Women and Muslim Family Laws in Arab States

Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy

Lynn Welchman
Copyright Date: 2007
Pages: 256
https://www.jstor.org/stable/j.ctt46mwz6
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  • Book Info
    Women and Muslim Family Laws in Arab States
    Book Description:

    A number of Arab states have recently either codified Muslim family law for the first time, or have issued amendments or new laws which significantly impact the statutory rights of women as wives, mothers and daughters. In Women and Muslim Family Laws in Arab States Lynn Welchman examines women's rights in Muslim family laws in Arab states across the Middle East while also surveying the public debates surrounding the issues. The author considers these new laws alongside older statutes to comment on the patterns and dynamics of change both in the texts of the laws, and in the processes through by which they are drafted and issued. She draws on original legal texts and explanatory statements as well as on extensive secondary literature particular to certain states for an insight into practice, and on; interventions by women's rights organizations and other parties to the debate in the press and in advocacy materials. The discussions are set in the contemporary global context that 'internationalises' the domestic and regional debates. The book considers laws in states from the Gulf to North Africa in regard to their approaches to issues of codification processes and issues of and of registration, capacity and guardianship in marriage, polygyny, the marital relationship, divorce and child custody. It has a full bibliography and includes an annex providing translated extracts of the laws under examination. This title is available in the OAPEN Library - http://www.oapen.org.

    eISBN: 978-90-485-0171-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. 1-6)
  2. Table of Contents
    (pp. 7-8)
  3. Preface
    (pp. 9-10)
  4. 1 Introduction
    (pp. 11-18)

    In the late twentieth century, a combination of geopolitical developments focussed particular attention on ‘the Islamicshari‘a’ and specifically on its role as an identity and legitimacy signifier for opposition movements in and the governments of Muslim majority states. Positivist approaches to legislative power concentrated on the statutory expression of rules in different areas of state law. After varying periods of independent statehood, a number of post-colonial states promulgated instruments of statutory law presented as reintroducing the rules and sanctions of Islamic criminal law into penal systems otherwise largely based on colonial legislation. Systems of Islamic banking and Islamic finance...

  5. 2 Codification of Muslim Personal Status Law in Arab States: principle and processes
    (pp. 19-32)

    As the overview of recent legislation given in the following chapter indicates, the tendency towards national codification begun in earnest in the 1950s and continues today in Arab states as probably the major mechanism of state intervention in Muslim family matters. Where there is no codification, there is activism from women’s groups advocating for the adoption of a code; where a code has been previously legislated, the text and application of the law are subjected to examination with a view to activism demanding – usually – expanded and more detailed intervention from the legislature through amendments, directives, guidelines and the...

  6. 3 Arab State Codifications and Womenʹs Rights Advocacy in the Third Phase of Family Law Reform
    (pp. 33-44)

    Patterns of consultation, exchange and borrowings in the drafting of Muslim family laws in the region are well established and were remarked upon in the ‘second phase’ literature. This literature examined the texts and (in some cases) the application of the first national codes promulgated in the 1950s, which as noted drew in various provisions and jurisprudential arguments from Egyptian laws issued earlier in the century on particular aspects of Muslim family law, as well on the first codification, the Ottoman Law of Family Rights 1917. National codes increasingly also borrowed from each other, often explicitly, and continue to do...

  7. 4 Sharʿi Postulates, Statutory Law and the Judiciary
    (pp. 45-52)

    Generally, the codifications of family law explicitly invoke the ‘sharʿipostulate’ through directing the judge to a residual reference in the event of a specific subject not being covered in the text. This comes in a variety of formulations, which themselves may indicate either legislative (and political) history or aspiration. In Egypt, Syria and Jordan, the laws maintain reference to the dominant opinion of the Hanafi school, despite the inclusion of a number of provisions with non-Hanafi origins.¹ Legislated in the same decade as the Syrian and original Jordanian law, the Iraqi code of 1959 requires the application of the...

  8. 5 Registration Requirements
    (pp. 53-60)

    One of the areas where the bureaucratizing and centralising tendencies of state authorities come up againstsharʿipostulates is the validity or otherwise of acts undertaken in accordance with traditional law but in violation of statutory rules. This was raised in the previous chapter, in regard to the validity in Tunisia of a Muslim woman’s marriage to a non-Muslim man; more broadly it encompasses the basic acts of marriage and divorce. Official registration of these acts – that is, registration with some official of a central authority, rather than unofficial documentation – serves a number of purposes, including information on...

  9. 6 Capacity and Consent
    (pp. 61-76)

    Issues of capacity for and consent to marriage have long attracted the attention of legislatures and activists in the region, and frequently continue to offer particular challenge to the assertion of a statutory norm over social practice andfiqhrulings, as well as to the assertion of an international norm over statutory law presented as representing asharʿinorm and a site of cultural distinction. Thus, the establishment of a minimum age of marriage by the legislator has been a feature of national legislation from the earliest promulgations, is supported by women’s rights activists (who continue to seek an increase...

  10. 7 Polygyny
    (pp. 77-88)

    The institution of polygyny is in many ways one of the ‘totems’ of Islamic family law. Targetted by early reformists and modernists in the Arab world, including the early feminist movement, as anachronistic and almost the antithesis of ‘modernity’, it was also pointed up by colonial and imperial powers in the discourses of power and subjugation. These days it falls foul of the human rights norm of equality and non-discrimination and continues to be a target for women’s rights activists in the region and beyond. At the same time, it is a prominent point of ‘difference’ between what are presented...

  11. 8 The Marital Relationship
    (pp. 89-106)

    In the textual formulation of gender-specific rights and duties in the spousal relationship, the financial obligations of the husband (and the man in general) are set against his authority and control within the family. Besides the husband’s obligation to pay dower to his wife, standard elements included in most of the codes are the husband’s duty to provide maintenance and a ‘lawful dwelling’, the wife’s duty to cohabit with her husband in such a dwelling and to move with him should he relocate or travel, provided the court finds no good reason for her to refuse; the wife’s right to...

  12. 9 Divorce
    (pp. 107-132)

    Most of the codifications maintain a variety of divorce procedures based on traditionalfiqh, consisting of divorce bytalaq, the unilateral divorce or, as often translated in English, ‘repudiation’ of the wife by the husband; bykhulʿ,¹a divorce by mutual consent, where atalaqis pronounced by the husband as part of a mutually agreed arrangement which may involve a renunciation of the wife’s remaining rights and possibly a further financial consideration in exchange for the divorce;² by judicial divorce (usually termedtatliqortafriq) which may be sought on a number of specific grounds primarily but not only...

  13. 10 Parents and Children
    (pp. 133-150)

    Family laws in the region mostly maintain the overall approach of thefiqhtexts in which, as Meriwether puts it, ‘at least in law and theory, children “belonged” to the father’s family’.¹ Broadly, the laws divide the functions of parenting into those of the custodian and the guardian, and identify the former with the mother or other close female relative and the latter with the father or other male guardian. In this description of the relationship, the custodian has duties of physical care and upbringing of minor children, while the guardian has duties and authorities in regard to their financial...

  14. 11 Concluding Comment
    (pp. 151-156)

    Since the promulgation of the first national codes of Muslim personal status in Arab states in the 1950s,¹ the context and debates on codification and reforms of existing codifications have changed significantly. The changes reflect the different political developments since that time, including the growing influence of ‘Islamist’ movements since the 1970s, the international context of trans-national civil society networks and funding for domestic women’s rights advocacy, and interventions by third-party states under the framework of international human rights and in the current focus on ‘democratisation’ in the Arab region. Domestically in many states, there has been a growth in...

  15. List of Statutes Cited
    (pp. 157-160)
  16. Selected Statutory Provisions
    (pp. 161-190)
  17. Notes
    (pp. 191-228)
  18. Glossary of Arabic Terms
    (pp. 229-232)
  19. Bibliography
    (pp. 233-242)
  20. Index
    (pp. 243-254)