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Islamic Legal Theory

Islamic family law regulates gender relations, sexuality and family life. It constitutes the legal framework which regulates the transmission of wealth and lineage (nasab) from one generation to the next. It defines the moral and social aspects of marriage and deals with nearly all the social and financial consequences of divorce, especially questions concerning the custody of children and alimony (see Moors 2003). Family law thus directly and constantly affects the daily life of people. Over time, however, family law has been transformed from a religiously inspired law regulating relations within the institution of the family to a set of complex institutional arrangements generating discourses involving the state, religious institutions, political parties and civil society, including the women’s movement.

In the Arab World and until the collapse of the Ottoman Empire, family affairs were the domain of religious scholars, who dealt with them according to the rules of different schools of Islamic jurisprudence (madhahib). At the end of the nineteenth and the beginning of the twentieth centuries, with the emergence of post-colonial nation-states, Muslim reformists and state officials worked together on codifying the scattered books and rules of different Islamic schools in a unified national canon known as the personal status code. Thereby, religious scholars were allowed to deal with the domain of family law and rituals, but it was understood that they would refrain from interfering in constitutional, fiscal and administrative matters (Masud 2001).

The profound changes Muslim societies underwent during the twentieth century influenced every aspect of life. Processes of modernization, urbanization, education and the fundamental shifts in demographic patterns such as decreasing rates of fertility, polygyny and early marriage led to a growing conflict between the legal regulation of family law and new socio-economic realities. These processes led to further modification and reforms, albeit slight, of codified family law.

During the second half of the twentieth century, at the beginning of the 1970s, two paradoxical phenomena emerged. Firstly, the structural changes mentioned fostered a growing visibility of women as both economic and political actors. This was expressed in slogans and activities promoting a more gender-balanced representation in the economy and politics. Secondly, the same changes paved the way for new players to enter the political arena. Communists and nationalists were no longer able to mobilize the public around attractive slogans. In contrast, the Islamist movements succeeded in putting states on the defensive. They called for the Islamicization of society through a revision of gender relations from the legal and social standpoints. Both the above phenomena recharged the discussion on the substance, scope and frame of reference of family law.

In the 1990s, the struggle between the proponents of a broader application of the sharia and the advocates of women's rights intensified. Political groups were forced to take a position. It is noteworthy that, although the object of family law is the regulation of gender relations and sexuality, the debate went so far as to address non-gendered subjects and to involve institutions that had previously been concerned with different agendas. Family law was no longer strictly a matter of gender, sexuality or religion; rather, it was a metaphor used to express political and economic interests.

In their quest for political power, Islamists used the issue of family law as a lever to expand their sphere of influence and thus to further undermine the legitimacy of the state. Modernists found room to edge into the rather limited political space. Women's organizations, for their part, engaged in the debate, wishing to break through prevailing limitations in the field of gender relations. Members of the religious establishment considered the reform debate and its potential implications a threat that could render them far less relevant and endanger their relatively privileged socio-economic status (Shaman 1999). Family law thus became a powerful political symbol, almost synonymous with Islam (Buskens 2003) and all parties involved in the debate wanted to present themselves as credible players in the political arena.

The focus was thus, as stated above, on the place of Islam, the sharia and religion in the lives of people and on determining who was entitled to exercise ijtihad. The debate also referred to notions of national and cultural authenticity and the ways in which various expressions of traditionalism and modernism are contested (Buskens 2003). Unlike in the 1980s, when women's groups concentrated on issues of employment, education and political rights (Moors 2003), the 1990s witnessed the active participation of women in the family law debate, a new field in which they could make their voices heard. In many settings, however, the actual substance of the debate was drowned in dogmatic, rhetorical confrontation (an-Naim 2001) between Islamic and Western values (Moors 2003). This verbal jousting in fact masked a struggle for power and legitimacy. The opposing groups used vague notions of Islamicization and westernization to delegitimize and discredit each other.

This collection of material sheds light on the still ongoing debate in the Arab World regarding the issue of family law and reform.

References

an-Naim, A. (2001) Rights at Home: An Approach to the Internalization of Human Rights in Family Relations in Islamic Communities; paper presented at the Second Workshop on Islamic Family Law at the Robert Schuman Center for Advanced Studies, European University Institute, in Florence, 21-25 March.

Buskens, L. (2003), Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere, Islamic Law and Society 10(1): 70-132.

Masud, M.K. (2001) Muslim Jurists: Quest for the Normative Basis of Shari'a. Leiden: ISIM Publication.

Moors, A. (2003) Introduction: Public Debates on Family Law Reform: Participants, Positions, and Styles of Argumentation in the 1990s, Islamic Law and Society 10(1): 1-12.

Shaman, R. (1999) State, Feminists and Islamists: The Debate over Stipulations in Marriage Contracts in Egypt, Bulletin of the School of Oriental and African Studies 62(3): 462-83.

Articles

Muslims Must Realise That There Is Nothing Magical About the Concept of Human Rights - Interview with Abdullahi An-Na'im
Islam, Human Rights and Secularism: Does It Have to be a Choice? Abdullahi An-Na'im
How to Read a Fatwa - Muhammad Khalid Masud
Islamic Legal Theory within the R@H Project
Islamic Legal Vocabulary with notes
The Challenges of Islamic Law and Muslim Societies, Abdulkader Tayob interviewed Muhammad Khalid Masud
Social Justice in Shariah
Marriage Contracts in Islamic Jurisprudence
Polygamy by Brother Yaseen
Women and the Interpretation of Islamic Sources by Heba Raouf Ezzat

Documents in Arabic

Al-Jazeera - Moroccan Personal Law
Al-Jazeera - Personal Status Law Egypt
Bahrain - CEDAW
Laha Online - CEDAW
Qantara - Equality

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Articles

Documents in Arabic