Oxford University Comparative Law Forum

Modernizing Muslim Family Law: The Case of Egypt

by Lama Abu-Odeh^*

(2004) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article | Discuss this article

Table of contents

• Introduction
• I. Family law under the pre-modern islamic legal system of Taqlid
  • A. Usual Al-Fiqh
  • B. Institutional structure and legal consciousness of the Taqlid system
  • C. A legal narrative of marriage and divorce in the Taqlid treatises
  • D. The family in the doctrine of thw Taqlid schools of law: a structuralist reading
• II. Transformation of the legal system from Taqlid law to one influenced by european codes
  • A. Centralization of the Egyptian state during the reign of Mohammad Ali
  • B. The defeat of Ali and the europeanization of Egypt
  • C. British colonization and reactions to the continued europeanization of the Egyptian legal system
  • 1. British colonization and subsequent legal developments
  • 2. Reactions to colonization: modernists, and nationalism
  • D. A compromise on the question of women and the family
• III. Legislating the family
  • A. Comparative data
  • B. A comparative reading of the legislative regulation of the family
  • 1. The Tunisian model
  • 2. Hanafi doctrine
  • C. The specific case of family law reform in Egypt
• IV. Adjudicating the family in Egypt
  • A. Adjudicating obedience
    • 1. Obedience is still owed the husband even if he beats his wife
    • 2. Court may discipline a beating husband by depriving him of wife's obedience
    • 3. A husband who beats his wife loses his right to her obedience
    • 4. Applying the same standard of harm for both divorce and obedience
  • B. Adjudicating divorce based on harm
  • C. Constitutionalizing the family
• V. Conclusion
• Endnotes for main text
• Endnotes for table

Introduction

Egyptian feminists who advocate reform of Egyptian family law are often charged with supporting changes that are un-Islamic.¹ The charge is of such normative appeal that it is often hard to dismiss. To understand its normative power, one has to place the charge of “un-Islamicity” directed at reforming feminists by their adversaries in a larger context, that of the modern history of the Egyptian legal system.

During the second half of the 19^th century, Egypt took a historic decision to dispose of the rules of Islamic law in most areas and fields of the law.² However, the Islamic rules on the family were preserved.³ Egyptian elites understood this to be part of a badly needed move towards modernization, a process that unfolded over time but seems to have been completed by the mid-twentieth century.⁴ For most areas of the law, Egyptian elites chose to borrow (in the manner of legal transplants) European laws that displaced the rules of the inherited legal system.⁵ Europeanization inevitably led to secularization.⁶ For those who were (and indeed, for those who still are) opposed to Europeanization and secularization, the Islamicity of the rules on the family came to symbolize the last bastion of a dismantled legal system (the Islamic), the reform of which threatened to flood Egypt with the European and the secular.⁷ Thus, attachment to medieval patriarchy came to mean attachment to the Islamic.

This article argues that while secularizing the legal system in Egypt through European transplants allowed for the possibility of either dismissing or radically re-organizing various elements of the doctrine on the family inherited from medieval Islamic jurisprudence to make it more progressive, it was also the same secularization/Europeanization process that placed limits on and defined the ceiling of such progressive reforms. This is so because historically, in order for all other laws to be secularized, family law had to represent the limit of, the exception to, or the sacrificial lamb of, secularization.⁸ In order for family law to be legislatively reformed, progressively interpreted by secular judges, or actively protected by elite constitutional judges, the outer limits have to be convincingly defined for a difficult-to-please religious audience.⁹ It is through making pronouncements on the outer limits, always patriarchal, that the “reformer” gains legitimacy for the reforms in the eyes of his or her watchful religious contenders. This article argues further that it is this unceasing and obsessive look to the outer limits that preempts a full-fledged secular critique of patriarchal relations in the family in Egypt.

In Part I of this article, I begin by providing an account of the Taqlid legal system, the pre-modern Islamic legal system that prevailed in the Muslim world, including Egypt, up to the early part of the 19^th century, before modern legal transformations started to take place. It was during this pre-modern era that the vast majority of Islamic rules on the family were developed and articulated.¹⁰ It is those very same rules, modified complexly, that constitute the contemporary doctrine on the family in Egypt as well as the rest of the Arab world.¹¹ In Part I, I also offer a structural reading of the Taqlid doctrine on the family, arguing that while Taqlid law does not have an internally coherent view of the family, with each school of Taqlid law having its own doctrinal arrangement on the relationship between husband and wife, the differences between these schools amount to no more than possible positions within an overall gender regime that could be described as hierarchical to the benefit of the husband. This hierarchical regime has nevertheless a strong underlying element of transactional reciprocity of obligations between the spouses, in which husbands provide money, in the form of maintenance, and wives provide conjugal society in return.

Part II begins by offering an account of the introduction of European legal transplants in Egypt, transforming the very nature of the legal system as a whole. I show the ways in which, as a result of both the centralization and the Europeanization of the legal system, Taqlid law was crowded out of its historic jurisdiction until it was left with only the family to regulate.¹²

In Part III, I proceed to describe the modern doctrine on the family in Egypt, including the ways in which it was reformed and amended once European legal transplantation occurred. In order to understand the scope and nature of the various statutes adopted in Egypt with the goal of reforming rules and laws concerning the family, I offer a comparative approach.¹³ I place Egyptian reforms in a comparative relationship with those undertaken in Jordan and Tunisia. My comparative summary also includes the rules on the family under the Hanafi doctrine, an Islamic school of law that developed in the Taqlid era and that historically had the largest influence on Egyptian law.¹⁴ I include the (majority) Hanafi rules to show the extent to which the Egyptian reforms departed from their historic Taqlid origins.

A spectrum of reform possibilities emerges from this comparative picture. While Tunisian legislative reform appears to represent the most liberal approach, the Hanafi doctrine sit on the other end of the spectrum as the most conservative. Jordan and Egypt are located in the middle and are examples of countries that enacted what can be characterized as centrist reforms. Indeed, Tunisia seems to have gone as far as to legislate liberalism in its family code in a manner that has no parallel in the Arab world.¹⁵ Tunisian lawmakers introduced terms such as “equality” in their legislation and made a concerted effort to abolish the structure of gendered reciprocity and complementarity inherited from Taqlid law.¹⁶ By comparison, the Egyptian legislature preserved gender reciprocity, while at the same time chipping away at the husband’s surplus of powers in the family.¹⁷ The aim of the Egyptian legislation seems to be to replace the marital status regime provided for under Hanafi doctrine, the prevailing Taqlid doctrine in Egypt, with that of contract.

In Part IV, I argue that the family courts in Egypt have continued the legislative approach of chipping away at the husband’s power in the family, without, however, destroying the regime of reciprocity. I look at lower family court and appellate court adjudication interpreting some of the new legislative rules.¹⁸ Egyptian courts limited the husband’s power in the marital relationship by restricting the interpretation of the wife’s duty of obedience in the family, as well as expanding rather drastically the grounds available for her to request a divorce. The aggregate effect of these judicial moves, I argue, has been to further undermine the status regime inherited from the Hanafi doctrine and push it more aggressively towards a contractual one.¹⁹

In Part IV I also present an account of the way the judges of the Supreme Constitutional Court of Egypt (SCC) attempt to defend legislative reforms in family law from the attacks of religious groups. Specifically, I discuss the Court’s rulings after the 1980 amendment to Article 2 of the Egyptian Constitution, which establishes that “the principles of Islamic Sharia are the principal source of legislation.”²⁰ The amendment prompted religious groups to argue that certain legislative reforms in family law were un-Islamic, or contrary to the Shari’a. I argue that the SCC has pursued a strategy of splitting the difference between the demands of the religious detractors and those of Egyptian feminists on the question of how to interpret those reforms.²¹

I conclude this article by arguing that legislative and adjudicative reform and interpretive strategies that move from defining a marital relationship as one of status to one of contract, as well as splitting the difference between the demands of religious advocates and those of feminist reformers, represent the ways in which the Egyptian secular male elites have introduced reform in the area of family law.²² These strategies attempt to strike a centrist compromise so as to mediate the demands of the feminists and those of their adversaries--the religious intelligentsia.

The Egyptian path to family law reform represents the rule rather than the exception in the Islamic world. Many other countries have adopted a centrist compromise, as Egypt did, (although each adopted one that is uniquely its own), to navigate the complex interaction between the need to reform family law while still preserving a semblance of Islamicity of this law.

I. Family law under the pre-modern islamic legal system of Taqlid

The bulk of legal rules on the family that permeate contemporary legislation in Egypt have been adopted from the pre-modern Islamic legal system that Muslims refer to as Taqlid. It is therefore important to offer a description of this legal system as well as the rules that emerged from it. I will begin by providing an account of Taqlid, as a system, including its distinct institutional structure and historical legal consciousness, and then proceed to describe the rules themselves.

The best way to understand how the Taqlid legal system emerged and how it acquired its internal qualities and dynamics is to contrast it first with the legal era that preceded it, namely, that of Usul al-Fiqh, and second, with that which proceeded it, namely, the modern legal era of European transplantation.

A. Usual Al-Fiqh

Usul al-Fiqh, meaning the “sources of jurisprudence,” is a reference to the legal theory of the famous jurist Shafi‘i, written in the ninth century.²³ The era of Usul was one in which the schools of law started to make an appearance through engaging in the legal activity of innovating rules inspired directly by the sources of the religion.²⁴ Shafi‘i’, in his book al- Risala, argued that all rules of law applied by qadis (judges) in the various Muslim territories should be based directly on holy sources.²⁵ Shafi‘i defined these sources as the Quran and Hadith.²⁶ His theory, with its stress on the prominence of the “text” (Quran and Hadith) as the basis of the rules, and the relegation of qiyas, or analogy, and “discretion” to a secondary status, prompted some of the main jurists of the time, who came to slowly acquire students and followers, to base the rules of law they had innovated on some textual basis.²⁷

The schools of law, attributed retrospectively to these famous early jurists, came into being and acquired their own distinct identity through a complicated historical and theoretical process in which they both acquiesced to Shafi‘i’s demand for textual foundationalism but also resisted his proscription.²⁸ In the end, the schools came to be identified in their jurisprudence along the spectrum of text on the one side and discretion on the other, some leaning in their doctrinal activity towards the one end and the others leaning towards the other.²⁹ This intense legal activity was taking place as the Islamic state came into being and was progressively expanding its territories.³⁰ The administrators of this state felt the need to apply law that was “Islamic” to the new subjects and converts.³¹

Whatever the sympathy of a particular school was during the time of Usul, this era was marked by the busy and elaborate legal activity of articulating rules of law for the first time in Islamic history.³² Much of this legal activity took the form of ijtihad. “As conceived by classical Muslim jurists, ijtihad is the exertion of mental energy in the search for a legal opinion to the extent that the faculties of the jurist become incapable of further effort.”³³ This activity of innovation is understood to have come to an end with the advent of the Taqlid era.³⁴

B. Institutional structure and legal consciousness of the Taqlid system

Taqlid, meaning imitation, or conformism, is the word used (in a somewhat derogatory way) to describe the legal system that prevailed following the era of Usul in the Islamic world for a period of roughly nine hundred years, from the tenth to the nineteenth century.³⁵ What distinguishes it as a unique era in its own right is that during this time, Muslim jurists and judges appear to have abandoned, for the most part, the religio/legal project of coming up with new rules of law directly inspired by the sources of the religion, or ijtihad.³⁶ Rather than pursue the project of legal innovation typical of the preceding era of Usul, these jurists/judges concentrated their legal activity on consolidating the legal doctrine of the school of law they were affiliated with and to which they had deep feelings of loyalty.³⁷ One followed (imitated, conformed with) the doctrine of one’s school rather than attempting a fresh reading of the word of God to come up with new rules.³⁸ Taqlid, one might say, is the era of the schools of law during which the doctrines of the various schools were treated as the law of the land, seriously displacing and overshadowing the Quran and prophetic traditions as the sources of the law.³⁹

The main operators in the legal system of Taqlid were the four principal Sunni schools of law, namely the Hanafi, the Shafi‘i, the Maliki, and the Hanbali,⁴⁰ each named after a historic jurist appearing in the previous era of Usul.⁴¹ Each school developed its own distinct legal doctrine, or madhhab,⁴² as well as its own gendarme of jurists, qadis (judges), muftis⁴³ and students. The political ruler often allowed these schools to operate for the benefit of their respective constituencies (disputants and legal opinion seekers).⁴⁴ The ruler either adopted a particular madhhab as the official law of his territory, allowing other schools to cater to their constituencies and followers while privileging the official madhhab, or chose to distribute state resources equally between the various schools without privileging one at the expense of the others.⁴⁵

The legal rules produced by the schools within this system acquired authoritative power through their attribution to a famous jurist of the past.⁴⁶ Any new rule had to be projected back onto a historical authoritative figure revered among the members of the school of law in whose doctrine this rule was making an appearance.⁴⁷ The identity affiliation of the people operating the system, as well as that of the constituencies they offered their services to, was not so much with Islam as with the madhhab of the school of law they belonged to.⁴⁸ A constituent was a Hanafi, a Shafi‘i, a Maliki or a Hanbali.⁴⁹ Narration of the old masters’ legal opinions, or those of the Prophet’s Companions, on a given micro-matter was the most common way of reporting legal rules.⁵⁰

Under Taqlid, each school of law produced its own internally complex structure of jurists, judges and muftis whose role was to engage in pedagogy, adjudication and interpretation of the doctrine of the school.⁵¹ There was little attempt under the Taqlid system to rationalize or abstract the doctrine of the school to make it easy to implement, a desire symptomatic of the rise of the modern nation state with its centralized legal system.⁵² In fact, the doctrine of the school was scattered in a vast literature varying from treatises, to commentaries, to books on responsa (fatwa).⁵³

During the Taqlid era, change in the legal doctrine of any of the schools was acknowledged implicitly rather than explicitly, given the authoritative hold of the opinions of the masters of the school.⁵⁴ It often took place at the lower level of the system through, for example, legal opinions given by muftis or cases adjudicated by judges, without such change being reflected in the official treatises of the school.⁵⁵ Official treatises were typically used for pedagogical purposes, and allowed the doctrine of the school to have the appearance of an unchanging code.⁵⁶ It is the fact that legal doctrine never changed in an explicit way that marked this period inaccurately as one of Taqlid, or imitation.⁵⁷ Recent historians of Islamic law have argued that in fact new rules were invented all the time during the Taqlid era in a complex way, and that to characterize the era as stalemated and one of endless imitation is simply false.⁵⁸

The legal actors in the system attempted to manage complex cases and to avoid the application of conflicting rules to the same situation by relegating cases to the hierarchical organization of the school.⁵⁹ Thus, the simple cases went to the lower jurists and the harder ones went to the more senior ones.⁶⁰ And in the end, “God knows best.”⁶¹ The place of a single jurist in the hierarchy was determined by his knowledge and mastery of the doctrine of the school and of its legal methodology.⁶²

New rules to be applied to new situations were derived from the madhhab of the school.⁶³ This was done by following the principles developed by the master authorities of this madhhab, constituting a kind of “usul of the School.”⁶⁴ Shafi‘i’s methodology for deriving new rules became overshadowed and displaced by each school’s own usul.⁶⁵ These sub-rules were understood to be derived essentially from the rules of the madhhab rather than a fresh reading of the holy texts following the methodology of Usul al-Fiqh.⁶⁶

In the Islamic World, by the tenth century, Taqlid displaced and transcended Usul, and the modern legal system identified as European displaced and transcended Taqlid by the nineteenth century. However, while Taqlid displaced Usul, occasional medieval jurists during the Taqlid era would call for the re-innovation of Taqlid law through a return to Usul.⁶⁷ In addition, while the modern legal system identified as European transcended Taqlid, it nevertheless incorporated some of its rules whenever it desired to mark its doctrine as “Islamic,” as has been the case with family law.⁶⁸ Similarly, some jurists called for a return to Usul in the modern era as a response both to the contemporary European influence in the legal system and the stalemated Taqlid.⁶⁹ Indeed, Muslim legal modernists of the twentieth century acquired prominence through continuing the Taqlid tradition of calling for a return to Usul.⁷⁰

C. A legal narrative of marriage and divorce in the Taqlid treatises

The issues covered in the Taqlid treatises in the realm of the family demonstrate the manner in which the Taqlid jurisprudence regulated the two general legal acts of marriage and divorce. I will present a legal narrative on marriage and divorce by discussing topics related to these two fundamental legal acts typically dealt with in the Taqlid treatises.⁷¹ How did marriage take place? What legal actions were necessary for one to be married, stay married, get divorced, get custody of children and then move on? I do so for the benefit of the uninitiated reader who is unfamiliar with the Islamic legal system and the way Muslims have legally conducted their marriages and divorces. It is important to note that the legal narrative related to each of these issues still holds true for most Muslims today.⁷²

An important point related to the topic of marriage under Taqlid law and in Islamic legal doctrine in general is that Muslim women retain both their juridical personality as well as whatever property they own when they enter marriage.⁷³ In addition, they are under no obligation to maintain the marital household except under limited circumstances when the husband is in need.⁷⁴

In order for a marriage to take place, there must be an offer and acceptance.⁷⁵ Any party can include terms in the contract as long as such terms do not violate “the nature of marriage.”⁷⁶ The husband has to pay the woman her dower, or mahr, immediately upon the marriage as an effect of the contract, unless the wife agrees to defer payment of some or the entire amount to a future time.⁷⁷ The dower, or mahr, is paid to the bride herself, not to her father or any other party.⁷⁸ Having received the agreed share of her mahr, the woman must then move to her husband’s residence (which, by law, should be appropriate)⁷⁹ and provide him with her “conjugal society.”⁸⁰ It is understood that the husband has earned this right to her society by paying the wife’s mahr.⁸¹ The wife then starts to earn her daily maintenance (nafaqah) as his spouse so long as she commits herself to him.⁸² If she proves to be “disobedient” by leaving the house without his permission or without good reason, or denies him sexual access, she loses her maintenance money.⁸³

If the husband wishes to end the marriage, he divorces his wife by uttering a legally accepted formula under certain conditions,⁸⁴ after which the divorced wife spends her idda (waiting period) in her husband’s residence,⁸⁵ during which time he must support her.⁸⁶ During this period the husband may return his wife to himself and cancel the divorce without her consent.⁸⁷ The purpose behind idda is to allow the husband to reconsider his decision and to determine whether the wife is pregnant, in which case her waiting period extends until she gives birth.⁸⁸

If it is the woman who wishes to divorce her husband and there are no grounds that are legally acceptable for her to request it, she can still exit the marriage through a khul divorce.⁸⁹ If the husband agrees to khul, the woman must usually pay him some or all of her mahr or waive the deferred part of her mahr, or both, although this is not a necessary condition.⁹⁰ If the husband agrees to the divorce,⁹¹ then he is in no position to return her to himself during the waiting period without her consent.⁹²

Once the waiting period is over, the divorce becomes final and the financial obligations between the couple are terminated, unless they have minor children. In this case, the wife receives custody over the children until they reach a particular age.⁹³ During this time, the husband has to maintain the divorced wife and the children under her custody.⁹⁴ The wife’s custody, however, only includes nurturing and nursing the children, while the husband retains the power of “instruction” and guardianship, including administering the child’s property and money.⁹⁵ After the custody period is over, the children live with their father.⁹⁶

After divorce, when there are no minor children under the custody of the woman, she maintains herself by spending her own money if she has any, or by being provided for by one of her male relatives, as long as they are able financially to do so.⁹⁷

The marriage and divorce narrative that I have put together from a reading of the doctrinal areas covered in the medieval Taqlid treatises is somewhat simplistic and leaves out some details, nuances, and qualifications. It is designed to give the reader a quick sense of the way the Taqlid jurisprudence conceived of the distribution of wealth and power between men and women (husband and wife, father and child) as women enter into marriage, during marriage, and after its termination.

D. The family in the doctrine of thw Taqlid schools of law: a structuralist reading

The Taqlid rules on marriage and divorce, outlined above, established a general framework within which the family was expected to operate. This framework served to define the marital relationship and indeed can be read and understood to have set the boundaries and limits for the rights and obligations of both the wife and the husband. Therefore, the rules that have historically defined the status of the woman and man within the family, in particular, within the marriage, are important to understand not only for the influence they had in defining past notions of patriarchy and for defining, legally, particular gender roles, but also because these same rules are the precursor to the contemporary law on the family in Egypt as well as the rest of the Arab world.⁹⁸

Providing a structural reading of family law doctrine under the regime of Taqlid is not an easy thing to do. The doctrines of each school of law, as I have explained above, were scattered in multiple treatises, each having a different status within the doctrine. These treatises were reproduced over time, commented upon, and the commentaries themselves commented upon. Moreover, each such collection contained majority and minority views within the school, such views changing slowly over time through the very act of exposition and commentary. In addition, as I also mentioned above, doctrine was embodied in the collection of fatwas, legal opinions given by muftis (Islamic scholars) in response to questions posed by private individuals outside the context of litigation; qadis (judges) in the context of litigation; and even by the ruler himself. However, I am by no means the only “modern” presented with what seems on first blush to be such an unnerving task. Condensation for the sake of exposition of doctrines developed over centuries inside a system that accommodated and managed internal divisions of opinion on any given matter found Muhammad Jawad Maghniyyah, the author of the book The Five Schools of Islamic Law, equally puzzled. As Maghniyyah asserts,

[F]iqh [jurisprudence] is an infinite sea, as one matter can be divided into different ramifications, about any of which the schools’ opinions may be numerous and contradictory, and rather the opinions of the fuqaha [jurists] of the same school, or even the opinions of the same scholar. Any one trying to have full conception of any ethical matter, will encounter the severest hardship and suffering, so how about writing the whole fiqh, with its branches: the rituals (ibadat), and transactions (mu‘amalat) according to all schools?!⁹⁹

Daunting as the task is, I will nevertheless argue for the following structural features of the doctrines of the schools:

The views of the four Sunni schools of law on any given doctrinal area relating to marriage and divorce are widely divergent from each other, so that differences between them sometimes read like the difference between earth and sky.

No one school has an internally coherent view of the family that can be distinguished from the views of the next one. It is very difficult indeed to do a reading of the doctrine of a given school that would allow one to predict the position of the school on the next doctrinal issue.

Example 1: While the doctrine of the Hanafi school of law, unlike that of other Sunni schools, gives the woman of majority age complete freedom to marry without requiring her guardian’s consent, it nevertheless gives the guardian the right to dissolve her marriage after she has married on the basis of the doctrine of kafaa (equality).¹⁰⁰ Moreover, those who belong to the Hanafi school interpret this doctrine very loosely, providing several grounds according to which the guardian can exercise his right, paradoxically giving him enormous power over the fate of the marriage.¹⁰¹

Example 2: While the doctrine of the Maliki school of law allows the wife to request divorce on the basis of “harm,”¹⁰² it nevertheless gives the guardian absolute freedom to marry off his daughter of majority age and treats her consent as absolutely unnecessary.¹⁰³

As divergent as the schools are in their views, they do however agree on the nature of the legal acts that need to be undertaken for a marriage to take place, for it to continue, and those that are needed for it to terminate. They also share common ideas about the nature of the transactional relationship that the contract of marriage establishes between men and women and the way in which patriarchal power within the family (that of the husband or father) is organized. These nodal points of agreement on the general doctrinal structure of marriage and divorce arise because of a “topical” consensus among the Taqlid jurists (rather than a consensus of opinion about a given legal matter). In other words, if one is to discuss marriage and divorce under the Taqlid jurisprudence, then one needs to discuss a particular set of topics.¹⁰⁴

Internal tensions permeate the doctrines on the family.

Example: Under the topic of “contract conditions,” one notes the tension between, on the one hand, treating marriage as purely “contractual” in the sense that it is open for contractual terms to be included by either husband or wife, and on the other hand, the idea that marriage is “status” that precludes including certain terms that are regarded as “violating the nature of marriage.”¹⁰⁵ This tension arises when the following questions are discussed in the treatises: Can a woman stipulate in the marriage contract that her husband cannot take a second wife?¹⁰⁶ Can she stipulate that she can divorce him whenever she wishes?¹⁰⁷ Can she stipulate that she does not owe him the duty of obedience?¹⁰⁸ Can she stipulate that she will reside in her hometown and will not be forced to live elsewhere?¹⁰⁹

As divergent as the schools are in their views, these views tend to pull towards a particular position on the spectrum of possible opinions on any given legal matter. This tendency to “pull towards” highlights the general sensibility of these jurists on the question of gender and the way relations within the family should be organized.

Example: Whereas the doctrine of the Hanafi school of law holds that women of majority age should consent to their marriage and can indeed marry without the presence of a guardian, the three other Sunni schools insist that in such cases, a woman’s consent is unnecessary and the presence of the guardian is “foundational.” Some limit this requirement to women who have not been married before (bakr).¹¹⁰

While the views tend to pull towards a position on a spectrum of possible opinions on any given legal matter, their views also clearly exclude a number of others, so that such views do not seem to exist anywhere. This exclusion delimits the boundaries beyond which the opinions of none of the schools venture; in other words, they define the outer limits of the general sensibility of these jurists.

Example: All the jurists agree on the position that the husband has the right to talaq, what in U.S. legal discourse is called no-fault divorce.¹¹¹ When it comes to women they unanimously agree on two things. First of all, women do not have an equivalent right to no-fault divorce,¹¹² and, second, women can enter into a consensual agreement with their husbands to “buy” their divorce against a particular consideration (the khul divorce).¹¹³ Having thus delineated the outer limits of women’s privileges through implicit collective agreement, the schools proceed to have divergent views on women’s legal abilities within these boundaries. Thus one finds them having divergent views on the question of whether women can request divorce from a judge on specific grounds, and what those grounds might be. For instance, Hanafi doctrine denies women any grounds for divorce without the husband’s consent,¹¹⁴ and the Maliki school of law takes the radical step of allowing women to request divorce on the basis of “harm.”¹¹⁵ The rest of the schools aggregate in the middle, allowing women divorce on one or more “objectively acceptable grounds” such as imprisonment or long absence of husband, non-payment of maintenance, insanity, or infliction with an incurable disease.¹¹⁶

A close reading of the aggregate positions of the schools on various legal issues suggests a particular gender regime within which all of these schools historically worked. The differences between the schools, it seems to me, amount to no more than possible positions within this overall gender regime without any school constituting a meaningful critique of, or departure from, the views of the next one. I would describe this gender regime as hierarchical to the benefit of husband/guardian but with a strong underlying element of transactional reciprocity of obligations. In a nutshell, the reciprocity amounts to a situation in which husbands provide money, in the form of maintenance, and women provide conjugal society in return.

The question that the above reading raises is the following: is it conceivable that a radically different gender regime could be constructed out of a pick-and-choose activity of rules from these schools, such as the one engaged in by the modern Egyptian legislature?¹¹⁷ In other words, can a modern legislator, not feeling the need to be affiliated with a particular school but proceeding with a uniquely supra-madhhab sensibility,¹¹⁸ come up with a new doctrine on the family by combining together the most “progressive” rules, whatever their genealogical origin might be? Could this doctrine conceivably constitute a critique of and departure from the gender regime constructed by the Taqlid schools of law?

What is noteworthy is that most contemporary legislatures proceeding with a pick-and-choose legislative methodology or approach have thus far, as I will demonstrate below, fallen short of realizing the project that liberal feminist advocates of family law reform in these countries have pushed for. Such legislation continues to hint at and aspire for this kind of feminist reform while consistently failing to achieve it.

The Taqlid legal system, with all its varied interpretations on family law issues, particularly the marital relationship, lasted into the nineteenth century in Egypt. However, transformations were made in the legal system in the nineteenth and twentieth centuries that brought about the demise of the Taqlid system. The ways in which European legal transplants were introduced into the system altered the very nature of law and legality in the country.

II. Transformation of the legal system from Taqlid law to one influenced by european codes

A. Centralization of the Egyptian state during the reign of Mohammad Ali

The decline of the Taqlid legal system in Egypt began with the reign of Mohammad Ali in the early part of the 19^th century.¹¹⁹ A one-time all-powerful Ottoman Governor of Egypt, Ali embarked upon what he saw as a modernization project that was to transform Egypt forever.¹²⁰ Particularly detrimental to the Taqlid legal system during this era were efforts made by Ali to centralize the state.¹²¹ Centralization meant that the carefully calibrated relationship between the ulama (jurists, who were the overseers of the Taqlid legal system) and the political ruler that was typical of the pre-modern era could no longer be maintained.¹²²

Mohammad Ali’s project involved the centralized appropriation by the ruler of the economic and regulatory powers of the state.¹²³ This policy proved to have a detrimental impact on the schools of law in two respects. First of all, Ali appropriated the schools' financial resources through his "annexation" of the waqf institutions.¹²⁴ For Ali, the ulama and their institutions were among several social and economic forces or intermediaries (others being tax farmers, merchants, and guilds) that had to be either obliterated or controlled so that the state could have power over their revenues.¹²⁵ Consequently, the ulama found themselves being demoted from the position of institutionalized elites to one of total alienation and disenfranchisement.¹²⁶ Ali not only ravaged the ulama's financial institutions, but he also started to build an educational system to compete with and take the place of the religious one that the ulama historically controlled.¹²⁷ This alternative educational system, primarily designed to educate the bureaucratic and military elites that Ali needed to run his modern state, produced a secular elite that identified with Europe and came to see the ulama and their institutions as pre-modern and conservative.¹²⁸

In addition, the centralized state established as a result of Ali’s unabashed use of his regulatory powers seriously competed with madhhab as a source of law. Ali, as part of his modernization project, issued for the first time in Egypt a substantive body of laws that may be termed as public law, taking little heed of the Taqlid rules on the questions these regulations tackled.¹²⁹ Ali saw this public law as necessary for the state to appropriate, distribute and control the economic and financial resources to be channeled primarily to the needs of the strong army that his modernization efforts focused on.¹³⁰ One of the components of this public law was an elaborate set of punitive (penal) legal regulations that allowed Ali to control resistance to the newly centralized state.¹³¹ Eventually, the qadi courts, associated with the Taqlid era, were forced to compete with a [multiple] number of other judicial bodies.¹³² These new judicial bodies included those that Ali set up to allow those effected by the regulations, primarily peasants, to present their grievances concerning actions taken by government officials.¹³³

As Ali consolidated a centralized, strong state, one that was armed with newly created regulatory instruments, the residues of Taqlid law that remained in effect acquired the character of the law of the private and the personal.¹³⁴ Such private legal activities, left untouched by the state's regulations, were primarily although not exclusively related to the family. These matters came to be understood as the privileged domain of Taqlid.

B. The defeat of Ali and the europeanization of Egypt

The second onslaught on Taqlid took place in the second half of the nineteenth century, following the death of Ali and the defeat of his modernization project. The Ottoman elites of Istanbul, who considered Egypt one of their most important provinces, felt the secessionist threats of Ali’s rising power and collaborated with contemporary European powers, primarily Britain, to destroy him.¹³⁵

One of the consequences of Ali’s defeat was to subject Egypt to the terms of the treaties that Istanbul had entered into with a number of European countries, symbolizing the end of Egypt’s autonomy.¹³⁶ This in effect destroyed the state economic monopolies that Ali masterminded,¹³⁷ along with the corresponding legal regime, as European countries insisted that tariffs on commodities entering the Egyptian market be removed.¹³⁸ More important for the Taqlid legal system, however, was the fact that a new legal era commenced in Egypt that was marked by a process of Europeanization. This was to become the second severe blow dealt to the Taqlid legal system. During this period, Europe figured strongly in the life of Egyptian elites, something that brought with it two contradictory results—the first can be described as a normative liberal legalism and the second as a political legal imperialism.

As the Khedevis, descendants of Ali and the ruling Turkish elites of Egypt, embarked on the project of turning Egypt into a "part of Europe" during the second half of the nineteenth century, radical legal reforms started to take place.¹³⁹ The migratory onslaught of European communities into Egypt, one element of the Khedevis’ Europeanization policy, established European commercial interests in the country and helped merge Egypt into the international market by creating a cash crop economy based on cotton.¹⁴⁰ This in turn prompted several European countries to intensify their request for legal privileges and concessionary benefits for their nationals living in Egypt.¹⁴¹ Such privileges and concessions led to the radical evolution of the consular legal system and eventually to the establishment of the unified legal system of Capitulations.¹⁴²

Creditors also demanded legal assurances as Egypt amassed a considerable amount of international debt so as to finance infrastructure projects and other elements of its modernization scheme.¹⁴³ Foreign nationals, creditors, and international contractors demanded to be exempt from the jurisdiction of Egyptian Taqlid law, which was seen as either lacking sufficient legal assurances or simply too primitive to accommodate such complex international economic and financial transactions.¹⁴⁴

As a means of paying the huge foreign debt being incurred, the Egyptian government heavily taxed the local peasants.¹⁴⁵ This left them hostage to the power of moneylenders, who were mostly foreigners residing in Egypt.¹⁴⁶ As Egyptian peasants struggled to regain ownership of their mortgaged lands from both foreign moneylenders and local elites, Taqlid law proved even more inadequate due to the fact that it failed to regulate such forms of contractual relationships.¹⁴⁷ The establishment of the Capitulations Court System in 1875 was seen as a resolution to the legal chaos, inviting all foreigners to adjudicate claims between each other and between themselves and Egyptians in the newly established courts.¹⁴⁸ In addition, Civil and Commercial Codes and Codes on Procedure, with a very strong French influence, were passed to regulate actions dealt with by these courts.¹⁴⁹

C. British colonization and reactions to the continued europeanization of the Egyptian legal system

The third legal era during which Taqlid law was transformed began with the colonization of Egypt by the British in 1882 and lasted until 1948, when a national Egyptian Civil Code was passed.¹⁵⁰

1. British colonization and subsequent legal developments

In 1883, a year after the British colonized Egypt, a national court system was established for the purpose of adjudicating cases among Egyptians that was modeled on the Capitulations Court System both in structure and textual foundations.¹⁵¹ The Codes applied in the national courts were very similar to those of the Capitulatory courts, with the exemption that some Taqlid rules were included.¹⁵² As a result of the establishment of the national court system, the qadi Taqlid courts saw themselves overseeing an even more contracted jurisdiction, namely, that of the family (marriage, divorce, inheritance, wills) and waqf (charitable institutions).¹⁵³

Under this process of intense European influence, Taqlid law and its normative character were greatly transformed. First of all, as the Code came to be seen by the Europe-identified elites of Egypt as the universal, the modern and the embodiment of advanced legal thought, Taqlid came to be seen as the local, the pre-modern and the primitive.¹⁵⁴ This was despite the fact that the introduction of the Code in Egypt was the culmination of a long process of imperial pressure by European interests.

In addition, as the Code became the embodiment of universal legal liberalism applying to everybody equally, Taqlid came to be seen as expressive of sectarian specificity applying only to matters of deep interests to religious Muslim communities.¹⁵⁵ In this sense, Taqlid law was now equal in status to Coptic law, the latter regulating the personal status affairs of Copts (the Christian community) in Egypt.¹⁵⁶ As such, Taqlid law became the exception to the jurisdiction of the national courts rather than representing the origin and basis of national law.¹⁵⁷

Perhaps the most significant transformation to Taqlid law during this legal era was more institutional than normative. The centralization of the regulatory powers of the state not only allowed it to create a surplus of laws on top of Taqlid law through the promulgation of the Code(s), eventually turning Taqlid law itself into an exception, but it also allowed for the annexation of the domain of Taqlid as it promulgated laws intervening in Taqlid law and applying to qadi Taqlid courts.¹⁵⁸ These statutes were passed beginning the last two decades of the nineteenth century and culminated in various statutes regulating the family that were passed in the twentieth century.¹⁵⁹ These statutes include those that forced qadi courts to follow European laws of procedure as they adjudicated cases included under their shrunken jurisdiction.¹⁶⁰ Further, Taqlid courts were only to apply the decisive opinion of the Hanafi school of law on matters of marriage and divorce, defining thus the doctrinal sources of Taqlid law to be applied.¹⁶¹ This institutional annexation reinforced the very European, modern, and historically un-Islamic idea that the privileged and sole source of the law is the regulatory power of the state and not that of the private ijtihad of the jurists, as was the case under the Taqlid legal system.¹⁶²

2. Reactions to colonization: modernists, and nationalism

In 1948, a national Egyptian Civil Code was passed.¹⁶³ The promulgation of this Code (annulling the earlier Civil Code that applied to the national courts), drafted through the elaborate reconstructive work of the famous Egyptian jurist Sanhuri, marked the beginning of an autonomous Egypt armed with its own independent laws.¹⁶⁴ The Code was passed by the Egyptian parliament the very day the regime of Capitulations was abolished, setting the stage for the Egyptian national courts to become the primary courts of the land and the repository of Egyptian national sovereignty.¹⁶⁵

This era witnessed the emergence of two groups of legal elites, each reacting in its own way to the effects of Europeanization of the Egyptian legal system.¹⁶⁶ These elites spearheaded two legal modernization projects that were in effect hostile to each other, while at the same time incorporating in its project the historic claims of the other.¹⁶⁷ The first group was comprised of people like Muhammad Abduh and Rashid Rida.¹⁶⁸ These elites were confronted with both the de-Islamicization of the legal system in Egypt and the rising hegemony of notions of legal liberalism in the world.¹⁶⁹ Their response was to critique the medieval theory of Usul al-Fiqh, which, as indicated above, had a deep influence on the Taqlid schools of law.¹⁷⁰ They offered alternative ways of "legislating" law that was Islamic, by shifting the hierarchical ordering of the sources of law included in the theory of Usul.¹⁷¹ They proposed that the doctrines of public welfare and public interest (maslahah, istislah) replace qiyas (analogy) as a privileged source of law.¹⁷² Thus if a particular social need was not covered by specific religious texts, the traditional sources of the law, “a jurist using his reason might interpret the law in light of the public interest.”¹⁷³

These Islamic modernists, as they came to be called, also articulated and rationalized the doctrine of supra-madhhab.¹⁷⁴ Abduh argued that the state should not be confined to the rules of one madhhab but should feel free to seek the rules when appropriate for its purposes in the doctrine of any school of law.¹⁷⁵ This legal strategy was eventually incorporated and standardized in the statutes regulating the family in Egypt,¹⁷⁶ producing a now very familiar figure in Egypt as well as in the rest of the Arab world: the contemporary religious jurist, legal adviser to the Ministry of Justice on family law, whose whole training and legal sensibility is that of supra-madhhab.¹⁷⁷ In fact, one could say that the dominance of the supra-madhhab sensibility among almost all of the contemporary religious jurists represents the last blow dealt to the Taqlid system, with the latter’s intricate distribution of legal activity among several schools of law.¹⁷⁸

Unfortunately, the propagation of the supra-madhhab legal sensibility may be the only tangible result of the Islamic modernizing project of Abduh and his contemporaries.¹⁷⁹ In fact, some historians of Islamic law argue that contrary to these modernizers’ intentions, rather than providing [e] the basis for a new modernized Islamic law, their critique of Usul and the alternative methods for lawmaking that they proposed ultimately provided the methodological rationalization for the European-influenced, secular legal system in Egypt.¹⁸⁰ Moreover, the institutional proposals of these modernizers tended to copy the models of the institutions of the liberal state, but with Islamic names, lending further legitimacy to the legal institutional structure already in place in Egypt.¹⁸¹

The second group of legal elites to emerge during British colonial rule was the secular nationalists, descendants of the lawyers trained in the Capitulations as well as the earlier national court system.¹⁸² These lawyers were educated either in Europe or in the modern law schools set up in various Egyptian universities.¹⁸³ The curriculum of these law schools was at this time (and still is today) based primarily on European civil law.¹⁸⁴ These lawyers constituted an emergent power around the turn of the century and spearheaded, either as students or as professionals, the nationalist movement agitating against British colonialism (as well as against Egyptian royalty).¹⁸⁵ The rhetoric of the secular nationalists included the liberal discourse of constitutional rights.¹⁸⁶ For the nationalists, the system of Capitulations came to symbolize not modernity and universalism but imperialism and violation of Egypt’s sovereignty.¹⁸⁷ Sanhuri, the Egyptian jurist assigned the task of drafting a new Civil Code for an independent Egypt (promulgated in 1948) was a decided member of this group of elites, sharing its Europe-identified, but also paradoxically, nationalist liberal consciousness.¹⁸⁸

Just as the Islamic modernists had to contend with "liberalism" as the emergent norm among the competing secular elites, so did Sanhuri have to contend with the demands made by the Islamic modernizers about the role of Islamic law in the Egyptian legal system.¹⁸⁹ His Civil Code drafting project was marked by a preoccupation with incorporating Taqlid rules representing the Islamic in a piece of legislation that he also felt should include the latest and most advanced achievements in codification in the world.¹⁹⁰ An independent Egypt should be one that is both modern but also loyal to its own historical traditions.¹⁹¹

Sanhuri’s codification strategy attempted to mediate the tension between Taqlid law and European law (seen as “modern” law by the secular elites) by inventing the category of the "social."¹⁹² Influenced by the latest insights of the French sociological school of jurisprudence of the twenties and the thirties, Sanhuri argued that the most advanced codes were the ones that most approached in their rule structure the idea of “the social” (as opposed to the “individualist”).¹⁹³ Further, he argued that the “social” was what medieval Islamic jurisprudence also based its rules upon.¹⁹⁴ The comparative legal methodology that Sanhuri followed in drafting his Code allowed him to read the insights of the German code, considered the most advanced at the time, into Taqlid law, and to incorporate Taqlid either as discrete rules or by symbiosis through German law.¹⁹⁵ In the end, the Egyptian Civil Code came to reflect a European social agenda embodied in a legal instrument that represented, in the fashion of European codes, the universal, the rational, and the rule of law.¹⁹⁶ Contrary to the fashion of European codes, however, Sanhuri did not draft a section on family law as part of his Code.¹⁹⁷ That was to remain the privileged legal domain of Taqlid law.¹⁹⁸

It is noteworthy to mention that when Sanhuri set out to draft the Civil Code, he had the ambition of drafting a section on family law that would be applicable to both Muslims and Copts in Egypt; he eventually dropped this plan.¹⁹⁹What is significant about all this is that it gives us a hint as to the way that the secular nationalist legal elites regarded the status of family law in the nascent independent state of Egypt.²⁰⁰

Sanhuri’s desire to include family law in the Civil Code and apply it to both Muslims and Copts reflects the fact that he and other nationalist reconstructive lawyers aspired to overcome and transcend the quality of sectarian specificity that Taqlid law had acquired in the preceding era.²⁰¹ The secularist nationalist aspiration considered that, through inclusion in the Civil Code, family would acquire the Code’s quality of the universal, becoming thereby applicable to all the citizens (nationals) of Egypt equally. Sectarian law was to them symbolic of a pre-nationalist era in which different sectarian communities applied their own discrete laws, which, to the nationalist secular mind, would be reminiscent of the Capitulations and Consular legal systems, given the fact that it was the reigning logic of sectarianism and the "personality of laws" that rationalized the application of the law of their country of origin to foreign nationals living in Egypt.²⁰²

Ultimately, the closest the secular nationalist elites came to overcoming the sectarian specificity of Taqlid family law was not by including it in the Civil Code, but by simply incorporating the Taqlid qadi courts into the national court system under Nasser in 1955.²⁰³ Although these courts are now part of a unified secular court structure, the family law that they apply still has the quality of religious Taqlid law.²⁰⁴ The judges who oversee these cases vary in their educational background, with some having graduated from Al-Azhar University, a renowned religious institution (though drastically secularized under Nasser)²⁰⁵ and others having studied in the law schools of secular Egyptian universities.²⁰⁶

D. A compromise on the question of women and the family

I would argue that dropping family law from Sanhuri’s civil code symbolizes a historic abandonment by the male secular legal elites of the question of women.²⁰⁷ This abandonment allowed them to avoid the agonizing problem of how to reconstruct family law in a manner parallel to that of reconstructing other areas of law, say, for instance, contract law. The historical question that remains unanswered is how Sanhuri would have confronted this problem and how he would have used his comparative legal methodology, with its mediation strategies, to construct a family law that is both modern and Islamic. One wonders whether the European liberal feminism of his time would have helped him in the same way the "social" helped him in mediating the reconstruction of contract law. The main legal influences at work in Sanhuri’s project were not those of mainstream French legal thought but those of oppositional, generally leftist responses to the mainstream in France represented by the sociological school of Geny and Lambert.²⁰⁸ However, it is not clear how feminist Sanhuri and the other Egyptian secular nationalists were.²⁰⁹

Dropping family law from the Civil Code also meant that it was abandoned to Taqlid law as the latter had been transformed throughout the past two centuries, first through the forces of centralization and Europeanization and second, through the entrenchment of the supra-madhhab legal sensibility among jurists, as described above. In addition, religious elites came to embrace family law as the last domain of their influence and treated every attempt at statutory reform as another assault on the Islamic by the secular elites running the state.²¹⁰ While the secular male elites exempted family law from the project of legal reconstruction of the Civil Code, they nevertheless chose to support piecemeal reform legislation on the issue.²¹¹ Each piece of legislation, in turn, opened up a confrontation with a religious elite that was already anxious about its limited jurisdiction, translating every attack on the patriarchal as an attack on the Islamic.²¹²

Interestingly, the main ideological driving force behind these statutory reforms was Egyptian secular feminism, which rose and came into prominence during the first half of the twentieth century.²¹³ While the male secular elites allied themselves politically with the agitating Egyptian secular feminists, (along with some enlightened ulama), they nevertheless always ended up following the strategy of splitting the difference between the demands of the conservative religious elites and those of the feminists, a strategy followed by judges as well as legislators. This strategy has meant that the march towards a legal liberal feminist understanding of the family, which was the political agenda underlying Egyptian feminism, was continuously disrupted.²¹⁴ One of the most striking features of the debate on family law in Egypt is the relative stability of its terms throughout the twentieth century.²¹⁵

In the debate concerning family law in Egypt, both during the process of modernization that took hold during the independence era as well as in current times, feminists agitated for legal reform of Taqlid rules that establish inequality in the family.²¹⁶ Their demands included a prohibition of polygamy; equal access to divorce for women and men; an increase in the financial rights of women; elimination of child marriage; and the end to the legal institution of obedience within marriage.²¹⁷ On the other hand, there were (and indeed, still are) religious elites, allied over time with different religious groups, declaring every one of these demands as an assault on a God given right.²¹⁸ In the middle were the secular male elites who were busily splitting the difference between the demands of the two, as legislators and judges, by restricting but not outlawing polygamy; adding more grounds for wives to be granted divorce, yet not equalizing access to it; and reinterpreting and restricting the terms of the wife’s obedience, but not abolishing it.²¹⁹ Unfortunately for Egyptian feminists, the light of liberal feminism remains teasingly quivering at the end of the tunnel, as it has been for decades.

III. Legislating the family

During the processes, described above, of legal change that took place in Egypt in the nineteenth and twentieth centuries, Taqlid law was transformed, not only as a legal system per se, but also doctrinally, as it was incorporated into modern legislation. To understand this process, it is useful to compare and highlight changes in Taqlid in Egypt with what took place in Jordan and Tunisia. In addition, it is also useful to understand the doctrine of the Hanafi school of law related to the family, as codified by the Egyptian Qadri Pasha in the late nineteenth century, when codification of laws as legislative style became dominant in Egyptian legal culture.²²⁰ His codification of Hanafi doctrine never became official law in Egypt,²²¹ but it is interesting to look at because codification resulted in a concise and accessible account of the doctrine, which otherwise sits in multiple medieval treatises and commentaries and is hard to access without elaborate effort.²²² Hanafi doctrine constitutes the background body of rules that the modern Egyptian statutes are seen as departing from and intervening in. Likewise, Hanafi doctrine greatly influenced the Jordanian legislature when it set out to comprehensively codify family law.²²³ Hanafi doctrine can also be used comparatively to show how far modern Arab legislatures have departed from the legislative model on the family contemplated by the Taqlid legal system.

Tunisia provides an interesting instance of legislating liberalism in family law that has no parallel anywhere in the Arab world.²²⁴ However, the doctrine that historically prevailed in North Africa and that influenced Tunisian legislation on the family was that of the Maliki school and not that of the Hanafi.²²⁵

The data from this comparative analysis has been summarized in the table below. The table is followed by a discussion of the information.

A. Comparative data

B. A comparative reading of the legislative regulation of the family

The comparative data provided in the table above allows one to make several observations. First of all, as mentioned earlier, if one were to put these examples on a spectrum of legislative possibilities, the Hanafi doctrine and Tunisia would sit on the two opposite ends of the spectrum, while Jordan and Egypt would represent the two intermediary positions. The Hanafi doctrine would stand for the Taqlid conception of gendered relations in the family, which was hierarchical to the benefit of the husband and the male guardian, with a strong underlying element of transactional reciprocity of obligations between the spouses. Tunisia, on the other hand, would represent the approach closest to the U.S. model of equality between the spouses. The Egyptian and Jordanian legislative approaches, situated in the middle, represent the attempt to curtail, often half-heartedly, the conspicuously brutal aspects of husband and father power typical of the Hanafi doctrine [that] they have inherited, without dismantling the hierarchy between the spouses and that between father and daughter altogether.

1. The Tunisian model²²⁶

Although the Tunisian model contains elements that are close to the U.S. notion of gender equality,²²⁷ what is significantly absent from the Tunisian approach is the doctrine of privacy, which historically played a critical role in regulating the family in the United States. A cursory and formalist reading of the rules in the Tunisian Majallah (Code) suggests that the law does not shy away from regulating matters over which the curtain of privacy is typically pulled in the United States.²²⁸ Such matters include maintenance obligations within the family, and a detailed regulatory account of how the relationship between husband and wife should ideally be organized.²²⁹

For instance, Article 23 of the Majallah provides for the obligation of maintenance by both husband and wife, good reciprocal treatment by both spouses, and the division of labor within the family between both husband and wife.²³⁰ One of the principal ways in which the Tunisian legislature sought to change the hierarchical relationship it inherited from the Maliki Taqlid legal system²³¹ was to undermine as much as possible the division of responsibilities and powers within the family. As discussed previously, gendered reciprocity was based on the idea that the husband’s duty to maintain the wife and the children allowed the exercise of a set of powers in the family. Thus the wife owed the husband obedience, as did the children over whom he exercised guardianship powers. Tunisian legislators assumed that if the wife wanted to exercise powers similar to those of the husband, she should be willing to take on parallel responsibilities.

One of the most original legislative interventions to occur in Tunisia was the move to impose upon the wife the responsibility of participating in the maintenance of the family, if she has money of her own.²³² In return, the wife acquired several powers, including the power to consent to the marriage of a minor child,²³³ equal power to divorce her husband,²³⁴ the power to make custodial decisions relating to children,²³⁵ and the power to exercise the guardianship role in the absence of the husband.²³⁶ More importantly, the wife no longer owes her husband the duty of obedience, one of the most important institutions of the Taqlid legal system.²³⁷

However, one notes peculiarities in the Tunisian equality strategy. For instance, the theme of husband/father maintenance of wife/family still runs deep in the modern Tunisian doctrine on the family. It is the husband/father who is still considered the primary provider in the family (“the head of the family”), whereas the wife/mother contributes only secondarily and only if she has money. In return for this secondary position as provider, the wife gets guardianship powers over children only secondarily and contingently, if the father is absent or dead.²³⁸

The secondary position of provider contemplated by the Tunisian Majallah places the wife, in certain respects, not as her husband’s equal, but rather as the interceptor of the male line of responsibilities and powers in the family. Financial responsibilities and powers under the Taqlid system often followed a male line.²³⁹ If the husband was not available to assume responsibility and power for reasons of absence or death, his father was required to step in to maintain the family or exercise guardianship powers.²⁴⁰ Allowing the wife to take on this role after the father/husband means that, in several doctrinal matters, rather than being the husband’s equal, the wife has simply become the next male in line to exercise powers and responsibilities.²⁴¹ In other words, she is now the husband’s “father.”

There are dangers associated with the wife’s new position of equality as conceived by the Tunisian legislature. She loses certain privileges that the Taqlid legal system had awarded her by virtue of its conception of the gendered organization of the family. First, the wife can no longer assume that her own wealth and property are completely outside her husband’s reach, as was the case before.²⁴² Whereas under the Taqlid regime she was, in general, immune from demands that she participated in maintaining the family, this is no longer the case.²⁴³ Second, the Tunisian wife can no longer benefit from the Taqlid legal presumption that she has priority of custody over young children after divorce. Tunisian legislators have replaced this with the standard used by judges in the United States to award custody, namely, the best interests of the child.²⁴⁴ In the United States this seemingly egalitarian standard proved to be disastrous for women.²⁴⁵ Several authors have pointed out that some judges in the United States use this doctrine to privilege men over women.²⁴⁶

It is important to note that not only did the new Tunisian standard de-privilege women in custody decisions, it also de-privileged the female line of custody that the Taqlid legal system provided for. Thus under the new regime, if a woman loses custody for reasons of, say, remarriage, the custody does not go to her mother, as was the case under Taqlid law,²⁴⁷ but to her husband.²⁴⁸ In other words, in custody cases the husband intercepts the female line so that he is now the wife’s “mother.”

The reciprocal interception by the husband of the female line in cases of custody, and by the wife of the male line in cases of guardianship, suggests that the Tunisian legislative intent is actually to replace the extended family model as a form of social organization with that of the nuclear family.²⁴⁹ The spouses now stand, in a reciprocal exchange of roles, as the center of the family, to the exclusion of other relations, namely their fathers and mothers. This is reinforced by the fact that fathers no longer have the power, under Tunisian law, to “marry” off minor daughters by force, nor is their consent required for marriage of daughters of majority age.²⁵⁰

When one also considers the outright legislative prohibition of polygamy in the Tunisian Code,²⁵¹ as well as the abolition of the institution of obedience, with both being unique in modern Arab legislation, it becomes clear that the new family is not only nuclear but one based on companionship and love. The assumption by the modern Tunisian legislature is that the relationship between spouses is now more personalized than it was the under the Taqlid regime, bringing reciprocal expectations of attachment and intimacy. However, it is not clear to what extent the legal advocacy of the companionate family undermined the social power of extended family formations and female subordination in modern Tunisia.²⁵²

2. Hanafi doctrine

If we look at Hanafi doctrine, as codified by Qadri Pasha, on the other end of the spectrum, we find that it advocates a particularly patriarchal structure for the family. This is so because, even in comparison with the other schools of law, under the Taqlid legal system, the Hanafi doctrine gave women fewer financial rights in marriage²⁵³ as well as less means of exit from the martial relationship.²⁵⁴ At the same time, Hanafi rules reward the husband more for his financial obligations by adding to his powers in marriage.

For instance, under Hanafi doctrine, the wife’s maintenance does not necessarily include her medical expenses if she falls ill.²⁵⁵ In addition, the woman is not allowed a divorce even in the case of harm.²⁵⁶ If the husband beats his wife, her only resort is to go to a judge and request that he be reprimanded, in the case that the judge determines his exercise of his disciplinary powers is in excess, meaning he beats her too hard.²⁵⁷ The wife, under Hanafi doctrine, is not even allowed to leave the house in this case, lest she be declared disobedient for leaving the house without her husband’s permission, which would result in her loss of maintenance.²⁵⁸ Thus under Hanafi doctrine, a wife can very well find herself stuck in an abusive situation, especially if she is too poor to afford leaving the house to escape her abuse or to bargain her way out the marriage through khul.This particular arrangement of doctrinal elements, unique to Hanafi law, produces a marital regime that is closer to one of “status” rather than one of “contract.” In this regime, women get much less and men much more than a transactional contractual arrangement would warrant. This is far from being the marital contract of obedience for maintenance. The status-like powers of the husband in the Hanafi doctrine is moreover reinforced by the fact that the Hanafis are quite strict about the kind of terms women are able to stipulate in their marriage contract to protect themselves from the punitive aspects of Hanafi law.²⁵⁹ For instance, a wife cannot stipulate that her husband cannot take another wife and that in the event he did take another wife she would have the power to dissolve the marriage.²⁶⁰ Such a stipulation would be treated as void for violating the nature of marriage.²⁶¹ The marriage contract itself, however, would still be considered valid.²⁶² In many respects, a poor wife under Hanafi doctrine resembles a wife living in the United States during the 19^th century, when Blackstone’s legal regime of subjugation to husband rule prevailed.²⁶³

C. The specific case of family law reform in Egypt

The strategy of both the Egyptian and Jordanian legislatures, representing the intermediate positions on the spectrum, is to disassemble the doctrinal elements of the status regime of the Hanafi doctrine and to transform it into one that is more contractual. Both have an initial commitment to the traditional rules, and they treat their respective pieces of legislation as simply an intervention in, and modification of, the Hanafi doctrine.²⁶⁴ Under the laws of both countries, if the legislation fails to regulate a particular matter, resort is made to the decisive opinion of the Hanafi school.²⁶⁵ In contrast, Tunisian lawmakers do not see themselves as intervening in the Maliki doctrine, the ruling doctrine in North Africa under the Taqlid legal system. Indeed, the Tunisian legislature, rather than being constrained or bound by traditional legal rules, has codified a new legal regime.²⁶⁶

It is possible to assess the difference between the Tunisian legislative strategy and that of Egyptian (and Jordanian) lawmakers. Whereas Tunisian lawmakers attempted to grant women equality by taking an elaborate step towards abolishing the relationship based on reciprocity assumed by the Taqlid legal system (obedience for maintenance),²⁶⁷ those in Egypt made no attempt in this direction. Under Egyptian law, maintenance is still the primary responsibility of the man, and it is from this responsibility which he derives all sorts of powers (women’s obedience, unilateral no-fault divorce, and guardianship rights). In addition, the primary responsibility of the woman is still to obey her husband in return for maintenance, while at the same time being deprived of the same powers as a man.²⁶⁸ No attempt has been made to destroy this legally enforced division of labor to achieve a semblance of equality between the spouses. Of course the maintenance/obedience transaction leaves women’s personal wealth and property untouched, safe from the demands and needs of the family.

Egyptian lawmakers followed a strategy of reform based on a set of discrete steps and actions. First of all, they added on to women’s maintenance rights, adding to the list of items included in a wife’s maintenance “package” her medical expenses, this being a departure from the Hanafi doctrine.²⁶⁹ In addition, the law requires that the divorcing husband provide his custodian wife with residence to use with her children as part of her custodial fees.²⁷⁰ Second, Egyptian lawmakers reduced the requirements of women’s duty of obedience. For instance, the Hanafi presumption that a working wife is disobedient when she leaves the house without her husband’s permission is reversed. Under new laws, the presumption is that she is not disobedient unless it is judged that her work constitutes an “abuse of right or is contrary to the interests of the family” and her husband asked her to stop working.²⁷¹

In addition to increasing women’s maintenance rights and limiting her duty to obey her husband, Egyptian reforms have chipped away at the surplus of powers that Hanafi doctrine allows the husband, considering such powers to be in excess of the transactional deal of maintenance for obedience.²⁷² In this respect, the powers of the husband were seriously curtailed when the disciplinary institution of the “house of obedience” was abolished in 1967.²⁷³ Egyptian feminists agitated in the 1960s to put an end to what they saw as a deeply humiliating practice inflicted on women who chose to leave the marital home.²⁷⁴ While they succeeded in abolishing the practice of using the police to enforce obedience judgments, obedience itself, however, remains a legal duty that wives owe their husbands in exchange for their maintenance.²⁷⁵

Another blow dealt to the Hanafi husband’s surplus of powers was brought about by legislation that grants women the power to request divorce for harm (Law 25 of 1929) and requires judges to grant women divorce if they fail to prove harm but still insist on terminating the marriage (Law 100 of 1985).²⁷⁶ The latter effectively means that Egyptian wives have come close to acquiring access to no-fault divorce. Divorce is conditional, however, upon the woman’s willingness to go through an elaborate process of attempted reconciliation with the husband, mediated by the court, as required by the law.²⁷⁷ This conciliation process is not required when the husband divorces the wife.²⁷⁸

The fact that husbands in Egypt are no longer able to use the police to force the return to the marital home of their “disobedient” wives, and that Egyptian women are no longer legally trapped in an abusive marriage but can exit it through either divorce for harm or ‘khul regardless of the husband's consent, essentially means that the transactional quality of the Taqlid marriage contract has been legislatively rehabilitated. Marriage is now simply obedience for maintenance; if one is not offered, the other is denied. Husbands no longer have extra powers (such as discipline and the “house of obedience”) to force women to commit to this transaction or anything else on top of that. The Egyptian legislature achieved these reforms not by abolishing the husband’s disciplinary powers, recognized independently by the Hanafi doctrine as part of the list of powers provided to husbands. Rather, the changes were made through small legislative moves taken on other fronts, the aggregate effect of which was to strip these disciplinary powers of their otherwise potentially brutal impact.²⁷⁹

The Egyptian legislative policy of adding to the wife’s maintenance rights, reducing the requirements of the wife’s duty of obedience, and chipping away at the husband’s powers stands in contradistinction with the Tunisian legislative policy of introducing a complex, liberal notion of equality between the spouses.

IV. Adjudicating the family in Egypt

To truly understand steps taken to reform family law in Egypt, one must look at the way in which the judiciary has decided cases related to the issues of obedience and a wife’s request for divorce based on harm. Abolishing the “house of obedience,” allowing wives to request divorce for harm, and more recently, granting women the right to a 'khul divorce without having to obtain the husband's consent, legislatively, were significant steps taken to chip away at the status regime of the Hanafi doctrine. In addition, Egyptian courts have continued the legislative path of disassembling the elements of the Hanafi doctrine that in effect traditionally produced the status regime.

Two moves taken by the judiciary released women from the disciplinary rule of the husband. First of all, Egyptian courts decided, ambivalently and gradually, that women beaten by their husbands do not owe their spouses a duty of obedience. Second, the courts have treated obedience cases as separate from and irrelevant to the outcome of cases concerning requests for divorce based on harm. It is important to note, however, that the decisions of the Egyptian courts are contradictory and conflicting to a degree that puts into question the exact effectiveness of these judicial moves.

A. Adjudicating obedience

Several women have appeared before Egyptian courts because they were charged with disobedience for leaving the marital home without their husband’s permission. These women responded by stating that they had left because their husbands beat them. The question before the court was whether to accept this argument, particularly given the fact that these women were not re