In November 2015 in Seoul, Korea, 50 women from around the world, including the United Arab Emirates, gathered at the International Women’s Democracy Network at the eighth World Movement for Democracy Assembly. When asked what issues were most important to them, they named family law reform as among their biggest priorities.
In particular, women from the Middle East and North Africa said discriminatory family laws governed by sharia – a legal system based on Islam – stood between their countries and any form of women’s empowerment. This, in turn, blocked democratic progress.
Why is family law reform so significant, especially in the MENA region? How does family law relate to Islam? What would it take to reform these laws in this region in particular? These questions cannot be answered without an understanding of the development of legal systems across the MENA region.
First, several legal systems are used in the region. Gulf countries such as Oman, Qatar, Bahrain, and Saudi Arabia – as well as neighboring Yemen – claim to base their laws solely on sharia. But most countries have developed a fusion of legal systems, even those that claim to adhere to sharia law. Historical factors, primarily colonialism, have led to hybrid systems that include aspects of British, French, or Egyptian legal codes.
Apart from Turkey and Tunisia, where laws are drawn mostly from secular sources, most countries in the region rely upon religious law to govern matters relating to the family such as marriage, divorce, and child custody. It is, in fact, the personal status codes that apply to women that make or break the Islamic identity of a nation. While most other laws in these societies are based on a mixture of civil codes and European traditions, women bear the burden of the state’s “Islamic” identity.
Thus, in these countries women are particularly impacted and susceptible to religious dictates. As religious authorities tend to be more conservative in many Islamic communities, it is women’s rights, rather than men’s, that are not only limited but violated to such a degree that their physical and psychological being is at stake.
Early marriage generally stops a girl’s education and puts her at risk of health dangers associated with early pregnancy, female genital mutilation, and the trauma of being a nine-year-old bride. The inability for women to ask for a divorce even from abusive husbands, or to gain custody of children, puts those most vulnerable in danger.
The problem is that sharia remains an abstraction to most everyday citizens. Most people in the region cannot provide a consistent definition of sharia when asked about the term. Furthermore, the laws governed by sharia depend on interpretation of religious texts. These interpretations vary from country to country, and sometimes even from city to city, and often from imam to imam. Conservative religious leaders and their strict adherents vehemently resist adopting more liberal interpretation of family laws, exacerbating the taboo associated with discussing the subject.
To complicate matters, in countries such as Lebanon, Egypt, Sudan, and Morocco, religious minorities may choose whichever faith’s codes they wish to apply to personal status codes, however in other countries they are still subject to Islamic laws.
But regardless of the country, or faith residents adhere to, in the MENA region – and whether the laws are so-called “secular” or “Islamic” based – the system discriminates against women. In almost all of these societies, women require the permission of men to engage in a broad range of activities, including in their work and public lives. Laws unrelated to the family, on the other hand, are not generally inspired by religious codes.
The Question of Codification and the Case of the Arab Gulf States
It took a while to get to the place family laws occupy in the region today. It was not until the mid-20th century, after winning their independence from colonial powers, that most Muslim majority countries adopted statutory, or written, family codes. The Arab Gulf states waited until the 2000s to codify their laws, and Saudi Arabia – although it has announced its intention to do so – still has not. Why not?
Enacting statutory law is widely considered an improvement over relying upon customary law, although in some cases this is debatable. One reason the Arab Gulf monarchies were hesitant to make this reform is due to their distinct economic situations. Qatar, the UAE, and to some degree Bahrain, are rentier states. This means their oil and gas revenue has allowed them to mitigate the less pleasant social impacts of conservative Islamic law by giving their citizens substantial economic benefits.
This is not to say there have not been some improvements. Prior to codification of the law in Kuwait, Oman, Bahrain, Qatar, and the UAE in the 2000s, judges had the power to determine a woman’s fate on the basis of their own interpretations of the law – a dangerous situation in cultures that condone male guardianship and women’s subordination to men.
For the case of Saudi Arabia, some experts claim statutory codification could impede family law reform. However, at present, judges rule based on their own interpretations of religious texts, leading to arbitrary decisions. In his 2012 Foreign Policy article, Nathan J. Brown attributes the Saudi Arabian monarchy’s refusal to codify family law to a desire to avoid rendering “God’s law” into “man-made legislation,” as well as a desire to maintain interpretive flexibility. Thus, moving from sharia, even with its arbitrary qualities, to the European model in order to systematize the law actually means that laws could become even more “Islamic” if legislators were to codify more restrictive interpretations of Islam. Brown affirms that “codification might thus be a way of enforcing shari`a-based rules rather than avoiding them…It might even bring back under their jurisdiction matters that had been transferred to quasi-judicial bodies.”
It is for this reason, among others, that codification should not be seen as guaranteeing the advancement of women’s rights. Although the new family codes coincided with the Gulf states’ ratifications of major human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, they ratified these documents with reservations. In addition, the codified family laws have remained limiting, at best, for women. Minor reforms were undertaken in Egypt and Jordan, but the greatest reforms to family law in the region have occurred in Tunisia first, then Morocco.
The Tunisian Code of Personal Status enacted in 1956 represented a profound shift in the practice and reform of family law. Other laws were reformed in the 1990s, including the citizenship law, presenting women with unprecedented rights. Although the Moroccan reforms of 2004 are not as extensive, Morocco is a close runner up to Tunisia with regard to women’s rights in the MENA region. But progress has been slow, and recently there has been backtracking on the gains women made in the early 2000s.
How to Reform Family Law?
Given the complex and dependent relationship between state, laws, and religion in the MENA region, it is a difficult task to reform laws that are connected to the state’s political and religious identity. One way to address this issue is to reveal that these laws are equally detrimental to another aspect of the state’s identity – its international reputation, for example. Publicly accepting violence against women is taboo even to the most conservative clerics. The Women’s Learning Partnership recently launched a new global campaign at the United Nations’ sixtieth Commission on the Status of Women to highlight the link between family laws and violence. Campaigns such as these can empower whole communities to understand and advocate against gender-based violence, and enable women to step forward to make their own decisions about the relationship between their faith and human rights.
