Islamic Family Law

  1.  In Legal Texts

 

Asifa Quraishi

Harvard Law School SJD candidate

 

Overview: to highlight the classical Islamic jurisprudence that forms the background for and continues to play a role in contemporary family law litigation, legislation, and legal discourses.

I. Marriage

            A. Consent to marriage

                        1. of bride/groom

a. obligation to obtain bride/groom's consent to marriage?

                                                i. virginity, age of majority, gender factors

                                    b. nullification of marriage after the fact if conducted ......................................... without consent?

                                                i. virginity, age of majority, gender factors

                        2. of parent/guardian

a. right to marry without consent of parent/guardian?

                                                i. virginity, age of majority, gender factors

                                                ii. “suitability” of spouse chosen

b. parent/guardian power to nullify marriage after the fact if conducted without consent?

                                                i. virginity, age of majority, gender factors

              B. Dower (mahr/sadaq)

                        1. quality/quantity of dower

                        2. deferred and prompt amounts

                                    a. implications of deferred dower – ........................................ advantages/disadvantages to quantity

i. possible purposes (deterrence of talaq, substitute for alimony/maintenance, bride's financial protection in case of talaq, etc.)

                        2. exclusive ownership by bride

                                    a. option of waiver by bride

                        4. implied dower if not specified

                                    a. status/suitability issues

            C. Polygamy

                        1. consent of existing wife necessary?

                        2. divorce options for existing wife

              D. Obedience

                        1. Qur'anic discussion and analysis

                        2. link to husband's support obligation

                        3. obligation to do household chores?

                        4. domestic violence issues

II. Divorce

A.     Talaq – husband's unilateral divorce option

1. revocable/irrevocable

            B. Khul' – mutual consented divorce

                        1. restitution issues and repayment of mahr

            C. Faskh – third-party adjudicated divorce

                        1. harm as a ground by either party

            D. Gender issues

1. wives “stuck” in marriage vs. wives unexpectedly divorced

2. talaq as groom's opt-out option if married in unconsented child ................. marriage

  III. Child Custody

A.     age and gender of child categories

B.  custody vs. guardianship (decision-making power) issues

2.  Contemporary Positive Legislation

  George N. Sfeir

Library of Congress

   

1. A Word of Explanation: Why Islamic and Positive?

              Contemporary legislation in the field of domestic relations is a by-product of the 19th and 20th century process of legal modernization and codification in Arab/Muslim countries. But while all other fields of the law in this process (constitutional, commercial, criminal) greatly benefitted from borrowed European law, which ended in displacing much of traditional Islamic law, domestic relations were completely left out of what has otherwise proved to be a highly successful process of reform. [1]

            Whether for fear of antagonizing religious leaders over matters closely associated with the faith, or because of the difficulty of unifying and codifying the diverse religious canons both Muslim and non-Muslim, given their disparate and scattered sources, the codification failed to 'secularize' family law by making it part of the civil code, as is the case with its European counterpart. [2] This has created a major cause of discordance within the emergent modern legal system, whose attributes are unity, equality, and autonomy.

  2. The advantages and disadvantages of this codification?

 

            (a) The codification helped to consolidate and systematize the disparate and scattered classical sources of Islamic law, particularly those of the major Islamic schools of jurisprudence. However, the positive legislation we now have is essentially a restatement of the Koranic rules as formulated by major schools of jurisprudence in the 8th and 9th centuries. It is becoming increasingly clear that the law in this area is lagging far behind social change, as evidenced by the  growing popular pressure for meaningful reforms, and the readiness of some governments to respond, as the Moroccan authorities have recently declared they would do. 

            (b) Under the positive legislation, Muslims would continue to be governed by Islamic law, while non-Muslims who are members of the Christian and Jewish faiths, or Peoples of the Covenant (Ahl Al-Kitab), as they have been traditionally known in Islam, will remain subject to their own canon laws and ecclesiastical authorities for matters of domestic relations. A form of confessional sectarian division of society, considered desirable in a religiously oriented state, such as it was in the Ottoman millet system, has become, in today's modern territorial state, a divisive and incongruent anachronism. [3]

(c) By essentially reflecting the traditional patriarchal family organization and marital relations, the new positive legislation created a conflict with some of the basic constitutional provisions pertaining to individual rights and freedoms. One can even say an indelible contradiction has established itself in the newly emergent legal system, given the fact that the secular and religious laws do not draw for their legitimacy on the same enabling sources. The problems created by this disjointed sources of legitimacy, was demonstrated in the famous case of Nasr Hamid Abu Zaid in Egypt, a Professor of hermeneutics who was accused of apostasy and forced to be divorced from his wife despite the constitution's guarantee of freedom of speech, expression, and scientific research.4

(d) This conflict has also had its impact on the Arab states' ability to conclude, without reservation, international treaties regulating a growing number of humans rights safeguards, from child adoption to women's rights, the former being illegal and the latter highly restrictive, under Islamic law. To get around the inevitable confrontation between domestic Islamic law and the international treaties' provisions, the Arab states have often found themselves forced to make their endorsement of these treaties subject to a reservation which read in effect, "provided the relevant treaty provisions are not contrary to Islamic Sharia," as was the case with treaties on the rights of women, including the elimination discrimination against women,5 or by introducing a substitute Islamic term or concept, even if not quite compatible, with the undesirable treaty provision, as actually happened with the introduction of the concept of kafala, in lieu of adoption, in treaties relating to foster care or adoption, and the rights of the child generally.6

          3. The Nature and Scope of Contemporary Legislation

              Except for a few Arab states in the Gulf region which continue to apply the disparate sources of Islamic law and jurisprudence unchanged, most Arab states' rules of domestic relations are today codified in statutes, usually referred to by the nomenclature, ahwal Shakhsiyah or laws of personal status, covering marriage, divorce, paternity, custody, guardianship, inheritance, and their related and ancillary matters.

            The first attempt at codification came in the 1917 Ottoman Law of Family Rights. Based on Hanafi jurisprudence, it continued to apply even after the demise of the Ottoman Empire, in a number of Arab states, until replaced in the second half of the 20th century by new legislation. It remains today the law of the Muslim Sunni communities in Lebanon, and in the Palestinian and Israeli legal systems. The new legislation in the Arab states, with which I am more familiar, includes that of, Syria (1953), Tunisia (1956), Morocco (1958, Iraq (1959), Jordan (1976),Yemen (1978), Kuwait (1984), Algeria (1984), Sudan (1992). Egypt which began legislating in this field in 1920, continued to add and amend its legislation up to 1985, following a failed attempt at an advanced comprehensive law in 1980, which was abrogated after its adoption on a technicality to the great joy of its conservative opponents.

            Being of divine origin however, this legislation is, understandably, quite limited and eclectic. Whatever 'reforms' were introduced to meet social and economic changes, were mostly of administrative and procedural nature to reduce or  frustrate the incidence of such traditional occurrences as child-marriage, polygamy, and the husband's unilateral repudiation of marriage. Such measures include showing cause and financial ability to take a second wife, as well the need to appear before a judge to repudiate a marriage, as the Syrian and Iraqi laws require. In other words, the legislation acted more to perpetuate the status quo than to provide an instrument of social policy and change in the traditional patterns of family organization and marital relations. A recent proposal, for example, by the President of Lebanon to legalize civil marriage in order to enable persons of different religious faiths to wed and end the sectarian divisions that religion has fashioned in Lebanese society, created a flurry of excitement in intellectual circles, only to be shelved by Parliament and the media when the heads of all religious communities spoke out against it.

            The only glimmer of hope so far has come from court decisions in the more liberal states, such as Jordan and Tunisia, where matters not at the heart of the institution of marriage, such as the right of the wife to travel and hold a job, have found support from these courts.

            This is not to say that there have been no attempts in positive legislation to break loose of the total hold that traditional Islamic rules of domestic relations have exercised since the 7th century. In fact the spectrum of family law varies from those with total reliance on the traditional sources of Islamic law, without the benefit of codification, as is the case in some of the Gulf states, to those which deviate considerably from conventionally accepted interpretation of these sources. The Iraqi law, for instance, successfully united, for the first time, the Sunni and Shia rules. But the primary case of substantial reform in Arab legislation is the Tunisian 1956 law which abolished polygamy, validated child adoption, and declared marriage a "community of life," in which the spouses are mutually bound to cooperate in assuring the "moral and material direction of the family." It is indeed  a concept of marriage not unlike that adopted by Western Europe only in the1970's, as the culmination of a historic movement there since the 18th century, towards an "individualistic, egalitarian, and secularizing trend."7

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[1] I have detailed the transition from traditional Islamic law to modern, European-based law in my book, MODERNIZATION OF THE LAW IN ARAB STATES, San Francisco, London, Bethesda (1998).

2 The leading author of the Arab civil code, Egyptian jurist Abdel-Razzaq Al-Sanhhuri, justified this failure by saying that doing otherwise would have thrown “insurmountable obstacles and confusion into the [drafting] of the code,” and saddled the drafting committee with “obvious difficulties.” Al-Wasit fi Sharh al-Qanun al-Madani al-Jadid [The Intermediate Work on the Interpretation of the New Civil Code], Cairo (1952), vol. I, p. 26-27.

3 It should be noted here that Islamic law does not give cognizance to other religious communities, who are not considered among the Peoples of the Covenant, to organize and practice their rites, as was demonstrated by a case concerning the Baha'i community before the Supreme Constitutional Court of Egypt. The court distinguished between individual freedom of faith which is guaranteed by the constitution, and communal rites which is denied by Islamic law.

4See my article on this case, “Basic Freedoms in a Fractured Legal Culture: Egypt and the Case of Nasr Hamid Abu Zaid,” in Middle East Journal, vol. 52, No. 3, Summer 1998.

5 See Declaration on the Elimination of Discrimination Against Women, proclaimed by General Assembly resolutrion 2263 (XXII) of 7 November 1967.

6 See Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, adopted by General Assembly resolution 41/85 of 3 December 1981, and the United Nations Convention on the Rights of the Child of 1989. The term kafala originates in the law of obligations. Known in French law as stipulation pour autrui, it found its way into the Arab civil code. It permits a person to enter into a contract committing one's self to certain undertakings in favor of another party if that person has a material or moral interest in such undertaking. But kafala does not exactly conform with the Western concept of adoption which conveys on the foster child all rights accruing to a natural child, including family name and inheritance. While such an arrangement is legitimate in some Arab states, it does not confer on the child the rights of name and inheritance. This discrepancy has created undue difficulties for immigration cases in the United States.

7 See Mary Ann Glendon, THE TRANSFORMATION OF FAMILY LAW: State Law and Family in the United States and Western Europe, Chicago (1989), p. 292.  



 

 

 

 

 

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