by Lama Abu-Odeh*
- I. Family law under the pre-modern islamic legal system of Taqlid
- 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
- D. A compromise on the question of women and the family
- III. Legislating the family
- 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
- . 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
- A. Adjudicating obedience
- V. Conclusion
- Endnotes for main text
- Endnotes for table
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 19th 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 19th 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.
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.
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
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
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.
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.
The decline of the Taqlid legal system in Egypt began with the reign of Mohammad Ali in the early part of the 19th 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.
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
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
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
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
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.
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.
|Issue||Qadri Pasha’s Shari’a Provisions on Personal Status (Compiling Hanafi Doctrine)ii||Egypt||Jordan||Tunisia|
|1. Father’s Consent to Daughter’s Marriageiii||– Under Article 51 of Pasha’s rules, the father’s consent is not required if daughter is of majority age.iv||– Unregulated by statute. Rule under Hanafi doctrine governs by default.vii||– Under the dictates of Jordanian Personal Status Law No. 61 (1976), the guardian’s consent is required in all cases;viii however, under Article 13, an exception is made if the woman is of majority age and has been married before.ix||– Under Article 3 of the Tunisian Majallah (Code) of Personal Status, (Decree 13, 1956), the father’s consent is not required if daughter is of majority age.x
– However, under Article 6, the consent of both the father and the mother is required for the marriage of a minor child.xi
|2. Kafaa’ Doctrine||– Under Article 52 of Pasha’s rules, if the daughter marries one who is not her equal against her father’s wishes, the contract is void.xii||– Unregulated by statute. Rule under Hanafi doctrine governs by default.||– Under Article 22 of the Jordanian Code, if a woman denies having a guardian and marries, and then her guardian appears, he can dissolve her marriage on the basis of “inequality”.xiii||Non-existent.|
|3. Maintenance of Wife||– Under Article 160 of Pasha’s rules, maintenance, the obligation of the husband, is earned by the wife from the date of the contract.xiv
– Under Articles 171 and 169, the wife loses her maintenance if she leaves the house or works without her husband’s permission.xv
|– Under Article 1 of Law No. 100 (1985), maintenance, the obligation of the husband, is earned by the wife from the date of contract.xviii
– Article 1 provides that the wife loses her maintenance if she leaves the house without her husband’s permission,xix or if she works and it is judged that her work involves “abuse of the right,” or that it is contrary to the interests of the family, provided that in both cases her husband requests she stops working.xx
|– Under Article 35 of the Jordanian Code, maintenance, the obligation of the husband, is earned by the wife from the date of contract.xxi
– Under Article 68 of the Code, she also loses maintenance if she works outside the house without her husband’s permission.xxiv
|– Under Article 23 of the Tunisian Majallah, the husband is the “head of the family” and he is responsible for the maintenance of wife and children.xxv
– Also under Article 23, the wife has to contribute to the maintenance of the family if she has money.xxvi
|4. Discipline of Wife by Husband||– Under Article 209, the husband has the right to discipline his wife for “trespasses” not punishable by hadd,xxvii but the same article establishes that he can’t beat her hard under any circum-stance.xxviii||– Unregulated by statute. Hanafi rule governs by default.||– Unregulated by the Jordanian Code, except for the declaration in Article 69 that the wife has the right to be “disobedient” by leaving the house if her husband beats or mistreats her, without losing her maintenance.xxix||– Under Article 23 of the Tunisian Majallah, both spouses are obligated to treat each other well and avoid inflicting any harm on each other.xxx|
|5. Polygamy||– Under Article 19 of Pasha’s collection, a man may have up to four wives.xxxi||– Under Article 11 of Law No. 100 (1985), a man may marry up to four wives, but he has to inform both the old and new wife of the other marriage.xxxii
– Under Article 6 of Law No. 100 (1985), the wife can request a divorce if she can prove harm, material or emotional, resulting from the new marriage.xxxiii
– In addition, under Article 11 bis, the new wife can request divorce if she learnt after the marriage that her husband had other wives.xxxiv
|– Under Article 28 of the Jordanian Code, a man may have up to four wives.xxxv
– However, under Article 19(1), the wife can stipulate in the marriage contract that he cannot take another wife, in which case if he does, the marriage contract would be dissolved and the wife retains all her financial rights.xxxvi
|– Under Article 18 of the Tunisian Majallah, polygamy is prohibited, and is punishable by one-year imprisonment and/ or a fine of 240,000 francs.xxxvii|
|6. Divorce by Wife||– Under Article 260 of Pasha’s collection, a husband can delegate to his wife the right to divorce.xxxviii
– Article 273 also provides for ‘khul, whereby a wife can buy her freedom from the marriage by giving up some or all of her financial rights.xxxix
– In addition, under Article 298, a wife can request a divorce if her husband is only capable of anal intercourse.xl
|– Under Article 4 of Egyptian Law No. 100 (1985), a judge can grant a wife divorce for continual failure by her husband to provide maintenance,xli and under Article 9, if her husband suffers from a serious disease.xlii
– Under Articles 12 and 13 of Egyptian Law No. 100 (1985),the wife can get a divorce in case of long absence of husband, and under Article 14, in case of his imprisonment.xliii
– Under Article 6, in case of harm inflicted by the husband, the wife can also get a divorce.xliv
– Hanafi grounds for divorce are also available to the wife.
– Due to changes made in Egyptian procedural personal status law in 2000, women can now apply for ‘khul divorce.xlv
|– Under Article 19(i) of the Jordanian Code, a husband can delegate to his wife the right to seek divorce without his consent.xlvi
– Consensual divorce (‘khul) is provided for in Articles 103-109.xlvii
– Under Article 115, a woman has the right to request a divorce if her husband has an incurable disease.xlviii Other grounds include, under Article 120, insanity;xlix under Article 130, his imprisonment,l and under Article 123, his absence.li In addition, under Article 127, a wife can request a divorce if her husband does not pay maintenance,lii and under Article 132, if he inflicts harm on her.liii
|– Under Article 31 of the Tunisian Majallah, divorce is available for both spouses either through mutual consent; if either can prove harm inflicted by other; or upon husband’s desire, or wife’s request.liv|
|7. Woman’s Financial Rights after Divorce||– Under Article 311 of Pasha’s collection, a woman has a right to maintenance during her waiting period of three menstrual cycles (idda).lv Under Article 316, if she is pregnant, she is entitled to maintenance for the entire term of her pregnancy.lvi
– Under Article 106, the wife also has a right to her deferred dowry.lvii
-In addition, Article 118 guarantees the wife’s right to keep the household items and furniture she contributed to the marriage.lviii
– ‘Khul divorce is regulated by Articles 273-297.lix In the case of khul divorce, according to Article 274, a wife’s financial rights depend on the agreement made with the husband.lx Articles 276-277 dictate that she may give up all or part of these financial rights.lxi
|– The wife has all of the financial rights given her under Hanafi doctrine.
– In addition, under Article 18 bis of Law 100 (1985), she has the right to maintenance of at least two years if she was divorced against her will.lxii
– Also, under Article 10 of Law 100 (1985), when a wife seeks divorce based on harm, if the court determines that she suffered harm at the hands of her husband, the wife keeps all her financial rights.lxiii
|– The wife has all of the financial rights given her under Hanafi doctrine.
– In addition, under Article 134 of the Jordanian Code, if she claims she was harmed because she was divorced against her will, she has the right to up to one year of maintenance.lxiv
– Also, under Article 132, if the court determines that she suffered harm at the hands of her husband, the wife keeps all her financial rights.lxv
|– Under Article 35 of the Tunisian Majallah, the wife has the right to maintenance during her waiting period of three months (idda) unless she’s pregnant, in which case the maintenance covers the term of her pregnancy.lxvi
– She also has the right to her deferred dowry;lxvii and, under the provisions of Article 31, if the court determines that the husband caused her harm, she is awarded a monthly alimony as well as a decent residence.lxviii Article 31 provides that both of these provisions apply until she remarries or earns money and can make do without alimony.lxix
|8. Rules on Custody||– Under Article 365 of Pasha’s rules,lxx the mother has priority in custody of the children, for which she earns a fee from the father.lxxi Article 391 dictates that her custody over children lasts until a boy is seven years old and a girl is nine.lxxii
– Under Article , upon remarriage, the mother loses custody, unless she marries a mahram,lxxiii and under Article 393 she can’t travel with the child for long distanceslxxiv without the father’s permission.lxxv
– Under Article 420, the father retains full guardianship rights over the children, even while they are in their mother’s custody.lxxvi
|– Hanafi rules apply with the following modifications: Under Article 20 of Law 100 (1985), custody ends when the boy is ten years old and the girl is twelve;lxxvii under the same article, the judge can order that the children stay with their mother until the boy is fifteen years old and the girl gets married.lxxviii However, again under the provisions of Article 20, she does not earn the custody fee during the extended period.lxxix
– Under Article 18b(3) of Law 100 (1985), after divorce the husband has to provide an independent residence for the mother and his children during the term of custody and if he doesn’t, depending on the circumstances, they may have the right to live in the marital apartment (without him) unless he provides them with a separate home.lxxx
|– The mother has priority of custody, for which she earns a fee.lxxxi
– Under Article 161 of the Jordanian Code, custody lasts until the boy is nine years old and the girl is eleven, although Article 162 provides that the period can be extended for the entire time of their minority.lxxxii
– Under Article 156 of the Jordanian Code, if the mother remarries, she loses custody, unless she marries a mahram.lxxxiii Also under Jordanian law, she can’t travel with the child outside of the country without the father’s consent.lxxxiv
|– Under Article 67 of the Tunisian Majallah, the mother has no priority of custody. Instead, custody can be awarded to either parent according to the “best interests of the child,” which is determined by a judge.lxxxv
– Also under Article 67 of the Tunisian Majallah, the mother as custodian makes decisions on child’s travel, studies and financial affairs.lxxxvi
– Article 56 provides that fee for custody is taken from child’s money if s/he has any, and if not, the father pays their expenses.lxxxix
– If the mother custodian doesn’t have a place to live, the father has to provide her a residence.xc
|9 Maintenance and Guardianship of Childrenxci||– Under Article 396, the father maintains children if they don’t have money of their own, until the boy can earn a living, and the girl gets marries.xcii
– Under Article 420, the father has guardianship rights over the person and the money of his minor children or those still maintained by him.xciii For example, under Article 420, the father has the power to force his minor children to marry,xciv and under Article 422, he can hire his children out for employment.xcv
|– Under Article 18b(2) of Egyptian Law No. 100 of 1985, the father maintains the children if they don’t have money of their own until the girl marries or earns a living and until the boy is fifteen years old, if he is capable at that time of earning a living.xcvi
– The father has guardianship rights over his children until the age of twenty-one.xcvii
|– Under Article 168 of the Jordanian Code, the father maintains the children if they don’t have money of their own, until the boy can earn a living, unless he is a student, and until the girl marries.xcviii
– Under Article 169, the father is obliged to cover the expenses of the children’s education until they get their first university degree.xcix
– Under Article 165, the male guardian of either the unmarried woman who is under forty or the divorcee woman who “cannot be left on her own” can request that the woman joins him in his household.c If she refuses, she loses her maintenance.ci
|– Under Article 46 of the Tunisian Majallah, the father maintains children until they are of majority age or until they finish their education.cii Also under Article 46, the father maintains his daughter until she works or marries.ciii
– Under Article 47, if the father cannot maintain them, then it is the mother who’s responsible for their maintenance.civ
– Under Article 154, the father is the guardian of minor children unless he is deceased, in which case the mother is the guardian.cv
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
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 19th century, when Blackstone’s legal regime of subjugation to husband rule prevailed.263
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.
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.
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 requesting a divorce due to harm. What these women wanted instead was simply to leave the house to escape the harm inflicted on them by their husbands, without losing the maintenance they desperately needed. Under the law, if judged disobedient, these women stood to lose their maintenance. Below I discuss various cases and the decisions made by the court.
Obedience is the wife’s legal duty as soon as she is awarded her prompt mahr and a legal residence is provided for her to inhabit.280
The husband has the right to his wife’s obedience and to “her enjoyment” and he cannot beat or discipline her. If he did she should resort to court, which must then reprimand him and prevent him from hurting his wife. The wife, however, does not have the right to disobey him on the grounds that he beat her.281
The husband has the right to his wife’s obedience and to “her enjoyment” by virtue of the marriage contract, and she does not have the right to withhold herself from him for reasons of harm and battery. She also has no right to leave the house for that reason, as long as she lives among good neighbors. If her husband beat her, she should complain to the judge, who would punish and discipline him.282
If a husband beats his wife without justification he ought to be disciplined even if the beating was not hard. There is no particular and prescribed way on how to discipline such a husband; it is up to the judge to decide on this question. The judge may therefore decide to deprive the husband of his wife’s duty of obedience.283
A husband who beats his wife is not to be entrusted with her. He therefore loses his right to his wife’s obedience.284
The law has allowed the wife to request divorce for harm if living with the husband has become impossible. This being the case, harm that is “good” enough to allow a wife to get divorce, is also “good” enough to allow a wife less than that: disobedience. What other courts have decided, namely, that such a conclusion would lead to “obstructing” marriage contracts, is baseless.285
Most cases dealing with the question of obedience attempt to define the outer limits of this legal duty in various contexts. They deal with questions such as whether the wife is disobedient when she refuses to move to a new residence upon her husband’s request, if she had stipulated in the marriage contract that she would only live in a specific residence;286 if she leaves the marital home because her husband was appropriating her money;287 and if she leaves the marital home because her husband engaged in homosexual practices.288
A series of decisions by the Egyptian Court of Cassation, the highest court of appeal in Egypt, has affirmed that the issue of disobedience is to be treated as different from, and its outcome regarded as irrelevant to, the issue of the same wife’s request for divorce based on harm. The Court has decided that these issues should be seen as independent from each other, based on the fact that the cause of action for one is different from that of the other. In addition, the facts that trial courts are to take into consideration when assigning fault are different for the two issues. Separating disobedience from divorce based on harm has the effect of breaking yet another part of the chain of imprisonment husbands had imposed on their wives under Hanafi doctrine.
While the courts might feel strongly that wives should earn their maintenance by offering obedience, this being the nature of the marriage transaction, objections do not arise when the wife is requesting an end to this marital transaction through divorce for harm. Maintenance is no longer due in this case, and the court simply has to apportion the blame between the spouses and determine if the husband owes the wife anything, or vice versa. To prove that disobedience was justified requires a strict standard of harm, whereas in the case of divorce for harm, the standard is a looser one. To transfer the standard of the one case to the other would be unfair.
The case on obedience differs from the case on divorce for harm. The first is based on abandonment and departure from the marital home, while the second on the wife’s claim that her husband harms her. The outcome of the obedience case does not preclude the court from looking into the wife’s request for divorce based on harm.289
Declaring a wife disobedient in a case on obedience does not preclude the court from adjudicating her request for divorce based on harm. When the lower court refused to consider the outcome of the obedience case, it was making the correct decision.290
It is not correct to argue, as the lower court did, that the wife’s submission to her husband after she was adjudged disobedient indicates the absence of harm justifying her request for divorce. The two cases are different from each other and should be treated as such.291 On the other hand, the Court of Cassation also decided:
The lower court, as it investigates the question of harm in a divorce case can look into the facts that have transpired in the case on obedience, and it is up to the court to decide whether these facts amount to harm inflicted by husband, thus justifying granting the wife a divorce. The court, however, has to be clear in its reasoning.292
The bulk of the cases concerning the granting of divorce based on harm done to the wife addresses the question of what kind of acts the court should take into account when accessing the harm done. The question is of importance not so much because a woman might be denied divorce—a woman can get a divorce even if she fails to prove harm. What makes the issue important is the fact that there will be an allocation of responsibility after the divorce is granted, and this allocation has financial consequences.293
The Court of Cassation as well as the lower courts have produced a wealth of cases defining the kind of acts that are to be considered harmful. The definition of harm tends to be elitist, and what is harm for a rich woman may not be harm for a poor one. The Court of Cassation thus defined harm as “inflicting verbal or physical injury on the woman in a way that does not befit people of her social status.” 294 (emphasis mine) The Court of Appeals likewise reasoned that “what a woman of a certain social class finds tolerable another of a different social class does not.”295 In another case, the court decided that, “harm does not have to be repeated. A single hurtful act is sufficient to allow a wife to request divorce, particularly considering that the woman concerned is a working and educated woman.”296 (emphasis mine). In yet another instance, the Court of Cassation declared that, “the charge being made by the husband that his wife was in contact with her ex-husband is a charge which is not tolerated in any social milieu and leads to poisoning the relationship between the spouses.”297 (emphasis mine)
The financial consequences for poor women of the definition of harm that Egyptian courts have adopted can be great. Unfortunately, however, the published texts of these cases do not provide any details about the way the courts allocated financial responsibilities between spouses upon granting the wife a divorce.
Responding to pressure from an increasingly vocal Islamic movement, and in the midst of a controversy in the country as to the Islamicity of Egyptian legislation, the Egyptian political elite passed an amendment to Article 2 of the Egyptian Constitution of 1971.298 The Amendment changed the wording of the Article from the seemingly benign “the principles of Islamic Sharia are a principal source of legislation” to the more overreaching “the principles of Islamic Sharia are the principal source of legislation (emphasis mine).”299 The implication of such an amendment for an otherwise predominantly secular legal system took some time to unfold. For years, the Supreme Constitutional Court of Egypt (SCC)300 avoided confronting this matter head-on, despite the fact that its docket filled up with Article 2 cases almost immediately after the amendment came into effect.301 The Court’s evasion tactics consisted of either striking down legislation coming to its review under this article on procedural grounds,302 thereby avoiding looking into the substantive ramifications of the amendment to the article, or of declaring the non-retroactivity of the amendment, allowing the Court to treat all laws that had been passed before it as being immune from challenges under the article.303
Using the tactics described above, the Court was able to uphold challenged legislation twelve consecutive times, buying itself precious time until the moment came when it had to decide on the exact reach of Article 2.304 That moment came in 1993,305 and from then forward, the SCC has produced a body of cases that are historic both for what they say about Egypt’s judicial elites’ attitude towards the general project of Islamicization, and also for the ingenuity of the test developed by the Court in adjudicating cases under Article 2.306
By looking at three important cases that came before the SCC under Article 2 and the reasoning that the Court adopted in each case, one can get an insight as to how the Court is handling the amendment and its effects on legislation. These particular cases, in their aggregate, delimit the Court’s ideological position on the social matters at hand. Each case, as do the majority of such cases, presents the Court with the question of what to do about the “battle of the sexes,” and the fate of patriarchy in Egypt.307
In the first case, from 1997, the SCC was presented with the issue of the constitutionality of Article 11 of the 1929 Law on the family, which gives the judge the right to grant a woman a divorce upon a determination that reconciliation with the spouse is impossible.308 The Court agreed with the plaintiff that according to the Quran, divorce is the absolute right of the husband.309 However, it contended that there was another determinate rule in the Quran that was relevant to the dispute, the rule requiring the appointment of an arbitrator from each spouse’s family to reconcile the spouses in the case of dispute.310 The Court argued that while under this particular rule it is clear that the task of the arbitrators is to attempt to reconcile the spouses, it does not specify what the arbitrators should do if they fail in their efforts.311 This being the case, the Court argued, Article 11 is not unconstitutional because it grants the arbitrators the power to recommend divorce to the judge.312
Granting such powers to the arbitrators is within the realm of human made legislation (or ijtihad as the Court sometimes called it) since it touches on the question of what extra powers arbitrators should be given, itself a subject of dispute among the various medieval schools of jurisprudence.313 The Court completely glossed over the fact that granting the arbitrators and consequently the judge the respective powers of recommendation and divorce was tantamount to constricting the husband’s absolute power to divorce.
In the second case, decided in 1996, the Court was presented with the infamous question of the veil, or headscarf.314 The court was charged with reviewing the constitutionality of an executive order issued by the Minister of Education315 prohibiting schoolgirls from wearing the niqab and the hijab in all schools below the university level.316 The edict created such an outcry that the government eventually amended it, confining the prohibition to instances where permission to wear the veil from the girl’s parents was absent.317 The challenge to the edict by the Islamicists, however, was relentless.318
The court read the various verses in the Quran that could be relevant to the issue at hand, and concluded that these verses recommended that women should cover some parts of their body, but found no evidence that they required women to cover their hair or face.319 The Court also argued that the prophetic traditions were equally ambiguous on this question.320 Moreover, the medieval jurists themselves disagreed on exactly which parts of the woman’s body should be covered.321 The Court then sought to discover a principle behind these disparate evocations on women’s dress and concluded that it was the principle of modesty.322 The purpose of modesty, the Court explained, is to prevent illicit sex.323 The Court decided that banning the veil would not lead to illicit sex, and therefore did not violate the principle of modesty.324 The edict, according to the Court, was consequently constitutional.325
The third case reviewed Article 11 of Law No 100 of 1985, which grants the wife the power to request a divorce if her husband takes another wife.326 The plaintiff argued before the court that granting the wife such powers was in clear violation of the husband’s right, granted him by the explicit dictates of the Quran, to marry up to four wives.327 In other words, he argued that the law was in violation of his right to practice polygamy. The court went out of its way in this case to argue that no such violation really existed. The court asserted that as a constitutional court, it had the duty to “practice its role of constitutional review in a limited way always trying to interpret the legislation in such a manner that avoids striking it down.”328 This assertion was quite striking, given the court’s practice of overt judicial activism when the question of constitutionality is not related to the sharia.329
The court agreed with the plaintiff that men have the absolute right330 to practice polygamy, marrying up to four wives, and that such a right was universal and “transcended time and space.”331 The court went even further by insisting that although treating wives equally is a requirement of polygamy, this was only a “restriction of the right and not a cause of it.”332 By making this latter assertion, the court seemed to be distinguishing its position from those who argue that polygamy may be prohibited by law because the requirement of fairness associated with the Quranic license to be polygamous is impossible to achieve.
However, surprisingly, after asserting the absoluteness and universality of the right to practice polygamy, the Court proceeded to argue that granting the wife the right to request divorce cannot be seen as jeopardizing the husband’s right to practice the same. This is so because the law stipulates that the wife has to prove to the court that she has been harmed by the second marriage and that this harm was “real not illusory, actual not imagined, demonstrable not assumed, independent of the incident of the later marriage although occasioned by it.”333 Had the law, the court argued, assumed harm from the incident of polygamy, or alternatively, made the second marriage contingent on the consent of the first wife, then it could indeed have been read as seriously undermining the husband’s right to be polygamous. Granting the judge discretion on this question ensured that the harm argued by the wife was “objective and not whimsical.”334
One detects from the three cases discussed above that underpinning the judicial passivism of the court is an ideological position based on promoting what may be described as a moderate social agenda.335 Of the two ideological positions that almost always constitute the background to these cases, namely a religious one and a feminist one, the court always takes an intermediate position between the two.336 While the religious position on polygamy is that it should be an absolute, unrestricted right of the husband, and the feminist one is that it should be prohibited, the court upheld a rule that constricted the practice of polygamy and allowed the first wife a way out. While the religious position is that divorce is the unilateral right of the husband, and feminists argue for an equal right for women to divorce, the SCC upheld a rule that allowed the judge to intervene on behalf of the woman in certain cases, allowing her to escape a bad marriage. In addition, while some religious groups think that women should be veiled, and feminists believe that the law should not regulate women’s dress, the SCC affirmed the principle of modesty as the limit of the legislature’s reach and as a compromise between the two positions.
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 and how they later, as judges, defended it. 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.
In addition, the cases decided by the Supreme Constitutional Court, discussed above, raise two questions that are of particular relevance to secular feminism. The first is related to the rule outcome, whereby one must ask how one feels, for instance, about divorce being the absolute right of the husband while women must apply to the courts and are only granted it in certain cases, or about the fact that polygamy is an absolute right of the man, curbed only by certain restrictions, or about no to veil, but yes to modesty.
The second question that these cases raise is related to the legitimation discourse by which the Court arrives at its decisions. One must ask how one feels about the Court wanting to appear to be doing a genuine reading of the religious texts, thereby representing, for instance, polygamy as an absolute right of the husband, so as to satisfy an increasingly disgruntled religious audience/movement. One wonders if this was the only way the Court could have demonstrated that it was genuinely engaging with the requirement of Article 2 of the Constitution, which requires that Islamic law be the primary source of legislation. In other words, one questions whether, in the case of polygamy, it was really necessary for the court to adopt this form of representation to be able to later create an endless list of exceptions that more or less make this so-called absolute and universal right not so absolute and universal after all. Therefore, the question becomes whether to get the rule desired, the Court should sacrifice what could be a liberal, reformist, or secular feminist legitimation discourse for one that focuses on a reading of religious texts. One may very well argue that in the case of polygamy, for instance, this was the best rule one could get under the circumstances, but that the legitimation course followed by the Court to reach the outcome is not the most desirable; in other words, one may agree with the outcome but oppose the methodology.
In addition, related more to the issue of secularism than to that of feminism, studying these cases, one wonders if the test the Court has developed, in attempting to seriously engage with the religious texts, panders too much to the religious intelligentsia. It may be that this is the best one could get under the circumstances, and thus should not attack the Court for giving too much determinacy to the religious texts despite the fact that its analysis typically uncovers that they contain few determinate rules. However, one wonders if there is a way that the religious texts could have been done away with altogether for representing a set of ethical teachings or rules that are bound by their historical context. Such an act would have furthered the cause of secularism in modern day Egypt.
The dilemmas that are raised by the Court’s test and its strategy to split the difference echo those of the legislative strategy adopted in the vast majority of Islamic countries, in which reform takes place within the framework of a religious text. Many argue that that is the sole path to reform because it is the most realistic. I would argue that an equally plausible path to reform would be to do away completely with the religious text and to use whatever resources the state has to impose a secularization path. The complexity of such an approach and the costs that might come with it is the subject of a future article.
* Associate Professor of Law, Georgetown University Law Center.
Many friends and colleagues have read this article at various stages of its writing and have provided me with helpful and insightful comments. I would like to especially acknowledge the help of Janet Halley, Mark Kelman, David Kennedy, Duncan Kennedy, Amr Shalakany, Hani Sayed, Milton Regan, and Wael Hallaq. This paper has been presented at Columbia Law School and at various events at Harvard Law School. The comments by students and participants have greatly enriched the text and made it possible in its present form. I owe all of these people a great deal of gratitude.
I would like to especially acknowledge the contribution of Parastoo Anita Mesri to the production of this article. Her brilliant skills at research, editing, and commentary contributed a great deal to this text. I could not thank her enough.
1 See Lama Abu-Odeh, Egyptian Feminism: Trapped in the Identity Debate 21 (Jan. 2004) (unpublished manuscript, on file with author). Also, see Fauzi M. Najjar, Egypt’s Laws of Personal Status, in 10 Arab Studies Quarterly 319, 323-325 (1988).
2 See J. N. D. Anderson, Law Reform in Egypt: 1850-1950, in Political and Social Change in Modern Egypt 209, 217-224 (P. M. Holt ed., 1968).
3 See id. The author describes changes in the laws of Egypt, as embodied by the adoption of various Codes that were largely European in origin, that took place in the second half of the nineteenth century, but adds that, “[m]eanwhile the Shari‘a courts, and the sacred law which they applied in the old traditional way, remained largely unchanged.” Id. at 217. In addition, the author adds that “it was only in the Shari’a courts, and the community courts of the non-Muslim communities, than an uncodified law was still applied in the old, traditional way; but these courts were strictly confined to matters of family law in its widest connotation (marriage, divorce, paternity, guardianship, and succession) and the law of waqfs and gifts.” Id. at 219. (See infra Part II. A. for a definition of waqfs.) Also, see Dawoud Sudqi El Alami & Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World 3 (1996). In addition, Margot Badran reports that in nineteenth century Egypt, “[t]he former broad purview of the religious establishment was eroded piecemeal in the drive towards secularisation of education and law. The only exception to this was the sphere of personal status laws.” Margot Badran, Competing Agenda: Feminists, Islam and the State in Nineteenth- and Twentieth-Century Egypt, in Women, Islam and the State 201, 201 (Deniz Kandiyoti ed., 1991).
4 See Daniel Crecelius, The Course of Secularization in Modern Egypt in Religion and Political Modernization 73-89 (Donald Eugene Smith ed., 1974). As the author notes, this process of modernization and secularization of most areas of Egyptian law and society, save the realm of the family, began with a process in the nineteenth century marked by the “differentiation of political and religious structures.” Id. at 73. Although modernizing and secularizing elites “did not openly challenge the traditions and concepts of the ulama [religious scholars] nor totally abandon the basic concepts of Islamic government,” the effect of their project was that “the scope of the shari’ah [Islamic law] was reduced to personal status law (marriage, divorce, inheritance, etc.)…” Id. at 75, 79. Throughout the process of modernization and secularization, family law and “the liberation of women” were issues that “involved the ulama in constant political conflict with their modernizing government.” Id. at 83-84.
5 See M. Cherif Bassiouni & Gamal M. Badr, The Shari’ah: Sources, Interpretation, and Rule-Making, in 1 UCLA J. Islamic & Near E.L. 135, 166 (2002). As the authors note, around the middle of the 19th century, Egypt “adopted a number of codes modeled after French prototypes.” Id. Other scholars assert that the French influence in Egypt can actually be traced to the short “visit” made by Napoleon to the country in the late 18th century. Although the French invaders were driven out of Egypt after only three years, “[n]ot only was Egypt’s intellectual system shaken; its new reformers would look to France.” John H. Barton, et al., Law in Radically Different Cultures 22 (1983). Indeed, “[o]ut of the political and military confusion that followed the Anglo-Turkish defeat of France there arose the first of Egypt’s modernizers, Muhammed Ali,…” Id. On the adoption of European codes in Egypt and other parts of the Ottoman Empire, also see John L. Esposito, Women in Muslim Family Law 47 (2001).
6 See Crecelius, supra note 4, at 77-85. As the author notes, “[t]he twin goals of the emerging social and political elites, nationalism and liberal reform, were explicitly framed on the basis of secular principles derived from the West.” Id. at 80.
7 See Najjar, supra note 1. Najjar gives a detailed account of the opposition posed by religious, conservative elites to various attempts at family law reform in the twentieth century in Egypt, an opposition portrayed as a defense of Islam in the face of Western inspired secularism and feminism. There is also much evidence of such attitudes in present day Egypt. See, for instance, Mariz Tadros, What Price Freedom?, in Al-Ahram Weekly Online, 7-13 March 2002, Issue No. 576, available at http://weekly.ahram.org.eg/2002/576/fe1.htm. The author, reporting on changes made to the procedural personal status law in Egypt in 2000 that allows women to seek khul divorce (divorce granted to the wife without there existing one of the established grounds for seeking such divorce, usually in exchange for her giving up certain financial rights), states that, “[j]udging by the level of social hostility and discontent in the People’s Assembly and in the opposition newspapers two years ago when the procedural law was being discussed, it is not difficult to see why the government is cautious about touching the personal status law itself, which is the central bastion of the patriarchal system.” Id. at 8.
8 See John L. Esposito, Women in Islam and Muslim Societies, in Islam, Gender, and Social Change xv (Yvonne Yazbeck Haddad and John L. Esposito eds., 1998).
9 See id. As Professor Esposito reports, “[m]odern family law reforms were initiated then by governments, implemented from the top down, and often rationalized and legitimated in the name of Islam by using (or, as some would charge, manipulating) Islamic principles and legal techniques.” Id.
10 See Jamal J. Nasir, The Islamic Law of Personal Status 12-13 (2002). The author describes the process by which each of the four major Sunni schools of law worked to consolidate their legal doctrines during the early part of this legal era, from approximately the 10th to the 13th centuries. See id.
11 See id. at 14-15. Also, see N. J. Coulson, A History of Islamic Law 84-85 (1964). As Coulson notes, “[b]y the fourteenth century various legal texts had appeared which came to acquire a particular reputation in the different schools and areas of Islam. Representing for each school the statement of law ratified by the ijma [consensus of Islamic legal scholars], they retained their paramount authority as expressions of Shari’a law until the advent of legal modernism in the present century.” Id.
12 See infra Part II. A., II. B & II. C.
13 See infra Part III. A. & III. B.
14 In general, under Ottoman rule, the Hanafi school of law was “the official madhhab [legal doctrine] of the empire.” Bassiouni, supra note 5, at 166. The Hanafi school of law was founded by the jurist Abu Hanifa (d. 767). See Joseph Schacht, Introduction to Islamic Law 40 (1964). This school of law is credited with a liberal, analogy-based approach to legal reasoning. See Charles C. Adams, Abu Hanifah, Champion of Liberalism and Tolerance in Islam in Islamic Law and Legal Theory 384 (Ian Edge ed., 1996).
15 See El Alami & Hinchcliffe, supra note 3, at 239. “Tunisian law has been held to be the most progressive of the laws of the region, in that it includes the most radical provisions of any of the Arab laws,…” Id.
16 See id. at 239-247 for the text of the Tunisian Personal Status Code, or Majallah.
17 See id. at 51-52. The authors, referring to legislative and presidential decrees of the 1970s and 1980s aimed at reforming personal status laws in Egypt, report that, “[t]here had for some time been a movement to amend the personal status laws, which had remained unaltered despite social changes. Some members of the Popular Assembly proposed a draft law amending the laws of personal status, which was examined and confirmed by the Assembly during June and July 1985. The resulting Law No. 100 of 1985 revised and replaced certain provisions of the laws of personal status, including provisions in the areas of ta’a (obedience), registration of divorce, mut’a (compensation to a divorced woman), maintenance for the wife and custody.” Id.
18 See infra Part IV. A. & B.
19 See id.
20 Dr Hatem Aly Labib Gabr, The Interpretation of Article Two of the Egyptian Constitution by the Supreme Constitutional Court, in Human Rights and Democracy: The Role of the Supreme Constitutional Court of Egypt 217, 217 (Kevin Boyle & Adel Omar Sharif eds., 1996). Before the amendment, Article 2 of the 1971 Constitution dictated that, “the principles of Islamic Sharia are a principal source of legislation.” Id.
21 See infra Part IV C.
22 See infra Part II D, and Part V.
23 See Schacht, supra note 14, at 41, 45-48 (1964). Shafi‘i’s theory was a powerful intervention in the legal culture of the time, so much so that the era spanning the seventh to the tenth century came to be named after his theory. See id. at 45-48. The author describes Shafi‘i’s theory in the following statement: “Shafi‘i’s legal theory is a perfectly coherent system, superior by far to the theory of the ancient schools, and he became the founder of the usul al-fikh, the discipline dealing with the theoretical bases o f Islamic law.” Id. at 48.
24 See Esposito, supra note 5, at 2.
25 See Wael B. Hallaq, A History of Islamic Legal Theories 28-31 (1997).
26 See id. at 29. “In establishing the general principles of legal reasoning, Shafi‘i insisted that no legal ruling can be propounded if it is not ultimately anchored in the Book of God and/or the Sunna of His Prophet.” Id. Sunna is a reference to the collection of Hadith, or the reported traditions of the Prophet Mohammad, i.e., everything he had been reported to have said, done or approved. See Esposito, supra note 5, at 5. Shafi‘i’s theory is understood to have mediated between the two prevailing legal camps of his time. See Hallaq, supra note 25, at 18-19. The first camp was that of Ra’y, or opinion, giving judges the freedom to use their discretion to innovate rules. See Esposito, supra note 5, at 2. The second was that of Hadith, insisting that all rules should be based on the two holy texts, the Quran and the Sunna of the Prophet. See id. “[A]sh- Shafi‘i’s scheme embodied a compromise between divine revelation and human reason in law and thus endeavoured to reconcile the basic conflict of principle in the early schools between the ‘party of Tradition’ (ahl al-hadith) and ‘the party of reasoning’ (ahl al-ra’y). It was a legal theory which expressed, with irrefutable logic, the innate aspirations of Muslim jurisprudence.” Coulson, supra note 11, at 61.
27 See id. at 33. “What may be seen as a reconciliation between the traditionalists and the rationalists—a reconciliation that began to manifest itself only toward the very end of the third/ninth century—may also be seen as a general acceptance of the rudimentary principles of Shafi‘i’s thesis.” Id.
28 See Coulson, supra note 11, at 90. “Hanafi and Maliki law… were in existence before Shafi‘i formulated his theory of usul, and although much of their law was already formally expressed in terms of that theory, in particular as Traditions from the Prophet [Sunna], there was residuum of local doctrine which was not so expressed; this the Hanafis and Malikis proceeded to rationalise, in the course of the ninth century, by modifying and supplementing ash- Shafi‘i’s theory in a variety of respects.” Id.
29 See id. at 70-71. As the author puts it, “[t]hose who were prepared to accept the precise terms of ash- Shafi‘i’s doctrine of the role of Traditions were a minority and thus, despite the consistent repudiation of this possibility by ash- Shafi‘i himself, the Shafi‘i school of law… represented the middle position between those whose attitude towards Traditions was more reserved and those whose enthusiastic support of them was carried to extremes.” Id. Wael Hallaq argues that Shafi‘i’s al-Risala was unnoticed for more than a century after his death as the proponents of ra’y and hadith accommodated Shafi‘i slowly. See Hallaq, supra note 25, at 33-35.
30 See generally Ann K.S. Lambton, State and Government in Medieval Islam xvi-xvii (1981).
31 See id. “With the expansion of the Muslim conquests from the year 37/657-8 onwards there gradually evolved a body of political ideas… Broadly speaking three main formulations can be distinguished; the theory of the jurists, the theory of the philosophers and the literary theory… All three formulations set forth the divine nature of the ultimate sovereignty and pre-suppose the existence of a state within which the earthly life of the community runs its course and whose function is to guarantee the maintenance of Islam, the application of the shari’a, and the defence of orthodoxy against heresy… The first formulation, that of the jurists, is the most truly Islamic of the three… There can also be discerned in it the expression of a religious ideal in opposition to practice.” Id.
32 See Hallaq, supra note 25, at 16. As the author reports, “[t]he last quarter of the first century [7th century A.D.] saw an upsurge of intellectual legal activity in which Arab Muslims and non-Arab converts took part. Interest in legal issues no longer was limited to an elite who were privileged to have been affiliated with the Prophet or with his Companions. This increasing interest in these issues was reflected in the evolution of various centers of legal activity throughout the Islamic lands. In the beginning of the second century, the most prominent centers were the Hijaz, Iraq, and Syria. Egypt became such a center soon thereafter.” Id.
33 Wael B. Hallaq, Was the Gate of Ijtihad Closed? in 16 Int. J. Middle East Stud. 3, 3 (1984). “In other words, ijtihad is the maximum effort expanded by the jurist to master and apply the principles and rules of usul al-fiqh (legal theory) for the purpose of discovering God’s law.” Id.
34 See Coulson, supra note 11, at 80-81.
35 See id. Also, see Sherman A. Jackson, Islamic Law and the State 79-80 (1996).
36 See id. Also, see Esposito, supra note 5, at 128. Joseph Schacht describes this historical process as follows: “By the beginning of the fourth century of Islam (about A.D. 900) the point had been reached, however, when the scholars of all surviving schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one could be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all. It followed that from then on every Muslim had to belong to one of the recognized schools.” Joseph Schacht, The Schools of Law and Later Developments of Jurisprudence, in Origin and Development of Islamic Law 57, 73 (Majid Khadduri & Herbert J. Liebesny eds., 1955). However, many authors assert that the idea that “the gate of ijtihad was closed” completely with the dominance of the Taqlid system is false, and that, to the contrary, the gate of ijtihad was never closed either in theory or in practice. See Hallaq, supra note 35, at 4. Also, see Baber Johansen, Legal Literature and the Problem of Change: The Case of the Land Rent, in Islam and Public Law (Chibli Mallat ed., 1993), and Jackson, supra note 35, at 73-83.
37 See id. Also, see Esposito, supra note 5, at 128.
38 See Jackson, supra note 35, at 95. As one author put it, “[i]jtihad, the exercise of independent reasoning, gave way to taqlid, the unreasoning acceptance of the final state of the doctrine as laid down by each school in its recognised handbooks.” Lambton, supra note 30, at 12.
39 See Coulson, supra note 11, at 84. “From the tenth century onwards the effect of the doctrine of taqlid was mirrored in the literature of the law. This consisted mainly of a succession of increasingly exhaustive commentaries upon the works of the first systematic exponents of the doctrine such as Malik, ash-Shaybani and ash-Shafi‘i. Further glossaries were appended to these commentaries; different views and lines of development were collated and amalgamated, and concise abbreviated compendia were produced. Authors, almost without exception, betrayed a slavish adherence, not only to the substance but also to the form and arrangement of the doctrine as recorded in the earliest writings. By the fourteenth century various legal texts had appeared which came to acquire a particular reputation in the different schools and areas of Islam. Representing for each school the statement of the law ratified by the ijma’ [consensus of the community, or of the ulama (religious scholars)], they retained their paramount authority as expressions of Shari’a law until the advent of legal modernism in the present century.” Id.
40 The above-mentioned schools of law are considered the dominant schools within the Sunni branch of Islam. Shi’ites, by contrast, have their own internally differentiated schools and their own distinct legal theory. This article only covers the doctrines that were in operation within the Sunni branch.
41 See Esposito, supra note 5, at 128. Professor Esposito reports that, “[a]fter the eleventh century, all jurists officially followed one of the established law schools, rather than attempting to form new ones…” Id. Also, see Lambton, supra note 30, at 4.
42 “The word madhhab meant a number of different things, depending on how the word was used and in what particular context. One sense of the word indicated personal affiliation to the doctrine of an imam [founder of the school], a meaning which had fully emerged and been solidified by the middle of the fourth/tenth century. Perhaps a more important sense of the term was its signification of the positive and theoretical doctrine of the imam in particular and of his followers in general. In this sense, therefore, the madhhab acquired the meaning of ‘a school’s authoritative doctrine,’…” Wael B. Hallaq, Authority, Continuity, and Change in Islamic Law 61 (2001).
43 “Mufti” is a reference to a juristconsult who issued “nonbinding advisory opinions (fatawa, or fatwas) to an individual questioner (mustafti), whether in connection with litigation or not… In their different venues, both qadis [judges] and muftis have specialized in handling the everyday traffic in conflicts and questions falling within the purview of the shari’a.” Muhammad Khalid Masud, et al., Muftis, Fatwas, and Islamic Legal Interpretation, in Islamic Legal Interpretation 3, 3 (Muhammad Khalid Masud et al eds., 1996). “They [muftis, or jurisconsults] issued fatwas in response to a wide range of questions emanating from individual Muslims of every status, including qadis and political authorities such as the caliph or sultan.” Id. at 4. In regards to the difference between muftis and qadis, and the opinions they issued, the author reports that, “Islamic legal doctrine generally encourages qadis to consult with legal experts before issuing a judicial decision (hukm), especially in difficult, unusual, or sensitive cases…” Id. at 10. However, “[w]hereas a judgment [issued by a qadi] entails direct action, a fatwa provides access to shari’a knowledge in the form of a considered opinion. Whereas a judgment carried the presumption of finality, a fatwa enters a world of competing opinions.” Id. at 19. As another author asserts, “the function of the mufti was essentially private; his authority was based on his reputation as a scholar, his opinion had no official sanction, and a layman might resort to any scholar he knew and in whom he had confidence.” Schacht, supra note 36, at 76.
44 The role of muftis, as legal specialists, was vital because of the centrality of legal reasoning in every individual’s capacity as both a member of a political community and a religion governed by these laws. The complexity of the taqlid system meant that educated guidance was a necessity. As one author expressed, “[t]he members of the public had been in need of specialist guidance from the very beginning of Islamic law, and this need grew stronger as the law became more technical and its presentation more scholastic. The practical importance of the sacred law for the pious Muslim is much greater than that of any secular legal system for the ordinary law-abiding citizen.” Schacht, supra note 36, at 75.
45 See Jackson, supra note 35, at xxv. Referring to the specific case of 13th century Egypt, the author states that, “whereas in theory all of the Sunni schools were recognized as equally authoritative, the fact that they were not all equidistant from the source of power (i.e., the state) inevitably conferred an added authenticity upon the views of some, peripheralizing where not obliterating those of others.” Id.
46See id. at 82-83. “The quest for authority to back and validate legal interpretations is reflected in a number of phenomena… jurists often disguise their own interpretations as having originated with earlier authorities.” Id. at 82. Also, see Coulson, supra note 11, at 94-95.
47 See id. For a detailed description of the method used by jurists to bolster their opinions with historical support, see Bernard G. Weiss, The Spirit of Islamic Law 88-97 (1998).
48 See Schacht, supra note 36, at 68-70. The author lists the different regions and nations that historically ascribed to each of the four Sunni schools. See id. As another author notes, even “legal opinions themselves came ultimately to be judged not on the basis of their intrinsic quality but by whether or not they carried the endorsement of the madhhab as a whole.” Jackson, supra note 35, at 79.
49 Indeed, once a “validly deduced view” was endorsed by one of the four Sunni schools on a disputed question of law, and was confirmed by consensus (generally of the legal scholars of the school), it became binding on the entire community, or all the members of the school. See Jackson, supra note 36, at 108. In regards to the modern era, one author reports that, “[e]ven though Islamic law was disestablished in most Muslim nations in the nineteenth century, most Muslims have continued to be associated with the particular school that has historically dominated their region.” Clark Benner Lombardi, Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Sharia in a Modern Arab State, in 37 Colum. J. Transnat’l L. 81, 94 (1998). In addition, the author notes that, “[t]he Hanafi school claims the nominal allegiance of 60 percent of all Muslims in the world—including most Egyptians.” Id.
50 See Lambton, supra note 30, at 4. As the author reports, “[i]n due course much of what had originally been arbitrary decisions by scholars was projected backwards and ascribed to the prophet or one of the great figures of the past.” Id.
51 See in general George Makdisi, The Rise of Colleges (1981). Each schools’ jurists, muftis and judges were trained in madrasas; as Makdisi reports, “[i]n classical Islam, the madrasa was the institution of learning par excellence, in that it was devoted primarily to the study of Islamic law, queen of the Islamic sciences.” Id. at 9. The author explains that, “these institutions of learning may be further divided into exclusive and unrestricted institutions: exclusive, in that they were devoted to a particular madhab, and admission was restricted to members of that madhab; unrestricted, in the sense that members of all schools could be admitted. Exclusivity applied only to institutions teaching law…” Id. at 10.
52 See Jackson, supra note 35, at 99. In the absence of consensus on any given issue, differences of opinion were allowed to stand. A multiplicity of plausible legal opinions existed between madhhabs. In addition, within each school, internal complexity was created as jurists resorted to the formulation of new, distinct classifications and exceptions rather than modifying a religiously mandated rule. See id. at 98-99.
53 See Coulson, supra note 11, at 84-85. Also, see Johansen, supra note 36, at 32-33. See note 44 for a definition of fatwa.
54 See Johansen, supra note 36. Also, see Jackson, supra note 35, at 96-102. Jackson refers to the implicit process of change as “legal scaffolding:” “rather than abandon existing rules in favor of new interpretations from the sources, needed adjustments are sought through new divisions, classifications, distinctions, exceptions and expanding or restricting the scope of existing rules. To be sure, only ranking jurists acquired enough authority over time to be able to challenge an incumbent view or introduce a new one; and it was only they who possessed enough skill to engage successfully in legal scaffolding.” Id. at 97.
55 See id. at 29-47. Also, see Jackson, supra note 35, at 97-102. As Wael Hallaq describes it, “[o]n the micro-level… plurality of opinion within a given school was literally the name of the game. Each school possessed a vast corpus of opinions attributed to the founder, his immediate followers, and later authorities. In other words, they represented the total sum of doctrinal accretions beginning with the founder down to any point of time in the history of the school.” Hallaq, supra note 42, at 122.
56 See Jackson, supra note 37, at 98. “For even where the rules on the books appear to have lost a measure of suitability, they remained important repositories of authority.” Id. Also, see Johansen, supra note 36, at 31. “Islamic law, as embodied in these texts, remained largely unchanged after the tenth and eleventh centuries.” Id.
57 See id. at 77-78. The author notes that although there may be difference of opinion on whether the gate of ijtihad truly closed completely during the taqlid era, “it seems clear that by the later middle ages the activities of the individual jurist came to be significantly circumscribed by his membership in a particular madhhab. The madhhab, moreover, clearly became the context within which all interpretive activity took place… Ijtihad, understood here not merely as the fresh, unfettered and direct interpretation of scripture but also as the clear and open advocacy of views having resulted from such a process, ceased to be dominate from around the 6th/12th century.” Id. In addition, the author explains the negative connotations of the word taqlid: “As a technical term, ‘taqlid’ is commonly translated as ‘blind following,’ ‘imitation,’ ‘servile imitation,’ ‘unquestioning acceptance,’ ‘unreasoning acceptance.’ Such appellations tend not only to cast taqlid in a wholly negative light but also to obscure the basic logic underlying the institution itself.” Id. at 80. Wael Hallaq points out that an alternative way to look at some historical instances of taqlid is not simply as “blind imitation,” which has a negative connotation, but as the positive loyalty which an adherent had to his school. “This loyalty would not have been the same had the jurists found it necessary to vindicate the school’s principles at every state of reproducing doctrine. Loyalty meant precisely the acceptance of these principles—though not necessarily unquestioningly—and more importantly, it meant applying them to individual cases… loyalty also meant a defense of the principles as well as of the hermeneutics of the school.” Hallaq, supra note 42, at 103-104.
58 See in general Johansen, supra note 36. Also, see Jackson, supra note 35, at 96-102. “[L]egal change and innovation both remain realities even under a régime of taqlid.” Id. at 101. Wael Hallaq, one of the principal authors who argue that the era has been misnamed or misrepresented, insists that, “taqlid is far from the blind following of an authority, as a number of major Islamicists have claimed.” Hallaq, supra note 42, at 119.
59 See Jackson, supra note 35, at 97. The author reports that according to the “hierarchal internal structure” of the madhhabs, there were three ranks: beginners, graduate students, and masters, or teachers– the muftis, whom he also calls ra’is. “It was the ra’is who represented the madhhab on difficult and extremely controversial issues. It was also the view of the ra’is, along with that of his closest competitors within a school, that stood the greatest chance of becoming the view of the madhhab.” Id.
60 See id.
61 See Norman Anderson, Law Reform in the Muslim World 38 (1976) (reporting that, “[i]t was God himself and his law which were sovereign, not the Government or people…”)
62 See id. at 96-101.
63 See id. at 82-83. “As it became increasingly apparent that the view most likely to receive the widest application was that which could be shown to enjoy the widest endorsement within a school at large, jurists found themselves in need of ways to show that their conclusions had not deviated from the position of the madhhab, or at least from what they could claim the position of the madhhab should be… no longer was it the case that a view was rendered orthodox merely by the fact that it issued from an authorized jurist; it was now the madhhab as a whole that conferred this status upon a view.” Id.
64 See Hallaq, supra note 42, at 61. “Whereas the earlier period (which had ended, so to speak, by the middle of the fourth/tenth century) was one of almost indistinguishable plurality, the century or two immediately succeeding it witnessed a significant narrowing of doctrinal possibilities.” Thus, as Hallaq explains, taqlid involved, “the act of following the totality of the founder’s legal doctrines as a methodologically systematic structure, …” Id. at 86. This “usul,” connoting a methodology unique to a given school, is to be distinguished from Shafi‘i’s methodology, which he had sought to have all schools comply with. Also, see Jackson, supra note 35, at 92-93. As Jackson reports, “in extrapolating from the madhhab of an Imam [founder of a school] a jurist also had to be certain not to violate any legal precepts, or so-called qawa’id. Legal precepts are essentially broad-based rules or tests deduced from the aggregate of opinions of the early Imams… where the need did arise to consult scripture on an unprecedented matter, legal precepts ensured that the resulting interpretations did not violate the madhhab of the respective Imam.” Id. at 92. In addition, it was not enough “for a jurist to have mastered the discipline of usul al-fiqh. This is because… ‘there are many precepts of the shari’ah relied upon by the Imams and the ancient masters that are nowhere to be found in the books of usul al-fiqh.’ In the final analysis, what this stipulation comes down to is the prima facie counterintuitive conclusion that, whereas mastery of usul al-fiqh had been enough to qualify a jurist to practice ijtihad in the early period, now it would not be enough to qualify him to engage successfully in taqlid!” Id. at 92-93. For this reason, the author asserts that, “Taqlid, in other words… represents a more rather than less advanced stage of legal development.” Id. at 93.
65 See id. at 57-75. Hallaq gives a detailed description of the historical processes by which there was, as he describes, a “rise and augmentation of school authority.” Id. As another author describes it, the madhhabs were “a tightly-knit structure held together by mutual subscription to a strict body of legal rules.” Jackson, supra note 35, at 73.
66 See id.
67 See Hallaq, supra note 33, at 10-33. Also, see Schacht, supra note 36, at 74. The Zahiri school in theory rejected taqlid. A follower of this school, the prominent jurist Ibn Taymiyya, and other adherents considered it dangerous to follow blindly anyone but the Prophet Mohammad. See id.
68 Indeed, many authors note the fact that elites and legislators were hesitant to “reform” or replace Islamic laws on the family with secular laws of European origin due to the strong public conception of the importance of the Islamicity of said rules. “For Muslims, the Shari’ah is the law of God…[t]he Shari’ah covers all aspects of life and every field of law—constitutional, international, criminal, civil and commercial—but at its very heart lies the law of the family. Although by the mid-nineteenth century many areas of traditional Islamic law had been swept away… changes in the law of the family came later and were undertaken with great delicacy.” El Alami & Hinchcliffe, supra note 3, at 3.
69 See Esposito, supra note 5, at 129. For instance, the Egyptian modernist Muhammad Abduh wrote in the early 20th century of the “disease of taqlid that afflicted many Muslims,” and called on Muslims to engage in ijtihad. Id. The South Asian modernist Muhammad Iqbal also called for a renewal of ijtihad. Iqbal “regarded the condition of Islam as a ‘dogmatic slumber’ that had resulted in five hundred years of immobility due to the blind following of tradition and believed that the restoration of Islamic vitality required the ‘reconstruction’ of the sources of Islamic law… Iqbal rejected the centuries-long tendency to regard Islamic law as fixed and sacrosanct. Like other Islamic revivalists and modernists, he believed that Muslims must once again reassert their right to ijtihad, to reinterpret and reapply Islam to changing social conditions.” John L. Esposito, Islam The Straight Path 139-140 (1998).
70 See Hallaq, supra note 25, at 210.
71 The Taqlid treatises differ on the level of micro-discussions they delve into. The topics they cover demonstrate the manner in which the Taqlid jurisprudence regulated the two general legal acts of marriage and divorce, and include: the marriage contract (aqd al-nikah); the guardian (al-wali); equality (‘kafaa); the unlawfuls (al-muharramat); the marriage of pleasure (nikah-al-mutaa); (nikah al-shighar); the dowry (al-sidaq, al mahr); the terms of the marriage contract (shurut al-aqd); (khayar fi al-nikah); publicizing the marriage (al-walima); treatment of wives, which includes equality of treatment, leaving the house without permission, sexual enjoyment, housework, and disobedience (ghasam bayna al-zawjat); divorce (talaq); maintenance, which includes the maintenance of wife, children, parents, relatives and other members of the household (nafaqa); and custody (hadana). This list has been put together after studying the contents of various medieval treatises.
Al-muharramat or unlawfuls refers to the women a man cannot legal marry. The topic of “unlawfuls” covers the way the law organizes the prohibitions dictated by the “incest taboo” among others. Sura 4:23 of the Qur’an declares, “[f]orbidden to you are your mothers, your daughters, your sisters, your paternal and maternal aunts, the daughters of your brothers and sisters…” The Koran 63 (N.J. Dawood translator, ed., 1994). Sura 4:22- 4:24 provide in general the sources of al-muharramat for reasons of affinity and consanguinity. See id.
The topic of shurut al-aqd covers what may or may not be included as terms in the marriage contract by either party. Couples are permitted to stipulate conditions in their marriage contract; however, stipulations must comply with the principles of the shari’a. “If any condition could be proven void under the Sharia, it should not be stipulated at all, and if made, must be deemed null and void…” Nasir, supra note 10, at 58.
In regards to publicizing the marriage, or al-walima, it is reported that the first of the Caliphs recognized by the Sunnis to legitimately succeed the Prophet Mohammad as the leader of the Muslim community, Abu Bakr, stated that, “[m]arriage in secret is not allowed until it is publicized and witnessed.” Nasir, supra note 10, at 56. The Prophet Mohammad himself is reported to have said, “[p]ublicize marriage even with timbals.” Id.
72 See Dr. M. Afzal Wani, The Islamic Law on Maintenance of Women, Children, Parents & Other Relatives 30 (1995). As the author reports, “[t]owards the end of the last century the British and French Colonial forces replaced in their dominians the Islamic administrative, civil and revenue laws by modern codes of civil and criminal law. However, the Islamic laws relating to personal status, including matters like, marriage, divorce, mahr, maintenance and succession continue to remain, till date, applicable in all Muslim countries and also to the Muslims of many other non-Muslim states. In many of these countries the Muslim Personal Law has been fully or partly codified.” Id.
73 See id. at 8. As the author reports, “The Quran… manifestly recognises the rights of women to earn, hold and inherit property. Her property is not the property of the husband. She enjoys a separate legal existence. If the husband predeceases the wife she inherits a part of his property and if the wife predeceases the husband he also inherits a part of her property.” Id. Another author notes that, “Islam gave woman the right to administer her own financial affairs and to develop her own capital… Neither her husband nor her father had the authority to prevent her from, or restrict her freedom of action in the exercise of any of the functions she felt inclined to undertake.” Dr. Zahia Qaddura, Woman’s Rights in Islam, in I Islam and Family Planning 67, 79 (International Planned Parenthood Federation ed., 1974). In addition, Professor Esposito asserts that, “[a]lthough each party in a marriage may inherit from the other, neither acquires interest in the property of a spouse because of the marriage.” Esposito, supra note 5, at 23. Another author explains that, “[t]he duties imposed by the law do not impose any financial duty on a wife with respect to her marital life… and her husband has no authority over her property. Indeed, she has full freedom to manage her own property whatsoever. Her property is entirely independent from his.” Muhammad Abu Zahra, Family Law, in Origin and Development of Islamic Law 141 (Majid Khadduri & Herbert J. Liebesny eds., 1955). For a discussion of this rule and its practical significance in the lives of women in nineteenth century Egypt, see Judith E. Tucker, Women in nineteenth-century Egypt 44-45 (1985).
74 The maintenance of children is, as is the general maintenance of the household, the sole responsibility of the husband. However, as one author notes, “[i]f the father is indigent, the mother, if possessing sufficient means, has to maintain the child. If the mother has no property or an earning she cannot be forced to maintain the child. Since her obligation to maintain the child is not absolute [unlike that of the father], she is to be reimbursed by the father whenever it becomes possible for him.” Wani, supra note 72, at 228.
75 See Esposito, supra note 5, at 16. “Essential to the marriage is the offer (ijab) of one contracting party and the acceptance (qabul) of the other, occurring at the same meeting before two witnesses…[a] distinguishing feature of Islamic law is the power (jabr) that it bestows upon the father or grandfather, who can contract a valid marriage for minors that cannot be annulled at puberty. The right of guardianship is known as wilayat and the guardian is a wali.” Id. The offer is made by the woman (or her guardian, or agent) to be accepted by the man (or his guardian if a minor, or agent). As one author describes it, “marriage is performed by the recital of a marriage contract which contains an offer made by the bride or her deputy (na’ib), such as her guardian or agent (wakil), and a corresponding acceptance by the groom or his deputy.” Muhammad Jawad Maghniyyah, The Five Schools of Islamic Law 260 (1995).
76 See Zahra, supra note 73, at 140-141.
77 See id. at 141-142. Also, see Esposito, supra note 5, at 24. If the woman decides to defer the payment of some of her mahr, then it becomes divided into two parts, the immediate or prompt mahr, paid upon contract, and the deferred mahr, paid either on some agreed upon date, or, if such date is not set, upon divorce or death. See Nasir, supra note 10, at 86.
78 See Esposito, supra note 5, at 23.
79 See Nasir, supra note 10, at 79-80. As the author describes, “[i]t is the duty of the husband to provide, and the right of the wife to have, a suitable matrimonial home…[t]he wife should follow the husband to the matrimonial home, provided that it complies with the Sharia requirements, that is, that it should be in accordance with the husband’s financial standing; habitable, private and not occupied by others, even if they are the husband’s kin; and provided that the husband is trustworthy towards her and her assets, and has paid her dower or the agreed prompt portion thereof.” Id. Another author relates that, “[t]he law requires that the dwelling which a husband provides for his wife must fulfill certain requirements. It must be safe structurally and situated in a safe locality so that the wife is not afraid to go outside. Further it must be free from the presence of other members of the husband’s family.” El Alami & Hinchcliffe, supra note 3, at 20.
80 “Conjugal society” involves providing the husband sexual access as well as not leaving the house without his permission. Thus as one author describes it, maintenance is due the wife after the celebration of a valid marriage contract if she “places, or offers to place, herself in the husband’s power so as to allow him free access to herself at all lawful times”, and “if she obeys all his lawful commands for the duration of marriage.” Nasir, supra note 10, at 98. As another author reports, “[a]ccording to the Hanafis, when a wife confines herself to her husband’s house and does not leave it except with his permission, she shall be regarded as ‘obedient,’…[t]hus the cause which entitles her to maintenance, according to the Hanafis, is her confining herself to her husband’s home,…” Maghniyyah, supra note 75, at 357-58.
81 See Maghniyyah, supra note 75, at 316.
82 See Esposito, supra note 5, at 25. Professor Esposito reports that the husband is obliged to pay his wife her maintenance (nafaqah) “unless she refuses him conjugal rights or is otherwise disobedient.” Id.
83 See id. Also, see Wani, supra note 72, at 49. “A wife is said to be a nashizah when she is refractory, unsubmissive or disobedient, that is, when she does not abide by the Islamic instructions regarding her behaviour towards the husband without any reasonable cause. In actual practice a wife is deemed to be a nashizah when she leaves her husband’s house without any just reasons and when she does not allow him access to her. A wife who leaves her husband’s house, on her own, without any justifiable cause is not entitled to maintenance…” Id. Another author reports that, “[o]bedience is a right which the husband can demand of his wife. By obedience is meant that she should transfer herself to his domicile, live with him, and that they should live together in harmony.” Zahra, supra note 73, at 145. Another author asserts that, “[s]ince it is the tamkeen [conjugal society], i.e. the availability of the wife for her husband, and not the marriage contract itself, that makes maintenance the lawful right of the wife, this right shall be lost if the husband is denied access to the wife…” Nasir, supra note 10, at 99. In addition, for a definition of obedience, see Maghniyyah, supra note 75, at 357-359. “If a wife leaves her husband’s home without his permission or refuses to reside in a house which fits her status, she shall be considered ‘disobedient’ and shall not be entitled to her maintenance according to all the schools.” Id. at 359. The author adds that, “[t]he schools concur that a disobedient wife is not entitled to maintenance. But they differ regarding the extent of disobedience which causes the maintenance to subside.” Id. at 357-58.
84 See id. at 28-34.
85 See Maghniyyah, supra note 75, at 415.
86 See Esposito, supra note 5, at 35. Also, see Maghniyyah, supra note 75, at 356. “The legal schools concur… that the maintenance of a divorcee is wajib [obligatory] during the ‘iddah…” Id.
87 See El Alami & Hinchcliffe, supra note 3, at 23. As the authors put it, “[n]o particular formality is attached to revocation of talaq [divorce] and it may be made expressly by the husband declaring that he has revoked the talaq or implied by the husband’s conduct, such as resuming cohabitation, and even, in the Hanafi law, by merely kissing or touching his wife… he has the right to revoke the talaq if he wishes, whether his wife wants him to do so or not.” Id. As Maghniyyah reports, “[a]l-raj’ah in the terminology of legists is restoration of the divorcée and her marital status. It is valid by consensus [of the four schools] and does not require a guardian, or mahr, or the divorcée’s consent, or any action on her part…” Maghniyyah, supra note 75, at 417.
88 See Esposito, supra note 5, at 20, 34.
89 See id. at 32. Also, see El Alami & Hinchcliffe, supra note 3, at 27-28.
90 See id.
91 For a judge to be able to declare a khul divorce, the husband must agree to it. See Esposito, supra note 5, at 104.
92 Maghniyyah, supra note 75, at 417. Thus as the author explains, “[t]he schools concur that it is necessary that the divorcée being restored be in the ‘iddah of a revocable divorce. Thus there is no raj’ah for…the divorcée of khul’ against a consideration, because the marital bond between the two has been dissolved.” Id.
93 “All Schools, Sunni and Shia alike, hold that the mother, whether she is separated or living with her husband, has the first claim to the custody of her infant, but she cannot be compelled to undertake it due to her inability to do so…” Nasir, supra note 10, at 159. The schools differ, however, over the age until which the mother has custody, but it is usually at the end of the childhood years and before they become of majority age. See id. at 170. Under Hanafi law, the divorced mother has the right to custody of her male child until he is seven years old and of her female child until she is nine. See Esposito, supra note 5, at 35.
94 “[M]aintenance is a right of the minors who have no property, on their father…” Nasir, supra note 10, at 174. The author adds that if children have the means to provide maintenance for poor parents, they must do so. See id. The father alone has the responsibility of financial support of minor children. The Hedaya Vol. I 408 (Charles Hamilton translator, 1985). (“The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it…”) While the mother in general has custodial duties related to her children, many of these duties, such as suckling, can be delegated, at the expense of the husband/father—“If the child be an infant at the breast, there is no obligation upon the mother to suckle it, because the infant’s maintenance rests upon the father, and in the same manner the hire of a nurse; it is possible, moreover, that the mother may not be able to suckle it, from want of health or other sufficient excuse, in which case any constraint upon her for that purpose would be an act of injustice.” Id. However, in the case of adult daughters, or adult sons who are disabled (and thus can not work to support themselves), there is disagreement; in some cases, the maintenance, “rests upon the parents in three equal parts, two thirds being furnished by the father, and one third by the mother, because the inheritance of a father from the estate of his son or daughter is two thirds, and that of a mother one third.” (emphasis in original) Id. at 413-414. The same author notes that other schools assign “the whole of the maintenance… upon the father…” Id. at 414. As for the maintenance of the wife after divorce, one author notes that, “[y]oung children remain in the custody of their divorced mother, unless she is otherwise unfit… [w]hile she nurses the young children and cares for the rest, it is the father’s responsibility to bear the full cost of this care and equitably compensate the mother therefore.” Hammuhad ‘Abd al ‘Ati, The Family Structure in Islam 246 (1977).
95 See Nasir, supra note 10, at 158-159. As the author notes, the “guardianship of education (wilayat al-Tarbiyya) [is] believed under the Sharia to be the duty of men rather than women.” Id. at 158. In addition, “guardianship of property (al wilayatu alal maal) if the child has any property, [is] again a task for men rather than for women.” Id. at 159.
96 See Maghniyyah, supra note 75, at 351-352. However, as the author explains, this is not necessarily the case, and rules differ according to the school of law. For instance, under Shafi‘i doctrine, there are no set ages until which the mother has custody; instead, “the child shall remain with its mother until it is able to choose between the two parents; and when it has reached the discriminating age it will choose between the two… if the child keeps quiet and does not choose any one of them, the custody shall lie with the mother.” Id. at 351-352. The author also reports that under Hanbali doctrine, although the mother has custody until the child is seven years of age, irrespective of sex, “after that, the child can chose to live with one of the parents.” Id. at 352.
97 Abd Al-Aziz Musa Amir, Al-Ahwal Al-Shakhsiyah Fi Al-Sharia Al-Islamiyya 513 (Dar Al-Fikr Al-Arabi, Cairo, Second Edition, 1976). “Femaleness is the cause of maintenance since a female is incapable of maintaining herself. Consequently her maintenance is the obligation of her relatives, whether she was young or old, whether she was in fact capable of working or not. As for the female who does works, then she has no right to maintenance and is expected to use her income to support herself.” Id.
98 See Esposito, supra note 5, at 47. As Professor Esposito notes, although codes modeled on those found in European countries were introduced in much of the Islamic world by the nineteenth century, (in the case of Egypt, France), “Islamic law, however, remained central to family law.” Id.
99 Maghniyyah, supra note 75, at xiv.
100 See Esposito, supra note 5, at 15, 21. As one author put it, “Abu Hanifa was just as severe regarding the conditions with respect to suitability (kifa’a) as he was liberal in granting freedom to a woman to choose her husband.” Zahra, supra note 73, at 138. According to the doctrine of kafaa, which is contemplated by all four major schools of Sunni law, the husband has to be of “equal” status to his wife, otherwise the marriage is subject to dissolution either upon the request of the wife (if she had been married by her guardian) or by the guardian if the woman married without his consent. See Esposito, supra note 5, at 15, 21.
101 See Zahra, supra note 73, at 138. Also, see Nasir, supra note 10, at 61. Nasir reports that, “[e]quality, which can be defined as parity of status, is considered by the Hanafis in six matters: lineage, Islam, freedom, property, trade or craft, and piety.” Id. In addition, see Ibn Abidin, Hashiyat Radd Al-Muhtar, Vol. 3, 84-95 (Dar Al-Fikr, Beirut, Second Edition, 1979).
102 The only other school of law to accept harm as grounds for a divorce initiated by a wife is the Hanbali school. See Encyclopedia of Islamic Law: A Compendium of the Views of the Major Schools 539-540 (Laleh Bakhtiar ed., 1996). Also, see Al-Sadeq Abd Al-Rahman Al-Gharyani, Mudawwanat Al-Fiqh Al-Maliki Wa Adillatuhu 12-15 (Muassasat Al-Rayyan, Beirut, First Edition, 2002).
103 See Coulson, supra note 11, at 94. “In Maliki law a marriage can be validly contracted only by the bride’s guardian…” Id. Also, see Al-Gharyani, supra note 102, at 560. “The father has the right to coerce his virgin daughter to marry, whether she was a minor or of majority age, even if she reached forty…” Id.
104 See supra note 71 for a list of these topics.
105 See for instance Maghniyyah, supra note 75, at 267-269. Also, see Esposito, supra note 5, at 22-23. As Professor Esposito reports, “[t]he wife’s ability to make conditions, provided that they are not contrary to the object of marriage, can resolve many inequities in areas such as polygamy and divorce… [a]greements on conditions can be drawn up at the time of the marriage or afterward, and are valid and enforceable provided they are not contrary to the policy of the law. Conditions that are contrary to the object of marriage (for example, clauses saying that the wife need not live with her husband or that the husband need not maintain his wife) would be void, although the marriage would still be valid. However, clauses that extend the natural consequences of marriage, such as a husband’s promise to maintain his wife in a certain lifestyle, are valid.” Id. Another author notes that the Islamic marriage contract “is open for additional, but legitimate, conditions and its terms are, within legal bounds, capable of being altered.” Al ‘Ati, supra note 94, at 59. Other authors assert that, while some stipulations are not valid, those that “merely reinforce the normal effects of marriage,” for instance, “agreements fixing the amount of dower [mahr], or fixing the amount of maintenance to be paid to the wife,” are “both valid and enforceable.” El Alami & Hinchcliffe, supra note 3, at 9. For yet another discussion of the terms that can be included in the marriage contract and those that cannot, see Ibn Qudama, Al-Mughni, Vol. 10, 42-62 (Abdullah Al-Turki & Abd Al-Fattah Al-Hilu eds., Hajr, Cairo, 1986).
106 See Maghniyyah, supra note 75, at 267-268. As the author reports, “[t]he Hanbali school is of the opinion that if the husband stipulates at the time of marriage that he will not make her leave her home or city, or will not take her along on journey, or that he will not take yet another wife, the condition and the contract are both valid and it is compulsory that they be fulfilled, and in the event of their being violated, she can dissolve the marriage. The Hanafi, the Shafi‘i and the Maliki schools regard the conditions as void and the contract as valid…” Id. Also, see Esposito, supra note 5, at 22. Other authors note that, “[t]he majority of Muslim jurists hold… any measure which attempts to vary or modify a normal incident of marriage as void. Applying the doctrine of severance, they expunge it from the contract, which then remains valid.” El Alami & Hinchcliffe, supra note 3, at 9. Only adherents of the Hanbali school of law “maintain that any stipulation which is not itself forbidden, or which is not expressly contrary to or inconsistent with the contract of marriage, will be valid.” Id. The authors add that, “[t]hus a stipulation in the marriage contract that the husband will not take a second wife is void according to the non-Hanbali Sunni schools…[a]ccording to the majority doctrine a man has a right to take four wives at any one time. This right is a normal incident of marriage and may not be varied. The Hanbalis, however, hold that such a stipulation is not itself forbidden, for the law merely allows a man to have up to four wives; it does not require him to do so. Nor is it contrary or inconsistent with the contract of marriage. Accordingly, the Hanbalis regard it as valid, and if the husband in contravention of the stipulation marries a second wife, his first wife will have a right to have her marriage dissolved… [a] stipulation may also take the form of a conditional talaq [divorce]. Thus the husband may stipulate that he will not take a second wife, but if he does so, the marriage will be automatically dissolved.” Id. at 10. Also, see Al-Gharyani, supra note 102, at 520-521.
107 See id. at 268. Also, see Abd Al-Rahman Bin Muhammad Al-Jaziri, Kitab Al-Fiqh Ala Al-Madhaabib Al-Arbaa, Vol. 4, 89-92(Maktabat Al-Eeman, Al-Mansoura, 1999).
108 See Esposito, supra note 5, at 22. Professor Esposito mentions, for instance, that some schools allow a stipulation to the marriage contract so as to, “grant the wife greater freedom of movement.” Id. Also, see Al-Jaziri, supra note 107, at 89-92.
109 See Maghniyyah, supra note 75, at 267-268; also, see supra note 105. In addition, see Al-Jaziri, supra note 107, at 89-92.
110 As one author reports, “[t]he Shafii, Maliki and Hanbali schools are of the opinion that the guardian has the sole authority with respect to the marriage of his sane and major female ward if she is a virgin. But if she is a person who has been married previously (thayyib), his authority is contingent on her consent. Neither can he exercise his authority without her consent, nor can she contract marriage without his permission… The Hanafis regards a sane, grown-up female as competent to choose her husband and to contract marriage, irrespective of her being a virgin or a non-virgin. No one has authority over her, nor any right to object, provided she chooses one her equal and does not stipulate less than a proper dower (mahr al-mithl) for the marriage. If she marries someone who is not her equal, the guardian has the right to object and demand the annulment of the contract…” Bakhtiar, supra note 102, at 423.
111 See El Alami & Hinchcliffe, supra note 3, at 22. As the authors assert, “[t]he most common method by which marriages are dissolved in the Muslim world is by the husband exercising his right of talaq… Islamic law grants to the husband the right unilaterally to terminate the marriage at will without showing cause and without having recourse to a court of law.” Id.
112 “There is consensus that the divorcee is the wife.” Bakhtiar, supra note 102, at 501. As another author explains, “[a] wife according to all the schools and sects may only terminate her marriage unilaterally when such a power is delegated to her by her husband. Otherwise a wife who is unhappy in her marriage and who wishes to obtain a dissolution must petition the court for divorce by judicial decree, showing cause why such a decree should be granted.” El Alami & Hinchcliffe, supra note 3, at 29.
113 See supra note 7 and infra Part III for a discussion of khul divorce.
114 See El Alami & Hinchcliffe, supra note 3, at 29. As the authors report, “[t]he law of the Hanafi school is the most restrictive towards women in the matter of divorce. The sole ground on which a Hanafi wife may obtain a dissolution of her marriage is her husband’s inability to consummate the marriage… [i]t was the unfortunate position of Hanafi wives in the Ottoman Empire which caused the promulgation of the first reform to the law of personal status in 1915.” Id.
115 Id. at 31. “Maliki law is unique in that it allows a woman to obtain a divorce on the grounds of dharar (prejudice), by invoking wrongful acts by the husband or by claiming that living with her husband is harmful and prejudicial to her or by claiming that there is discord between her husband and herself.” Id. As the authors explain, “[w]rongful acts of which the wife might complain include beating her without cause or with undue severity, refusing sexual relations, insulting her or her family and preventing her from leaving the matrimonial home to visit her parents. It is sufficient for a divorce to be granted that the husband has committed a single act contrary to law or custom against the wife.” Id. at 31-32.
116 See id. at 30. For instance, the authors report that, “the Shaf’i school allows the court to grant a decree of judicial divorce (faskh) where the husband willfully refuses to maintain his wife.” Id. In addition, “Hanbali law recognizes the various physical and mental defects and also recognises further grounds on which a judicial divorce may be granted. A wife may obtain a divorce if her husband is absent for a ‘prolonged’ period of time—usually interpreted as six months, even if the husband continues to provide her with maintenance during his absence—or if he abstains from having sexual relations with her for a similar period… The failure of the husband to provide maintenance, whether this is because of willful refusal or inability for whatever reason, is also a ground on which a petition may be brought.” Id.
117 See for instance Tahir Mahmood, Statutes of Personal Law in Islamic Countries 6 (1995). The author reports that, “[u]nification of personal law has been achieved in the Muslim world by assuming that all or most of the different schools of Islamic jurisprudence are equally valid and acceptable, and by applying to them the principle of eclectic choice (takhayur). The choice has been exercised in different countries under the legislative, executive or judicial powers of the state often through juristic aid and advice.” Id. Also, see Esposito, supra note 5, at 48-49, 119-121. Professor Esposito, writing about the reformist methodology used to formulate the rules embodied in Egyptian Law No. 25 of 1929, notes that, “[w]hereas takhayyur traditionally was restricted to selection of the dominant opinion of another law school, the reformers extended it to the adoption of an individual jurist’s opinion.” Id. at 120. On this point, also see id. at 56.
118 Supra madhhab refers to supra doctrinal. A supra madhhab jurist is one who is not affiliated with the doctrine of any specific Taqlid school of jurisprudence but adopts rules in an eclectic way from either one of them to achieve his reformist project. See Aharon Layish, The Contribution of the Modernists to the Secularization of Islamic Law, in 14 Middle Eastern Studies 263, 263 (1978). As the author describes it, “[t]he modernists tried to synthesize the materia of the Sunni schools of law by the doctrine of selection (takhayyur) or combination (talfiq, lit. patch-work)… Muhammad Rashid Rida likewise called upon ‘ulama to free themselves from partisanship for particular schools.” Id. As Hallaq reports, “[a]cknowledging that the doctrine of a single school no longer served the purposes of the reformers, recourse was made to a device according to which law could be formulated by an amalgamated selection (takhayyur) from several traditional doctrines held by a variety of schools… [m]oreover, the reformers resorted to the so-called talfiq according to which part of the doctrine of one school is combined with a part from another.” Hallaq, supra note 25, at 210.
119 “Muhammad ‘Ali officially became wali (viceroy) of Egypt in 1805, and, having managed to annihilate his political opponents by 1812, he embarked on an ambitious program of increasing state revenue to the end of gaining strength and independence for Egypt, still de jure under the suzereignty of the Ottoman Empire.” Tucker, supra note 73, at 25. Another author describes this important figure in Egyptian history as, “[t]he creator of modern Egypt, the Albanian adventurer Mohammad Ali, born in the same year as Napoloen and by 1807 master of Egypt by right of conquest…” Jasper Yeates Brinton, The Mixed Courts of Egypt 5 (1968). In addition, another author reports that, “[f]ew periods of Ottoman history have intrigued scholars as much as the 1805-48 governorate of Muhammad ‘Ali, founder of the dynasty that ruled Egypt until the mid-twentieth century. Muhammad ‘Ali’s draconian methods of reconsolidating political control in Cairo following withdrawal of Napoleon’s expeditionary force in 1802 became a special focus for historians.” Byron Cannon, Politics of Law and the Courts in Nineteenth-Century Egypt 9 (1988).
120 See Crecelius, supra note 4, at 73-77. “The reign of Muhammad Ali Pasha (1805-49) marks the beginning of the differentiation of political and religious structures in modern Egypt. His decisions and programs have in fact largely determined the course that secularization has taken over the last century and a half in Egypt.” Id. at 73.
121 See Albert Hourani, A History of the Arab Peoples 272-273 (1991). Also, see Khaled Fahmy, All the Pasha’s Men 9-10 (1997).
122 See Crecelius, supra note 4, at 73-74. “The first and most abrupt move toward the differentiation of religion and state came in the attacks Muhammad Ali made against the political influence of the ulama… above all, he departed from traditional principles of Islamic government by refusing to accept the advice and mediation of the ulama in the councils of state.” Id. One author describes the historical relationship between the ulama and the political ruler in the following manner: “[u]nder the later Mamluks the ‘ulama’ had achieved a close relationship with the ruling group and had become the natural leaders of the people, thus serving as a bridge between their unruly rulers and the population at large. This was manifest in the increasing dependence of the Mamluks on the ‘ulama’ in negotiating between opposing Mamluk factions, in consulting with them on matters of import, and above all by a notable increase in the wealth of the shaykhly class.” Afaf Lutfi al-Sayyid Marsot, The Beginnings of Modernization among the Rectors of al-Azhar, 1798-1879 in Beginnings of Modernization in the Middle East 268-269 (William R. Polk & Richard L. Chambers eds., 1968).
123 See id. Also, see Hourani, supra note 121, at 273. In addition, see Cannon, supra note 119, at 12-14. One author reports that between 1805-1820, as governor of Egypt on behalf of the Ottoman Sultan, Muhammad ‘Ali, “managed to tighten Cairo’s control over the provinces by fighting corruption in the local bureaucracy, by conducting a cadastral survey that was crucial in abolishing the tax farming system (iltizam) and in the cancellation of the immunities on agricultural land belonging to mosques and pious foundations (awqaf), and, most importantly, by getting ride of…the power of the military landlords, the Mamluks, who had been in effective control of the province for centuries in spite of Ottoman legal suzerainty. Centralization of political and administrative control was also enhanced by rapid increase in agricultural productivity…” Fahmy, supra note 121, at 9-10.
124 See Tamir Moustafa, Conflict and Cooperation Between the State and Religious Institutions in Contemporary Egypt, in 32 Int. J. Middle East Stud. 3, 4 (2000). As Tamir Moustafa describes it, “Muhammad ‘Ali (1805-48) was the first Egyptian ruler to challenge systematically the power of Egypt’s religious institutions. As part of his program to build a modern Egyptian state and challenge the Ottoman government for control of the empire, Muhammad ‘Ali reorganized land ownership and nationalized 600,000 feddans (623,000 acres) of waqf land that had previously financed mosques and religious schools and formed the economic foundation of the ulama.” Id. at 4. Also, see Crecelius, supra note 4, at 73-74.
125 See Crecelius, supra note 4, at 73-74. Also, see Tucker, supra note 73, at 29-30. In addition, see Cannon, supra note 119, at 13-14. Cannon describes the process by which the power of tax farmers, merchants and guilds was appropriated by the state in the following passage: “Muhammad ‘Ali began with a concerted drive to regain central control over Egypt’s actual revenue-earning power. To do this, he forcibily revived the Ottoman Islamic theory of state ownership (miri) of all agriculturally productive land previously under tax farmer intermediaries. Soon after his first political tasks were accomplished by brutal suppression of local Mamluk interests in Egypt’s military and landholding system, Muhammad ‘Ali extended central controls down to the smallest localized units of economic productivity. For town dwellers, this brought a decline in fiscal and administrative autonomy for traditional guilds responsible for the welfare of many artisans and small shopkeepers… [i]n short, the ultimate authority of the Cairo governor to regulate nearly every aspect of provincial economic and administrative activity became an accomplished fact.” Id. at 13.
126 See id. at 74. “The regime’s attacks upon the political influence of the ulama and its seizure of most of the revenues that sustained the vast system of schools, mosques, takiyahs, and ceremonies of the religious community had a terrible effect upon the religious institutions in Egypt. Deprived of most of their revenues and ignored by the new regime, religious institutions entered a period of rapid and continuous decline.” Id.
127 See Moustafa, supra note 124, at 4. As another author reports, “Muhammad ‘Ali founded a number of schools modeled on the European system. The Council of Public Instruction, established in 1836, supervised 54 state-run primary and secondary schools throughout Egypt during the latter part of Muhammad ‘Ali’s reign.” Tucker, supra note 73, at 122-123. Also, see F. Robert Hunter, Egypt Under the Khedives 1805-1879 17 (1984).
128 See Tucker, supra note 73, at 122-123. “Not surprisingly, given the emphasis on reforms calculated to promote technological transformation, other new educational institutions focused on military, professional, and technical training geared to introduce European practices… [t]his new educational system functioned alongside the older system of elementary schools attached to mosques (kuttabs), and the advanced religious and classical education offered by al-Azhar.” Id. at 123. Also, see Crecelius, supra note 4, at 73-74.
129 See Rudolph Peters, “For his correction and as a deterrent example for others,” Mehmed ‘Ali’s first criminal legislation (1829-1830), in 6 Islamic Law and Society 164, 164 (1999). Although this article looks specifically at criminal legislation and codes enacted by Ali, the author’s analysis is instructive for other areas of the law as well. In fact, the author notes that, “[t]he convening of the consultative council (Meclis-i Mesveret, Meclis-i Umumi) in September 1829 (3 Rabi’I 1245) marked the beginning of Mehmed ‘Ali’s legislative activity in the fields of criminal, constitutional and commercial law.” Id.
130 See Tucker, supra note 73, at 29. Laws put in place under Muhammad Ali affected the diverse aspects of Egyptian life that needed to be under the control of the modernized, centralized state to achieve Ali’s goals. The state was thus empowered to regulate and tax commercial activities in general and agriculture in particular. As the author notes, “[s]tate intervention in agriculture and trade… formed part of the State’s attempt to mobilize agricultural resources to the political end of generating revenues for building a strong military force.” Id. Also, see Hunter, supra note 127, at 17-22. As one author notes, “almost all of Muhammad ‘Ali’s important internal reforms had been organized to support a strong military budget…” Cannon, supra note 119, at 19. Another author asserts that, “Mehmed Ali started to found a modern army in Egypt, an army which was based on conscription and which relied on the institutions of the modern state that he founded mainly to serve that army.” Fahmy, supra note 121, at 9.
131 See Peters, supra note 1290, at 173. The author, focusing on the area of criminal law, reports that, “It was Mehmed ‘Ali’s ambition to impose a centralized and rational order upon his realm. The effects of this endeavor are evident in various domains of society, such as agriculture and the military. Criminal law, by its nature, is crucial to such a policy of disciplining, and the new laws must be regarded as a means to achieve this centralization and rationalization. The idea of centralization was very much vested in his person. Mehmed ‘Ali wanted to be the ultimate authority in criminal justice and the new laws expressed the notion that all punishment derived from his omnipresent authority, even if it was in fact imposed by his agents. Lawfully inflicted punishment ought to represent and symbolize the centrality of his power.” Id. Khaled Fahmy notes that, “[al]lthough some aspects of legal reform were indeed influence by European law, these developments aimed more at tightening the grip of the government over its populations than at spreading ‘legal knowledge concerning rights, duties, freedoms and remedies.’” Khaled Fahmy, The anatomy of justice: forensic medicine and criminal law in nineteenth century Egypt, in 6 Islamic Law and Society 224, 231 (1999). In addition, Fahmy links this desire to control the population with Ali’s goal of independence: “[a]s early as September 1829, when he passed his first penal legislation, and much before he first expressed his desire for official independence from the Ottoman Empire in the late 1830s, Mehmed Ali was already using law, and penal law in particular, to carve out an independent realm for himself in which his laws and his bureaucracy would reign supreme at the expense of the Sultan’s.” Id. at 233-234.
132 See Cannon, supra note 119, at 23-25. The author describes, “a series of administrative options for different types of litigation introduced by Muhammad ‘Ali… practical administrative requirements always encouraged separation between the (primarily personal status) functions of the qadi and secular judicial prerogatives of government. This was especially true where penal or basic fiscal considerations were at stake… Muhammad ‘Ali himself consciously tried to found a system of specialized majalis or councils to carry out a variety of secular judicial functions.” Id. at 23. Commerical disputes, for instance, could be settled before “two separate merchants’ councils (Ar. majalis at-tujjar) created in 1845… [t]hey could arbitrate disputes between capitulatory and local subjects alike.” Id. at 25. The author asserts that, in general, “sectarian jurisdiction tended to diminish whenever the power of central political authorities rose enough to offset the traditional influence of the religious classes in many key areas.” Id. at 23.
133 See Fahmy, supra note 121, at 172. As the author reports, “[b]y curbing the high-handed behavior of officials, these codes aimed at protecting Egyptian subjects… these legal texts must be read as a pledge on the part of the sovereign to see that justice was done once he was informed by petition of any injustice suffered by his subjects.” Id. Also, see Cannon, supra note 119, at 24. Cannon reports that, “[i]n his own provincial operations in the 1830s and 1840s, Muhammad ‘Ali delegated a portion of his own high executive prerogatives to a single specialized body known as the Council of Egyptian Judicial Rulings (Ar. majlis al-ahkam al-misriyya)… the Cairo Council served primarily as a superior court for the Egyptian governorate. It reviewed, for example, petitions against Muhammad ‘Ali’s own officials who, in the absence of a distinct judicial branch of government, traditionally settled village-level disputes not clearly reserved for local sectarian jurisdictions.” Id.
134 See Nadav Safran, Egypt in Search of Political Community 32 (1961). The author suggests that Ali was motivated by political realities to leave some areas of the legal system in tact while changing others: “[Ali] left untouched the system of religious courts, even though he had a very low opinion of them, in order not to raise complications with the Ottoman sultan to whose hands the jurisdiction over these courts ultimately reverted; but he established two courts independent of Muslim Law in Cairo and in Alexandria to settle commercial disputes and had criminal justice administered almost exclusively by the executive authorities in a summary fashion.” Id. This may be one reason why personal status laws escaped Ali’s “modernizing” touch.
135 See Fahmy, supra note 121, at 22, 291. Britain perceived Ali as a threat to its imperial interests in India, Egypt being an important country en route to this most precious British colony. As Fahmy describes it, “Mehmed Ali’s imperialist expansion over wide areas of the Ottoman Empire seriously challenged Britain’s most ambitious imperialist designs and was regarded in London and Bombay as a threat to Britian’s possessions in Asia, her communications with India and her influence in Istanbul.” Id. at 22. Britain was also worried about the detrimental effect that Ali’s rising power could have on an already weakened Ottoman Empire that had come to be the object of several European countries’ colonial interests. See id. at 294-295. In other words, the British feared that Ali would jeopardize the efforts taken by the competing European powers to save the dying “sick man of Europe,” as the Ottoman Empire was called at the time, which had until then kept the Empire in one piece. See id. at 294-295, 297. Fahmy thus reports that the British viewed Ali as “causing a grave threat… by giving the Russians the opportunity and the pretext to encroach onto Ottoman lands, and possibly to do away with the Ottoman Empire altogether. [British Foreign Secretary] Palmerston’s motto of ‘the preservation of the integrity of the Ottoman Empire’ was his most effective bulwark against possible Russian aggression…” Id. at 294-295. In addition, see Cannon, supra note 119, at 15. For a description of other, economic motivations that drove the Europeans to scheme with Istanbul to intervene in Ali’s rule, see id. at 16-17.
136 See id. at 291. The author reports that, “on 1 June 1841, the Sultan issued a firman naming Mehmed Ali as governor of Egypt for life and granting his male descendants the hereditary rights of the governorship of Egypt. In addition, though, the firman stipulated that the Pasha reduce the size of his army to 18,000 troops in peace-time. Moreover, the Sultan added that ‘all the Treaties concluded and to be concluded between my Sublime Porte and the friendly Powers shall be completely executed in the Province of Egypt likewise.’” Also, see Cannon, supra note 119, at 19.
137 See Cannon, supra note 119, at 19. The author reports that the Ottoman Sultan Abdulmecid, in conjugation with the European countries that helped him defeat Ali, insisted on the suppression of his “system of government commercial monopolies.” Id. Another author notes that, as a result of the European/Ottoman intervention, in 1840 Ali had to “accept the Anglo-Turkish Commercial Convention of 1838 which banned all monopolies in the Ottoman empire.” Hunter, supra note 127, at 31.
138 See id. at 19-20. “[B]y urging that reconfirmation of Egypt’s obligations within the general capitulatory system should be followed by a new round of most favored nation treaties based on the 1838 Anglo-Ottoman convention, London laid the basis for capitulatory politics that continued to operate for half a century after 1841.” Id. at 19. Another author discusses the devastating results of the loss of tariff protections for local Egyptian industries that Ali’s monopolies had allowed to flourish: “[M]onopolies were believed to have been the backbone of the Pasha’s economic policy and to have given his industries the protection they needed to compete with European goods. Having lost that protection, the infant industries and the services connected to them fell to ruins… the Egyptian factories found it difficult to produce commodities that could compete with foreign, mostly British, goods… local industries were closed down after losing their protective tariff barriers. At the same time, foreign merchants flooded the Egyptian market with their cheap goods after the collapse of the Pasha’s monopoly system.” Fahmy, supra note 121, at 13. In addition, see Ahmed Abdel-Rahim Mustafa, The Breakdown of the Monopoly System in Egypt after 1840, in Political and Social Change in Modern Egypt 291, 300 (P.M. Holt ed., 1968). Mustafa reports that, “[t]he Egyptian government, finding that there was no escape from the plain and obvious sense of the treaties, consented to suppress the duties heretofore levied at Bulaq, the port of Cairo.” Id.
139 Crecelius, supra note 4, at 77-78. Also, see Hunter, supra note 127, at 44-45. Hunter notes that new courts were set up all over Egypt: “The formation of these courts was the last step in the elaboration of a new judicial administration for Egypt.” Id. at 45. Legal reforms were felt not only in Cairo but in other areas of the country as well: “During the 1860s and 1870s, a new judicial administration emerged in the countryside, and administrative and agricultural councils were formed to supplement those provincial units of government created by Muhammad Ali.” Id. at 44. In addition, a Department of Justice was established: “In 1872, perhaps because of the growing need to control and coordinate the various elements that now made up the legal order, an executive organ, the Department of Justice, was created.” Id. at 45.
140 See Hunter, supra note 127, at 38. The author describes, “the rapid emergence of a European and Levantine fiscal-commercial bourgeoisie. The two most important components of this class were the promoters whose companies undertook the construction of public works, and the merchant-financiers who established banks and had ties with investment houses in Europe. These men not only represented an institutional base for Egyptian trade with Europe, but most important, they also provided a new means of financial support for Egypt’s rulers. The viceroys used these Europeans to facilitate the extension of cash crops, and European merchants and bankers became a source of easy credit by providing short-term loans and purchasing government bonds.” Id. Another author asserts that subsequent to Ali, the leaders of Egypt were effectively, “opening the doors of Egypt to the growing Western capitalism and to European immigration…” Mustafa, supra note 123, at 306. For a rather complete discussion of the “cotton boom” to hit Egypt at this time and the results in rural Egypt, see Tucker, supra note 73, at 31-35.
141 See Brinton, supra note 119, at 5. The author reports “the establishment of a complete immunity from the jurisdiction of local courts and from the application of local laws” for foreigners under the consular or Capitulations system. Id. He explains that, “[p]rompted largely by reasons of practical necessity and convenience, little by little the consuls assumed jurisdiction in all cases, civil or criminal, which involved their nationals… It was an expansion of consular jurisdiction… based purely on usage.” Id. He continues that, “[t]he consul’s jurisdiction was necessarily confined to the enforcement of the laws of his own country…[t]herefore, foreigners were subject only to their own laws, as such laws were interpreted by their own consuls.” Id.
142 See id. at 5-6. Also, see Herbert J. Liebesny, The Development of Western Judicial Privileges, in Origin and Development of Islamic Law 326 (Majid Khadduri & Herbert J. Liebesny eds., 1955). Liebesny reports that, “[b]y the nineteenth century the capitulatory rights of the various powers had thus grown into a well-systematized framework of law and procedure.” Id. The Liebesny article gives a very concise description of the system of Capitulations. This is not to suggest, however, that the Capitulations were not in existence prior to the nineteenth century. Byron Cannon describes the capitulory system in place in Egypt centuries earlier; in fact, he asserts that, “[t]he series of bilateral treaties that constituted the Ottoman capitulatory system probably reached their highest degree of efficiency in the seventeenth century. This was before military defeats made the Ottoman Empire vulnerable to a variety of forms of external coercion by both friends and enemies. Initially modeled after much earlier “chapters” (It., capitula) of commercial and judicial privileges granted by Mamluk sultans to Italian traders in medieval Egypt, the first capitulatory treaties with Europeans were signed from a position of strength, not weakness. In fact, until the eighteenth century, whatever benefits derived from such Ottoman-Christian agreements were technically reciprocal.” Cannon, supra note 119, at 6.
143 See Tucker, supra note 73, at 31-32. Also, see Hunter, supra note 127, at 38.
144 See Cannon, supra note 119, at 39-43. As Cannon notes, before the transplantation of laws based on European codes in Egypt, “the Ottomans possessed only a very rudimentary body of imperial qanun or secular administrative law to supplement the sectarian rulings applicable to Ottoman subjects in their own private affairs. From the sixteenth century onward, only certain privileged provinces enjoyed the possibility of systematic reference to special codes of imperial decrees, or qanunnahmes, pertaining to administrative or land tenure questions in their zones. These were supposed to give guidelines for a separate jurisdiction free from sectarian interference in areas of recognized governmental concern, especially in fiscal matters. They embodied neither uniform rules applying throughout the Empire nor provisions for commercial transactions or private contract and property relations that European law would eventually group under the civil umbrella of the Napoleonic Code.” Id. at 7.
145 See Tucker, supra note 73, at 32.
146 See id. at 31-34. “The cycle of small peasant debt has been amply illustrated: forced to borrow at high rates of interest in order to get the seed and animals necessary for sowing and paying monthly installments on their taxes, the peasants then had to repay these loans, often in kind, at harvest time when crop prices were lowest.” Id. at 34. For a detailed account of foreign moneylenders in Egypt, particularly Greeks, see Sayyid ‘Ashmawi, Perceptions of the Greek Money-lender in Egyptian Collective Memory at the Turn of the Twentieth Century, in Money, Land and Trade 244 (Nelly Hanna ed., 2002). “Although he made very little profit which he used to purchase more stock, the Greek grocer lived on next to nothing and lent money to the peasants at exorbitant interest rates. He bought land, traded in cotton and built an astonishing fortune, despite being barely able to make ends meet when he first saw Egypt.” Id. at 253. The author adds, “[m]any Egyptians displayed a certain aversion to money-lending because Islamic religious values prohibited usury. Money-lenders, therefore, were mainly Greeks who owned grocery shops in rural areas. They sold consumer goods to peasants on a retail basis, taking the cotton crop as security, and lending on a wide scale to rural inhabitants.” Id. at 253-254.
147 See Cannon, supra note 119, at 39-40.
148 See Liebesny, supra note 142, at 330-331. Also, see Brinton, supra note 119, at 9, 23-24. Brinton, referring to the courts as the “Mixed Courts of Egypt,” reports that, “[t]he fourteen capitulatory powers which gave adherence to the regime of the Mixed Courts were Germany, Austria, Belgium, Denmark, Spain, the United States, France, Great Britain, Greece, Italy, Sweden, Holland, Portugal, and Russia.” Id. at 25.
149 See Bassiouni, supra note 5, at 166. As M. Cherif Bassiouni reports, “[i]n 1875, it [Egypt] adopted a number of codes modeled after French prototypes. This can be explained by the fact that the codes were intended for application by the Mixed Courts, which had jurisdiction over cases involving European and U.S. citizens residing in Egypt. The Mixed Courts were abolished in 1949.” Id.
150 The importance of this legal development cannot be underestimated. Codification is a new and recent phenomenon in majority Muslim countries where Islamic law historically prevailed. Interestingly, although often also codified or formulated as man made legislation, albeit legislation based on Islamic legal rules, personal status law consistently has a separate existence from other branches of the now codified law: “In most of the Islamic countries major branches of law now stand fully codified under state authority. There are in these countries, both Arab and non-Arab, written constitutions and codified laws of contracts, crimes, civil and judicial procedures, evidence, labour relations, trade and commerce, intellectual and industrial property, taxation, etc… [In addition] [m]any Islamic countries now have a national civil code. Known in the Middle East as qunun-i-madani, the first few among these were drafted by the celebrated Arab [Egyptian] jurist Abd al-Razzaq al-Sanhuri. The Arab civil codes cover laws of contracts, obligations, partnership, transfer of property, etc., but not personal law (family relations and succession). In the Arab countries personal law has been either separately codified, or left uncodified; but nowhere has it been made part of the civil code.” Mahmood, supra note 117, at 2.
151 See Liebesny, supra note 142, at 331. As Liebesny reports, “[i]n 1883 native or National Courts were organized in Egypt which followed more or less the pattern of the Mixed Courts and which had jurisdiction in matters involving Egyptians only.” Id. Also, see Brinton, supra note 119, at 157-158. “Whereas the Mixed Courts were established prior to the British occupation of Egypt in 1882… the Native Courts were not instituted until 1883, their existence being the result of an effort to put an end to the defects of the existing system of purely Moslem courts. The new courts were modeled largely on the Mixed Courts themselves…” Id. at 158.
152 See Farhat J. Ziadeh, Lawyers, the Rule of Law and Liberalism in Modern Egypt 35 (1968). The author reports that in the new courts, although it was decided that to a large extent “the laws applicable in the mixed courts [would] be followed,” there were many areas “which were to be amended for conformity to the conditions in the country,” and as far as codes, “separate codes were prepared.” Id. In addition, “[q]uestions which touched upon Islamic law were referred for comment to Shaykh Bahrawi, Mufti of the Ministry of Justice.” Id. In addition, see Herbert J. Liebesny, The Law of the Near & Middle East 71 (1975). As Liebesny reports, “[t]he new judicial system… necessitated not only a new court structure, but also new procedural and substantive laws. The new codes were taken largely from French law and were, in fact, prepared by a French lawyer, M Manoury… Those parts of the Civil Code which dealt with domestic relations were omitted, but the books regulating property rights and obligations were largely adopted. Certain rules of traditional Egyptian law, particularly those concerning certain property rights, were incorporated into the new Egyptian Code. The Commerical Code, the procedural Codes and the Penal Code also followed the French prototypes.” Id.
153 See Brinton, supra note 119, at 159-163. “In the Religious Courts was encountered that broad domain of jurisdiction over questions of personal status which has always played a large role in the complicated legal machinery of the former Ottoman Empire… [t]he distinction involved no idea of inferiority or humiliation, but was the natural result of the great diversity of social and religious organizations existing throughout the country. Such questions had to be left to the only authorities capable of solving them.” Id. at 159. Also, see Ron Shaham, Family and the Courts in Modern Egypt 11-12 (1997). Shaham, reporting on “modernist legislation” imposed by the government in Egypt to put in place “Western-oriented” reforms, notes that there was a “gradual restriction of the jurisdiction of the shari’a courts. During the Ottoman period, the jurisdiction of these courts had included personal status and pious endowment (waqf), as well as civil, criminal, and administrative affairs. But in the early nineteenth century Muhammad ‘Ali had already begun to diminish this jurisdiction by establishing alternative civil codes that applied Western-inspired codes of law. This process was continued by his successors and later promoted by the British. The 1897 law, pertaining to evidence and procedure in the shari’a courts, restricted their jurisdiction to personal status and waqf… [t]he jurisdiction taken from the shari’a courts was transferred to civil courts, among them Indigenous Courts (mahakim ahliyya), established in 1884… [t]hese courts applied European-oriented laws.” Id. As another author reports, “[t]he Egyptian law reforms of the late nineteenth century thus established three separate court systems: the mixed courts, the native courts, and the religious courts (shari’a courts and the courts of the Jewish and Christian communities). In addition there were consular courts which retained jurisdiction in some matters with regard to citizens of their country.” Liebesny, supra note 152, at 76.
154 See Ziadeh, supra note 152, at 58. As the author describes, lawyers were divided into members of the so-called Shari’ah Bar and those of the National Bar. See id. “The Shari’ah Bar was never able to gain the same prestige as the National Bar. In the first place, its members for the most part did not have as high a level of education. In the second place, the practice of the shari’ah advocates was limited to matters of personal status, a field of law which was not, except for waqf cases, as lucrative or as commanding of respect as other fields of law. The really decisive factor in this lack of prestige was the fact that the shari’ah advocates were the defenders of a religious order that was constantly giving way to secular ideas and progressive legislation.” Id. Also, see Timothy Mitchell, Colonising Egypt 85 (1988). Al-Azhar, “the oldest continuing centre of scholarship and law anywhere in the world,” established in Cairo a thousand years ago, is a key example of institutions that embodied and preserved local religious learning and traditions. Id. at 84. Offering training in religious law and other traditional areas of learning, the author reports that, “[t]he techniques of order and authority exemplified in the learning of al-Azhar could not cope with the political and economic transformations taking place.” Id. at 85.
155 See Brinton, supra note 119, at 159-160.
156 See id. at 159. “[The] non-Moslem had the same right to resort to their own religious courts as had the native Moslem himself.” Id. The author notes that, “[t]hese non-Moslem religious courts comprised the most complicated system of courts in Eygpt… The jurisdiction of these courts covered all questions affecting personal status (marriage and divorce, etc.)… At the head of these communities, numerically considered, stood the Orthodox Copts, a Christian sect of great antiquity and one of the most solid and important elements in Egyptian life.” Id. at 162-163.
157 See id. at 160.
158 See id. at 161. Also, see Shaham, supra note 153, at 11-12. As Farhat J. Ziadeh notes, the shari’a courts “had been the ordinary courts of the country, with a jurisdiction which theoretically embraced every type of case, both civil and criminal… [s]erious reorganization was not undertaken until May 27, 1897, when a decree was issued setting up three levels of courts and defining the jurisdiction of each in questions of personal status only. From then on jurisdiction of these courts no longer depended upon the shari’ah, but upon statute.” Ziadeh, supra note 152, at 56.
159 See id. at 161-162. Also, see Shaham, supra note 153, at 14-15. The original law of procedure that changed the jurisdiction and functions of the shari’a courts was the 1897 law (as amended in 1909 and 1910). See id. at 12. Laws of personal status passed in the twentieth century include Law No. 25 of 1920; Law No. 25 of 1929; Law No. 77 of 1943; and Law No. 71 of 1946. See id. at 14.
160 See id. at 161. Also, see Shaham, supra note 153, at 12-14. Shaham reports that the procedural legislation passed in 1897 “reformed the shar’ia rules of procedure by introducing, for example, a statute of limitations of fifteen years on claims denied by the defendant…[t]his meant that the qadis were forbidden to try such claims once this period had passed if there was no legal excuse (‘udhr shar’i) for failure to submit the claim until then.” Id. at 13. In addition, European rules of evidence were introduced, and shari’a courts were forced to follow them: “[r]eform of the Islamic rules of evidence included the acceptance of documents as valid proof in a court of law. The Sunni schools had regarded documentary evidence as secondary and subordinate to oral evidence… Egyptian statutory legislation equated written with oral acknowledgement, accepted documentary evidence as if it was not suspect, and set up regulations for determining the authenticity of documents…” Id. Similary, there were “procedural reforms” concerning oral testimony, giving the option to “swear in” as well as to cross-examine witnesses. Id. This conflicts with the shari’a, according to which the only way to credit a witness is by the tazkiya test, which involves inquiring about his honorable record. Id. at 13-14. The author cites many other foreign procedural elements introduced into the laws to be applied by the shari’a courts, and also notes that the new procedural rules included a total re-organization of the shari’a courts in a way foreign to the traditional system: “[t]he organization of the shari’a courts system that had existed during the Ottoman period was reformed as well: the concept of institutional hierarchical appeal, alien to the shari’a, was introduced; and the 1897 Law (which was further modified in 1909 and 1910) organized the shari’a courts into three stages: Courts of Summary Justice (mahakim juz’iyya), Courts of First Instance (mahakim ibtida’iyya) and a Supreme Court (mahkama ‘ulya).” Id. at 12.
161 See Shaham, supra note 153, at 12-13. “Although the majority of the Muslim population in Egypt adheres either to the Shafi‘i school (in Lower Egypt) or to the Maliki school (in Upper Egypt), the dominant school in the Egyptian shari’a courts is the Hanafi, a legacy of Ottoman rule. From the early nineteenth century, the Hanafi school acquired exclusive status in the courts, regardless of the personal affiliation of the litigants. The procedural legislation directed to the shari’a courts (starting from 1880) ordered these courts to judge according to the decisive opinions within the Hanafi school (arjah al-aqwal fi madhhab Abi Hanifa), except for matters in which the legislators specifically ordered the courts to apply reform statutory legislation based on the instructions of alternative schools.” Id.
162 See in general Anderson, supra note 61. This is of course within the general framework of the decline of ijtihad during the Taqlid era; as the author’s authoritative work notes, although by “about the end of the third century of the Muslim era, it was commonly accepted that the ‘door of ijtihad’ had become closed,” and “the development of the law became progressively more and more moribund,” “[t]here was always, it is true, a certain measure of progress or evolution, since new situations and problems arose which had to be solved by the fatawi, or reasoned opinions, of some leading jurist; but, in the main, the continual sequence of accepted textbooks took the form of commentaries and digests based, century after century, on the commentaries and digests of the past.” Id. at 7. Because the shari’a “was regarded as a divinely given blue-print to which society—ruler and subject alike—must always do their utmost to approximate,” even early suggestions to officially (that is, under the authority of the state) codify the law “was successfully resisted; so it remained an amorphous volume of partly contradictory doctrine, to which lip-service, at least, was invariably given…” Id. at 9-10. Eventually reform, which involved not only codification; the establishment of courts that rivaled and limited the jurisdiction of the shari’a courts; and the positioning of the state as the promulgator of laws, even if at times based on Taqlid rules, “came not from below but from above… these reforms were imposed on them [ordinary Muslims] by the Government.” Id. at 14-15. The reaction in Egypt and in many other countries, although not always involving a demand to return to the authority of knowledgeable jurists as the source of law (who are often seen as having been coerced by recent reform processes by the state of their traditional power and independence), is often “the pressure for a greater reliance on the Shari‘a as the source of the general law.” Id. at 193. Indeed, religious Muslims often use modern, secular forums such as the Supreme Constitutional Court of Egypt to pursue their demands, rather than seeking fatwas or opinions of Islamic jurists.
163 See Bassiouni, supra note 5, at 167. Also, see supra note 150.
164 See id. at 168-169. “The Egyptian Civil Code of 1948 and its progeny in other Arab countries are mainly the result of the efforts of Abd al-Razzaq al-Sanhuri (1895-1971 C.E.), the most influential Arab jurist of the 20th century.” Id. at 168.
165 See id. at 167-169.
166 See Safran, supra note 134, at 61. As the author reports, the result of Europeanization in general and British colonization in particular was, “that two major trends, destined to be of crucial importance in the evolution of Egypt during the first half of the twentieth century, were formulated during this period. At first they seemed to have much in common, and the men responsible for them at times collaborated with each other; but as they developed and crystallized, they became increasingly alternative and competing platforms. One approach, formulated by Muhammad ‘Abduh and modified by Rashid Rida, spoke for a reformist Islam; the other, formulated by Mustafa Kamil and Lutfi al-Sayyid, promoted a nationalist ideal to which was attached a rationalist liberal philosophy.” Id.
167 See id.
168 Both traditionally trained ‘ulama, Egyptian Muhammad Abduh (1849-1905) and Syrian Rashid Rida (1865-1935) sought religious reform based on rational exploration of the needs of modern society that did not betray the essential doctrines of Islam. See generally Malcom Kerr, Islamic Reform: The Political and Legal Theories of Muhammad ‘Abduh and Rashid Rida (1966). Also, see Hallaq, supra note 25, at 212, 214-220.
169 See Kerr, supra note 168, at 205. “By the early 1920’s Rashid Rida was embittered to discover that his most formidable opponents were… the Western-educated secularists, who were ready to push his own utilitarian principles beyond the bounds to which his intellectual background restricted him.” Id.
170 See Hallaq, supra note 25, at 212-220.
171 See Kerr, supra note 168, at 194.
172 See Esposito, supra note 5, at 145. Also, see Layish, supra note 118, at 266-67. As Hallaq put it, “[w]hat Rida excluded from the domain of traditional qiyas he replaced by the concept of maslaha.” Hallaq, supra note 25, at 217. As Kerr describes it, according to Rida, “qiyas, with all that it entailed not only of deductive reasoning but of semantic study of texts of the Qur’an and hadith, was merely a roundabout way of arriving at the same conclusions that could be reached by the equally valid (but much simpler) process of istislah.” Kerr, supra note 168, at 194.
174 See Anderson, supra note 2, at 223. Anderson reports the following of Abduh and his contemporaries: “Why, the argued, should the courts always be required to follow the dominant opinion in the Hanafi school—particularly in matters such as the judicial divorce of misused wives, where the dominant Hanafi doctrine is rigid in the extreme, and some of the other schools much more liberal? Had not the individual Muslim in his private life always enjoyed considerable latitude as to which school he would follow, whether in general or in any particular question;… was there not considerable authority for the proposition that it was within the competence of the ruler, when public interests so required, to require his courts to abandon the dominant opinion of the school they normally follow in favour of the ruling of some other reputable juristic authority of the past?” Also, see supra note 118.
175 See id.
176 For an example of such a statute, see Hallaq, supra note 25, at 210.
177 See Mahmood, supra note 117, at 6. The author’s assertion that such efforts involve ijtihad in the classical sense, however, can be disputed. See id. (claiming that, “[t]he jurists of the time, while advising the state, have arrived at their conclusions through the Islamic processes of ijtihad (search for required legal solutions of newly arising problems), having recourse where necessary to the Islamic doctrines of masalih al-mursala (public interest) and siyasa shar’iya (state’s legal policy).”]
178 Supra-madhhab sensibility permeates family court cases in Egypt decided by otherwise secular judges. For court decisions that are evidence of such judicial leanings, see Principles Of Sharia Adjudication Over Fifty Years (Mabadi Al-Qada Al-Shari) 657-659 (Ahmad Nassr al-Jundi ed., 1974). Thus contemporary Egyptian judges are as much at ease quoting passages from Hanafi medieval treatises as they are quoting Maliki works.
179 See Hallaq, supra note 25, at 258-262. See also Layish, supra note 118.
180 See Layish, supra note 118, at 267-273. The author’s critique of the Islamic modernists’ project and its results is summarized as follows: “The liberally-oriented modernist movement in Islam, founded by Muhammad Abduh, has failed signally. It has not succeeded in achieving its main objective, viz. reshaping Islamic doctrine so as to adapt it to the requirements of modern society… They sincerely strove to renew Islamic law from within through its authorized functionaries. Not only did this endeavor miscarry, but the ideological infrastructure and technical procedural mechanism created by them for this purpose caused, on the one hand, a disruption of traditional Islamic legal doctrine and, on the other, prepared the ground for intensive parliamentary secular legislation.” Id. at 263. Thus the author reports that, “[t]he modernists unwittingly made an appreciable contribution to the secularization of Islamic law.” Id. at 267.
181 See id.
182 See Crecelius, supra note 4, at 77-78. As the author reports, “[t]he second half of the nineteenth century appears to be the key period of secular gestation… when new institutions, concepts, and elites coalesced to form the basis of a modern state and society.” Id. at 77. Thus there emerged a “modernizing native elite… and the spread of Western political concepts” among them. Id. at 78.
183 See Ziadeh, supra note 152, at 63.
184 This was (and still is) necessitated, of course, by the fact that most laws in place in Egypt were (and still are) transplants of European civil law, the only exception being the law of personal status.
185 See Ziadeh, supra note 152, at 63.
186 See id. at 67-68. Also, see Crecelius, supra note 4, at 82. “[A] secular political theory, derived entirely from the West and resting on the concepts of constitutionalism, consultative or representative government, nationalism, and popular sovereignty, evolved in the latter part of the nineteenth century and gained rapid acceptance…” Id.
187 See id. at 100. “During the 1800s Egypt had been intent upon emulating Europe and had been ready to accord legal privileges to its citizens. In the early 1900s, however, the country was swept by a spirit of nationalism which gave precedence to all things national and was aimed at consolidating the basic fabric of the nation… it was natural that the nationalist movement, which was out to abolish the capitulations altogether, also directed its attention to the mixed courts and their gradual elimination.” Id.
188 See Enid Hill, Islamic Law as a Source for the Development of a Comparative Jurisprudence, the ‘Modern Science of Codification’ (1): Theory and Practice in the Life and Work of ‘Abd Al-Razzaq Ahmad Al-Sanhuri, in Islamic Law: Social and Historical Contexts 148-149 (Aziz Al-Azmeh ed., 1988).
189 See Amr A. Shalakany, The Analytics of the Social in Private Law Theory: A Comparative Study 223-231 (April 5, 2000) (unpublished SJD dissertation, on file with author). J. N. D. Anderson reports that, “[t]he responsibility for drafting this new code was entrusted to a committee under the chairmanship of ‘Abd al-Razzaq Ahmad al-Sanhuri Pasha. Their work was much discussed, both in the press and among experts; their draft was extensively debated, both in the Senate and the Chamber of Deputies; and the code was eventually promulgated in July 1948, and brought into operation on 15 October 1949. Considerable publicity was given at the time, moreover, to the fact that the new code had drawn extensively on ‘the decisions of Egyptian courts, comparative legislation and the Shari’a as its sources of amendment and enrichment;… the Explanatory Memorandum states unequivocally that its authors derived from the Shari’a ‘many of its general concepts and many of its detailed provisions’; the Report of the Committee of Civil Law reiterated this claim and remarked that ‘the strengthening of the links between this draft code and the provisions of the Shari’a represents a retention of a spiritual heritage which deserves to be preserved and used’; and Sanhuri, when challenged as to why he had not based it more firmly on the Shari’a, stated categorically: ‘I assure you that we did not leave a single sound provision of the Shari’a which we could have included in this legislation without so doing… We adopted from the Shari’a all that we could adopt, having regard to sound principles of modern legislation; and we did not fall short in this respect.” Anderson, supra note 2, at 227.
190 See id. at 209-214, 223-231. Also, see Anderson, supra note 2, at 227.
191 See id. at 223-231. Also, see Anderson, supra note 2, at 227.
192 See id. at 208-224. Thus, “according to Sanhuri, the code is at once a ‘modern’ and ‘Islamic’ document, and as such represents the ultimate exercise in resolving the tension between modernity and tradition, while at the same time ‘socializing’ modern law.” Id. at 224.
193 See id. at 209-213.
194 See id. at 229-236. Another author describes the doctrine of “public policy” found in the Code, and quotes Sanhuri as having espoused the idea as follows: “[t]he legal principles which are considered to pertain to public policy are those principles that aim at realizing the public interest, from a political, social as well as economic perspective, which [principles] are related to the highest order of society, and supersede the interests of individuals.” Maurits S. Berger, Conflicts Law and Public Policy in Egyptian Family Law: Islamic Law Through the Backdoor in 50 Am. J. Comp. L. 555, 568 (2002) (parentheses in the original). He quotes the Explanatory Memorandum (issued by Sanhuri’s drafting committee), which explains that, “[t]he judge should be cautious not to hold his private opinions on social justice to be the general tendency of public policy and morals. He is obliged to apply the general opinion (madhhab ‘amm) to which society in its entirety adheres, and not a private individual opinion.” Id.
195 See Hill, supra note 188, at 167-168. Also, see Ziadeh, supra note 152, at 142.
196 See Shalakany, supra note 189, at 207. Enid Hill reports that, “Sanhuri himself, writing some twenty years later, says that ‘the new Code continues to be representative of Western civil culture, not islamic legal culture…’” See Hill, supra note 188, at 172.
197 Although initially Sanhuri proposed the inclusion of personal status laws in the revised civil code, he seems to have given up on the idea of including family law in his codification project. See Hill, supra note 188, at 167. On the exclusion of personal status law from the civil code, also see Mahmood, supra note 117, at 2. In addition, see supra note 151. This trend, as noted earlier, is not limited to Egypt but is the rule throughout the Arab world.
198 See Liebesny, supra note 152, at 136 (reporting that, “[t]his field of law is still covered by Islamic legal principles…”)
199 See Ziadeh, supra note 152, at 117, 138. “Al-Sanhuri proposed the appointment of a committee to codify the entire field of civil law, including personal status. Personal-status law was to be based on the shari’ah but to be so designed as to be suitable for non-Muslims as well.” Id. at 138.
200 See id. at 121-123.
201 See id. at 117.
202 See Nathan J. Brown, The Rule of Law in the Arab World 63 (1997). The author reports that, “[c]riticisms of separate courts of personal status emerged as early as the 1890s and grew steadily from the 1930s on.” Id. at 62. He explains that, “[b]ehind most of these criticisms lay the belief… that the existence of separate and autonomous personal status courts, with their own laws, procedures, training, and personnel was inconsistent with a unified, centralized, national judiciary. Thus, the dominant attitude towards these courts deferred only in degree from nationalist denunciations of the Mixed Courts. Both were seen to limit governmental authority and national sovereignty.” Id. at 63.
203 See id. at 63, 67-68. As Brown reports, “[i]n justifying abolition in 1955, the government claimed to be removing ‘all traces of exceptional judicial systems with their consequential limitations of governmental authority which tended to undermine the national sovereignty of the country.’” Id. at 63. See also Liebesny, supra note 152, at 101. Liebesny gives the text of the actual law that abolished the Shari’a courts and those of religious minorities, Law No. 462 of 24 September 1955. See id. Gamal Abdel Nasser ruled Egypt from 1952 to 1971. See John L. Esposito & John O. Voll, Islam and Democracy 173-174 (1996).
204 See id. at 67-68. “Yet if there was no compromise over the structure of the courts and the unification of the judiciary, the potential opposition (especially the Shari’a Courts themselves) was mollified by two concessions rendering the reforms more conservative. First, the content of the law applied by the courts was not changed. Earlier proposals that centered on reform and even unification of Egypt’s personal status law were ignored. Thus objections to the measure on religious grounds were robbed of much of their potency, and had to center not on the law itself but on the judges applying it. With special personal status sections being established within the National Courts, it would now fall to secular judges to apply religious law. Yet even this feature of the unification was made less objectionable to the personnel of the Shari’a Courts by the second concession: shari’a judges were transferred to the new personal status sections, and the shari’a bar was allowed to continue to practice in personal status cases.” Id. at 68.
205 See Crecelius, supra note 4, at 86-87.
206 In addition, although there are judges trained in religious law and familiar with the Taqlid rules residing at the lower levels of the court system, courts of appeal tend to be dominated by judges with a purely secular, non-shari’a training. Thus as one author notes, although “[t]here are judges trained in Shari’a presiding over family law cases within the National Courts… appeals are heard by regular judges in the Court of Appeals and then the Court of Cassation.” Islamic Family Law in a Changing World: A Global Resource Book 169 (Abdullahi A. An-Na’im ed., 2002)
207 As Margot Badran describes it, despite the modernization of state and society led by the secular male legal and political elites in Egypt in the nineteenth and twentieth centuries, “the personal status laws, or family laws, became a last bastion of control over women. The patriarchal family would not relinquish this control, nor would the state exact it. Have removed all other areas of law from the jurisdiction of Islam, the state had left Muslim religious authorities in control of Islamic personal status laws.” Margot Badran, Feminists, Islam, and Nation 124 (1995).
208 See Shalakany, supra note 189, at 202-205.
209 It may be easier to draw links between Egyptian feminism and the Islamic modernists in the late nineteenth and first half of the twentieth century than between feminism and the secular nationalists. For instance, one author reporting on the emergence of feminism during this time period in Egypt asserts that, “[t]his emergent feminism was grounded, and legitimised, in the framework of Islamic modernism expounded towards the end of the century by Shaikh Muhammad ‘Abduh… ‘Abduh turned a revolutionary corner when he proposed that believers, by which he meant the learned, could go straight to the sources of religion, principally the Quran and the Hadith, for guidance in the conduct of everyday life. Through ijtihad, or independent inquiry into the sources of religion, ‘Abduh demonstrated that one could be both Muslim and modern and that indeed not all traditional practice was in keeping with Islam. In dealing with gender issues, ‘Abduh confronted the problem of patriarchal excesses committed in the name of Islam. He especially decried male abuses of the institutions of divorce and polygamy. The opening out encouraged by ijtihad had a number of consequences. While Muslim women’s earliest feminist writing may not have been immediately inspired by Islamic modernism, it was not long before it developed within this framework.” Badran, supra note 3, at 204. Also, see Badran, supra note 207, at 125.
210 See Najjar, supra note 1. Statutes aimed to “reform” family law were passed in 1920, 1923, 1929, 1943, 1979, and 1985. See id. Also, see An-Na’im, supra note 206, at 169-170. The analysis of these statutes by various authors is illustrative of this dilemma, demonstrating that reforms were justified and explained using Islamic principles espoused by ‘Abduh and other modernists in an attempt to avoid or answer the attacks of the conservative religious elites. One author reports that, “[a] watershed in Egyptian family law reform occurred when Law No. 25 of 1920 was passed. The enactment of this law, and the second phase of the reform in 1929, resulted in an expansion of divorce rights for women… These reforms were significant, not only for the substantive changes in the law that they effected, but also for the process through which they were achieved. The Egyptian reforms were cloaked under the veil of the ‘acceptable’ reform mechanism of takhayyur. By drawing from the liberal tenets of the Maliki school’s divorce law, the Egyptian reforms counteracted the more rigid tenets of the Hanafi school’s divorce law that predominated in Egypt… Relatively recent developments in family law reform are testament to the recyclability of the various legitimating mechanisms for adapting Islamic law to changing circumstances. In 1979, Anwar Sadat issued Law No. 44 by presidential decree during parliamentary recess, as provided for in the Egyptian Constitution, so that the legislature could not block passage of the law. Known as “Jihan’s Law,”… the provisions of Law No. 44 gave women further protection in the event of a husband’s subsequent polygamous marriage by affording a woman the right to a divorce, as provided for in the Maliki and Hanbali traditions, should a husband fail to inform his original wife of a subsequent marriage or should such a marriage harm her in any way. Once again, by invoking Maliki and Hanbali teachings, reforms were attempted under the protection of Islamic sanction… As a result of opposition to the reforms, a decree of the Supreme [Constitutional] Court of Egypt struck down Law No. 44 in 1985… a new law, resembling the old Law No. 44, was passed. This new law, Law No. 100 [of 1985], is currently the main legislation that determines the rights of women in the family law context.” Bharathi Anandhi Venkatraman, Islamic States and the United Nations Convention on the Elimination of all Forms of Discrimination Against Women: Are the Shari’a and the Convention Compatible? in 44 Am. U.L. Rev. 1949, 1986-1989 (1995). For a discussion of Law No. 25 of 1920, see Anderson, supra note 2, at 224-225. Anderson reports that, “Law No. 25 of 1920 had introduced some very welcome reforms in the sphere of marriage and divorce by the simple expedient of adopting a ‘weaker’ Hanafi view, or the dominant view of one of the other Sunni schools, in place of the dominant Hanafi doctrine.” Id. Anderson also discusses the statute passed in 1923, concerning minimum age for marriage. See id. at 225. “[I]n 1923, the registrars of marriages had been forbidden to register any union in which the bride and bridegroom had not reached the age of 16 and 18 respectively;” and the shari’a courts “were also precluded from hearing any matrimonial cause whatever where the parties had not reached these ages at the time of litigation.” Id. Regarding the 1929 law, the author adds that, “[a]s for a husband’s unilateral repudiation of his wife, the expedient of an eclectic choice between the doctrines of the different schools and jurists was stretched, in the provisions of Law No. 25 of 1929, to include certain dicta attributed to early jurists before the schools had crystallized, together with opinions put forward by certain radical thinkers of a rather later period, with the result that most forms of repudiation which the husband did not really intend to be effective were henceforth deemed not to end the marriage relationship.” Id. For a discussion of the overturning of Law No. 44 of 1979 (Jihan’s Law) in 1985 and the subsequent passage of Law 100 a few months later, see Badran, supra note 3, at 225. Also, see Adrien Katherine Wing, Custom, Religion, and Rights: The Future Legal Status of Palestinian Women, in 35 Harv. Int’l L.J. 149, 171 (1994). Wing, after describing in detail the changes made to personal status law by the provisions of Law No. 44, notes that, “[u]nder great pressure from traditionalists, the [Supreme] Constitutional Court overturned these amendments on procedural grounds in 1985. The Parliament subsequently passed a nearly identical law…” Id.
211 See J. N. D. Anderson, Law as a Social Force in Islamic Culture and History, in 20 Bulletin of the School of Oriental and African Studies 13, 27 (1957) (reporting that “piece-meal reforms in the law of marriage and divorce were introduced in Egypt in 1920, 1923, and 1929, to be followed in 1943…”) This trend is not limited to Egypt. As one author reports, “[a]s early as the nineteenth century, Muslim feminists, liberals, and leftists called for sharia reform, particularly in the area of personal status. Today, all Muslim states, with the exception of Saudi Arabia, have enacted some type of reform, albeit in piecemeal fashion.” Wing, supra note 210, at 165.
212 See Najjar, supra note 1. Authors have noted that certain groups of elite (particularly in “late-developing” or “new” States) frequently engage in the “selective affirmation of tradition, wherein certain features of the traditional value system are plucked out, and symbolically heightened so as to serve as an ideological centre-piece.” Susan E. Marshall & Randall G. Stokes, Tradition and the Veil: Female Status in Tunisia and Algeria, in 19 The Journal of Modern African Studies 625, 628 (1981). This tendency would be heightened in the case of the religious elite because their very livelihood and role or position in society is conceived to be under attack when family law reform is proposed.
213 See Badran, supra note 3, at 208. The author reports that, “[f]rom 1923, feminism crystallised around a set of demands, a broad agenda of claims for political, social, economic, and legal rights. However, initial priority was given to women’s education followed by new work opportunities and the reform of the personal status law.” Id. Badran notes that some of the demands put forth by the feminists were, “granted relatively easily, such as equal secondary school education for girls and raising the minimum marriage age for both sexes (achieved in 1923 and 1924 respectively).” Id. For a more complete account by the author of Egyptian feminism, see Badran, supra note 207.
214 “Whatever their competing interests, the state and religious forces have retained patriarchal forms of control over women.” Badran, supra note 3, at 202.
215 See Abu-Odeh, supra note 1. Also, see Najjar, supra note 1.
216 For an account of early feminists, such as those who formed the Egyptian Feminist Union (EFU), and their struggle for family law reform in the first half of the twentieth century, see Badran, supra note 207, at 124-135. For a discussion of the continuation of their struggle in the second half of the twentieth century, including the promulgation by President Sadat of Jihan’s Law and its subsequent repeal, see Najjar, supra note 1. For an overview of liberal feminist approaches to family law reform, see Abu-Odeh, supra note 1.
217 See Esposito, supra note 5, at 48-49, 58-59. Also, see Badran, supra note 207, at 124-135.
218 See, for instance, the discussion found in Najjar, supra note 1. Analyzing debates arising from attempts to reform family law in Egypt in the twentieth century, Najjar gives various accounts of religious elite arguing against what they considered attacks on men’s God-given rights. For instance, during the debate concerning Law 44 of 1979, or Jihan’s Law, the author reports that Muhammad Khamis, an attorney and head of the “fundamentalist organization” Muhammad’s Youth (Shabab Sayyidna Muhammad), “charged that to decree that a wife has the right to seek divorce if her husband exercises his Shari‘a prerogative to marry another ‘is to repudiate polygamy, and Islam, which legalizes it…’ Khamis charged that the law ‘closes the door completely in the face of those who would like to marry another wife according to God’s Book and the Traditions of His Prophet…” Id. at 325.
219 See Esposito, supra note 5, at 58-61.
220 See Nasir, supra note 10, at 35-36. As the author reports, in Egypt, “the eminent jurist Muhammad Qadri Pasha compiled in 1893 The Sharia Provisions on Personal Status, a book of 646 Articles on marriage, divorce, gift, interdiction, wills and inheritance, all based on the Hanafi doctrine.” Id.
221 See El Alami & Hinchcliffe, supra note 3, at 51.
222 Codification as style may have greatly distorted the complexity of the Hanafi doctrine produced under the Taqlid legal system. The code’s style of enlisting abstract general rules may very well be detrimental to a doctrine expressed in response to specific questions or hypothesis and able to tolerate a great degree of conflict and contradiction.
223 See Wing, supra note 210, at 160. The author reports that the 1976 Jordanian Law of Personal Status “is based upon the Hanafi school of jurisprudence.” Id. Also, see Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, in 12 Am. U.J. Int’l L. & Pol’y 1, 7 (1997).
224 See Mounira Charrad, Repudiation versus Divorce: Responses to State Policy in Tunisia, in Women, the Family, and Policy 51, 51 (Esther Ngan-ling Chow & Catherine White Berheide eds., 1994). As the author reports, “[r]eform of family law in Tunisia constitutes an interesting case of intended and dramatic innovation in the legal norms governing gender relations and family life. It is an example of a government enacting a law as an instrument of social change in an Islamic country where family matters had been regulated by traditional Islamic legal doctrine. Gaining significance outside of Tunisia, the reforms became a model for advocates of women’s rights elsewhere in the Islamic world.” Id.
225 See Mounira M. Charrad, States and Women’s Rights 31 (2001). The author notes the “overwhelming presence of Malikism” in Tunisia (as well as the other two Maghribi countries, Algeria and Morocco). Id.
226 The significance of the reforms put in place in Tunisia, unique among majority Muslim countries, can not be overstated. As one author wrote, “[o]n 13 August 1956, less than five months after the proclamation of independence, a new Tunisian Code of Personal Status (CPS) was promulgated. The code profoundly changed family law and the legal status of women.” Charrad, supra note 225, at 218. For another author’s summary of the changes in family law brought about by the Tunisian Majallah, see Kristin J. Miller, Human Rights of Women in Iran: The Universalist Approach and the Relativist Response, in 10 Emory Int’l L. Rev. 779, 827 (1996). In addition, the Tunisian Majallah is applied to Tunisians of all religions, “ending the application of rabbinical law to Jewish personal status matters…” An-Na’im, supra note 206, at 182. On this later point, see also, El Alami & Hinchcliffe, supra note 3, at 239.
227 See Charrad, supra note 225, at 215-231.
228 In the United States, “[t]raditionally, by respecting the sanctity of family privacy, states have been reluctant to intrude in family affairs.” Elene G. Mountis, Cultural Relativity and Universalism: Reevaluating Gender Rights in a Multicultural Context, in 15 Dick. J. Int’l L. 113, 135 (1996). One unfortunate consequence is that “[p]olice often will not intrude on violent domestic quarrels.” Id. Also, see Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, in 105 Yale L. J. 2117, 2157 (1996). According to the author, courts in the United States traditionally espoused the “evils” of interfering with “family government.” See id. In addition, the author reports that, historically,”[w]hile authorities denied that a husband had the right to beat his wife, they intervened only intermittently in cases of marital violence: Men who assaulted their wives were often granted formal and informal immunities from prosecution, in order to protect the privacy of the family and to promote ‘domestic harmony.’ In the late 1970s, the feminist movement began to challenge the concept of family privacy that shielded wife abuse….” Id. at 2118. Indeed, in it’s landmark decision, Roe v. Wade, the United States Supreme Court relied on earlier cases that established a doctrine of privacy in regards to family or marital affairs, also known as privacy of the marital relation and the marital home, extending it to declare a woman’s right to have an abortion. See Susan Clement, et. al., The Evolution of the Right to Privacy after Roe v. Wade, in 13 Am. J. L. and Med. 368, 373 (1987). As another author notes, United States courts’ “decisions take a zig-zag path, but they do exhibit a pattern. The zone of privacy is extended from the essential intimacies of the marital relation, to heterosexual intimacies generally, to decisions about whom to marry, to decisions about ‘family planning,’ child-rearing, modes of family living, and finally to decisions about the termination of pregnancy.” Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideas in the Constitution?, in 58 Notre Dame L. R. 445, 487 (1983). Yet another author reports that in the United States, “courts and commentators still conceive of family privacy in terms of negative liberty — keeping the government out of family affairs -…” Anne C. Dailey, Federalism and Families, in 143 U. Pa. L. Rev. 1787, 1831 (1995). In addition, another author sums up the connection or link made in the United States between this idea of privacy and other even greater ideals, such as democracy and freedom, when reporting that the Supreme Court “consistently has been hesitant to intervene in family affairs, recognizing that familial autonomy and privacy are at the very heart of the existence of a democratic society.” Wendy Meredith Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, in 28 Wm and Mary L. Rev. 583, 600-601 (1987). These ideas are quite foreign in the Islamic and, for our purposes, the Tunisian context.
229 See Charrad, supra note 224, at 51-52. As the author puts it, “[r]eform of family law in Tunisia constitutes an interesting case of intended and dramatic innovation in the legal norms governing gender relations and family life.” Id. at 51. Charrad adds that the “thrust” of the Code was to “redefine the rights and obligations of men and women within the family.” Id. at 52.
230 As Professor Abdullahi A. An-Na’im describes, ‘[d]uring marriage, spouses are to treat each other well, to fulfil their marital duties ‘as required by custom and usage’ and to cooperate in running family affairs, including the upbringing of children.” An-Na’im, supra note 206, at 183.
231 The Maliki school of law, that which has historically predominated in the Maghrib (Tunisia, Morocco, and Algeria), “gives male members of the kin group extensive control over key decisions affecting women’s lives.” Mounira Charrad, State and Gender in the Maghrib, in 163 Middle East Report 19, 20 (Mar.-Apr. 1990). Women need not give consent to marriage during the marriage ceremony, and instead it is the consent of her guardian that makes the marriage valid; and there is no legal minimum age for marriage. See id. Other features of Maliki law are the same as other schools, namely that the husband has the privilege of breaking the marital bond at will, while the circumstances under which a woman may be granted a divorce are restricted; if a man chooses to repudiate his wife (talaq), she has no legal recourse; a man has the legal right to marry as many as four wives; and women receive half of what a man would in inheritance. See id. The Tunisian law of 1956 fixed the minimum marriage age at 18 years for males and 15 years for females; these were later raised to 20 and 17 “for considerations including the dignity of marriage, lessening parental interference, reducing the chance of divorce, and also reducing population growth rates.” Fazlur Rahman, A Survey of Modernization of Muslim Family Law, in 11 Int. J. Middle East Stud. 451, 455 (1980). In addition, a medical certificate of physical fitness is required to establish the capacity for marriage, and the registration of marriages is required, imposing a fine and imprisonment for not doing so. See id. at 456. What makes the Tunisian code most unique, however, is that polygamy was abolished. See id. at 457. As Rahman notes, Tunisia is the only country to use an “Islamic basis” to ban polygamy in its personal status laws. See id. “The Tunisian prohibition on polygamy was based on the standard Modernist reasoning that since the Qur’an requires that justice be done among wives and also warns at the same time that it is impossible to do justice among co-wives, this amounts to a prohibition.” Id.
232 See Charrad, supra note 225, at 224-25. “A new element introduced in the Majalla concerned the financial responsibility of the woman to her husband and children. Whereas in Islamic law a woman’s property remained her own without becoming part of the household assets, the Majalla required the wife to contribute to the expenses of the household, if she had the means to do so. By making the wife provide for the household when appropriate, the Majalla placed the division of responsibilities between the spouses on a new plane.” Id.
233 See An-Na’im, supra note 206, at 182-183. “Marriage below the age of legal majority requires the consent of the guardian and (since 1993) of the mother; recourse may be had to the judge in the event of their refusal.” Id.
234 See Mahmood, supra note 117, at 174. Article 31 of the Majallah reads as follows: “(1) A decree of divorce shall be given: (i) with the mutual consent of the parties; or (ii) at the instance of either party on the ground of injury; or (iii) if the husband insists on divorce or the wife demands it.” Id. Also, see Charrad, supra note 225, at 225. As Charrad describes it, “[t]he CPS [Code of Personal Status] changed regulations in fundamental ways… [t]he wife and husband were equally entitled to file for divorce, and they could do so by mutual consent. One of them could also file alone…” Id.
235 See An-Na’im, supra note 206, at 183. As the author reports, in the case of divorce, “[i]f the mother is awarded custody, she is authorized to exercise the prerogatives of the guardian in matters related to the ward’s travel, education and financial affairs…” Id.
236 See Mahmood, supra note 117, at 178. Article 154 of the Tunisian Majallah reads as follows: “The guardian of a legally disabled person shall be the father and, if he is dead or disqualified, the mother…” Id.
237 See al-Hibri, supra note 223, at 11-12. As al-Hibri puts it, “[t]he present Tunisian Code no longer requires obedience, although it continues to describe the husband as the ‘head of the family.’” Id. Also, see Rana Lehr-Lehnardt, Treat Your Women Well: Comparisons and Lessons From an Imperfect Example Across the Waters, in 26 S. Ill. U. L. J. 403, 411 (2002). (“Only Tunisia has completely abolished wife obedience from its personal status codes.”)
238 As one author explains, “[w]hile increasing women’s custody rights, the CPS [Code of Personal Status] nevertheless maintains male power in making a distinction between custody and guardianship… [w]hen the father is alive, the CPS systematically makes him the child’s guardian after divorce, even when the mother has custody and thus takes daily care of the child… [i]t automatically makes the mother the guardian in case of the father’s death, and in that case only.” Charrad, supra note 224, at 56. Charrad adds that it was only after a law was passed in 1981 modifying the Majallah that the mother is automatically made the guardian in case of the father’s death; the original Code only considered her as one among many possible guardians, and it was up to the judge to decide based on the “child’s best interest” who to select. See id.
239 It is instructive to look at three classes of financial responsibilities and powers: marriage guardianship and guardianship of property; maintenance of children; and custody of children after the mother’s period of custody (hadanah) is finished.
One author defines guardianship responsibilities connected to marriage as follows: “[M]arriage guardianship is the legal authority invested in a person who is fully qualified and competent to safeguard the interests and rights of another who is incapable of doing so independently. It is the authority of a father or nearest male relative over minors, insane, or inexperienced persons who need protection and guardianship.” al ‘Ati, supra note 94, at 70. Thus, “[t]he schools concur that it is necessary for a wali [guardian] to be an adult Muslim male.” Maghniyyah, supra note 75, at 296. In the case of the marriage of a minor, under the doctrine of the Shafi‘i school of law, in the absence of the father, it is the paternal grandfather who is competent to contract the marriage; under Maliki and Hanbali doctrine, only the father can do so; and under Hanafi doctrine, in the absence of the father and the grandfather, guardianship in marriage passes to “other relatives, even if it be a brother, or an uncle.” Id. Guardianship never passes to the mother or another female relative. As another author puts it, although under Islamic law parties to a contract must always give their consent, “that of the bride, particularly the virgin bride, is normally expressed through her father, guardian, or other male relative, but never the mother.” Hamilton A. R. Gibb, The Heritage of Islam in the Modern World (III), in 2 Int. J. of Middle East Stud., 129, 132 (1971). As for guardianship of property, the fact that this responsibility and power follows a male line is also clear: “Under Hanafi law, the guardian of the property of minor children is their father; after the father’s death, his executor; after the father’s executor the paternal grandfather, after him his executor. After the last, the Court may take charge of the property… [n]either the minor’s mother nor uncle, nor brother, nor sister is entitled to act as the guardian of the minor’s property, except on being appointed by the father, or paternal grandfather of the minor or by the Court; none of them has the power to sell or mortgage or otherwise deal with the minor’s immoveable property…” Faiz Badruddin Tyabji, Muhammadan Law 285, 286-287 (1940).
As one author describes it, maintenance of minor children “includes the expenditure for nourishment, health, education and training.” Wani, supra note 72, at 227. He makes clear that, “[u]nder Islamic law it is the father who is primarily responsible to provide maintenance to his children, male and female, whether in his own custody or in the custody of someone else.” Id. Should the father not be able to do so, “[n]ext to the father the burden shifts to the grand-parents.” Id. at 228. Some authors report that in some situations, if the father can not maintain the children, the mother should do so, if she is able to; such maintenance is usually characterized as voluntary (not obligatory, like in the case of the father) and is to be paid back to the mother by the father when he has the means to do so. See supra note 74. Even in the opinion of those commentators that call for the mother to maintain the children when the father can not, after the mother, the responsibility shifts to the paternal grandparents, particularly the paternal grandfather: “If the father is poor, the mother is bound to maintain the children. And, failing her, it is the duty of the paternal grandfather…” Asaf A. A. Fyzee, Outlines of Muhammadan Law 184 (1955).
Under the Taqlid rules of all four major Sunni schools of law, after the period of custody when the children are young (hadanah), custody of the children passes to the father (and his family). As Professor Esposito notes, “[t]he awarding of custody to the father is a consistent social reflection of the workings of a traditional, patriarchal, patrilocal family. The family emphasizes the paternal line of ancestry and makes the central residence the home of the paternal grandfather, where many women (aunts, grandmother) are available within the family to care for children.” Esposito, supra note 5, at 35-36.
Besides Taqlid rules of law, of course, in these matters there are rules of custom and usage that apply as well; said customs vary according to countries, regions, and ethnic groups, although they also generally dictate a male line of financial responsibilities and powers. Thus one author describes “[t]he pressure of old Arab custom” as “itself the reason for emphasis on the male family representative” when discussing marriage guardianship. Hamilton, supra note 94, at 132.
240 See supra note 239. Further evidence of this rule is the present text of Article 47 of the Tunisian Majallah, which makes clear that it is breaking from traditional norms when specifying that the mother now precedes the grandfather in maintaining the child upon the father’s death. See infra note 241.
241 See Mahmood, supra note 117, at 176. The text of Article 47 of the Majallah reads as follows: “The mother shall, in the event of the father’s poverty, precede the grandfather in providing maintenance to her child.” Id. As one author notes, “[t]he Majalla made the father and mother both responsible for the care of a child, as long as they lived together. If the father was no longer able to provide for the child, either in case of death or for any other reason, the next person called upon to assume responsibility was the mother, who now came before any other relatives in the order of responsibility.” Charrad, supra note 225, at 226.
242 See El Alami & Hinchcliffe, supra note 3, at 243. Also, see Esposito, supra note 5, at 96 (reporting that Tunisia requires “both the husband and the wife to participate financially in maintaining the household.”).
243 See id.
244 See Nasir, supra note 10, at 162. Also, see Charrad, supra note 224, at 56.
245 To understand why this is the case, one has to first understand the history behind child custody standards in the United States. In the United States, like in Tunisia, before the “best interests of the child” doctrine was widely adopted in the 1970s and 1980s, there was a legal preference for women in the custody of small children; this priority for mothers was expressed in terms of the “tender years” doctrine. See Sylvia A. Law & Patricia Hennessey, Is the Law Male?: The Case of Family Law, in 69 Chi.-Kent L. Rev. 345, 347-348 (1993). With the abandonment of the maternal preference or priority in custody and the advent of the best interests of the child doctrine, a supposedly gender neutral standard is used. See id. at 348. However, as the authors note, “the ‘best interest’ standard favors the party with the greatest resources to mount an expert-based claim. In most cases that is the man. Further, the ‘best interest’ standard is extremely vague and unpredictable. Vagueness and uncertainty in custody standards work to the advantage of the party who is less committed to maintaining custody, typically the man. Mothers give up solid legal claims to marital property or child support to resist the man’s ‘Brer Rabbit’ claim to custody. A law that systemically forces women to give up honest economic claims to care for their children is biased against women.” Id. at 350. In the 1970s, feminists had argued against a preference for mothers because of the terms which were used to frame such preference: “[A]lthough feminists later came to distrust the best interests standard, they initially supported the innovation because the tender years presumption seemed to reinforce stereotyped gender norms.” Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, in 80 Calif. L. Rev. 615, 620 (1992). One reason for the current distrust of the best interests of the child doctrine is that custody is not awarded based on past performance per se but on a variety of factors judged to determine the parents’ future ability to raise the child. Without taking into account their pre divorce role in the upbringing of the child, factors such as income may produce an advantage for fathers that is hard for mothers to compete with, especially since they often gave up or limited their income earning capacity to raise their children. In addition, the potential for custody to go to the father scares mothers into giving up legitimate rights in exchange for custody at the face of fathers’ claims. The author’s comments regarding these issues sums up the problem: “[f]eminists increasingly express dismay that contemporary custody law dilutes the importance attached to the primary caretaking role of mothers. Although the risk that mothers face of losing a custody dispute is greater under the best interests standard than under the tender years presumption, in practice, courts applying the best interests standard continue to favor mothers for custody. The formally gender-neutral rule generates uncertainty, however, by sending misleading signals to both men and women about fathers’ prospects for custody. This uncertainty can lead women, who care more about having custody than do men, to insure custody by trading away claims for support and property.” Id. at 626. Thus the author argues that, instead of the current, supposedly gender neutral approach, because “[m]ost feminists agree that women have been disadvantaged by traditional marital roles… custody law can best serve women’s interests by strongly supporting mothers’ custody claims.” Id. at 618. These issues are summarized well by another author, who asserts that, “Even if the father does not want custody, his lawyer often will advise him to claim it in order to have a bargaining chip with which to bargain down his wife’s financial claims. Second, the abolition of the maternal preference has created situations where a father who wants custody often wins even if he was not the primary caretaker prior to the divorce — on the grounds that he can offer the children a better life because he is richer than his former wife. In these circumstances, the ironic result of a mother’s sacrifice of ideal worker status for the sake of her children is that she ultimately loses the children.” Joan C. Williams, Deconstructing Gender, in 87 Mich. L. Rev. 797, 838 (1989). Another author, arguing that the best interest of the child principle is “unjust”, explains that, “according to the best interest principle, the child’s welfare is the dominant consideration. The law does not take any account of the needs and rights of the parents…” Jon Elster, Solomonic Judgments: Against the Best Interest of the Child, in 54 U. Chi. L. Rev. 1, 16 (1987). The author asserts that, “if one parent, usually the mother, has devoted crucial years to child care and perhaps given up her career to do so, it seems prima facie right that she should get custody.” Id. at 17. (However, for an analysis of problems related to making custody decisions based solely or primarily on the role as primary caretaker before the divorce, see Gary Crippen, Stumbling Beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting in the Wake of Minnesota’s Four Year Experiment with the Primary Caretaker Preference, in 75 Minn. L. Rev. 427 (1990). The author does conclude, however, that, “[f]or opponents of the [caretaker] preference, integrity demands a recognition of the rationale for the standard. They must face criticism of the broad best interests standard, which risks unwise results, stimulates litigation, permits manipulation and abuse, and allows a level of judicial discretion that is difficult to reconcile with an historic commitment to the rule of law. The costs of this system, especially for children, mothers and those with the least resources to resist threats of litigation, are readily apparent.” Id. at 499-500) Thus many contemporary authors in the United States, given the continuing reality of gender roles in the family and marital relations, and in the interest of justice, are actually advocating a return to maternal priority in custody or, in the minimum, a priority based on a (past) primary caretaker standard. See for instance Elster at 16-18, 30-31, 37-39. The issue of joint custody is beyond the scope of this discussion, but is also an important and current one. For instance, see Brian J. Melton, Solomon’s Wisdom or Soloman’s Wisdom Lost: Child Custody in North Dakota- A Presumption That Joint Custody is in the Best Interests of the Child in Custody Disputes, in 73 N. Dak. L. Rev. 263, 274-280 (1997).
246 In the United States, considerations of wealth, for instance, disadvantage mothers who, in general, earn less than fathers; paradoxically, if a woman works and thus has to send her child to day care, she can also be at a disadvantage, especially if the father has a new wife who is willing to stay at home with the child. See Jane C. Murphy, Legal Images of Motherhood: Conflicting Definitions from Welfare “Reform,” Family, and Criminal Law, in 83 Cornell L. Rev. 688, 697 (1998). (“Single working mothers are particularly at risk when they are in custody disputes with fathers who have remarried ‘stay-at-home’ wives. Courts have shown a preference for these conforming stepmothers.”) As another author reports, “In Burchard v. Garay, a trial court awarded custody to the father on two grounds: he earned more money and his new wife could care for the child at home. The mother needed to use day care while she worked. Justice Bird, concurring in the California Supreme Court’s reversal, emphasized the injustice of this decision. It places women in a catch-22 situation: If she did not work, she could not possibly hope to compete with the father in providing material advantages for the child. She would risk losing custody to a father who could provide a larger home, a better neighborhood, and other material goods and benefits. If she did work, she would face the prejudicial view that a working mother is by definition inadequate…” Scott Altman, Should Child Custody Rules be Fair? in 35 U. of Louisville J. of Fam. L. 325, 329 (1996-97). The author also reports that, “inequalities provoked feminist objections to Ireland v. Smith, the Michigan decision transferring custody to the father because the mother needed to use day care while she attended class. The trial court explained that a single parent cannot attend a prestigious university and raise a child effectively. After public criticism, the appellate court reversed. Cases considering day care and wealth illustrate the mixed state of custody law.” Id. at 330. The author adds that, “[s]ome feminists claim judges deprive women of custody for the smallest deviation from expected gender roles. They note fathers win primary custody in more than 50% of litigated cases…” Id. at 338. In addition, “[t]he vagueness and uncertainty of the ‘best interest’ standard vests tremendous discretion in trial court judges.” Law & Hennessey, supra note 245, at 350. Also, see Susan Beth Jacobs, The Hidden Gender Bias Behind “The Best Interests of the Child” Standard in Custody Decisions, in 13 Ga. St. U. L. Rev. 845 (1997) for a detailed description of gender bias in custody cases decided under the best interests of the child standard. Jacobs argues that the fact that fathers in general have greater economic resources; courts scrutinize a mother’s employment more closely than that of the father; judges prefer what they consider “traditional lifestyles;” and judges scrutinize more closely a mother’s non-marital sexual relations than those of a father, all contribute to said gender bias. See id. at 858-874. As to the issue of the employment of the mother and judges using this as an excuse to give custody to the father, another author has noted that, “[i]n the area of child custody, courts typically have not rewarded working women.” Amy D. Ronner, Women Who Dance on the Professional Track: Custody and the Red Shoes, in 23 Harv. Women’s L.J. 173, 174 (2000). This same author adds that, “the best interests of the child standard, with its flexibility, can turn against women who work outside of the home.” Id. at 215.
247 As Professor Esposito reports, “[i]n the absence of or disqualification of the mother, female relatives in the following order receive custody: (1) mother’s mother h.h.s [however high so ever]; (2) father’s mother h.h.s.; and (3) full sister or other female relatives, including aunts. In the default of female relations, the following male relatives obtain the right of custody: (1) father; (2) nearest paternal grandfather; (3) full brother; (4) consanguine brother; and (5) full brother’s son and other paternal relations (in the order of the nearest male relative determined in the same order as that of inheritance.” Esposito, supra note 5, at 36. Also, see Wani, supra note 72, at 226. As the author reports, “[a] mother who is leading an immoral life loses her privilege of custody of the child. A divorced or widowed mother who has married another man does not remain entitled to the custody of minor child if the man to whom she has married does not fall within prohibited degrees of marriage to the child. The right revives on the termination of such marriage… Where the mother is dead or disqualified to have the custody of the child, certain female relations of the child subject to the preferential position of maternal over paternal relations, are entitled to the custody of the child. Some of such relatives in order of preference will be: i) mother; ii) mother’s mother; iii) mother’s mother’s mother; father’s mother…” Id.
248 In addition, in the case of the mother’s death, custody also goes to her husband. See Mahmood, supra note 117, at 176-177. The relevant provision of Article 67 reads as follows: “Where the parent entitled to custody dies while the marriage of the parents is dissolved the right shall pass on to the surviving parent.” Id.
249 See Charrad, supra note 225, at 215, 219-221. As Charrad notes, “[i]n the same way as other reforms weakened what was left of tribal solidarities, so did family law reform. This stands in sharp contrast to the codification of family law in the Mudawwana of 1957-58 in Morocco and the 1984 Family Code of Algeria, where the model of the extended patrilineage was explicitly institutionalized and recognized in the new state. Tunisia in comparison equipped itself with a family law that sanctioned essentially a nuclear model of the family and expanded women’s rights.” Id. at 215. The author also reports that, “[t]he code dropped the vision of the family as an extended kinship group built on strong ties crisscrossing a community of male relations. It replaced it with the vision of a conjugal unit in which ties between spouses and between parents and children occupy a prominent place.” Id. at 219. The author suggests that the motivation behind the political move to reform the law of personal status and broaden women’s rights was the desire to bring about “a transformation of kinship, which they [the political elite] saw as a necessary condition for broader social, political, and economic changes. The initiators saw the reform as a step toward altering kinship organization and fostering new behavior patterns….their primary objective was to encourage the development of a modern nation-state.” Id. at 220. Thus, “[t]he lawmakers in effect intended to design a law that would alter kinship relations by also emancipating men from kin control, not only women.” Id.
250 Article 5 of the Tunisian Majallah sets the minimum marriage age at 17 for women and 20 for men, and provides that, “[t]he making of a contract of marriage for a person below the specified age shall depend upon special permission from the courts and this permission shall only be given for pressing reasons and for the obvious benefit of both spouses.” El Alami & Hinchcliffe, supra note 3, at 240. Article 3 of the Majallah reads as follows: “Marriage shall only be contracted with the consent of both spouses and it is essential for the validity of the marriage that it be witnessed by two trustworthy witnesses and that a dower be specified for the wife.” Id. at 239. In addition, Article 9 provides that, “[b]oth husband and wife shall have the right to make the contract themselves or to appoint as proxy whomsoever they wish.” Id. at 240. Also, see Esposito, supra note 5, at 99 (reporting that Tunisia’s law, among the most “liberal,” allows both men and women to freely contract their own marriages.)
251 Article 18 of the Tunisian Majallah reads as follows: “Polygamy is prohibited. Any man who marries while he is already married before the bond of his previous marriage is dissolved shall be punished by one year in jail and by a fine in the amount of two hundred and forty thousand francs or by one of the two penalties.” El Alami & Hinchcliffe, supra note 3, at 242.
252 As one author notes, “[t]he results of the new legislation may not be spectacular.” Charles A. Micaud, Tunisia: The Politics of Modernization 148 (1964). For instance, “[a] puritanical Code has increased penalties for loose morals. Not only illicit lovers but the best-intentioned ones are severely dealt with; elopement is punishable by two years in jail.” Id. at 149. As another author notes, the reality of sex relations and the issue of female “emancipation” can not be changed by legislation alone. See Lorna Hawker Durrani, Employment of Women and Social Change, in Change in Tunisia 63-66 (Russell A. Stone & John Simmons eds., 1976). For instance, regarding the supposed emancipation of women through work, as espoused by many elite in post independence Tunisia, including ex-President Bourguiba, she reports that, “[t]his ideal is largely unrealized, as most girls hand over their wages directly to family or husband, who then allocate what money the women may need for personal expenses.” Id. at 66. In addition, “a strict segregation of the sexes operates in many factories,” and “[s]tudents in the University of Tunis restaurant eat with their own sex, and those girls who broke this informal rule were thought loose.” Id. at 67.
253 Authors have noted distinctions between the doctrine of the Hanafi school and other schools in relation to maintenance, for example. “The difference between the Hanafis and the other Sunni schools regarding the question is that the other schools regard maintenance as awad al-ihtibas (consideration of the husband’s control over his wife) with no gratuitous element at all, while the Hanafis regard it as jaza’ al-ihtibas (reward for the husband’s control over his wife), but also including an element which they term sila (which may be translated at ‘relation, connection, link, tie, bond, present, gift, grant’)… The other schools of Sunni law, however, as we have seen, do not regard maintenance as a gift from the husband to the wife, but as a debt and they recognise the right of the wife to sue for arrears.” El Alami & Hinchcliffe, supra note 3, at 21-22. Thus under Hanafi doctrine, unlike that of the other three major Sunni schools, a wife can not sue for arrears; “[t]he reason for this doctrine is that the Hanafis regard maintenance as (in part) a gift and in Hanafi law a gift is completed only when delivery has taken place.” Id. at 21.
254 See Wani, supra note 75, at 78-81. Also, see El Alami & Hinchcliffe, supra note 3, at 29. The authors report that, “[t]he law of the Hanafi school is the most restrictive towards women in the matter of divorce. The sole ground on which a Hanafi wife may obtain a dissolution of her marriage is her husband’s inability to consummate the marriage. Hanafi law will allow a wife a dissolution only is she can show that she was unaware of her husband’s impotence at the time of the marriage. If a wife seeks a dissolution on the grounds of her husband’s impotence the court will delay giving a decree for a period of one year. If the husband succeeds in consummating the marriage during this period, no decree will be granted… [t]he burden of proof is on the wife to establish the alleged impotence; in the case of non-virgin wives, this burden is difficult to discharge.” Id. Also, see Anderson, supra note 211, at 27 (reporting that, “according to the dominant Hanafi doctrine a Muslim wife could obtain no dissolution of her marriage even if her husband departed to a distant land and left her permanently without support, or proved, unknown to her, to be afflicted, even at the time of marriage, with some dangerous disease.”)
255 See Maghniyyah, supra note 75, at 365-66. For instance, the author notes that, “it has been narrated from the Hanafi’s that medicines and fruits are not wajib [obligatory] on the husband during the period of dispute between the couple.” Id. He adds that, “it is certain that the Shari’ah has not explicitly defined the limits of maintenance, but has only made it wajib on the husband, leaving it to be determined in accordance with ‘urf (usage)… And there is no doubt that ‘urf disapproves the conduct of a husband who while possessing the means neglects his wife who needs medical attention…” Id. at 366.
256 See Esposito, supra note 5, at 51. “In the Hanafi school…there are virtually no grounds upon which a wife can free herself from an undesirable marriage except for her husband’s impotence …[i]n contrast to the other schools, especially the Maliki school, which was the most liberal in this regard, under Hanafi law, wives had to endure desertion and maltreatment with no recourse through divorce.” Id. For instance, unlike other schools of law, “[i]n classical Hanafi law,… neither inability nor refusal to maintain is considered sufficient grounds for the dissolution of a marriage.” Id. at 26. In addition, “[t]he Hanafi school shows more preference for the male in that it does not allow the wife the right to past maintenance unless a distinct agreement was previously made. The wife who, after a period of time, sues for maintenance, has no means to obtain payment of her husband’s past-due debt. In contrast, the Shafii and Hanbali schools consider maintenance arrears to be the husband’s ongoing debt that can be claimed regardless of the amount of time that has elapsed.” Id. Also, see Wani, supra note 72, at 78-81.
257 See supra note xxvii (of the notes that correspond to Table 1).
258 See supra note 83.
259 See Esposito, supra note 5, at 22.
260 See id. Authors consistently contrast this with Hanbali rules, that are more liberal in this regard: “One important right granted by the Hanbali (but not Hanafi) law school that gives women a certain amount of independence and status in marriage is her right to insert conditions that are favorable to her directly into the marriage contract… For example, clauses may be added that eliminate the husband’s right to take a second wife or that grant the wife greater freedom of movement.” Id. Also, see al-Hibri, supra note 223, at 23. Al-Hibri reports that, “Hanafis consider the condition prohibiting the husband from taking another wife null and void because it is viewed as encroaching upon a legitimate right of the husband.” Id. She adds that, “the Hanafi attitude towards such conditions appears as highly patriarchal. The Hanafi view is also contrary to the Prophet’s position which ranked promises (conditions) in the marriage contract highest among all types of promises, and urged their fulfillment. Only the Hanbali school follows carefully the Prophet’s pronouncement on this matter.” Id.
261 See Maghniyyah, supra note 75, at 262. Also, see Esposito, supra note 5, at 22.
262 See id. Also, see Esposito, supra note 5, at 22.
263 See Blackstone’s Commentaries 441-442, 446 (St. George Tucker ed., 1965).
264 There is an important difference, however, between the approach of the Jordanian and Egyptian legislatures. Whereas the first set out to codify family law, the second only passed discrete brief pieces of legislation on the subject. In other words, Jordanian elites made an elaborate effort to achieve a comprehensive treatment of issues included under “personal status” while Egyptian legislators did not. For a discussion of the Jordanian Code of Personal Status of 1976, see Mahmood, supra note 117, at 21-24.
265 For reference to Article 183 of the Jordanian Law of Personal Status, “requiring recourse to the majority opinion of the Hanafi school in any matter not explicitly covered by the code,” see Lynn Welchman, Beyond the Code: Muslim Family Law and the Shar’i a Judiciary in the Palestinian West Bank 13 (2000). Also, see Mahmood, supra note 117, at 22. For reference to procedural legislation under which courts in Egypt must apply Hanafi law in the absence of a rule or law found in “reform statutory legislation based on the instructions of alternative schools,” see Shaham, supra note 153, at 13. It is the case in many majority Muslim countries that in absence of a legislated rule, the doctrine of the prevailing school of law is applied. See Mahmood, supra note 117, at 5. As the author reports, “[o]utside the scope of the codified laws the locally dominant school of Islamic law has been, generally, retained by the statutes as the residual law in most Muslim countries [e.g., Maliki law in Algeria, Kuwait, Libya and Morocco; and Hanafi law in Afghanistan, Jordan, Sudan and Syria].” (paranthesis in original) Id.
266 The Tunisian Majallah, however, does not constitute a complete abandonment of Taqlid law. The legal acts involved in entering marriage and exiting it under Taqlid law are still incorporated in the Majallah. Such acts include contracting marriage, payment of mahr, the idda, etc. However, these acts are organized within a regime of “spousal equality in companionate marriage,” a radical departure from the vision of the family under Taqlid.
267 Thus Tunisian women came to acquire some of the powers/responsibilities of the Tunisian man (guardianship/maintenance) and the Tunisian man lost some of the powers he originally had, taking up responsibilities historically associated with women (no obedience/ paternal custody).
268 The new legislation on khul divorce passed in Egypt allows the wife to buy her freedom from the marriage without getting her husband’s consent. As Professor Esposito reports, “[u]nder a new law that came into effect in March 2000, a woman can divorce her husband, with or without his agreement, in exchange for returning to him any money or property he paid to her upon their marriage. This is a variation on khul divorce.” Esposito, supra note 5, at 60. The reason why this is a variation of khul is because in the case of khul divorce the consent of the husband is needed. See id. at 32. For this reason, Professor Esposito refers to it as a “mutual divorce” or a “common consent” divorce. Id. In addition, traditionally khul does not require financial compensation on the part of the wife to the husband (by returning the mahr he has paid her, or waiving her deferred mahr, for instance), but it is allowed as a way for her to convince him to consent to the divorce. See id.
269 See Mahmood, supra note 117, at 106. Article 1 (3) of Law 100 of 1985 reads as follows: “Maintenance shall include food, clothing, lodging, medical and other expenses recognised by law.” Id.
270 See id. at 113. Under the dictates of Article 18-C of Law 100 of 1985, “[t]he divorcing husband shall provide for his minor children from the divorced wife and their custodian a proper and independent house.” Id.
271 See id. at 107. Article 3 (4) provides that the right of maintenance shall not be affected “if the wife goes out for a lawful employment—except when this right has been abused by her or where it is prejudicial to the interest of the family and the husband prevents her from so doing.” Id.
272 For a general discussion of such changes brought about by twentieth century “reforms” to Egyptian family law, which faced vehement opposition from conservative religious elites, see Najjar, supra note 1.
273 See Najjar, supra note 1, at 331. Also, see Esposito, supra note 5, at 60. As Professor Esposito explains, “Egyptian family law included a provision, known as bayt al-taah (house of obedience), that permitted a husband to restrict his wife to their home. Under traditional Egyptian law, a wife who ‘refused to obey’ and left her husband might be forcibly returned by the police and confined until she became more obedient. Law No. 100 of 1985 instead requires the husband to send his wife a summons to return home via an official. The wife then has thirty days to object in court and present her lawful grounds for refusing to obey the summons. If it becomes apparent to the court that reconciliation is not possible and the wife petitions for divorce, the court is to follow arbitration procedures.” Id. For the text of the relevant article of Law 100 (1985), see Mahmood, supra note 117, at 111. Another author describes the “house of obedience,” an expression derived from Egyptian popular culture, as follows: “[a]ccording to the 1897 and later the 1931 Law (Articles 345-46), a husband, armed with an obedience decree issues by the court, could seek the help of the police in forcing his rebellious wife to return to his house (this recourse was called ‘the house of obedience,’ bayt al-ta‘a)…[f]rom the beginning of the twentieth century, Egyptian women’s movements attacked the compulsory character of the house of obedience and demanded its abolition. They were supported by some modernist jurists… As a result of such opposition, the government abolished this institution on 13 February 1967.” Shaham, supra note 153, at 73. As the author notes, “[t]his kind of enforced obedience is not mentioned in either the Qur’an or the Hadith; but as a customary practice in Egypt, the Sudan, and other parts of Africa, it became part of state law.” Id.
274 For a discussion of the legal process by which the institution was abolished, see Najjar, supra note 1, at 331-332. Even earlier, pioneering feminists such as those who comprised the Egyptian Feminist Union (EFU) also advocated the abolition of the institution, but without success. See Badran, supra note 207, at 131-132.
275 Thus, Article 11-B. (translated by other authors as Article 11 bis 2) declares that, “[i]f a wife refuses to live with her husband without having a right to do so, her maintenance may be stopped from the date of refusal. Refusal without right shall be taken into consideration if she does not return to the matrimonial home on her husband’s demand…” Mahmood, supra note 117, at 111.
276 See Mahmood, supra note 117, at 109. Article 6 of Law 25 of 1929 (as amended by Law 100 of 1985) reads as follows: “If a wife alleges that the husband has been cruel to her in a way which makes the continuance of the marital relationship impossible for women of her class, she can apply to the qadi [judge] for divorce. The qadi shall grant her dissolution of marriage… if the allegation is proved and no mutual reconciliation between the spouses seems possible.” Id. The article then provides that, “[w]here the qadi rejects the wife’s plea and she later repeats her allegation but is unable to prove it, he shall appoint two arbitrators …” Id. Article 10 stipulates that if the arbitrators can not “effect a reconciliation,” then they will declare who has fault and grant a divorce. Id. at 110. The assignment of fault is important because it impacts the financial rights the woman will have upon divorce. See id.
277 The Hanafi husband’s disciplinary power has been seriously undermined because the statutory reforms offer a woman a way out of marriage. Rather than being caught in the “poor abused wife zone,” what customarily happens now in Egypt if the wife desires to leave an abusive marital relationship is the following:
First, the wife leaves the house and the husband cuts off her maintenance on the grounds that she left the house without his permission;
Second, the wife sues in court for her maintenance;
Third, the husband argues that she had been disobedient and obtains an “obedience” judgment requiring her to come back home;
Fourth, the wife responds by requesting divorce based on harm and argues that she had left the house for harm inflicted on her by husband;
Fifth, the wife tries to prove harm in court.
If the judge fails to reconcile her with her husband and she succeeds in proving harm, the wife is granted a divorce. If, however, she fails to prove harm and insists upon divorce, then the court appoints arbitrators from each spouse’s family who are instructed to look into the reasons for disagreement and attempt to reconcile the spouses. If they fail, then apportionment of harm and reimbursement takes place. If the arbitrators decided that harm came really from the wife herself, the wife stands to lose her deferred dowry and maintenance during her idda. If, on the other hand, it turns out that the husband was the source of the harm, she maintains all her financial rights. If the arbitrators decide that harm was caused by both spouses, then each pays the other proportionally for the harm inflicted on the other. If the arbitrators differ among themselves, then the court takes over again and attempts reconciliation yet another time. If it fails, with the wife insisting on terminating the marriage, then the court grants her divorce. Apportionment of harm and reimbursement is attempted again, this time according to the court’s discretion. This process is outlined in Articles 6-11 of Egpytian Law 25 of 1929, as amended by Law 100 of 1985. For the text of these Articles, see Mahmood, supra note 117, at 109-110.
278 See Mahmood, supra note 117, at 109. Article 5-A of Law 25 of 1929, as amended by Law 100 of 1985, reads as follows: “A husband who divorces his wife shall get the divorce registered within thirty days from the date of pronouncement. If the divorced wife is present at the time of registration, her knowledge of divorce shall be recognized. But if she is not present, the registrar shall notify the talaq [divorce] to her through a court official and get delivered to her or her nominee a copy of the certificate of divorce. Every divorce shall be effective from the date of the pronouncement—except when the husband has concealed it from the wife, in which case for the purposes of succession and other financial rights it will become effective on the date when it comes to her knowledge.” Id. One limit to the husband’s right to divorce his wife when he wishes is that she must be informed; under classical Taqlid rules, a wife could be divorced and not even know it, that it, is was not required that she be informed. See Esposito, supra note 5, at 30 (reporting that the wife “does not have to be present nor must she be informed” of the fact that her husband has repudiated, or divorced, her).
279 The Jordanian legislature made the even more radical legislative move of not considering the woman who leaves the house as a result of mistreatment by her husband as disobedient. The Jordanian Code still allows such a wife her maintenance. See Table I, the entry for Jordan under “discipline of wife by husband.”
280 Case No. 4056/30 (30/10/41) 10/56, on file with author.
281 Case No. 474/39 (30/6/40) 8/136, on file with author.
282 Case No. 1/35 (1/12/35) 7/200, on file with author.
283 Case No. 45/29 (13/4/30) 1/912, on file with author.
284 Case No. 2254/40 (23/11/31) 3/633, on file with author.
285 Case No. 723/35 (2/5/26) 7/870, on file with author.
286 The court decided that she was. See Case No. 396/43 (6/2/44) 5/53, on file with author.
287 In one case the court decided that she was not, see Case No. 1218/931 (24/8/32) 5/912. In another case, the court decided that wife was disobedient, see Case No. 38/33 (21/1/34) 5/647. Both cases are on file with author.
288 The court decided that she was. See Case No. 1458/48 (22/11/48) 21/90, on file with author.
289 Cassation 29/3/1967, No. 19, 35. See also Cassation 17/11/1971, No. 26, 38. Both cases are on file with author.
290 Cassation 24/11/1976, No.4, 45, on file with author.
291 Cassation 14/3/1979, No. 5, 47, on file with author.
292 Cassation 5/11/1975, No. 10, 43, on file with author.
293 Article 10 of Egyptian Law 25 of 1929, as amended by Law 100 of 1985, provides that, “Where the arbitrators are unable to effect a reconciliation—(i) if the fault lies on the part of the husband, the arbitrators can decree a single irrevocable divorce, assuring that the wife will not lose any of her rights which would normally arise from the marriage and on divorce; (ii) if the fault lies on the part of the wife,they can decree a divorce subject to payment of compensation by the wife; (iii) if the fault lies with both parties, they can decree a divorce either without compensation or on payment of compensation commensurate with the blame on either side; and (iv) if the causes of discord are unknown and the fault cannot be located, they can decree a divorce without compensation.” Mahmood, supra note 117, at 110.
294 Cassation 18/4/1962, No 28, 29, on file with author. As one author reports, “It is said that it is natural for a working class woman to get beaten and for men of her social class to be polygamous. If a working class wife would come to court and argue that she had been harmed by her husband who beats her or that he had taken another wife, she is told this does not constitute harm ‘the likes of her cannot tolerate’ and she is denied divorce.” The Status of Egyptian Women in Personal Status Law, in The Legal Consciousness of the Egyptian Woman (Al-wai al-qanuni lil-mara’ah al-miriyyah) 105 (Ahmad Abdullah ed., 1995).
295 Appeal 11/12/1965, No 89, 82, on file with author.
296 Case No. 33, Year 50, Personal Status 31/3/1981, on file with author.
297 Cassation 17/4/1984 No. 37, 53, on file with author.
298 See Gabr, supra note 20, at 217. The amendment was passed in 1980. See Lombardi, supra note 49, at 81.
299 See id. Also, see Lombardi, supra note 49, at 81-85. As one author reports, “[t]he provision contained in Article 2 of the Egyptian Constitution is not peculiar to Egyptian constitutional law. Similar provisions are found in numerous Arab constitutions.” Kilian Bälz, The Secular Reconstruction of Islamic Law: The Egyptian Supreme Constitutional Court and the “Battle over the Veil” in State-Run Schools,” in Legal Pluralism in the Arab World 229, 231 (Baudouin Dupret et. al. eds., 1999).
300 For a description of the Court, see Marie-Claire Foblets & Baudouin Dupret, Contrasted Identity Claims Before Egyptian and Belgian Courts, in Legal Pluralism in the Arab World 57, 63 (Bandouin Dupret et. al. eds., 1999). The authors report that, “Egypt also has a constitutional court, the Supreme Constitutional Court, established by the Constitution which has been active since the promulgation of its organic law (Law No. 48 of 1979) and the adoption of its internal regulation…[t]he Supreme Constitutional Court is competent in issues with regard to the interpretation of the law, monitoring constitutional issues and deciding conflicts of competence between the courts. At the request of a judge it can be called upon to decide on the constitutional status of a law.” Id. Authors have recognized the “crucial role of the Egyptian Supreme Constitutional Court in determining the nature of public life in Egypt as a modern state formally governed by principles of Islamic Shari’a laws.” Ran Hirschl, Resituating the Judicialization of Politics: Bush v. Gore as a Global Trend, in 15 Can. J.L. & Juris. 191, 197 (2002). This same author, in another article, describes the establishment of the Court as follows: “In 1979, President Anwar al-Sadat, with the support of the secular high-income bourgeoisie, initiated the establishment of the Egyptian Supreme Constitutional Court and granted a relatively wide authority of judicial review. The constitutional reform of 1979 also ensured the Court’s formal independence from government, political parties, and other improper influences and interferences. Given the fact that Egypt has a presidential system of government in which the executive enjoys a wide range of powers, it is somewhat surprising that the Supreme Constitutional Court was granted a relatively wide authority of judicial review over administrative and presidential legislative powers, and even more surprising that the Supreme Constitutional Court has maintained and even fortified its relative independence since its establishment.” Ran Hirschl, The Struggle for Hegemony: Understanding Judicial Empowerment Through Constitutionalization in Culturally Divided Polities, in 36 Stan. J Int’l L. 73, 114 (2000).
301 See Hirschl, The Struggle for Hegemony, supra note 300, at 115. The author reports that, “[f]ollowing the establishment of judicial review in 1979 and the 1980 constitutional amendment, the Egyptian Supreme Constitutional Court has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari’a.” Id.
302 See Foblets & Dupret, supra note 300, at 63. The authors report that an examination of the jurisprudence of the Court demonstrates that, especially in its early years, “when it comes to dealing with issues of constitutionality, it has tended not to become involved in interpreting shari’a, rather it has followed a strict technical principle…” Id. One instance of this was Law 44 of 1979 (Jihan’s Law), reforming various aspects of family law. See Najjar, supra note 1, at 337. Also, see supra note 210.
303 See id. The authors report that in a 1985 decision, “the Supreme Constitutional Court formulated a principle which has become law, that of the non-retroactive implementation of Article 2. Thus the Court rejected the right to pass judgment on the constitutionality of texts pre-dating 1980.” Id. Also, see Scott Kent Brown II, The Coptic Church in Egypt: A Comment on Protecting Religious Minorities from Nonstate Discrimination, in 2000 B.Y.U.L. Rev. 1049, 1085. The author cites the Supreme Constitutional Court’s “refusal to apply Article 2 of the Constitution (the 1980 shari’a amendment) to any legislation that was enacted before the article was adopted [amended] in May 1980.” Id. Also, see Awad Mohammed El-Morr, Judicial Sources for Supporting the Protection of Human Rights, in The Role of the Judiciary in the Protection of Human Rights 5, 8 (1997). Alternatively, see Bälz, supra note 299, at 234-35. Bälz reports that, “the S.C.C. defined application of Article 2 of the Egyptian Constitution with respect to time. In a leading case in 1985 concerning the constitutionality of interest claims (‘Azhar-case’), it was held that only ‘with the day the amendment… of Article 2 of the constitution came into force on 22 May 1980, the legislative power (sultat al-tashri‘) became bound when enacting new laws or amending laws, which predated this day, to observe that these laws must conform to the principles of Islamic law (mabadi’ al-shari‘a al-islamiyya)…’” Id.
304 See Lombardi, supra note49, at 90. (“[T]he SCC remained adamant. It reaffirmed the non-retroactivity of the sharia on twelve separate occasions.”)
305 See id. at 90, 97.
306 See id. at 99-102 for a summary of the test. Also, see infra note 334.
307 It is a fact noteworthy of mention that the absolute majority of cases presented to the Supreme Constitutional Court under Article 2 are related to family law and inheritance, the two areas of the law that remain based on sharia (although in codified form). It is interesting that non-religious laws are rarely brought to the attention of the Court for non-conformity with Article 2. The reasoning that the Court adopts in these cases is interesting because it demonstrates the judicial test that the Court developed to examine the constitutionality of legislation under Article 2 of the Constitution. This test embodies a choice which is only one among many that the Court could have made, each such choice having its own variant “Islamicizing” imprint on the system. In other words, the test speaks volumes on how far or near the SCC is willing to go to promote the project of Islamicization. See infra note 334 for an analysis and description of the test.
308 Case No. 82, Judicial Year 17, 1997 (on file with author). Article 11 of Law No. 25 of 1929, as amended in by Law 100 of 1985, found in El Alami & Hinchcliffe, supra note 3, at 57-58. The relevant provision of Article 11 reads as follows: “If the court is unable to bring about agreement between the spouses and it becomes obvious to the court that they cannot live together, and if the wife insists upon divorce, the court shall rule for their irrevocable divorce with the forfeit of all or part of the wife’s financial rights and her obligation to pay appropriate compensation if this seems appropriate.” Id.
309 See id. at 5. “While Talaq has been legislated by God in his wisdom and gave the power to enforce it to the man since he is more rational and wiser…” Id. (translation by author)
310 See id. at 6. “Since arbitrating between husband and wife when there is discord between them is based on God’s command, ‘And when you fear discord between them, send them one arbitrator from his family and one from hers, if they desire reconciliation God will make matters well between them…’” Id. (translation by author) The Court is citing verse 4:34 of the Koran, found in the chapter (sura) titled Women (Al-Nisa).
311 See id. “[H]owever, jurists have differed as to who has the power to enforce divorce when there is discord in the family and the husband refuses to divorce his wife… Some jurists have argued that the arbitrators who have the power to try and make amends between the spouses have also the right to divorce the wife from her husband and others have restricted their power to that of making amends…” Id. (translation by author)
312 The assumption is that the judge would then grant a divorce on behalf of the husband.
313 See Case No. 82, supra note 308, at 6. “Since the legal provision under dispute-legislated within the power of the legislature to deduce Sharia rules taking into account Sharia proofs-has treated the arbitrators as having the power to study the cause of the dispute between the spouses and to recommend to the judge the reasons for it, the respective responsibility of the spouses, and whether separation should take place with (or without) compensation according to the assigned responsibility of each… this rule does not contradict a determinate rule of the Sharia, but legislates an area that has been an object of controversy among the jurists… and takes into account the general welfare of the people as Sharia has recognized it …” Id. (translation by author)
314 Case No. 8, Judicial Year 17, 1996 (on file with author). For a discussion of this case, see Brown II, supra note 303, at 1089. Also, see Bälz, supra note 299, at 238-242.
315 Edict #113, 1994, on file with author.
316 See Foblets & Dupret, supra note 300, at 67-68. Specifically, the decree established that girls must wear particular school uniforms: “[t]he decree in question requires all girls to wear the uniform of the school they attend.” Id. at 68. These uniforms did not include a hijab or the niqab.
317 Edict #208, 1994, on file with author. Also, see Lombardi, supra note 49, at 108. As the author reports, “Islamist lawyers promptly brought Article 2 challenges to the edict. Alarmed by the popular reaction to the decree, the Minister of Education softened it. He issued a new edict (#208/1994) which amended the earlier edict. Under the new edict, schoolgirls could wear the hijab if they received permission from their parents.” Id. In addition to the consent of the parents, the decree also established that veiling has to be based on the free will of the student “and that it is not due to coercion from any other person or organization.” Bälz, supra note 299, at 230. However, the niqab, which covers the face, was not allowed: “[t]he ministerial decree stipulates that all students should be free to adopt the veil if they choose, as long as it does not hide the face and their guardian can certify that this decision has not been taken under duress.” Foblets & Dupret, supra note 300, at 68. As another author put it, “[t]he niqab, the facial veil covering the entire face, was banned from state-run schools through this decree. To wear a hijab, a head scarf, was all that remained permissible.” Bälz, supra note 299, at 229.
318 See Lombardi, supra note 49, at 107-108. For the specific facts concerning the father who brought the case, a man named Mahmud Wasil, concerning his two daughters, Maryam and Hagir, who were not allowed to attend school because they were wearing the niqab, see Foblets & Dupret, supra note 300, at 67.
319 See id. at 108. As the author reports, “[t]he SCC first identified two passages of the Qur’an which require women to cover up those parts of their body that are sexually appealing to men, but it found none that specifically required women to cover their hair or their faces.” Id. Also, see Bälz, supra note 299, at 238.
320 See id. at 109. As the author describes it, “[i]n the sunna literature, there were reports that the Prophet had asked women to cover everything but their heads and faces. But, said the SCC, there was no evidence that the Prophet had required some women to wear the hijab or niqab. Since there was no clear declaration in the Qur’an or sunna that women must wear the hijab or niqab, the SCC declared itself fairly certain that the sharia did not specifically require women to wear the veil.” Id.
321 See El-Morr, supra note 303, at 16. The author reports that, “Islamic jurists disagree as to the proper construction of the Qur’an and the confirmed or alleged sayings of Mohammed the Prophet with regard to women’s dress.” Id. The author, Chief Justice El-Morr of the Supreme Constitutional Court of Egypt, describes the case in length. See id. at 14-19. Also, see Bälz, supra note 299 at 238-239.
322 See Bälz, supra note 299, at 238. As Bälz reports, the Court stated the following in regards to modesty and women’s dress: “Islam elevates the standing of the woman, requires her to preserve her modesty, and obliges her to cover her body from being despicable or sacrificing her dignity in order to protect woman from whatever may damage, or be detrimental to, her shame… Therefore, she does not have the right to choose her dress according to her entirely free will.” Id. For the Chief Justice’s point of view on modesty and women’s dress, see El-Morr, supra note 303, at 16-17.
323 See Lombardi, supra note 49, at 111. The Court reasoned that, “[t]he way that a woman looks should express her modesty in a way that will permit her legally to do what she needs to do in life, and which simultaneously keeps her away from that indecency/immorality (ibtizal) which arises when men approach her because of the way her body looks and which leads her to sin (ithm) and affects her position and situation.” Id. Thus, “[t]he question then was whether the niqab ban promoted immodest behavior in opposition to the fundamental principle that women must dress modestly. The SCC evaluated the ban by focusing on what ends the principles of modesty are to serve. The SCC found that modesty is, at its heart, designed to prevent illicit sex.” Id.
324 See id.
325 See Foblets & Dupret, supra note 300, at 68. As one author put it, by ruling as it did in this case, the Supreme Constitutional Court “advocated the ‘middle course’ by refusing to impose an excessive dress code but upholding a very modest one.” Brown II, supra note 303, at 1089.
326 Case No. 35, Year Nine, 1994 (on file with author). Article 11 bis of Law No. 25 of 1929, as amended by Law No. 100 of 1985, provides that, “[a] wife whose husband takes a second wife may petition for divorce from him if she is affected by some material or moral harm of a kind which would make it impossible for a couple such as them to continue living together, even if she has not stipulated in the contract that he should not take further wives.” El Alami & Hinchcliffe, supra note 3, at 58. The Article also provides that, “[i]f the judge is unable to effect a reconciliation between them he shall grant her an irrevocable divorce. The wife’s right to petition for divorce on these grounds shall be forfeit upon the elapse of one year from the date of her knowledge of the other marriage, … [h]er right to petition for a divorce is renewed whenever he marries another woman.” Id.
327 See id. at 3. “The plaintiff argues that the provision under dispute violates Quranic text that licenses polygamy and that restricts it only with the requirement of fairness in treating wives. Moreover the provision does not specify the kind of emotional harm that allows the wife to demand divorce…” Id. (translation by author)
329 For a discussion of such cases, see for example El-Morr, supra note 303.
330 Sometimes the Court refers to it as a “license.”
331 Case No. 35, supra note 326, at 3.
332 Id. at 8. “Since polygamy is based on the rule of fairness–which is a restriction of the right and not a cause of it–injustice and bias will not take place and no harm will befall the wife when her husband takes another wife.” Id. (translation by author)
333 Id. at 9. “The right of the wife to demand divorce when her husband takes another wife is not based on her merely hating him or feeling repulsed by him, but requires that she establishes harm prohibited by Sharia, such harm must be real not illusory, actual not imagined…. which negates good treatment expected of marital relationships…” Id. (translation by author)
334 Id. at 9. The above cases allow us to detect the various strategies taken by the Court in the Article 2 cases. In the vast majority of these cases, the Court espouses judicial passivism. It has an almost exaggerated reluctance to strike down legislation, exerting an elaborate, though intelligible effort to avoid doing so. Indeed, the very test of constitutional review that the Court has developed is clear evidence of this judicial passivism. According to this test, the Court first searches for determinate rules in the Qur’an and sometimes in the prophetic traditions that might allow a reading of the legislation under its purview to be in violation of the principles of the shari’a. The Court often finds that no such rules exist. The Court is careful to assert that whatever rules that do exist that contradict the legislation are not found in the primary textual sources of Islamic law (i.e. the Qur’an and the Sunna) but instead have been formulated by jurists and are the subject of controversy among the various medieval schools of jurisprudence. Subsequently, the Court asserts the right of the legislature to legislate outside the domain of the determinate rules in the name of public interest and declares the law to be constitutional.
Alternatively, the Court reads into the various determinate, but ambiguous rules of the shari’a a general principle and proceeds to decide that the legislation under review falls short of violating this principle. In both cases, the Court’s random references to the views of the medieval schools of jurisprudence are designed to either prove that the rule in question is controversial, meaning there exists a variety of positions on said rule, or to support the validity of the legislation by showing that some medieval jurist had advocated a rule similar to it.
The fact that this test is quite loose or flexible seems to express the Court’s commitment to the preservation of the legislative domain as it exists today in the Egyptian legal system, as well as its’ desire to deliver it from the encroaching reach of the interpretive arm of God’s law.
The somewhat passive posture taken by the Court is rendered all the more striking when one considers that the SCC manifests the radically different posture of serious, almost brutal activism, when deciding if a piece of legislation conforms to the other articles of the Constitution. This is especially so in cases dealing with the “rights” and “freedoms” of citizens in relation to the State. In these cases the SCC seems almost too willing to strike down legislation that is in violation of the Constitution. For a discussion by the Chief Justice of the SCC of several such cases, see El-Morr, supra note 303.
335 On this point, see Hirschl, The Struggle for Hegemony, supra note 300, at 115. The author reports that, “the Egyptian Supreme Constitutional Court has demonstrated its consistent policy by adopting a relatively liberal, middle-of-the-road approach in its interpretation of the Muslim Shari’a rules.” Id.
336 For example, see Chief Justice El-Morr’s discussion on modesty and the clothing of women, El-Morr, supra note 303, at 16-17.
ii Qadri Pasha, Al-Ahkam Al-Shariyyat Fi Al-Ahwal Al-Shakhsiyyat Ala Madhhad Al-Imam Abi Hanifa Al-Numan (1997).
iii I use the term “father” to refer to “guardian,” the latter being the legal term referring to one who plays this role. In the absence of the father, another male relative replaces him as the substitute-father.
iv See Pasha, supra note i, at 114.
v See id. at 110.
vi See id. at 112.
vii “Prior to codification, Egyptian personal status law had been based primarily on the Hanafi school. The first laws to be introduced had drawn from all the schools of law, but it was provided in Law No. 78 of 1931 that in the event of no textual provision existing, reference was to be made to the most appropriate opinion of Abu Hanifa.” El Alami & Hinchcliffe, supra note 3 (main text), at 51.
viii Articles 9-12 set the rules for “Guardianship in Marriage.” See El Alami & Hinchcliffe, supra note 3 (main text), at 81. Article 9 declares that, “[t]he marriage guardian shall be a male agnate in the order set down in the most appropriate opinion of the Madhhab of Abu Hanifa.” See id. Under Hanafi rules, the father has first priority for guardianship; in his absence, the paternal grandfather has priority. See id. at 81. In addition, Article 6 discusses the procedure by which a judge may at times conduct a marriage despite the opposition of the guardian. See id. at 80.
ix See El Alami & Hinchcliffe, supra note 3 (main text), at 82.
x See id. at 239.
xi See id. at 240. The text of Article 6 given by the authors does not reflect the change made in the law in 1993 to require the consent of the mother as well as that of the guardian in such cases; reference to the 1993 change can be found in An-Na’im, supra note 206 (main text), at 182-183.
xii See Pasha, supra note i, at 114. According to Article 63 of Pasha’s rules, equality includes consideration of lineage (which includes “Arabness” and Islam), wealth, “goodness”, and profession. See id. at 117.
xiii See El Alami & Hinchcliffe, supra note 3 (main text), at 85. Article 20 of the Code defines equality in terms of wealth, meaning he is capable of paying the dowry and maintaining the wife. See id. at 84. The husband’s equality is measured only at the time of the marriage contract. See id. Article 20 reads as follows: “It shall be required for the marriage to be binding that the man be of equal status to the woman in financial terms, that is the husband should be able to provide the immediate portion of the dower and maintenance for the wife. Equality shall be observed at the time of the contract but if it ceases thereafter this shall have no effect on the marriage.” Id.
xiv See Pasha, supra note i, at 145.
xv See id. at 147.
xvi See id. at 143.
xvii See id.
xviii See El Alami & Hinchcliffe, supra note 3 (main text), at 52. Under Article 1 of Law No. 100 (1985), the wife earns her maintenance once she “submits” herself to her husband, even if by law and not actually. See id. In all references to Law 100 of 1985, the author is referring to the laws of personal status as they read today due to the amendments made by Law 100; thus they are technically the articles of Law 25 of 1929, as amended by Law 100 of 1985.
xix See id. Under Article 1, an exception is made for those times when she leaves the house for reasons allowed by virtue of law or custom, or due to necessity. See id. “It shall not be deemed grounds for forfeit of maintenance if the wife leaves the matrimonial house without the permission of her husband in circumstances in which this is permitted by a rule of the Shari’a for which there is some text or prevailing custom or where this is required by necessity.” Id.
xx See id. at 52-53. Article 1 also dictates that she loses her maintenance if she commits apostasy or refuses to “submit” herself to her husband without any legal reason, or is obliged to do so for reasons outside her husband’s control. See id. at 52.
xxi See id. at 88.
xxii See Nasir, supra note 10 (main text), at 100. The Code does not define what this legal excuse might be.
xxiii See id.
xxiv See id.
xxv See El Alami & Hinchcliffe, supra note 3 (main text), at 243.
xxvi See id.
xxvii See Pasha, supra note i, at 157. “Hadd” is an Islamic punishment decreed by the Quran for a specific set of crimes such as homicide, highway robbery, drinking wine and adultery. See Schacht, supra note 14 (main text), at 175.
xxviii See id.
xxix See El Alami & Hinchcliffe, supra note 3 (main text), at 95.
xxx See id. at 243; also, see An-Na’im, supra note 206 (main text), at 183.
xxxi See Pasha, supra note i, at 107.
xxxii See El Alami & Hinchcliffe, supra note 3 (main text), at 58.
xxxiii See id. at 56.
xxxiv See id. at 58.
xxxv See Nasir, supra note 10, at 67. Also, See El Alami & Hinchcliffe, supra note 3 (main text), at 86.
xxxvi See El Alami & Hinchcliffe, supra note 3 (main text), at 83-84.
xxxvii See Nasir, supra note 10, at 67. Also, See El Alami & Hinchcliffe, supra note 3 (main text), at 242.
xxxviii See Pasha, supra note i, at 170-171.
xxxix See id. at 174. When seeking a ‘khul divorce, a woman in general agrees to give up some or all of her financial rights in exchange for an exit from the marriage. The woman does not have to base her request on one of the grounds for divorce established by the law. As one author put it, “[a]part from the divorce effected by the husband, marriage can be dissolved by mutual consent by the wife giving the husband something for her freedom…” Nasir, supra note 10 (main text), at 115.
xl See id. at 179.
xli See El Alami & Hinchcliffe, supra note 3 (main text), at 53.
xlii See id. at 54.
xliii See id. at 59.
xliv See id. at 56.
xlv See Mariz Tadros, The beginning or the end?, in Al-Ahram Weekly, 9-15 March 2000, Issue No. 472, which can be found at http://weekly.ahram.org.eg/2000/472/fr2.htm; Reem Leila, and Before you sign on the dotted line…, in Al-Ahram Weekly, 22-28 June 2000, Issue No. 487, which can be found at http://weekly.ahram.org.eg/2000/487/li2.htm; Mariz Tadros, Freedom—at a price, in Al-Ahram Weekly, 25-31 May 2000, Issue No. 483, which can be found at http://weekly.ahram.org.eg/2000/483/li1/htm; and Tadros, supra note 7 (main text). Also, see Susan Sachs, Egypt’s Women Win Equal Rights to Divorce, in New York Times, Mar. 1, 2000, at A1.
xlvi See Welchman, supra note 265 (main text), at 160. Article 19 reads as follows: “If a condition is stipulated in the contract that is of benefit to one of the parties, is not inconsistent with the intentions of marriage, does not impose something unlawful and is registered in the contract document, it shall be observed…” Id. As another author describes it, “[t]he law also allows the wife to make certain stipulations in the marriage contract that may create rights. She may specify in the marriage contract that she can obtain a divorce without resorting to judicial proceedings… Although legally permitted, such stipulations are rarely made, due to either a reluctance to defy local custom or a lack of knowledge about this option.” Wing, supra note 210 (main text), at 162-163.
xlvii For a discussion of these Articles, see Welchman, supra note 265 (main text), at 272-276. Under Jordanian law, as under the Taqlid rules, for a wife to get a ‘khul divorce, the consent of the husband is required. Thus the husband can not be obliged to agree to the divorce. As the author put it, under Jordanian law, “[i]t is not therefore a case of the wife having a guaranteed ‘right’ to obtain a talaq [divorce] from her husband by giving up her financial rights…” See id. at 273. In addition, under Article 102 (b) of the Jordanian Code, “if the woman is under the age of legal majority (rushd), then the khul’ is not valid unless her legal guardian (wali al-’amr) gives his consent to her renunciation of her rights.” Id. at 275. Recently a “temporary law” was passed by the Jordanian government, with the public support of the King and Prime Minister, while the parliament was in recess, to allow women to file for a khul divorce without their husband’s consent. When the Parliament convened at the end of the summer, however, they rejected it. For a discussion of this law, see Divorce Blow for Jordan Women, in BBC News World Edition, 4 Aug. 2003, which can be found at http://news.bbc.co.uk/2/hi/middle_east/3123661.stm. Also, see Jordan Woman ‘Wins Right to Divorce,’ in BBC News 13 May 2002, which can be found at http://news.bbc.co.uk/2/hi/middle_east/1985271.stm.
xlviii See El Alami & Hinchcliffe, supra note 3 (main text), at 103.
xlix See id. at 105.
l See id. at 107.
li See id. at 105.
lii See id. at 106.
liii For a lengthy discussion of this Article, see Welchman, supra note 265 (main text), at 285-287. Also, see El Alami & Hinchcliffe, supra note 3 (main text), at 108-109. For a discussion of all the grounds for divorce available to the wife, see Wing, supra note 210 (main text), at 162.
liv See El Alami & Hinchcliffe, supra note 3 (main text), at 245.
lv See Pasha, supra note i, at 183.
lvi See id. at 184.
lvii See id. at 129.
lviii See id. at 133.
lix See id. at 174-179.
lx See id. at 174.
lxi See id. at 175.
lxii See El Alami & Hinchcliffe, supra note 3 (main text), at 60.
lxiii See id. at 57.
lxiv See id. at 109. The Article reads as follows: “If the husband divorces his wife arbitrarily (ta’assufan), such as if he divorces her for no good reason (sabab ma’qul), and she applies to the qadi, he shall award her against the man who divorced her such compensation (ta‘wid) as he considers appropriate, provided that it shall not exceed the amount of her maintenance for one year… This shall not affect the rest of the matrimonial rights of the divorced woman, including maintenance for the ‘idda period.” Welchman, supra note 265 (main text), at 339.
lxv See id. at 108.
lxvi See id. at 246.
lxvii See Majallat Al-Ahwal Al-shakhsiyya (Tunisian Family Code), Muhammad Al-Habeeb Al-Shareef (edi.) 1997, Art. 13 at 30
lxviii See Wani, supra note 72 (main text), at 204. The relevant provision reads as follows: “As regards the women to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of iddat and may be in the form of retention of the matrimonial house. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive or until she changes her marital status by marrying again. If the former husband dies this indemnity will be a charge on his estate…” Id. Also, see Nasir, supra note 10 (main text), at 121. As Nasir describes, “[t]he new Article 31 as amended under Act No. 7/1981 rules that the injured spouse shall be granted damages for any material or moral injury inflicted as a result of divorce at the request of either party. The woman shall receive damages for any material injury in the form of a monthly allowance, to run after the expiry of the iddat, to secure for her the same standards of living she was accustomed to during her marriage. Such an allowance shall be liable to revision upwards or downwards as circumstances change, and shall continue for the lifetime of the divorcee or until she remarried and her social status changes, or on acquiring such property as to enable her to do without such an allowance.” Id. In addition, Mounira Charrad described the amendment to the Tunisian Code, the 1981 law on divorce, as significant because it, “introduces the possibility of ‘life-long alimony’ for a divorced woman. (Prior to 1981, compensation was paid in a lum sum.) A divorced woman can now select to receive a regular monthly or yearly payment until death or until she remarries.” Charrad, supra note 224 (main text), at 56.
lxix See id. Also, see Nasir, supra note 10 (main text), at 121.
lxx For rules on custody, see Pasha, supra note i, at 199-207, Articles 366-394.
lxxi See Pasha, supra note i, at 199.
lxxii See id. at 206.
lxxiii See id. at . A mahram is one who is prohibited to marry the child for reasons of consanguinity.
lxxiv The exception is if she is returning to her own home.
lxxv See Pasha, supra note i, at 206-207.
lxxvi See id. at 214.
lxxvii See Dawoud S. El Alami, Law No. 100 of 1985 Amending Certain Provisions of Egypt’s Personal Status Laws, in 1 Islamic Law and Society 116, 127 (1994). Also, see An-Na’im, supra note 206 (main text), at 172.
lxxviii See id. Also, see Najjar, supra note 1 (main text), at 335.
lxxix See id. Also, see Najjar, supra note 1 (main text), at 335.
lxxx See El-Alami, supra note lxxvi, at 122. Also, see Welchman, supra note 265 (main text), at 334.
lxxxi See Welchman, supra note 265 (main text), at 332-334.
lxxxii See Nasir, supra note 10 (main text), at 172. Article 162 reads as follows: “Custody by the mother who devotes herself entirely to the care and education of her children shall run until they reach puberty.” Id. Also, see Lynn Welchman, The Development of Islamic Family Law in the Legal System of Jordan, in 37 Int’l & Comp. L.Q. 868, 877 (1988).
lxxxiii See id. at 163-164. As the author expresses this traditional rule of the Hanafi and Maliki schools of law, “[t]he Hanafis and Malikis deprive the woman of the right to custody should she marry a stranger (a person outside the paternal or maternal family) or a relation of the child who would not, in other circumstances, be prohibited from marriage to the child, such as a cousin. However, should she marry a relation of the child who would be prohibited from marriage to it in any circumstances, such as the child’s uncle, then the custodian would not lose her right to custody, and loving care for the infant would then be assumed, even if the wife’s attention to the child may compromise part of her services to her husband.” Id. at 163.
lxxxiv See Dr. Moussa Abou Ramadan, The Transition From Tradition to Reform: The Shari’a Appeals Court Rulings on Child Custody (1992-2001), in 26 Fordham Int’l L.J. 595, 609 (2003). The author reports that, “[s]ection 166 of Law No.61 of Personal Status in Jordan provides that a person with whom the child is staying cannot leave the Kingdom with the child, unless the guardian agrees, subject to the prior assurance of his welfare.” Id.
lxxxv See Nasir, supra note 10 (main text), at 162. Also, see Charrad, supra note lxvii, at 56.
lxxxvi See Majallah, surpa note lxvi, at 169. However, under Article 61 of the Majallah, she will “lose her right to custody if she moves to or settles in a different town where it would be difficult for the father or guardian to look after the interests of the child.” Nasir, supra note 10 (main text), at 167.
lxxxvii Again, an exception is made if the person she marries is a mahram. See Nasir, supra note 10 (main text), at 164.
lxxxviii See Nasir, supra note 10 (main text), at 164.
lxxxix See Al-Shareef, surpa note lxvi, at 143
xc See Id
xci There is a distinction between custody and guardianship. Under Article 395 of Pasha’s rules, a father (as guardian) has the obligation to discipline, educate and instruct his children, as well as maintaining them if they have no money, until a boy can earn money and a girl gets married. See Pasha, supra note i, at 199. The mother (as custodian) is required to take care of the children and nurse them as long as they need it. See id. In addition, guardianship is important under the doctrine of all four schools of law in relation to the marriage contract—as Maghniyyah describes it, “[w]ilayah [guardianship] in marriage implies the legal authority granted to a competent guardian to be exercised over one under a legal disability for his or her advantage.” Maghniyyah, supra note 75 (main text), at 292. Under the doctrine of the Shaf‘i, Maliki and Hanbali schools, this “legal disability” means that a woman, even if she is “sane” and “major” and a “maiden”, or a sane, grown-up virgin, can not contract her own marriage. See id. Thus, as the author puts it, “[c]ustody has no connection with guardianship (wilayah) over the ward with respect to marriage; it is limited to the care of a child for its upbringing and protection for a period of time during which it requires the care of women.” Id. at 349. This distinction is found in the rules of all Taqlid schools of law. However, because under the doctrine of the Hanafi school a “sane, grown-up female” is “competent to choose her husband and to contract marriage, irrespective of her being a maiden or a thayyib,” the distinction between guardianship and custody does not imply the same role in marriage under Hanafi rules as it does under the rules of the other schools. Id. at 292. The distinction is important, however, as it relates to other issues, as evidenced by the dictates of Article 395 of Pasha’s rules.
xcii See Pasha, supra note i, at 207.
xciii See id. at 214.
xciv See id.
xcv See id. at 215. Under Article 422, however, a daughter can only be “hired” out to a woman to teach her a craft and in some other specified jobs. See id.
xcvi See El Alami, supra note lxxvi, at 121-122. Also according to Article 18b(2), if a son is fifteen years old but is pursuing a level of education “appropriate for a person of his status and ability,” his father continues to be liable for his maintenance. Id.
xcvii Article 1 of Egyptian Law on Rules of Guardianship Over Money, Law No. 119 (1952).
xcviii See Qanun Al-Ahwal Al-Shakhsiyya, (Jordanian Family Code), Ratib Atallah Al-Dthaher (ed.), 1983, at 89.
xcix See Al-Dthaher, at 89.
ci J. N. D. Anderson reports that according to “the usual Hanafi rule,” previously married women and “spinsters who are no longer young” do not have to live with their male guardian from whom they receive their maintenance, “unless there are special reasons to cause apprehension about their moral safety,” in which case they have to live with him if he asks them to do so, facing a loss of maintenance if they refuse. J.N.D. Anderson, The Syrian Law of Personal Status, in 17 Bulletin of the School of Oriental and African Studies 34, 43 (1955).
cii See Mahmood, supra note 117 (main text), at 175. The text of Article 46 reads as follows: “Maintenance of minor descendants, how low soever, is binding on the ascendants. A girl is entitled to such maintenance till the responsibility is taken over by her husband, and a boy till the age of sixteen years or till he becomes capable to earn.” Id.
ciii See id.
civ See id. at 176.
cv See id. at 178.
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