Possibilities of Reforming Family Laws in the Arab World
National Issues Forums II
Family laws or personal status codes in the Arab World are civil codes that regulate marriage, divorce, personal maintenance, paternity, and child custody.
They are an integral part of a complex and highly sophisticated system of Islamic jurisprudence known as Shari'a which rests mainly on the Quran as the main source and the Sunna (Prophet’s Tradition) and Fiqh as additional sources. Right from the very beginning of Sharia formation significant theological and jurisprudential differences existed not only between Sunni and Shi'a Muslims (the main division between Muslims today), but also among the different schools of thought (known as Madhahib, sing. Madhhab ) of each tradition.
In fact, besides the obvious differences in handling family related matters between Sunni and Shi'a communities who sometimes co¬exist within the same country (as in Iraq, Bahrain, Lebanon , Saudi Arabia, and Pakistan), different schools and opinions may be followed by the Muslim public within the same country, though probably not formally applied by the courts.
This means that judicial practice may not necessarily be in accordance with the school observed by the majority of the Muslim population in the country. Some Arab North African countries provide a good example on this.
Although many of those countries have inherited the official Ottoman preference for the Hanafi Fiqh School, popular practice goes in according to the Shafi'i or Maliki Schools. In Bahrain and other Gulf states like Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE) personal status law remains unlegislated.
The shari'a courts in these countries apply classical Islamic personal status laws to Muslims depending on the Islamic sect people may belong to.
To the Arab public, Family Laws remain central to their cultural identity as Arabs and/or religious integrity as Muslims. Yet, with the acceleration of globalization, social change that is taking place all over the Arab World today, the growth of women’s movements, emergence of the international women’s rights agenda (mainly CEDAW ), and the fact that many Arab states have either signed or ratified the CEDAW, reforming Family laws has become a priority in the region. Over the past two decades, demands for amending family laws have grown and experimentations with reforming them have been taking place in many countries, yet, painstaking and difficult; due to their religious and cultural sensitivity of course.
Experimentations have therefore varied in terms of their success and failure. While the Moroccan Madowna (Family Law as amended in 2004) stands as a leading successful example amongst these experiments, other attempt to change or challenge family laws were countered by conservative voices of the Islamists and/ or the Tribal leaders who would rather see the laws untouched (as in Jordan, Yemen, and Egypt).
To the latter, Family Laws were the only aspect of Shari'a that has successfully resisted displacement by European codes during the colonial period, and survived various degrees or forms of secularization of the state and its institutions since independence of most Arab countries. (The annexed table illustrates the different aspects of Family Laws in selected Arab States and their reference to the CEDAW).
Consequently, family laws have become a contested ground between conservative and fundamentalist groups, on the one hand, and modernist and liberal groups, on the other. While the former group ascertains family laws as the embodiment of Islam itself, the latter criticize them as outdated, rigid and discriminatory against women. Unfortunately, the cause of a legitimate reform is almost lost in this confrontation with each side refusing to "forfeit" any validity to the other's point of view.
Can anything be done at this stage?
The ANSD believes that reforming Family Laws is essential to the democratization endeavor of the region and that the reform at this level is not only possible but also needed and desired. In our proposed public forums we seek to engage liberals, Islamists, Tribalists, Government official and the general public in an actual theological, legal and political debate about what family reforms need to be made and how they can be achieved in practice in each respective country. The Forums will help identifying problems and critique aspects of the theory and practice of family laws from the point of view of each stake holder. Explicit objectives of Forums include exploring possibilities of generating internal theological, legal as well as political support for family law reforms.
As an initial preparatory step the ANSD will contract a researcher to conduct empirical and theoretical study of family laws theory and practices in the 8- Arab countries represented by the Network. Members of the ANSD will work with research results and start a process of further local explorations on where the public stands on the reforms.
Each team will conduct a series of interviews with local non-governmental organizations, jurists, and activists evaluating and disseminating emerging views and reform proposals among relevant constituencies in the region. Third, an issue book will be issued and communicated with the general public in several forums that will be held by the network members in each country.