An Introduction to Islamic Law (29 page)

Yet, while maintaining many of the male legal prerogatives versus the female, the new law restricted male rights in other respects, though all in favor of closer state control and surveillance over family life. The overall result was one that intercalated women into a regimented domestic sphere, and all this on the ruins of what had once been a largely open social public space that allowed extraordinarily free latitude to economic transactions in both the private and public domains.

The rise of proto-
feminist movements in Euro-America during the first half of the twentieth century redefined colonial cultural discourse, with the result that promoting the feminist agenda immediately resounded in the Muslim world at large. Whereas the “segregated Muslim woman” had, in the nineteenth century, been the focus of European and American commentary and criticism, in the twentieth century she had become in this critical commentary the victim of a merciless patriarchy, from which she had to be rescued. Yet there was little, if any, recognition that the new forms of patriarchy were directly caused by the displacements/transformations just outlined. As part of the cultural discourse of domination, the critique chimed with the agenda of the ruling elites of the Muslim states, and was reflected in the changes that these states made to the substance of the law. Women had become a priority in fashioning the new nation, and redesigning the law was yet one more means of achieving this end
.

Integral to the project of social engineering was a specific effort to increase the
contractual options of the wife. Through the methods of
takhayyur
and
talfiq
, most states reconstituted the marriage contract along the lines of
Hanbali doctrine, which permitted the inclusion of as many terms as the parties might wish to stipulate, as long as no term was contrary to the aims of the contract. By implication, this reconstitution also meant that the terms and conditions could not violate the established principles of the law or the parties’ interests as ensured by the contract itself. This widely adopted contractual doctrine permitted women to include stipulations that served to protect their own interests within marriage, such as the right
to work outside the marital home; to divorce her husband; to forbid him from taking a second wife; or, on penalty of divorce, to prohibit him from moving the marital home to another locale without her consent
.

These terms, apart from the first, had for centuries been included in marriage contracts, but this was not a systematic practice. Only some people had recourse to it. What the twentieth-century state accomplished in this respect was to systematize (through state, centralized action) the right to these inclusions, thereby raising the minimal scale of women’s rights. Yet, Muslim women did not leap to take advantage of the newly available contractual options. In an effort to increase this proportion, the state began actively to encourage the use of such options by women. In 1995, for instance, the
Egyptian Ministry of Justice prepared a draft marriage contract that could be used by couples as a model and be modified in accordance with their wishes and needs – this contract’s purpose was to make the entire range of legal possibilities known to the average citizen.

Furthermore, by setting the terms and conditions in a ubiquitously available and standard document, the conditions would acquire a routine-like character, thereby making them in effect an integral part of the law rather than an addendum that women would have to negotiate or for which they would have to bargain. A similar, standard contract had been drafted in
Iran in 1975, and reformulated under the Islamic Republic in 1982. The new model contract, reflecting changes in positive law, contained several standard conditions, including the wife’s right to take half of her husband’s assets that he had accumulated during marriage, provided that he divorced her for no fault of hers. (The
1982 Law also gave the woman the right to the value of all her labor during the marriage, if she were determined by the court not to be at fault in the breakdown of the marriage.) By the terms of the model contract, she would also be entitled to
divorce him should he abandon or mistreat her, marry another, or default on maintenance. This standard(ized) contract had something of a Shari
a-law appearance, since the husband, by accepting these conditions – which he now had to – could be said to have delegated to his wife the power to divorce herself from him should he default on any of the stipulated conditions. (Incidentally, these powers of “
delegated divorce” were fully recognized and intricately elaborated in the Shari
a, but never integrated into any standard contract, an unknown practice in the first place.)

As we said earlier, the insertion of such conditions was nothing new, and the traditional Shari
a courts of virtually all schools have in practice accepted the inclusion of such conditions. But this inclusion had been the exclusive prerogative of the wife, a piece of ammunition with which she
was supplied as a matter of protection. Nevertheless, in many modern “reforms,” partly out of a preoccupation to
equalize the rights of men and women, this prerogative of inserting conditions has now been bestowed on men in several Muslim countries, thereby enhancing the
subordination of women in the name of equality.

Financially, marriage in the nation-state was to be reengineered supposedly in order to strengthen the position of women. Integrated into the legal institution of marriage were guarantees as to the
maintenance to which wives are entitled by operation of the law, i.e., even if the guarantees were not stipulated as part of any agreement. This is classical doctrine reenacted. As the Shari
a had done for centuries, the modern reforms made maintenance (which consists of provisions of clothing, shelter and food) an inextinguishable obligation on the part of the
husband toward his wife – which means that failure to provide maintenance would render his estate liable for seizure by the court in order to defray these costs.

Likewise, a wife was contractually entitled to a
dower. This remained both a legal requirement and a social and customary practice. Although in
India and
Pakistan the extravagant stipulations of dower caused legislation to counter abuses in this domain (forcing the parties to stipulate reasonable amounts of dower), most states, especially in the Arab world, continued to enhance this feature of the marriage contract. In
Egypt, for instance, not only did dower continue to be an essential feature in the validity of the marriage contract, arising by operation of the law, but the wife also retained priority of claim over all other claims of debt against the husband’s estate. Her right to dower is inextinguishable, and the husband’s failure to pay it could land him in prison. And in order to enhance the husband’s ability to surrender the amount of the dower to his wife, he is required to provide a guarantor, who will be equally culpable upon failure to pay. (It is remarkable that these rights continue to be stated according to a logic and language that is highly gendered. In a world where an increasing number of Muslim women nowadays hold more lucrative jobs than their husbands, who may occasionally be unemployed, the law has not yet managed to neutralize its language to reflect the
rights of the husband in cases where women are the breadwinners.)

In the great majority of Muslim states, especially those traditionally of
Maliki affiliation, several restrictions were placed on the powers of the
marriage guardian who was normatively defined as a male relative who had significant powers in determining who his ward should or would marry. Some of these male prerogatives were maintained until about the middle of the twentieth century, but they have increasingly come under attack since. Under pressure from
feminist groups, the
Moroccan government, for instance, came to change some of the assumptions about
guardianship by proclaiming it “the woman’s right,” a change that actually reflects a reversal of rights. In the Shari
a, the guardianship of the senior male agnate amounted to a representational right whereby the interests of the family and the group would be considered together with the marital interests of the ward. The Moroccan legislature sought to guarantee this right by stipulating that marriage could not be concluded “without her
consent,” but it also found it impossible to ignore the fact that Moroccan society, like nearly every other Muslim society, places a premium on the family as well as on inter-familial relations. Article 12 of the
Code of Personal Status thus offers a guarantee for the family, as represented by the guardian, to the effect that the social network within which the marriage is embedded must play a role in the contractual process. While her consent is indispensable, the guardian, this article stipulates, “concludes the marriage on her behalf.”

Guarantees were also installed in favor of a woman whose guardian might refuse to conclude a marriage that she desired. Several states thus permit women of marrying age to petition the courts to obtain permission to marry against the objections of relatives, including male guardians. On the other hand, according to the laws of Pakistan and India, a minor girl married by her father or grandfather must wait until the age of eighteen before she can seek judicial dissolution of her marriage.

The
Moroccan case exemplifies what may be called the transitional problematics of modernizing societies, where traditional communal norms coexist alongside, yet simultaneously oppose, modern notions of individualism. Expanding the freedom of the
individual within the interests of the enveloping group – however modified these interests may be – appears to represent a new stage in the transition toward more individualism and less communalism. It may be a matter of time before the law moves on to the sphere of exclusive individualism, where the
extended family and community can be declared, for legal purposes at least, defunct. It is always worth remembering that while the institution of guardianship represented – even in practice – a certain power of patriarchy, it was not only about that power, as modern scholarship often makes it out to be. The guardian, we recall, also represented the voice of the nuclear and extended family, and even the immediate community. For marriage in Muslim societies, past and present, has never been an affair relevant only to the couple
.

Together with changing notions of community and individualism came another transformation in the social values that define adulthood, a transformation that has largely been due to major shifts in economic structures and modes of production. Early in the twentieth century, most Muslim states raised the
age of marriage (generally prescribed in classical texts to
start with puberty), and some have criminalized the
marriage of minors. The
1929 Indian Child Marriage Restraint Act prescribed penalties for any marriage where the bridegroom had not reached eighteen or the bride fifteen. The latter was raised to sixteen in
Pakistan’s
1961 Muslim Family Laws Ordinance. In other countries, such as Egypt, no code (yet) explicitly prohibits marriage of minors, but by instituting strict registration requirements (see p. 116 above) severe restrictions were placed on such practices. All countries in the Middle East now prescribe the age of eighteen for bridegrooms, but the age has varied in the case of brides:
Iraq requires eighteen,
Jordan and
Syria seventeen,
Algeria sixteen, and
Tunisia and
Morocco fifteen
.