The application of Shari’ah in the Muslim world and

the « best practices » strategy

tabsir.net
Sat 4 Apr 2009

Reforming Islamic family law

Posted by tabsir under Gender and Sexuality , Islamic Law , Morocco ,
Saudi Arabia , Development

Reforming Islamic family law within the religious framework: the « best practices »
strategy
by Khalid Chraibi

Many people in the Muslim world believe, wrongly, that shari’ah is a compilation of legal
rules which are uniformly applied in all Muslim countries. But, the facts are otherwise: these
rules vary significantly from one country to another, as well as over time. As a result, the
status of women in Muslim countries, which is ruled by shari’ah, differs in many ways from
one country to another. On any given issue, some national “personal status codes” grant more
rights to women or better protect their interests than other codes.

According to feminine NGOs working in the field of Muslim women’s rights, if Governments
accepted to apply the more favourable rules on any Islamic family law issue (designated as
the “best practices”), this would contribute significantly to the reform of family law “within
the religious framework”, bringing it closer to contemporary international standards.

The unicity of shari’ah within the diversity of rites

These differences between Muslim countries in the rules of applied shari’ah do not result
from a drift by Muslim jurists operating in different national settings. The founders of the
major legal schools of thought opted for this policy of diversity in the early days of Islam, and
had it ratified by the first caliphs and their successors.
Thus, when Malik ibn Anas prepared, at the request of the caliph Abu Jaafar Al Mansur, his
major compilation of Muslim law known as “Al-Muatta”, the caliph wanted to use this work
as the reference in Muslim law, in all the territories under Caliphate rule. But, Malik
disagreed, on the grounds that each major Muslim community in the Caliphate already had its
own rules and methodology in the field of “fiqh”, and should be left free to develop its own
jurisprudence in this domain.

Similarly, the founders of the four main schools of Shari’ah in the Sunni tradition (Abu
Hanifa, Malik ibn Anas, Shafi’i, Ibn Hanbal), insisted, in their teachings, that their views
should not be considered as final or binding on all Muslims, in all regions of the world and for
all times. If a different legal school of thought presented a better interpretation of a rule, it
should be given due consideration. This broadmindedness was a characteristic of the juridical
culture of the times, and resulted in a wealth of output by Muslim jurists, over a period of
several centuries, until the political authorities decided to put an end to all activities of
juridical “ijtihad” in the 10th century.

Muslim jurists pride themselves, today, on the diversity of rules developed by the various
Islamic legal schools, describing it as a blessing from Heaven. According to them, all these
rules comply with Quranic prescriptions and with the teachings of the Sunnah, despite their
differences.

But, this diversity of interpretations adds to the complexity of the tasks of the associations of
defense of women’s rights, when they must handle cases in Muslim legal environments as
different as those of Saudi Arabia and Morocco, for example, even though both claim that
they merely apply shari’ah.

Two contrasted examples: Saudi Arabia and Morocco

According to a report submitted in 2007 by the Saudi association “Women for reform” to the
UN “Committee for the elimination of discrimination against women” (CEDAW), Saudi
women are confronted in a routine way, in their daily life, with great difficulties, due to the
following factors:

• There is a total segregation between the sexes, with negative consequences for women, in all
aspects of their life;
• During their entire life, Saudi women live “under the tutelage” of a male guardian, be it a
father, a husband or a blood relative;
• “Without the permission of her “guardian”, a woman can neither go to school, nor obtain
medical care, nor marry, nor travel abroad, nor manage a business, nor do anything of
significance…”.

Saudi authorities explain, however, that Shari’ah has defined a different set of rules for males
and females. Consequently, by applying to each of the two sexes the appropriate Shari’ah
rules, they do not violate anyone’s rights, whether male or female. Shari’ah merely presents a
conception of human rights which differs from that of Western countries.

In contrast, in Morocco, the Personal Status Code of 1957, adopted shortly after
independence, was revised in-depth in 2004, following several decades of struggle by
feminine associations, in order to reflect the evolution of Moroccan society over the past half-
century.

The new “Family law” completely redefined the legal status of women within the family and
society, bringing it considerably closer to current international standards. Among other things,
it makes the family the joint responsibility of both spouses, rescinding the wife’s duty of
obedience to her husband. It allows women to be their own guardians, and raises the
minimum age of marriage for women to eighteen years. It puts prohibitive restrictions on
polygamy, by requiring the consent of the first wife, the notification of the second wife of the
existence of the first one, and a judge’s consent to the second marriage – which may be
granted if he is satisfied that the husband will grant equal status to each wife, in every respect.

The Law makes polygamy grounds for divorce by the first wife, and promotes the use of a
marriage contract to exclude the possibility of a second marriage by the husband. It puts
repudiation under strict judicial control, and requires an equitable distribution of the couple’s
assets before a divorce can be final.

The Moroccan ulamas and jurists associated with the revision of the Code explain that all its
provisions were based on an attentive and meticulous reading of the Shari’ah, in all its
complexity, taking into account the “best practices” in use in other Muslim countries.

However, following this recasting of the Personal Status Code, the Moroccan authorities
progressively withdrew, one after the other, the reservations they had previously expressed
about the application in Morocco of some provisions of various international Conventions
dealing with women’s rights, which they had earlier considered as possibly “incompatible
with religious prescriptions.”

The “better practices” strategy

Confronted with such a range of interpretations in the rules applied to the status of women in
various Muslim countries, feminine NGOs have understood the vanity of challenging any of
these interpretations. Thus, although Saudi Arabia and Morocco differ in significant ways in
their interpretation of Shari’ah, the authorities in both countries are fully convinced that they
faithfully apply its prescriptions.

Feminine NGOs such as “Collectif 95 Maghreb-Egalité” (which comprises the main feminine
associations of Morocco, Algeria and Tunisia) or “Sisters in Islam” from Malaysia have
studied these issues in-depth, and come up with a new strategy to achieve progress in the field
of Muslim women’s rights:

“If all these different rules are equally valid in the Shari’ah, and if some of them grant more
rights to women or protect their interests better, isn’t it these rules (designated as the “best
practices” in Islamic family law) which should be applied in Muslim countries, in the
beginning of the 21st century, in preference to the rules which are less favourable to women’s
rights? Why should women pay the price for these differences in interpretation, which clearly
are the acts of men?”

In support of this last point, NGOs observe that, although the Personal Status Codes of
Muslim countries are based on Quranic prescriptions and Sunnah teachings, they are
periodically revised (Egypt 2000, Mauritania 2001, Morocco 2004, Algeria 2005…). Since
the rules presented in these codes were periodically changed, isn’t this conclusive evidence
that many provisions contained in the codes of family law reflect man-made choices, which
have nothing to do with religious prescriptions?

Representative “Best practices”

In order to illustrate what the “best practices” entail, the Malaysian NGO “Sisters in Islam”
(SIS) drew up the following listing of what it considers as representative “best practices”,
regrouped by category, based on the provisions of current family laws in the Muslim world.

Age of marriage: 18 years for boys and girls (Morocco)

Assent of the spouses: Each of the two spouses must explicitly and freely express his assent
to the marriage (Tanzania, Tunisia, Morocco, etc)
Wali (Tutor): In Tunisia, the would-be spouses can contract their marriage with no need for a
wali. In Cameroon, Fiji, Gambia, Turkey, Uzbekistan, Kyrgyztan: no wali is necessary. In Sri
Lanka, Bangladesh, Pakistan (under Hanafi rite): no wali is necessary for Hanafi women who
reached puberty.
Witnesses to the marriage: In Senegal, two adult witnesses are required, one for each spouse
(with no sex specification for the witnesses).
Polygamy: In Tunisia, it is prohibited. In Morocco, the 2004 Code established severe
conditions, including the wife’s right to specify in the marriage contract, if she so wishes, a
provision to prohibit a second marriage by the husband
Nushuz (disobedience of the wife): In Turkey, Indonesia, Tunisia, there is equality between
the two spouses in decisions concerning family life matters.
Divorce: In Tunisia, divorce can only be pronounced by a judge. The two spouses can claim
the same grounds for divorce. In Indonesia, the husband, married under Muslim law, must
notify in writing the Shari’ah Court of his intention to divorce. The six grounds for divorce
can be claimed equally by the spouses. A reconciliation procedure must be carried out. If it
fails, the divorce is pronounced by the Court and is final.
Alimony: In Tunisia, if the husband is “at fault”, the divorced wife receives alimony whose
amount is determined based on the standard of living to which she was accustomed during
marriage. In Turkey, the spouse which is “least at fault” can claim reasonable compensation,
paid either monthly or in a lump sum.
Custody of the children: The Court can entrust the custody of children to either one of the
parents, taking into account the children’s best interests (Tunisia, Cameroon, Republics of
Central Asia).
Impact of the application of the “best practices”:

According to feminine associations operating in this field, the adoption by Muslim countries
of the “best practices” in Islamic family law could have a considerable impact on the daily life
of millions of women. It would eliminate some of the excesses to which the authorities go in
their interpretation of the rules of shari’ah, at the expense of women’s rights, such as the
prohibition of women driving of a vehicle; the strict segregation between the sexes in public
places, hospitals and schools; the obligation to wear clothing of a particular type such as hijab,
niqab or “burqua”; or even, sometimes, the prohibition to work outside the home …

The adoption of the “best practices” would also pave the way for a redefinition of the legal
status of women in the Muslim world, giving them the juridical means to protect themselves
from abuse in their daily life, whether under the form of ill-treatment, marital violence,
repudiation, polygamy, discriminatory practices or sexual harassment in the workplace…

Bibliography

- Al_Qaradawi, Yusuf. Assahwa al_Islamiya, Cairo, 1991

- An-Na’im, Abdullahi A., ed. Islamic Family Law in a Changing world, London, Zed Books,
2002
- Women for Reform (WFR). “Shadow report” from Saudi Arabia’s ad hoc group of women to
CEDAW, 2007
- Saudi Arabia. Official Government Report to CEDAW, 2007
- Morocco. Family Law Code, 2004
- Collectif 95 Maghreb-Egalité. Guide to equality in the family in the Maghreb, 2003
- Collectif 95 Maghreb-Egalité. One hundred steps, one hundred provisions for an egalitarian
codification of Family and Personal Status laws in the Maghreb, 1995
- Freedom House: Women’s Rights in the Middle East and North Africa, 2005
- United Nations Development Programme (UNDP). The Arab Human Development Report
2005 – Towards the Rise of women in the Arab world, 2006
- Sisters In Islam (SIS). Best practices in family law
- Sisters In Islam (SIS). Guide to equality in the family in Malaysia
- Rand Corporation. “Best practices” Progressive family laws in Muslim countries, 2005
- Women Learning Partnership (WLP). Best practices in family law