An Introduction to Islamic Law (27 page)

The fifth and final device, much like the first, represents a new application of the old but restricted principle that any law that does not contradict the Shari
a may be deemed lawful. Prohibition of
child marriage and of
unilateral divorce by the husband are seen as belonging to this category of law.

In their entirety, these devices, directly as well as obliquely, did the bidding of the state in absorbing the Islamic legal tradition into its well-defined structures of
codification. But the most substantive of these devices were the third and the fourth, with the former literally supplying much of the law, remolding it with a view to producing particular, intended effects. We will discuss the most important of these effects in the next section, but for now we must note the most salient byproduct of this structural difference between the traditional law and the codified law of modern states. As we have seen, one of the hallmarks of the Shari
a is its
plurality of opinion (at times reaching a dozen viewpoints on one and the same case or issue). This plurality was in part responsible not only for legal change, but also for flexibility in the application of the law.
Women, for example, could resort to any school, and the
qadi
in actual practice could apply any opinion from within that school to accommodate a particular situation. Codification, on the other hand, eliminates almost all such juristic and hermeneutical possibilities, leaving both the litigants and the judge with a single formulation and, in all likelihood, a single mode of judicial application. For it is eminently arguable that unifying and homogenizing the law is one of the primary concerns of the modern state
.

The engineering of these devices and their orchestration to produce particular effects was the work of the modern state, the appropriator and possessor of the law. That this institution was the most central and commanding modern project ever to enter the world of Islam is nothing short of a truism. As the primary and leading institution of European modernity, it constantly defined, redefined and influenced nearly every entity with which it came into contact. Whether incorporated into the Muslim world by imposition or by mimesis, its defining, constitutive and fundamental features were nearly identical everywhere. It claimed the exclusive right to wage war outside and, with the same exclusivity, to exercise violence within its own domains; it declared itself sovereign while developing systemic mechanisms of surveillance and discipline; it lived on
nationalism as the body lives on circulated blood; it appropriated the exclusive right to make and enforce law; and in all of this it was the “big father” of the citizen. As a man was head of the family, the state was the head of society. The nation-state thus combined among its attributes the power to rule and subdue, and the right and duty to defend, promote, and claim possession of the nation, nationhood, nationality, and their subject – the citizen.

Nationalism has always been a
masculine conception
subordinating the feminine. It is, at one and the same time, a distinctly racial conception that stems from a certain assumption, if not a “scientific” premise, of purity of blood. The conception would evaporate into absurdity if the French nation were to be seen to have been formed with the assistance of Italian, Arab or Chinese sperm. And yet it was this conception of biological workings that maintained the uniqueness of nations. From this logic followed the idea that it is the man, not the woman, who determined national attributes, which is another way of saying that man defined and literally constituted the nation as the subject of the state. As an archetypal figure, he likewise constituted it as an object of
sovereignty. In this design, women became instruments of reproduction, while the modern state appropriated the right to determine “the uses of women’s reproductive skills
.”
²

The nation-state that the Muslims encountered was – and continues to be – a masculine entity and, in its nineteenth- and early twentieth-century form, a thoroughgoing patriarchal order. And it was the
French legal model that dominated the colonialist scene in the Middle Eastern (and African) countries. Even Egypt, an otherwise British protectorate, opted for that model. Nor is it difficult to see why this should have been the case. One of the most salient features of the nation-state is its totalistic appropriation of the domain of law, an appropriation that presupposed
centralization and
bureaucratization of the legal system. There was no room for judges’ law-making, otherwise a defining attribute of the
British case law system. Case law is a diffused phenomenon, lacking in concentricity, a clear voice of authority and a textual homogeneity that can pronounce the laws of the state in an authoritatively clear and unmistakable fashion. A strong colonialist regime (and later nationalist governance) thus required the code, the statute and the act as tools of total control. Even the British engaged in this form of legislation in their legal reconstruction of the colonies
.

It was no coincidence that the code, the very tool that represented and embodied the agendas of the nation-state, was also the chief method by which the legal systems of the Orient were reengineered. And the
French model not only supplied the political form of the nation-state’s hegemony; it also – and importantly – furnished the legal content that bolstered this hegemony. If blood and sperm were seen to constitute the nation, so was the state’s law. But for it to make the nation, shape it and represent it, the
law had to be equally national, the very embodiment of the nation’s will, aspirations and worldview. In the final analysis, the law is and must be the quintessential expression of the state’s will.

Inasmuch as the law is a manifestation of the state and its will to power, the family, as a prototype of the nation, is the reconstituted invention of the state, whether in Europe or the Muslim world. The ideal family, consisting of a two-parent household, lacks the complex social networks that otherwise engender loyalty among and between the many members of the extended family and clan. The
nuclear family, constituted by national ideology and a capitalist mode of production (both inherent to the structures of European and most other states), is thus the object of the social engineering project; it is, in fact, quintessential to the imagining of the state and its ideological and political practices. And having been assigned to fulfill this role, the family is shaped by the state’s law through regulation of
marriage,
divorce and
inheritance, as well as an array of practices that define and dictate those relationships producing the family. Yet, the family itself arguably stands with the state in a mutually constitutive relationship where the state’s power to authorize and dissolve marriage manifests itself as a set of practices from which it derives its own sovereignty, while the family has thus contributed to shaping the modern state, though on terms that suit the state and its systematic and systemic programs to reengineer (or sanction preexisting parts of) the social order, among others.

During the colonial period, when the nation-state was being imported into the Muslim world from Europe, the agenda of the colonial powers did not extend to the reengineering of the Muslim family, since the construction of states
qua
states in the lands of Islam was not what the colonists originally aimed to accomplish. Material exploitation, the quintessential project of colonialism, did not require this reengineering, a situation that allowed (as we saw earlier) colonial apologists to make a virtue of non-necessity. As we will see in due course, many Islamic countries indirectly embarked on modifying family law as early as the second decade of the twentieth century, but the project of reengineering the family via legal mechanisms did not begin in earnest until the colonies acquired autonomy or independence. Nevertheless, as we saw earlier, the colonial powers did, directly and obliquely, cause the
dismantling of the
waqf
institution, which was undoubtedly linked in numerous structural ways with family life and the laws that regulated that life. Furthermore, when
France developed the unique colonial idea of absorbing
Algeria into the French nation, it repeatedly attempted to alter the
personal laws of the Shari
a and replace them with what was seen as more progressive and civilized rules. From the middle of the nineteenth century onward, the French
attempted to enforce many
codes and decrees, most notably the
Code Morand
, a code that was devised, inter alia, to redesign the Muslim family along lines conceived by the
état suprême
of post-Revolutionary France. In the end it was due to the determined resistance of the Algerians that such attempts resulted in failure, and surely not to the lack of French effort.

As the nationalist elites slowly began to displace the colonists, the project of governance could no longer be limited to the unidimensional aim of material exploitation. The basic structures of the state apparatus were already in place, and the goal would now become total rule, a desideratum that all nineteenth-century European states had already attained at home. This type of rule, together with what the French had attempted to do in Algeria, would become one of the primary objectives of the new nationalist elites. The recently independent states in the Islamic world would continue a project of governance that the colonists had little motive to pursue in the colonies, for the project, in its full manifestation, did not serve colonialist goals. But once political independence was secured, the nationalist leadership pursued state-building in earnest. Tellingly, what this leadership had resisted under colonial rule, it would insist upon after independence. For instance, under the French, the
Tunisian and Algerian nationalists vehemently opposed any change in the law of
personal status, but as soon as the French were made to leave, and as soon as the former assumed power, they almost immediately embarked on a program of “reform” in this presumably sensitive legal sphere
.

The early, half-hearted
Ottoman codification of personal status, as well as the later nationalist codification projects, found their inspiration in the only available model of governance: the
European nation-state in general, and the French version of it in particular.
The French Civil Codes (from 1804 until the middle of the twentieth century), to which the Ottoman Empire, the post-colonial nation-states and so much of Africa owed a debt, did not hesitate to declare the
man to be the predominant figure in the home. In the
1804 Civil Code, and thereafter until its 1938 successor, it was unambiguously stated that the “husband owes protection to his wife, the
wife obedience to her husband.”
³
Even as late as 1970, in French
law the husband still stood as “the head of the family.” (Similarly, until 1949, the
West German Civil Code granted the husband the right to “decide all matters of matrimonial rights” while the so-called
Equality Law of 1957 [art. 1356.I] opens with the statement that “The wife’s
responsibility is to run the household
.”) Therefore it was this legal culture, directly arising from the nation and its state, that defined the parameters of post-colonial nationalism.
Partha Chatterjee’s apt description of the Indian context equally applies to others:
nationalism, Chatterjee observed, “conferred upon women the honor of a new social responsibility and by associating the task of female emancipation with the historical goal of sovereign nationhood, bound them to a narrow, and yet entirely legitimate, subordination.”
⁴

This subordination finds ample manifestation in the provisions of the
Ottoman Law of Family Rights of 1917, a law that represented in the Ottoman domains the first state-sponsored codification of the Islamic law of
personal status. The significance of this Law lay not only in the fact that it was the first attempt of this kind, but, more importantly, in its spatio-temporal propagation. For whereas
Turkey seceded from the entire edifice of Islamic law in 1926, the Law of 1917 remains in effect as the Muslim denominational law of
Lebanon and
Israel to this day, and continued to be the official law
of Syria until 1949 and
Jordan until 1951. What adds to the significance of this Law is not only the fact that it is the major survival of the Shari
a in the post-Ottoman era, but that it purportedly set out to improve the lot of Muslim women. But did it?

The
Family Law of 1917 generally did not depart from the provisions of the Shari
a, but it did codify them, and thus subjected them to the rigidity of a single linear language devoid of the plurality and multiple juristic nuances and variations that the traditional law had afforded. The hallmark of this codifying transmutation was, as we have repeatedly noted, the appropriation of the law by the nation-state, a transmutation that announced the clear message that even when the law was both substantively and substantially that of the Shari
a, it was ultimately the state that determined this fact and what part – or what combination thereof – was or was not law. This precisely is the meaning of
sovereignty, and sovereignty is no one else’s business but the state’s.