An Introduction to Islamic Law (28 page)

Yet, in the very process of reenacting Islamic law into a codified body of rules, linguistic presentation, focus, brevity, detail and attention, all played a significant part in recasting and remolding the law, all of which factors entered into the calculation of what effects the law was supposed to produce
. Thus, while the traditional law provides a staggering body of discourse respecting the wife’s right to various types of support from her husband, the
1917 Law reduces this discourse to two articles whose brevity deprives the modern court of the full view of these rights.
(In pre-modern
Hanafi law, by contrast, the wife’s rights to support were extensive and her treatment as a juristic topic often occupied dozens of pages.) All that emerges from the multiplicity of pre-modern rights is that she is entitled by law to a “house,” language that might be interpreted by modern judges in light of customary practice (thus maintaining a measure of continuity), but a practice that was constantly shifting in favor of new realities that tended, with time, to supersede the earlier ones, if not remove them from judicial memory. Affording a “house,” together with the provision (art. 72) stressing the wife’s right to refuse living with the family of her husband, seems to be a recognition of the rising importance of privacy and companionate marriage, but it simultaneously takes away, again through silence, the pre-modern set of rights that “constructed the wife as a social being with needs for companionship that must be accommodated by the presence of relatives, neighbors, or even hired companions.”
⁵

Yet, the legal reduction of the
matrimonial relationship (formerly predicated upon complex social relations within an extended family structure) to companionate marriage simultaneously constituted a step toward constructing the wife as a housewife in a family unit headed by the husband, a notion that is entirely absent from the traditional religious law. Indeed, article 73 of the
1917 Law requires the husband to treat his wife kindly, but imposes on her the obligation of
obedience. The latter, in Shari
a narrowly defined in terms of sexual availability, is now dissociated from an intricate system of obligations to which the husband too was bound. “Obedience” has undergone abstraction and expansion, and has furthermore been merged into the highly unrestricted French civil notion of wifely obedience marshaled to produce an effective means of subordination. Little of this changed even much later. A recent study of the
1957 Moroccan family law convincingly argues that the so-called reforms in that country have indeed produced a consolidated patriarchal hold within a reinterpreted field of the Shari
a, while simultaneously undermining the intricate guarantees and multi-layered safety nets that the Shari
a had provided in practice before the dawn of modernity and its nation-state.
⁶

A further index of women’s subordination relates to the post-colonial promotion of the
man/husband as head of the family, to be obeyed and even revered. The pre-modern Muslim jurists regarded the inability of the husband to fulfill his marital duties as constituting disobedience, in which
case he was required to grant his wife a
khul
without remuneration to him. Husbands, in other words, were almost as much subject to the charge of disobedience as wives, although their liabilities were assumed to take different forms. In modern national codes, disobedience becomes exclusively a woman’s liability, the result of failure to perform a variety of functions assigned to her by the law. Thus, in the
Algerian code, the wife can be accused of disobedience simply for failure to accord the husband respect as head of the family; in
Libya and
Yemen, disobedience arises for failing to attend to the needs and affairs of the matrimonial home; in
Morocco, it arises even for failure to show respect to the husband’s parents.

These grounds for obedience were clearly not so expansive in pre-modern Islamic law, having been mainly limited to sexual inaccessibility
. In traditional law, the family was constructed as a social group based on kinship, a group whose members had rights and duties, but where no one was
legally
designated as head. Materially and economically (a wide scope of social existence), women were legally independent, having the same rights as men. Husbands could not legally control their wives’ property. Nor was the woman required to respect her husband’s parents any more than he was required to respect hers. Nor, moreover, was she required by law to attend to the affairs and daily needs of the matrimonial home (much less her husband’s family), it being explicitly stipulated as the husband’s duty. But this is not all. A host of rights that women enjoyed in traditional law were entirely lost in modern legislation, not the least of which was the husband’s responsibility to pay for suckling his own children, for the cleaning and cooking expenses of the matrimonial household, and for servants to attend to his wife’s personal needs.

These gender-based transformations were made possible by several factors that combined to produce multiple effects in different sites, effects that invariably served to increase the subordination of women. One of the crucial factors was the collapse during the nineteenth century of
local markets in most countries of the Muslim world, a far-reaching phenomenon causally linked to the European domination of the newly created open markets in these countries. Integral to this economic transformation, which led to the rise of alternative modes of economic production, was the disappearance of the home economy (involving, inter alia, weaving and spinning), in which women had not only played a crucial role, but also, through their economic performance, benefited from the financial independence that this afforded.

A second factor was the rise of new political, legal, economic and bureaucratic elites that were either essential to building the new state system or subordinated to its structures. Taking as their model late nineteenth-century Europe – which had barely begun to grant its
women the right to full personhood (be it in terms of suffrage or owning property in marriage) – the new Muslim elites (almost exclusively male) filled the gaps in the changing structures of power through mimesis.

Third, and arising from the second factor, was the importation by the new national elite of European systems and philosophies of education which assigned to women the role of raising the national citizen of the future. Women, important and sublime as their role was in manufacturing the successful and productive nation, were nonetheless expected to stay at home, with their children.

Yet another factor enhancing this prejudicial transformation was the gradual rise of a new and anomic psycho-social order, one that grew concomitantly with the continual reduction of the
extended family and the simultaneous increase in the prominence of the
nuclear family. That this socio-familial transformation – to which we shall return later – was due to the changing modes of economic production is clear, but what has not been sufficiently taken into account is the dialectical relationship between these social and economic transformations and the new notion of
individualism. While the incomes of extended family members largely belonged to an indistinguishable fiscal pool that was often perceived as group-owned and that consisted of goods and commodities along with cash, in the emerging nuclear family, and because of the rise of a massive bureaucratic elite, the man’s salaried income was an individualized act of remuneration, an income earned through a narrowly defined job in which no other family member took part. An increasing sense of individualism, combined with a male-oriented national state, a new male-oriented economy and bureaucracy, and a wholesale collapse of the domestic economies that had been the exclusive domain of women, all combined to produce legal codes and legal cultures that, under the banner of modernity, tended to subordinate women rather than liberate them.

Equally important in the
1917 Law, and analyzable in the same fashion, is its haunting brevity in dealing with the modes of
marital dissolution afforded to the wife. The Law quietly affirmed the husband’s absolute right to effect unilateral divorce by his own accord while, at the same time, severely abridging the discourse about
khul
, formerly a common recourse available to women who wished to rid themselves of a bad marriage. Article 116 makes mention of it in passing, without describing any of the substantive or procedural legalities associated with it. As one scholar has perceptively noted, “[o]nly the closest reader of the Law would notice that such a divorce had legal standing.”
⁷
By contrast, traditional law
consecrated pages upon pages to discussing this form of marital repudiation. Furthermore, while Islamic law had in practice permitted women to sue for marital annulment only after one year of a husband’s failure to provide support (due, inter alia, to insolvency, desertion or disappearance), the 1917 Law expanded this period to four years (art. 127), thus exacerbating the wife’s plight. On the whole, the 1917 Law reduced the multiple and multi-layered traditional legal rights of women instead of expanding them
.