudi Arabia.
- 11.
Turkey ‘secularised’ its family legislation under Ataturk in the 1940s. Several Muslim majority MENA states have only codified their family law relatively recently, including Qatar and UAE in the 2000s. Saudi Arabia’s shari‘a courts still apply the fiqh.
- 12.
Law No. 1 (2000) and Law No. 10 (2004) in Egypt; Revolutionary Command Council Resolution No. 127 (1999), Law No. 19 (1999) and Law No. 22 (1999) in Iraq; Temporary Law No. 82 (2001) and Directive of the Qadi al-Qudah in accordance with Article 2 of Temporary Law No. 82 (2001) in Jordan; Law No. 51 (1984) as amended by Law No. 29 (2004) in Kuwait; Law No. 70-03 on the Family Code, Ordinance No. 1.04.22 (2004) and Joint Decision of the Minister of Justice and the Minister of Health No. 347-04 (2004) in Morocco; Sultanic Ordinance No. 32 (1997) on the promulgation of the Law of Personal Status in Oman; Amari Decree No. 22 regarding the Law of the Family (2006) in Qatar; Qadi al-Qudah’s Administrative Directive No. 15/1366 (1999), Qadi al-Qudah’s Administrative Directive No. 15/481 (2000), Qadi al-Qudah’s Administrative Directive No. 15/711 (2000), Qadi al-Qudah’s Administrative Directive No. 15/1358 (2000), Law of Maintenance Fund No. 6 (2005) and Draft Law of Personal Status (2005) in Palestine; Law No. 18 (2003) in Syria; Federal Law No. 28 (2005) on Personal Status in United Arab Emirates; and Law No. 24 (1999) in Yemen (Welchman 2007).
- 13.
Transparency International’s Corruption Perception’s Index, which measures perceived levels of public corruption, gave Syria a 3.4 out of 10 score in 2004 (the UK was scored at 8.6 and the USA at 7.5), Morocco 3.5 out of 10 in 2007 (UK 8.4 and USA 7.2), and Libya 15 out of 100 in 2013 (UK 76 and USA 73). Freedom House evaluated Syria as ‘Not Free’ in 2005: ranking its lack of press freedom at 83 out of 100 (with 0 being the most free and 100 being the least free) and its constrained legal environment as 29 out of 30 (with 0 being the most unconstrained and the 30 the least). Freedom House assessed Morocco as ‘Partly Free’ on 2007: ranking limits in its press freedom at 62 out of 100 and its legal environment at 23 out of 30. Libya was ‘Partly Free’ in 2013 with a lack of press freedom scored at 59 out of 100 and its legal environment at 15 out of 30.
- 14.
This perception is corroborated by the findings of ILAC Rule of Law Assessment Report: Syria 2017 http://www.ilacnet.org/wp-content/uploads/2017/04/Syria2017.pdf.
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Carlisle, J. (2019). Muslim Divorce in the MENA: Shari‘a, Codification, State Feminism, and the Courts. In: Muslim Divorce in the Middle East. Gender and Politics. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-319-77007-9_1
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