In this essay I examine Personal Status Codes (that relate to marriage, divorce, custody, inheritance, nationality and paternity in Morocco, Tunisia and Lebanon) as cultural articulations of patriarchy. My first claim is that religious law is not a substantial basis from which to legislate for Personal Status Codes (PSC). My second claim is that the characterisation of these patriarchal legal interpretations as coloured solely by a rigorous understanding of authoritative religious texts or as preserving freedom of religious belief is a rhetorical device that lends existing political motivations moral weight and greater authority.
I defend these claims in three parts:
- Firstly, I show how patriarchal interpretations have been imposed onto texts since the earliest years of Islamic scholarship, illustrating the unreliability of bodies of religious law as a basis for PSC.
- Secondly, I show how ‘Freedom of Religious Belief’ is used as a rhetorical device to deflect responsibility for human rights violations in an international legal context by Morocco, Tunisia and Lebanon.
- Thirdly, I discuss how religious law, and in turn, sectarian laws, have historically been exploited as a rhetorical device to cloak the political motivations of successive ruling elites. I show how the activity of civil society has challenged or consolidated the goals of this discursive tactic.
An Introduction: Laying Out the Contradictions
‘Women’s rights’ are not a monolith. In practice, the rights of gender minorities everywhere will be different depending on how various facets of identity such as class, ethnicity, religion, undocumented status, gender identity, sexuality, marital status, imprisonment and single parenthood are politicised by state and society. Therefore we can establish that some, but certainly not all, Moroccan, Tunisian and Lebanese women have been increasingly able to participate in visible institutions of the public sphere, universities, the workplace, the judiciary and public office in particular.
Despite this, the private status of women remains severely restricted (Moghadam, 480) and PSC violate the central provisions of international humanitarian legislation (the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child) that has been ratified by each of these countries. Activists in the Maghreb have long argued that there is a clear conflict between the public status of women as free and equal citizens as outlined in the constitutions of these countries and their private status wherein they are deprived of equal rights (Guide to Equality in the Family in the Maghreb, 17-19).
The only legal precedent for current PSC are clauses alluding to ‘the Sharia’ in Tunisia and Morocco or to ‘Sectarian Power-Sharing’ in Lebanon, as the principal source of law, however, any constitutional clause guaranteeing equality should, in theory, take precedence over PSC that are inherently discriminatory (Guide to Equality in the Family in the Maghreb, 17-19). ‘Collectif 95’ argued that our understanding of the Sharia has been shaped by male interpretations wherein cultural and political persuasions have been historically imposed. (Guide to Equality in the Family in the Maghreb, 13-16) Meanwhile, feminists in Lebanon have long disputed the theory that PSC preserves sectarian ‘co-existence’ by guaranteeing ‘religious freedom’ (Geha, 9-28). With these arguments in mind, I dispute that religious law is a substantial basis upon which to legislate for PSC. These case studies illustrate an important trend in how political elites have in different contexts, instrumentalised religious PSC to consolidate control in much the same way.
Part 1. Engaging with Patriarchal Interpretations : An Inescapable Feature of Religious Law
In disputing religious law as a substantial basis for PSC and Family Law, I begin with two case studies illustrating how two of the foremost scholars of prophetic Hadith, Abu Dawud Al-Sijistani and Muhammad Al-Bukhari, have curated culturally- informed patriarchal readings of hadiths by omitting crucial corrections. Both the Maliki and Hanafi schools of jurisprudence in Sunni Orthodoxy rely heavily on Sunna to legislate for PSC and to regulate the lives of women. Fatima Mernissi points out that well-authenticated hadiths and corrections regarding the position of women issued by A’isha have been left out of Sahih Al- Bukhari (Mernissi, 61-81). She presents a hadith from the prophets’ companion Abu Hurayra that says:
”three things bring bad luck, house, woman and horse”.
Al Bukhari presents this hadith three times from different chains of narration, giving the the illusion of a stronger hadith (Mernissi, 76). Mernissi points out that A’isha disputed this hadith. In fact, both her and the Caliph Umar denounced Abu Hurayra as an unreliable narrator.
A’isha is documented warning that Abu Hurayra frequently ”related hadith that [he] never heard” (Mernissi, 72). What is significant here is that even where there is testimony of A’isha, who is undoubtedly one of the one of the foremost figures of religious authority in Sunni Islam, the prophet’s favourite wife and the only person to live inside the first Mosque, Al-Bukhari, in the compiling of hadiths imposed his own personal judgment and neglected essential corrections that conflicted with his sympathies for the patriarchal assertions of Abu Hurayra. Mernissi describes Abu Hurayra’s hadiths as focusing on ”the polluting essence of femaleness’ (Mernissi, 70) as well as consistently contradicting those of A’isha (Mernissi, 72). If we look to Sahih Al- Bukhari we can find numerous hadiths narrated by Abu Hurayra that have hugely restrictive implications for womens’ freedom of movement (Al- Bukhari, Hadith 194) and their credibility in matters of paternity (Al-Bukhari, Hadith 297).
However it is not just Sahih Al-Bukhari that gives credence to Abu Hurayra’s hadiths while omitting Aisha’s corrections. In Sunan Abu Dawud, a hadith is attributed to Abu Hurayra where he stated that the prophet had said:
”The child of zina is worst of the three.” (Abu Dawud, Hadith 3963)
Left out of this compendium are A’isha’s corrections as follows:
‘Urwah narrated: It reached ‘Aisha that Abu Hurayra related that the Messenger of Allah said, “The child of zina is worst of the three.” She said, “May Allah have mercy on Abu Hurayra, he erred at hearing and erred at relating it; the hadith was not in this meaning.
Actually there was a man who hurt the Messenger of Allah and it was mentioned to the Prophet that besides what he had done he was also born out of zina. Thus the Messenger of Allah said, “He is worst of the three.” (Al-Tahawi, Hadith 910)
A’isha’s correction indicates that any reference to the man in question as a ‘child of zina’ was merely coincidental and that the prophet’s declaration was condemning the man’s actions towards him, proclaiming that they were worse than the sin of his parents (Cheema, Are Children Born out of Wedlock Condemned in Hadith?). Though still condemning sexual relations outside of marriage, the inclusion of A’isha’s correction mitigates the implications of this hadith hugely (in that it cannot be used to further stigmatise children born out of wedlock) in comparison to how it is reported by Abu Dawud.
Two things are significant here; firstly, the corrections attributed to A’isha, who is the more reliable source, leave no room for doubt about the original meaning of what the prophet said, and yet two of the foremost fuqaha chose to ignore these corrections that did not preserve a patriarchal narrative. Secondly, A’isha denounced Abu Hurayra as someone who consistently fabricated hadiths, calling him unreliable. This should, naturally, call any of his hadiths into question as unsubstantiated, and yet he and others like him as identified by Waqar Akbar Cheema (Al-Halabi, Hadith 19802, 19808, 19809, 27375, 29555), (Al-Albani, 117-120) (Al-Din, 6319) are included and drawn upon again and again in legislation that dictates the rights of women along with children born out of wedlock in the 21st century.
Not only is existing fiqh a shaky legal basis from which to derive legal instruction due to the historical imposition of patriarchal opinion thereupon, it is inherently problematic for the State to co-opt fiqh and to use it as a basis upon which to deprive women and gender minorities of the basic human rights granted to them by the State’s own constitutions and by international humanitarian law. The imposition of patriarchal motivations onto texts at both levels has myriad consequences for the social norms it shapes, for the kinds of legislation it has historically been used to justify and for the stigma that it promotes against women, forcing them into vulnerable positions as a result. It is upon the basis of the Sunna that the 2004 Mudawanna makes no demands of unmarried fathers to provide ”moral or material responsibility” (Berwick, ‘Single Mothers in Morocco’) towards their children born out of wedlock (Code De La Famille, Article 148). Upon the same basis is the justification for the lengthy, expensive judicial procedures that Moroccan women must engage with to petition the father of a child for a DNA test, a request that to this day is rarely granted.
Similarly the Tunisian PSC relies on notions of female inferiority propagated by the Sunna to justify its unequal inheritance laws that will automatically be imposed unless it has been stipulated otherwise in a will. I will show fiqh in practice, as well as confessional religious law, is used selectively to promote the interests of the State.
Part 2. How the State uses Religious Law to Shirk Accountability
When Morocco and Lebanon first ratified the CEDAW, they made reservations to Article 2 and Article 16 among others. Article 2 is a thorough clause that obliges countries to abolish gender- based discrimination and to incorporate protections for gender equality into law. Article 16 asserts the equal rights and obligations of women and men with regard to choice of spouse, parenthood, personal rights and command over property. These reservations were, in Morocco’s case, made on the basis that they conflict with ‘Islamic Sharia’ and in Lebanon’s case made on the basis that they conflict with the existing PSC, something that Fazaeli and Hanisek note is framed as an appeal to Freedom of Religious Belief (FORB) (Fazaeli and Hanisek, 93-116). In the myriad of other reservations made to the CEDAW by Morocco, Tunisia and Lebanon against Articles 1, 9 and 15, (regarding international oversight, nationality and women’s capacity to freely enter legal contracts) allusions are made as to the incompatibility of these directives with existing PSC or Nationality Laws. Fazaeli and Hanisek note that ‘Islamic Sharia’ in this case is never substantiated and that there is no coherent Islamic argument (Fazaeli and Hanisek, 93-116). They make the point that many Muslim Majority Countries, Tunisia among them, have since withdrawn reservations initially made on this basis of a conflict with ‘Islamic Sharia’ signal to Fazaeli and Hanisek that neither these ‘Islamic reservations’ nor ‘State-interpreted Islam’ are:
”necessarily directly related to the sincerely held beliefs and practices that are encompassed by FORB” (Fazaeli and Hanisek, 93-116).
These conclusions draw further attention to the inherently political nature of ‘Islamic Sharia’ and ‘FORB’ as legal justifications used by any State to enforce a political agenda which violates human rights. Although the State co-opting fiqh to justify its patriarchal PSC is inherently problematic, we see that in the international arena there is no attempt to justify Personal Status Codes. ‘Islamic Sharia’ and ‘FORB’ are used as rhetorical devices to shirk accountability, undermine the object and purpose of the CEDAW while still benefitting from the boost in international reputation that comes with its ratification. I maintain that it is important to contrast the consociational Lebanese example with the Islamic Moroccan and Tunisian example in order to show the similar underlying mechanisms wherein religious law is used broadly as a rhetorical device by all three countries to the same end.
Part 3. Historical Instrumentalisation of State- Religion and Stumbling Blocks to Reform
3(a) — Lebanon
PSC in Morocco, Tunisia and Lebanon exist as a part of a larger system where they are shaped or reshaped according to the interests and values of groups in power and negotiation with civil society. Lebanon’s PSC is the result of an accumulation of political decisions that stretch back to the Ottoman Empire beginning with the Mutasarrifiya, codified under the French Mandate into the National Pact in 1943 and reshaped in the 1989 Taif Accords. The 18 confessionals recognised in the Lebanese Personal Status System are: Alawite, Armenian Catholic, Armenian Orthodox, Assyrian Church of the East, Chaldean Catholic, Coptic Orthodox, Druze, Greek Catholic, Greek Orthodox, Ismaili, Jewish, Roman Catholic, Maronite, Protestant, Sunni, Shi’a, Syriac Catholic and Syriac Orthodox.
Women belonging to each of these sects have different and separate Personal Status Laws and thus different and separate rights. Actors within the Lebanese Power-Sharing System, although free agents, are highly incentivised to preserve the power-sharing system as it crucially enables a corrupt network of clientelism built on kin-ties and sectarian alliances. Although political disagreements do not fall along sectarian lines, sectarian elites commonly co-opt popular claims of government corruption and neutralise them by re- directing them at another sectarian party (Geha, 9- 28). For these elites the PSC acts as a linchpin of sorts that mandates the Lebanese population be discriminated along sectarian lines. These elites insist that PSC preserve freedom of religious belief and argue that they are necessary to preserve peaceful ‘co-existence’ post-Civil War.
Because the Lebanese government relies heavily on foreign aid and remittances, it has had to appear to acquiesce to international humanitarian law for the sake of its international reputation without meaningfully reforming the PSC. It does this by co-opting legislation like the CEDAW and de- toothing it by creating parliamentary committees and state-feminist associations such as the National Commission for Lebanese Women. These initiatives cannot make meaningful policy contributions (Geha
, The Myth of Women’s Political Empowerment). Depending on how it mobilises, the activity of civil society can, when aligned with political will, lead to reform.
For example, large NGOs in Lebanon have had some success lobbying the government for reform of laws around domestic violence and sexual assault, however in the case of PSC their activity can prove futile, or even detrimental to reform as we will see is partially true in the Moroccan case. Their main function, as the state collapses and municipal functions deteriorate, has been service provision and knowledge production. The reformist approach that has historically been taken towards PSC reform only serves to legitimise the state’s empty initiatives (Geha , The Myth of Women’s Political Empowerment). I argue that regardless of how efficiently feminist civil society lobbies the corrupt government for PSC reform, it poses too much of an existential threat for elites to ever give on it.
Oxfam’s in-depth report on the feminist movement in Lebanon identified a rift between the reformist approach that larger NGOs have taken and the radical approach that looser feminist collectives have taken. It is telling, then, that a commonly held point of view of more radical women’s collectives in Lebanon is that the only way the PSC will be reformed and secularised is by overhauling the power-sharing system.
3(b) — Morocco
In Morocco more than any other case study, rhetoric around divine right to rule and Islamic institutions have been used actively by the state to immobilise opposition and consolidate control (Benomar, 539-555). The three traditional religious authorities since the 16th Century in Morocco have historically been: the monarchy, the urban ulema and the rural religious leaders. Rhetoric around ‘Sharia’ was essential to both to Istiqlal’s nationalist discourse and to the Monarchy’s legitimacy, together, in the decade following Moroccan independence these two institutions repressed the traditional ulema in the hopes of elevating the monarchy as the exclusive site for symbolic production (Benomar, 539-555). Many of these ulema lost their political independence during this period as they were integrated into state bureaucracy (Benomar, 539-555).
The Moroccan PSC, the ‘Mudawanna’ was one of these symbolic departures from the segregated legal system of the colonial past (Schriber, Codifying Polygamy). In practice it re-iterated and re- emphasised colonial era tropes that reinforced an association between Maliki Islamic law and Personal Status that did not lead to any meaningful reform for women (Schriber, Codifying Polygamy).
To this day, the Monarch cannot afford for the religious arena to be an active site of contestation. The monarch maintains both the parliament (as a class of dependent elites) (Schriber, Codifying Polygamy) as well as his own legitimacy as ”Commander of the faithful” based his status as a Caliph and descendant of Muhammad.
‘King Muhammad V inaugurated the Mudawwana project by declaring that ”the greatest means to make our Moroccan society happy is to establish sharīʿa of justice among its people…. Crown Prince Hassan (later King Hassan II) remarked, ‘I personally do not consider the goal of this Mudawanna as either a religious or Islamic legal goal. Rather, I consider it as supporting the social foundations in which Morocco lives in the twentieth century.” (Schriber, Codifying Polygamy)
Thus it was important that the Mudawanna be perceived as both consistent with Maliki tradition, emphasising a sense of continuity with the Islamic past while also being seen as adhering to current family values. The result is a Code that remains vague on issues like polygamy and divorce without outlining clear procedures for them. Ari Schriber describes the Mudawanna as having :
“lacked both a firm theoretical basis and a clear directive for application which came from an unwillingness to muddy the project’s symbolic value.” (Schriber, Codifying Polygamy)
King Hassan, in the 1980s, was careful to resurrect the state-aligned ulema so as not to leave a religious ‘vacuum’ that could be filled with political Islam (Benomar, 539-555). The handover from King Hassan to King Mohammed VI is where we might draw a comparison to the Lebanese example. With feminist civil society growing ever more vocal and unified, as well as willing to advocate for Islamically derived re-interpretations alongside radical Islamist civil society that dismissed the monarch’s traditional claims to religious authority, Mohammed VI had to give the illusion that feminist civil society’s demands were being met, in essence co-opting them using the rhetoric of a comparatively ‘moderate’ Islam to that of political Islam | (Cavatorta and Dalmasso).
The 2004 Reforms to the Mudawanna were pushed through by the King at a time of widespread reactionary anti-fundamentalist sentiment following terror attacks in Casablanca. Much like in Lebanon where historical institutions and civil society’s demands are co-opted by elites for personal gain to consolidate a government masquerading as a democracy, King Mohammed VI reinforced the Moroccan model of autocracy through his co- optation of feminist demands, using it as a blow towards his islamist opponents. The rhetoric of patriarchal fiqh is a crucial device for the Moroccan Monarchy to preserve its sovereignty and thus its willingness to acquiesce to the demands of feminist civil society that jeopardise its religious authority will always be limited.
3(c) — Tunisia
Although Tunisia’s 1956 PSC or ‘Majallah’ provided scaffolding for the 1958 Moroccan Mudawanna, it differs in that it explicitly outlawed polygamy, outlined specific procedures for divorce and stipulated that marriages require the consent of both parties. The Majallah and the reforms that have followed it all crucially rely on the justification of ijtihad (Yacoubi, 254-274) with Bourguiba and Ben Ali having justified them with what has often been referred to as ‘feminist’ readings of Hanafi and Maliki fiqh. The package of policy that includes the Majallah and Tunisian abortion laws are seen to be the backbone of Tunisian ‘state-feminism’.
Unlike in Morocco where political Islam came quite late to the scene and where demands of feminist civil society weren’t properly co-opted by state-led Islamic institutions, the Majallah, since its inception was an aggressive top-down reform designed to allow the state to co-opt its own vision of feminism that was inherently associated with its particular brand of anti-islamist nationalism. Although more progressive than Morocco and Lebanon, the Majallah, is inherently limited in its capacity to fully protect the rights of women and children due to its apologetic premise that it is a product of ijtihad.
This tactic, similarly to Morocco, was instrumentalised by the state to target many Tunisian women involved in Islamist movements (Yacoubi, 254-274). Yacoubi makes the point that an anti-Islamist state-feminism was instrumentalised as a part of a culture of systemic sexual assault where veiled women were harassed and brutalised (Yacoubi, 254-274).
Another essential point Yacoubi makes that we might compare to the Lebanese case is how the Majallah’s good reputation abroad served as a way for Ben Ali’s government to direct international attention away from human rights violations. As she puts it :
”The [Personal Status Code] forged the reputation of Tunisia and became its business card” (Yacoubi).
Lebanon uses both its post-war ‘consociational’ government structure as well as state-led feminist initiatives to formulate a narrative of peaceful co- existence and modernisation that until recent years served to deflect international scrutiny from endemic corruption. The current President of Tunisia, Kaïs Saïed has notoriously deployed state- feminism as a smokescreen to distract from his anti-democratic takeover of government functions appointing Najla Bouden Romdhane as the first female prime minister while curtailing her powers. He also relies on this narrative of Tunisian exceptionalism in regards to women’s rights to distract from his calls for black Tunisians, undocumented migrants and refugees to be arrested and deported inciting racist violence and invoking the ‘Great Replacement’ theory.
Problematic as the ‘Majallah’ and its subsequent reforms have been, the protections it offers are still essentially vulnerable in the wake of the collapse of short-lived Tunisian hopes for democracy. There is widespread opposition from Islamist civil society claiming that their underpinnings are too remote from ‘traditional’ interpretations of the sharia. This has forced bigger coalitions in feminist civil society to take a defensive stance and hampers their ability to lobby for reform or secularisation (Yacoubi, 254- 274).
The essay shows how patriarchal inclinations have consistently been imposed both in the formulation and compilation of religious texts and in the co- optation of texts as a basis for Personal Status Law. It firstly shows how they are imposed upon the earliest formulations of hadith with the example of conflicting opinions of Abu Hurayra and A’isha.
Secondly it shows how they are imposed at the level of fuqaha reviewing and compiling hadith into authoritative texts with the examples of Abu Dawud Al-Sijistani and Muhammad Al-Bukhari. The essay illustrates that regardless of the legal evidence, fuqaha have historically imposed their personal opinions onto religious texts. Thirdly the essay shows how this sentiment carries over into how the Moroccan, Tunisian and Lebanese States have codified and reinforced patriarchal legal structures like PSC by co-opting fiqh and religious law in order to consolidate political power at various points in the last century. These States have maintained the historical patriarchal institutions of PSC not out of sincerely held commitments to Islam or to Freedom of Religious Belief, but because it has served their political interests.
With this in mind the essay acknowledges how these States have at times partially yielded to civil society in order to co-opt and neutralise it all the the while bolstering their international reputation. These conclusions are significant as they show a trend in how ‘religious law’ has historically been shaped and re-shaped to bolster the interest of ruling elites and to override constitutionally guaranteed human rights. The conclusion of this essay reaches far beyond these case studies and this tactic of weaponising and imposing interpretations on religious law is similarly used systematically by Algeria, Bahrain, Bangladesh, Brunei Darussalam, Egypt, Iran, Iraq, Jordan, Kuwait, Niger, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia and Syria ((Fazaeli and Hanisek) to enforce restrictive PSC, limit women’s basic freedoms and to excuse and perpetuate femicide and structural and physical violence against women.
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