Islamic Family Law: Introduction by Chibli Mallat
Variations on State Identity and Community Rights
Over the last three decades, most of the countries of the Near East and South Asia have lived a relative legislative lull in the area of family law. In Iraq, Syria, Lebanon, Jordan, Egypt, Pakistan, Iran, and India, as well as in North African countries, the wave of national reforms in matters most at heart of the countries' religious communities seemed to have been successfully completed. In some cases, the attempt at unifying the law in a code of personal status (ahwal shakhsiyya) has failed: Lebanon offers the example of a country which proved unsuccessful in bringing about a unified personal law for Muslim and Christian communities. But on the whole, the legislative ,monuments', as Linant de Bellefonds called them, had been completed. Since then, personal status legislation has remained, in the main, untouched for three decades. The only area where an effort was undertaken to bring about more reforms was influenced by the necessity of advancing women's social and legal rights, but even there, as the case of the Egyptian controversial law of 1979 suggests, the process of legislative change was slow and uncertain. Still, some reforms were completed, as in Jordan and Algeria, but even in this case, the recent adoption of new codes may not have introduced significant breaks with previous legislation.
The uneventful development of personal status laws was accompanied by a social peace among the religious communities which survived the emergence of the post-decolonization nation-states. But in the 1980s, the communitarian lull came to an end. A date to signal the culmination of a long process could even be suggested in the completion in 1986 of the draft Code of Personal Status by a team of experts from Arab Ministries of justice. In other words, the process of talfiq (legislative construction drawing on rules pertaining to different Islamic schools of law and countries) was completed: the skilful legal puzzle drawn first by the Ottomans from the 'best' solutions provided by the various schools of law had reached its ultimate 'modern' form.
Far from the establishment of fully integrated states with smooth intercommunitarian relations, the early years of the 1980s have brought to many Muslim countries of the Near East a flavour of increased communitarian unease, in significant contrast to the confidence in nation-state building of the early independence era. Voices unheard of in the Near East for three decades have reemerged. They ring of a Christian-Muslim, Sunni-Shi'i, Sunni-'Alawi divide, and even within recognized Sunni rites, of the assertion of differences between Shafi'is, Hanafis and Hanbalis.
Some of the reemerging differences were perhaps due to the victory of the Islamic revolution in Iran, and to the claims of the Tehran leaders to be speaking with the voice of the whole Muslim community. The age-old Sunni-Shi'i divide was exacerbated. By bringing to power the Shi'i 'ulama, the Iranian revolution ushered in major convulsions and readjustments in the whole Shi'i ambit, with effects from Afghanistan to Lebanon, and it inevitably affected the rest of the Muslim world. For the first time in decades, once buried antagonisms between the Sa'udi Hanbalis and the Iranian Ja'faris were even resurfacing.
Apart from underlining communitarian differences, what the Iranian revolution also brought to the fore was more simply the reassertion of the shari'a, Islamic law, as a realisable agenda for legislation in the city. Ironically, the area least affected by the urgency of applying the shari'a was family law, as it was perhaps the one domain which had least been affected by colonialism and the necessities of modemisation. But the wave of the Islamic appeal affected it indirectly, in a novel way, by exacerbating the emerging split on the world scene between Islamists and muslims. In the new picture, the 'Islamists' are those who support the full political and legal implementation of Islam (whatever exact practical modalities this may mean), in contrast to the Muslims, who do not necessarily live their 'Islam' politically.
The debate over family law was significantly affected, for within any country, the divide beween Islamists and Muslims carried on a further essential dimension, which overshadowed the strict differences amongst the communities. From a legal perspective, this divide, it is important to note, remained muted. No text has emerged where the problems across communities was addressed, and the tension remained in the subconscious and unsaid of the legislators.
But its sharp exacerbation led to a major shift in emphasis in personal status matters. The shift affected the perception of, and interest in, family law. Until 1980, personal status was systematically considered as 'the last precinct' of the shari'a, in contrast with criminal, civil, economic, and constitutional law where it was acknowledged that the shari'a had little role to play. Indeed, on the level of legislation, little in this field was owed to the shari'a, whereas personal status rules had remained primarily shari'a-based. But even though the family law codified 'monuments' remained, the central communitarian debate was inflicting a new direction to the perception and study of Islamic family law. The perceptible divide in the social and phenomenological sphere started affecting family law in a manner which overshadowed its traditional viewing as the last authentic precinct of the shari'a.
The new dimension can be formulated as a tug-of-war between a situation where the religious communities are left to their own family law devices, and one where a will of the state to issue an integrated unified law for all the communities concerned has prevailed. Unified personal law system v. community personal laws system has become the parameter of the new sensitive expression of what has reemerged as the state v. minorities (or communities) rights.
The pattern is not restricted to the Near East and South Asia, with their sizeable Muslim populations and their centenarian tradition. By shifting the emphasis away from the strict analysis of the content of the various codes, Islamic family law was acquiring its truly international dimension. It was now enough for one Muslim community, however minoritarian, to voice its 'Islamicity', for the family law question to follow. Islamic family law has become consequently, also, a Western issue.
The essays in the present volume show that despite the centrality of the Middle East in terms of model for the development of family law, the issues that have gripped the field after a relative lull of thirty years were also important for the world at large. Indeed issues which were inexistent or dormant in Europe have come centre stage in the last decade.
It would be inaccurate to describe the revitalization, or the novel rise of communitarian or sectarian problems, solely as the result of the Iranian Islamic phenomenon of recent years. It seems inevitable that with the immigration patterns of large non-Christian groups in the second half of the century, European countries in which the dominant regime was 'JudeoChristian' would be called into question by communities which were not brought up in the same tradition. Indeed, the Judeo-Christian tradition, in the wide Nietzschean acceptation of the term, encompasses French 'laicisme' as well as the Church of England as 'official religion' in the United Kingdom and the separation of church and state dear to American constitutionalism. Beneath the veneer of various state traditions, the cultural bottom line was and is Judeo-Christian, and it could be expected that people reared in another culture, and now jealous of its protection irrespective of territoriality, would eventually seek the protection of the law in egalitarian terms.
To mention only France and the United Kingdom, the debate in recent years over issues pertaining to Islam and family law has been, if not significant, new. The prominent political dimension of the debate has so far been relatively contained, but the passion in which it developed portends ill for the smooth inter-religious future of the populations in West Europe. Whether to allow or not to allow the hijab in the 'laic' schools of France may appear a trivial issue, but it cannot fail to indicate, were one to pierce the thin veil, that the future cannot afford avoiding forever fundamental and difficult questions on the egalitarian status of the law.
The issue can be put in several forms: it could be described, as in the overall theme of the conference at the origin of the present work, as conflict and accommodation between state identity and minority rights. To the full, integrated and uniform identity of the national as citizen of the Nation-state, contrasts the space which is, or ought to be, reserved to the rights of 'discrete and insular minorities', as a famous decision of the American Supreme Court once put it. In another sense, the issue is one of equality. Is the result to be sought in a modern state an equality between the citizens or an equality between groups? Should the voice of the organized group be given the attention of the law, or should the voice of the citizen be heard independently of the group he or she belongs to?
But the debate is also between two opposing concepts from the perspective of state policy. Should the state seek integration against differentiation, and is the debate, as again often portrayed in the contrast between the British and French governments, that the latter seeks to integrate, to franciser its minorities, whereas the former conceives of a much wider latitude in addressing minoritarian communities? This again can be described as a wider philosophical debate between unity and variety, or in legal terms adopted from French law, as a question of ordre public which no right can ultimately infringe upon.
These wider perspectives are not new to the law. Quite the opposite. They will sound familiar to the citizen as well as to the legislator and policy-maker. But in the last decade, the introduction of the Islamic dimension is new to Europe, and is consequently new as an international problem.
In so far as Islam is central to the emerging issues clustered around the debate of state identity and minority rights from the perspective of family law, these issues represent variations on the theme well-known to the Middle East, of unified personal law system v. community personal laws system. Because the Middle East is the cradle of the Judeo-lslamo-Christian paradigm, the sectarian milieu, as John Wansbrough put it in a fundamental book on the semantic structure of religions, has remained relevant worldwide.
Intellectually, there seems to have emerged in recent years what may be seen, in a phenomenon of longue duree, as the revenge of the Middle Eastern paradigm: the integrationist (and intellectually simplistic) worldview of the metropolis is giving way to fractures which are on the lookout for a new model. Even a matter as powerfully ingrained as the law of the land, in its family law aspects, is being challenged, and we find ourselves in the midst of a deep wave which is restructuring legal frontiers into unknown shapes. Family law is at the centre of this remodelling.
The reader is asked to move along three directions simultaneously:
The first dimension is diachronical, and the studies deal with a historical span covering family law in a long historical period. From the century separating the death of the Prophet and the solidification of what we now know as inheritance law (Chapter 2), to 18th and 19th Century colonial India (Chapter 11), to the claim to a separate legal system voiced by some British Muslims (Chapter 8), the historical span has several rythms. Even in Britain, the common law knows of an intricate tradition of several hundred years of discreet family rules for the Jews, and is asked now to provide answers to British Muslims for problems that are only a few years old (Chapter 7). And so the different rythms in China, India, Europe and the Middle East.
The second dimension is territorial. From the Far East (China, Chapter 17, Thailand and Malaysia, Chapter 12) to West Germany (Chapters 9 and 10), passing by Pakistan (Chapters 15 and 16), Iran (Chapter 4) and Egypt (Chapter 3), one witnesses the work of Islam as a world religion in confrontation and dialogue with other world religions, but also with 'secular' cultural systems, whether in democratic Europe (Part II - Europe, Chapters 7 to 10) and India (Chapters 11, 13, 14), or in Communist China (Chapter 17). It is in this territorial dimension that the more technical comparative aspect lies. One can therefore look further into the question of the rights of non-Muslim minorities in a predominant Muslim country (like Egypt, Chapter 3), or at the history of the formation of a single family Code (as in Iraq between 1959 and 1963, Chapter 5). In the first case, the law governing Muslims and non-Muslims is the subject of investigation; in the second case, it is the intra-Muslim dimension which is at stake, with the rich variations of the shari'a in terms of sects (Sunnis and Shi'is) and schools of law (madhaheb, Sunni Hanafis, Hanbalis, Shafi'is and Malikis, Shi'i Ja'faris and Zaydis). The permutations are infinite, and forgotten aspects reeemerge in the process of comparative investigation.
The apparently deadlocked situation beween claims of a religious minority (The Palestinian Muslim family in Germany in Chapter 10, the Palestinians in the Occupied West Bank, as in Chapter 6, Muslims in Great Britain in Chapters 7 and 8, Muslims in India, as in Chapters 13 and 14) and the 'public order' or 'the integration' asserted by the Hindu or Christian majorities is perhaps not so specific of the world religions in vis-a-vis. The experience of Iraq shows well how the problems are also intracommunitarian: in such instances, religion as belief seems less important than forms of social belonging (religious as a whole, or communitarian as Shi'i or Sunni) which require a legal protection that the Nation-State finds difficult to grant.
There is finally a third dimension, which is thematic. Family law encompasses as much marital relations as the laws of succession. This, from the lawyer's point of view. What one will discover in the book is that the issue is far from being restricted to lawyers. What is intuitively perceived as a much more sensitive issue than the strict legal relationships in the family, will be exemplified in the interdisciplinary contributions of the authors, drawn from history, anthropology, and politics. Family law is the focal point for an issue which is both wider and more significant. Beyond history and geography, this book is an appeal to intellectual comprehensiveness. The reader who reads it as a unit will find the widening of his or her horizons gratifying.
- For Iraq, see in Western languages Norman Anderson, 'A Law of Personal Status for Iraq', International and Comparative Law Quarterly, 1960, pp.542-564; 'Changes in the Law of Personal Status in Iraq', International and Comparative Law Quarterly, 1963, pp. 1026-1031; Y. Linant de Bellefonds, 'Le Code du Statut Personnel Irakien du 30 Decembre 1959', Studia Islamica, 1960, pp.79-135; in Arabic, see the references in chapter 5 in this volume.
- Norman Anderson, 'The Syrian Law of Personal Status', Bulletin of the School of Oriental and African Studies, 1955, pp.34-49; Rizkallah Antaki, 'La Question du Statut Personnel en Syrie', Proche-Orient Etudes Juridiques, 1968, pp.1-12; B. Botiveau, Shari'a Islamique et Droit Positif dans le Moyen-Orient Contemporain, Egypte et Syrie, Ph.D. Aix-Marseille, 1989, p. 193-198.
- Emile Tyan, Notes Sommaires stir le Nouveau R6gime Successoral au Liban, Paris, 1960; P. Catala and A. Gervais, Le Droit Libanais, Paris, 1963, Vol. I, pp.53-188; A. Gemayal ed., The Lebanese Legal System, Washington, 1985, Vol. 1, pp.267-390.
- Norman Anderson, 'The Jordanian Law of Family Rights 1951', Muslim World, xlii, 1952, pp.192-206.
- Abdel Fattah el-Sayed Bey,'La Situation de la Femme Maride Egyptienne apres Douze Ans de Reforme Legislative', Al-Qanun wal-Iqtisad, 11, 1932, pp.65-82; Y. Linant de Bellefonds, 'Immutabilite du Droit Musulman et Reformes Legislatives en Egypte', Revue Internationale de Droit Compare, 7, 1955, pp. 1 -34; Muhammad Abu Zahra, Al-Ahwal ash-Shakhsiyya, Cairo, 1957; and references in chapter 3 in this volume.
- N. Coulson, 'Reforms of Family Law in Pakistan', Studia Islamica, vii, 1956, pp. 133-155; David Pearl, A Textbook on Muslim Personal Law, London, 1979, 2nd edn 1987; and references in chapters 15 and 16 in this volume.
- D. Hinchcliffe, 'The Iranian Family Protection Act', International and Comparative Law Quarterly, 1968, pp.516-521; and references in chapter 4 in this volume.
- See generally Pearl, A Textbook on Muslim Personal Law,. T. Mahmood, The Muslim Law of India, 2nd ed. Allahabad, 1982; and references in chapters 13 and 14 in this volume.
- M. Borrmans, Statut Personnel et Famille au Maghreb de 1940 a nos Jours, Paris, 1977; A. Colomer, 'Le Code du Statut Personnel Tunisien', Revue Algerienne, 1957, pp. 115-239; Norman Anderson, 'The Tunisian Law of Personal Status', International and Comparative Law Quarterly, 1958, pp.262-279; Id., 'Reforms in Family Law in Morocco', Journal of African Law, 1958, pp. 146-159; J. Roussier, 'Mariage et Divorce en Algerie', Die Welt des Islams, vi, 1961, pp.248-254.
- See generally T. Mahmood, Family Law Reform in the Muslim World, Bombay, 1972; Normar,, Anderson, Law Reform in the Muslim World, London, 1976; Y. Linant de Bellefonds, Traite de Droit Musulman Compare, 3 Vols., Paris, 1965-1973; J. Nasir, The Islamic Law of Personal Status, London, 1986, new ed. 1990.
- The word 'ahwal shaksiyya' (literally personal modes or status) is currently used in Arabic for all matters related to family law, and includes marriage, divorce, filiation, custody, maintenance, as well as generally (but not always) matters pertaining to succession.
- It is to be noted that Lebanon has failed to unify the legislation for personal matters also between its Muslim communities. An effort in the 1960s to establish a common Shi'i and Sunni legislation on family law was thwarted in part because of the opposition of the Shi'i circles in Southern Iraq to a Lebanese Muslim unified legislation, as was related to the author by the late Mahdi al-Hakim (the son of the then leading Shi'i leader Muhsin al-Hakim): an interesting example of the interrelation in the Muslim world beyond nation-states.
- Linant de Bellefonds, Traite de Droit Mtuulman Compare, passim.
- Repealed, then reenacted under a different form in 1985, see B. Botiveau, 'Les Recentes Modifications du Code Egyptien du Statut Personnel: Genese d'un Debat sur le Droit de la Famille', Bulletin du CEDEJ, 17, 1985, pp.93-112; and his Shari'a Islamique et Droit Positif dans le Moyen-Orient Contemporain, pp. 188-193.
- L. Welchman, 'The development of Islamic Family Law in the Legal System of Jordan', International and Comparative Law Quarterly, 1988, pp.868-886; M. Borrmans,'Le Nouveau Code Algerien de la Famille dans l'Ensemble des Codes Musulmans de Statut Personnel, Principalement dans les Pays Arabes', Revue Internationale de Droit Compare, 1986, pp. 133-139.
- 'Communitarian' refers to what can also be called sectarian confessional, or communal. All these terms are interchangeable. In French, the word often used is 'confessionnel', in reference to 'confessions', or sects. In English, the word confessional is a neologism, and the word sectarian has a negative connotation, whilst communal is more specifically used in India and Pakistan. We have therefore preferred the more neutral 'communitarian' in reference to the religious conmmunities, including communities of different religions, as well as communities within each religion.
- Ittihad al-Muhamin al-'Arab (Union of Arab Lawyers), Mashru' Qanun 'Arabi Muwahhad lil-Ahwal ash-Shakhsiyya (Draft unified Arab code of personal status), n.d., Cairo. The date is also true of India, as is suggested in Tahir Mahmood's Personal Laws in Crisis, New Delhi, 1986.
- Martin Kramer, 'Tragedy in Mecca', Orbis, 32, 1988, pp. 231-247
- This argument is developed in many works on Islamic Law, and finds its best expression in Anderson, Law Reform in the Muslim World. See contra the nuances in Botiveau's work.
- This seperation has been clearly drawn in an address at the School of Oriental and African Studies by the Vice-President of the Lebanese Shi'i Council, Muhammad Mahdi Shamseddin, 12 July 1990. For a similar formulation see our Preface to C.Mallat ed.,Islamic Law and Finance, London, 1988.
- The problem is naturally wider and more complicated than the framework of personal laws. In the societies concerned, the more basic issues of social and political representation in the higher echelons of the state constitute the abbutting basis of tensions. But the issue of family law has retained some importance, however overshadowed by the larger claims to power of communities which perceive themselves to be bereaved and marginalized.
- See chapters 7-10 in this volume. For similar issues in Germany and the United States, see also E. Jayme, 'Talaq' naqh Iranishem Recht und Deutscher Ordre Public, IPRax, 9, 1989, pp. 223-224; d. Forte, 'Islamic law in American Courts', Suffolk Transnational Law Journal, 1983, pp. 1-33.
- United States v. Carolene Products Co., 304 US 144 (1938), at 152-153 n.4.
- See his Quranic Studies, Oxford, 1977, and the Sectarian Milieu, Oxford, 1978.