The politics of Islamic family law reform
In particular since the 2000s, family laws – the laws regulating marriage, divorce, custody, polygyny and guardianship among other matters – have been reformed across the Middle East and North Africa (MENA). Algeria reformed its family code in 2005. Morocco and Jordan issued new family codes in 2004 and 2010 respectively. Bahrain, Qatar as well as the United Arab Emirates all issued codified family laws in the 2000s. Family law, which is often perceived to be “Islamic law”, continues to be at the centre of much political debate and controversy in most Muslim-majority countries.
From a bird’s eye perspective, the MENA region might look relatively homogeneous, but a closer look reveals striking differences in the ways Morocco and Jordan engaged in reform. The book thus makes a case for comparative analyses. In Morocco, the process of reform became less dominated over time by actors who had received religious training, whereas in Jordan the shariʿa court administration retook control over family law reform. In Morocco it was the king who took the lead; whereas in Jordan the kind was not involved in the reform. The Moroccan code reflects more strongly the demands of women’s groups and proclaims international law as one of its sources, whereas the preamble of the Jordanian 2010 law states that the law is based entirely on Islamic sources. In contrast to Morocco, international actors such as UN Women play no role in the implementation of the family law in Jordan. This book solves the empirical puzzle of why two seemingly similar semi–authoritarian monarchies vary in how they engage in family law reform.
The book directs our attention to the role legal systems play during reform processes. It demonstrates that the structure of the legal systems, shaped by colonial policies, had an effect on how reform processes were carried out, as well as the content and the application of family law. British and French colonial powers both shaped the legal system of Jordan and Morocco, but the French policies proved to be more divisive. In Morocco the nationalist movement successfully exploited the issue of legal reforms and as a result law became extremely politicized in Morocco. Less than a decade after independence in 1965 the shariʿa courts were abolished. Family law would from now on be applied in a unified court system. By contrast in Transjordan, the policies of the British mandate authorities institutionalized a religious court system divided into church and shariʿa courts. As one of the consequences it increased the autonomy of the shariʿa courts and empowered religious authorities. As a result, shariʿa courts in Jordan are more autonomous than family courts in Morocco. The more autonomous Jordanian shariʿa courts do not have to cooperate with international actors to implement family law. The different structures of the legal systems also create preferences regarding which actors are seen as experts on family law. The structure of the legal system was thereby partly able to impact on who was in charge of reform and able to shape the content of the law.
The book thus advocates for thinking about how specific historical development processes impact on contemporary reforms. Imperialism has shaped and politicized law. Even scholars who study contemporary family law reforms therefore need to take history seriously. This approach helps us to understand why and how certain inequalities have developed over time and how they impact on women’s and children’s rights today.
Dörthe Engelcke is a Senior Research Fellow at Max Planck Institute for Comparative and International Private Law and her book Reforming Family Law: Social and Political Change in Jordan and Morocco is now available.