An Introduction to Islamic Law (31 page)

Modern Muslim codes continue to affirm the importance of the traditional Islamic concept of
mediation between husband and wife, a necessary step before the dissolution of a marriage is effected. In
twentieth-century codes, it has become formalized and homogenized in almost every country, and it has become an official requirement to be fulfilled before effecting any type of divorce, including – perhaps especially – unilateral divorce by the husband. Needless to say, the necessity for mediation in pre-modern law was normative, both in the sphere of the
qadi
and in the social site in which the marital conflict occurred. We simply do not know whether mediation was involved in the social context of a husband’s unilateral divorce, although in all probability this form of divorce did not reach the
qadi
in his official capacity as judge, and thus it would be difficult to see how the latter’s official mediation (directly or by proxy) was involved. In today’s civil codes, on the other hand, mediation appears as a ubiquitous stipulation, formalized in specific procedural requirements
.

The method of
takhayyur
was also deployed to effect changes in the law pertaining to the mother’s right to
child custody, which extended, according to the
Hanafi school, to seven years for boys and nine for girls. Traditionally Hanafi countries have raised this bar to some extent. For example, the 1929
Egyptian Law stipulated ten years for boys and twelve years for girls, and the
2005 Law (No. 4) has further raised the age to fifteen years for both. But these countries could have adopted a more significant change, as the
Maliki school already granted the mother the right to custody of boys until puberty and girls until marriage. While most of North Africa and the
Sudan have adopted this Maliki doctrine,
Tunisia, a traditionally Maliki country, has opted for a policy more in line with the Hanafi doctrine. In the
Iranian Civil Code of 1382 H (2003), the age was raised to seven for both boys and girls, this being based on a minority view in
Twelver-Shi
i law. At the same time, many other Muslim countries left to the
qadi
’s discretion decisions on custody according to the best interests of the child. Yet, irrespective of where the children live, the father remains responsible for their maintenance, and, in several countries, for their education. In this respect, there was little to no change from the rules of Islamic law
.

The sphere of
inheritance, on the other hand, was subjected to significant changes. The
Sunni system of succession in effect arose from a modified tribal system that served the interests of the extended, agnatic relations, i.e., those who guaranteed the survival of the group and whose entitlement to the estate of the deceased was repayment for the security they extended to the propositus and to his/her immediate relatives while he or she was alive. The Quran incorporated into this system much to serve the interests of mothers, daughters, wives, sisters and sons’ daughters. But the system remained, in a particular way, largely patriarchal, and the emphasis continued to be focused on agnatic relations that guaranteed
the group’s security. The concatenation formed by these relations translated into an
extended family that permeated the Bedouin as well as the urban environment. The extended family, in other words, was the relevant unit of social and economic support within both the clan and the neighborhood
.

The introduction of modern forms of
capitalism and the attendant fundamental changes in modes of production have led, inter alia, not only to the collapse of the earlier modes of production but also to a transformation in the social map: a society whose typical family structure was of the extended type has become characterized by the widespread and growing phenomenon of the
nuclear family. Loyalties are no longer to fathers, uncles and the other “patriarchs” of the family who once formed a veritable safety net for the needy of the family: the ill and the infirm, and orphans, and divorcees and their children. Each family unit was henceforth “on its own,” the unit having become the parents, their children and grandchildren, and their fathers and mothers, whenever all these coexisted. It is this unit that reflects the “model family” promoted by the modern state, not only because this is the predominant European model – the exporter of this state – but also because the new “Islamic” nation-state could more easily secure the loyalty of such a nuclear family as the defined and articulated site of the good citizen. The loyalties within clans and tribes, being quasi-political, can hardly be divided. Thus, the modern nation-state, which also was fundamentally engaged in, and intertwined with, the new forms of
capitalism and new economic modes of production, had a profound interest in refashioning the modern family into a family that is distinctly nuclear
.

In reengineering the
law of inheritance, the legislators of the modern state leaned heavily on the method of
takhayyur
, combining elements from various schools to produce effects that were inconceivable under the traditional legal system. An important material source on which the legislators drew was
Twelver-Shi
i law, regarded for centuries as unorthodox and even antithetical to Sunni doctrine and practice. The
Twelver-Shi
i system of succession drastically departs from agnatic arrangements as conceived by
Sunni law. It just so happens that the Shi
i system of succession – which represents the site of the greatest difference between Sunni and Twelver-Shi
i legal conceptions – has become more suitable to the realities and demands of the modern nuclear family than any configuration that its Sunni counterpart can produce. Accordingly, many of its elements were introduced in several Sunni countries, and in
Iraq it was made the law of the entire population, including Sunnis and
Kurds. Twelver-Shi
i law favors a
nuclear conception of the family and pays special attention to the females in it. Thus, in the case of a daughter who
survives her father together with an uncle, the father’s estate in Sunni law will be divided into two equal shares between the two heirs
. In Twelver-Shi
i law, on the other hand, the daughter inherits the entire estate, certainly a modern way of devolving family property.

Some legislators, such as those of
Tunisia, opted to modify and augment the
Maliki system of succession while drawing on complex principles of other Sunni legal schools, avoided in countries that traditionally followed these schools. But the results were virtually identical to the effects produced in the Twelver-Shi
i system, in that daughters were given precedence over agnates. Also of Twelver-Shi
i inspiration was the unrestricted principle – adopted in
Egypt,
Iraq and
Sudan – that while the bequest cannot exceed one-third of the testator’s total inheritable wealth, the latter can choose an heir whose normal share will then be augmented with the additional one-third
.