Introductory ideas required for the course on comparative family law

Schools of Muslim law

There are several ‘schools’ of Muslim laws. The four main Sunni Schools of fiqh, or thought, that exist
today were formed through the personal allegiance of legal scholars or jurists to the founders from
whom each school took its name - Hanafi, Maliki, Shafi and Hanbali. Consequently, each School has
variations according to the cultural, political, and socio-economic contexts in which they were
developed and the philosophy of reasoning that was accepted. The Shia Schools of law came into
existence following a rift between Muslims after the death of the Prophet. A difference of political
opinion subsequently led to doctrinal differences. An eminent jurist of the main Shia School was Imam
Abu Jafar.

Even the oldest Schools of Muslim laws did not exist until many decades after the revelation of the
Qu’ran and the Prophet’s death. Hence the laws they outline are clearly not direct divine revelations
from God. Instead, they are laws developed through human judicial reasoning (ijtihad, in Arabic). The
fact that these laws are not sacrosanct but are man-made (literally so because women were excluded
from the law-making process) is often obscured by those attempting to gain moral and political
authority from them. Equally obscured is the diversity of Muslim laws, which reflects the various and
changing concerns of the societies from which they emerged. Muslim laws are therefore not
unchangeable law, to be accepted unquestioningly by all Muslims. The scholars after whom the four
currently accepted Sunni schools were named had no intention of making their views final and binding
on all Muslims.

Abu Hanifa said, “It is not right on the part of anyone to adopt what we opine unless he knows from
where we derived it.” Imam Hanbal urged, “Do not imitate me, or Malik, or al-Shafi, or al-Thawri and
derive directly from where they themselves derived.” Whilst Imam Malik cautioned, “I am but a human
being. I may be wrong, and I may be right. So first examine what I say. If it complies with the Book and
the Sunnah, then you may accept it. But if it does not comply with them, then you should reject it”
(MWRAF, 2000). Thus, the very founders of the Schools urged Muslims to question, examine, and trust
their own reasoning and beliefs.

The unthinking acceptance which today dominates Muslim societies derives from the myth of the
‘closing of the gates of ijtihad’, whereby for the last thousand years or more, legal jurisprudence has
ceased to develop and instead has followed established models. However, it should be noted that this
‘closing’ was a politically inspired change in approach. Abu Zahra wrote that the acceptance of ijma (a
consensus about the Schools of Muslim laws at that time) in the tenth century was only for the
maintenance of national unity and to check individual deviations, that ijma was legalized as an
“authority after the sacred texts” (MWRAF, 2000). Thus, refusing further ijtihad is not a religious or
divinely sanctioned act. It is not required in the Qu’ran or by the Sunnah (the sayings and practices of
the Prophet). Indeed, the Shia Schools have never accepted the closing of the gates of ijtihad.
Today, most statute laws and even uncodified Muslim laws applied by courts as ‘Muslim laws’ are
derived from an eclectic mixture of provisions from the various Schools. These are added to an
acceptance of the principles of modernization (particularly reflected in the need for state regulation of
marriage and divorce) and to remnants of customary practices (for example, the refusal of courts in
many systems to recognize women’s property rights on divorce). In the W&L research, we also found
that frequently judges and communities stated that their application of Muslim laws reflected a
particular sect (e.g., Maliki or Hanafi laws), even though people of the same sect elsewhere do things
differently.

LAWS, LEGAL SYSTEMS AND CHANGE: CONSTITUTIONAL LAW, CEDAW AND INTERNATIONAL HUMAN
RIGHTS LAWS AND NORMS

The constitution of any country embodies the basic principles governing that country. Often described
as its supreme law, a constitution spells out the fundamental principles which govern relations between
the state and its citizens, as well as relations between citizens. While specific laws deal with matters like
family issues, crimes and penalties, civil procedure, and so on, a constitution regulates the overall
working of the law.

Post-colonial constitutions follow similar patterns. They lay down the form of government that will be
followed in the country: whether that be parliamentary, presidential, or even a monarchy and whether
there will be a federal or a unitary system. However, the most important parts of a constitution are
those which deal with a country’s ethos, its guiding principles. Constitutions should be examined to see
whether or not they safeguard the rights of individuals and of religious and ethnic minorities, whether or
not all citizens, regardless of caste, colour, creed, ethnicity, or gender are equal; to see, indeed, who can
be a citizen. (In ancient Greece, the cradle of Western democracy, neither women nor slaves were
citizens). One looks to see whether or not the state has arbitrary powers of arrest and detention and
whether or not the state can be challenged if it acts unconstitutionally. It is important to see which of
the fundamental rights (of freedom of religion and belief, of equality before the law, and of due process)
are safe-guarded within the constitution itself. Sometimes it is possible to go to court to have a
fundamental right enforced. However, in some cases even when a fundamental principle is laid down in
the Constitution, it may not be enforceable in court. In other words, the constitution is saying, “This is
what we would like to see happen, but no promises are being made.”

Legal equality, even when guaranteed constitutionally, is often negated by the retention of
discriminatory personal status laws that are usually derived from an interpretation of religious and
customary laws, or even by the constitution’s own recognition of customary laws, as in the Gambian
Constitution. This point is developed further below.

Equality before the law is not the same as legal equality. The first relates to the processes of law (for
example, whether or not women and men are treated equally by the police and courts). The second
relates to status (for example, does the law grant women and men equal rights to choice in marriage).
Most equality clauses are broad enough to encompass both process and status. However, in practice, in
many states the equality clauses in constitutions are narrowly interpreted by the courts, which hold that
equality has to be construed in the light of clauses guaranteeing freedom of religion or recognizing
customary laws, rather than vice versa, even though the constitution may not say explicitly that these
are higher than the fundamental right of equality. The most significant exception to this pattern is South
Africa, where a Supreme Court case has established that equality takes precedence. (Women’s
networks, including WLUML and WLSA, shared with South African allies their concerns and experiences
about the dangers of the constitutional recognition of customary laws during in the period of intense
debate and constitution-making in the 1990s, and are much encouraged by the current situation.)

In systems where the laws of evidence and criminal laws are based on retrogressive local interpretations
of Muslim laws, they discriminate variously against women: reducing the value of women’s testimony in
certain matters, making females liable to punishment at an earlier age than males, and in some
instances providing for lesser compensation for women (either as victims or heirs of victims) under laws
of Qisas and Diyah (retribution and bloodmoney).

Thus, even constitutional guarantees of non-discrimination and equality may not amount to much. In
this context international conventions have a major role to play.

International Law is the system of rules and regulations by which sovereign states bind themselves to
behave in certain ways. The main difference between International Law and national laws is that states
only voluntarily bind themselves to uphold International Law. A private citizen may not like the laws of
her country, but she will be bound by them nevertheless. States are under no such obligation unless
they have entered into an agreement (and they may, if they are powerful or rich enough, withdraw from
treaties they have signed). Such institutions as the United Nations and the International Court of Justice
(and now the International Criminal Court) use treaties, conventions, and protocols to bring nations into
the fold and to protect weaker states against the more powerful ones.

The Universal Declaration of Human Rights was formalized in 1948. Several other conventions followed.
Twenty-two developing and Eastern European countries had framed a request to the Commission on the
Status of Women in 1963 (U.N. General Assembly A/5606 15 November) to draft a declaration on the
elimination of all forms of discrimination against women. These countries included Afghanistan, Algeria,
Argentina, Austria, Cameroon, Chile, Columbia, Czechoslovakia, Gabon, Guinea, Indonesia, Iran,
Mongolia, Morocco, Pakistan, Panama, the Philippines, Poland, Togo and Venezuela. The Convention on
the Elimination of all forms of Discrimination against Women (CEDAW), which eventually came into
being in 1985, was thus the expression of the concerns of these states rather than the ‘western’
imposition it is frequently portrayed to be. In fact, the USA, the leading Western power, is one of the
few countries that continue to refuse to adopt CEDAW.

CEDAW is an instrument that women can use to try neutralize the patriarchy inherent in the laws that
govern them, including the constitutions of their countries. All but three Muslim majority countries have
ratified the Convention, although, like for example Bangladesh, Iraq, and Morocco, often with
reservations to Article 2, which commits the state, amongst other things, to an undertaking to amend
national laws to bring them in line with international norms. However, ratification with reservations is
not limited to Muslim majority countries; New Zealand, on behalf of the Cook Islands, and Britain have
both made reservations to CEDAW.

If a country ratifies an international convention, its provisions will not necessarily become law within
that country. In some instances there are constitutional provisions that immediately incorporate the
ratified treaty/convention. More often, incorporation requires an act of legislation. It is, however,
always possible for judges to guide themselves on the basis of an international norm, and activists work
on preparing such arguments in writs brought in court. There have been instances where judges have
taken cognizance of these conventions and drawn upon them to give gender-sensitive judgments.

law and patriarchy

Women have seldom been in a position to pass, elaborate, and implement laws. Thus, laws have been
developed, over many centuries from the viewpoints (implicit and otherwise) of men. This applies just
as much to laws not based on Muslim laws as it does to Muslim or customary laws. It is therefore
dangerous to assume that a move away from religious or customary laws will be free of biases against
women. Patriarchy (in its minimalist sense of male-dominated rule) has been around for a long time and
continues to influence modes of thought and behaviour.

Laws that are not based on religion are often discriminatory as well; patriarchy is not a construct of
religion but is derived from an unequal distribution of resources and decision-making along gender lines.
The negative influence of patriarchy is visible even in laws not relating to personal status in countries
where family laws are inspired by Muslim laws. For example, often female citizens who are married to
foreigners are denied the right to pass on their nationality to their husbands (for example in Egypt,
Morocco, Bangladesh, and Pakistan) even though foreign women married to men from those very
countries become entitled to nationality. Similarly, patriarchy is a problem in countries where family
laws are not based on Muslim laws. For example, often the husband is institutionalized as the head of
household; this provision was influenced by French colonialism in secular leaning Senegal and has only
recently been removed from the Turkish Civil Code (in 2001).

Moreover, the influence of patriarchy continues to be reflected in contradictory constitutional

provisions (as discussed above regarding provisions on gender equality and religious freedoms and/or
recognition of customary laws), as well as in the attitudes of state institutions, such as the judiciary, the
police, and administrative bodies. For example, even where citizenship laws or family laws do not
require it, as in Nigeria, officials may nevertheless ask a woman to produce evidence that she has her
husband’s permission or consent before they will provide her with a passport.

Therefore, it is clear that legal reforms, in and of themselves, will not be sufficient to change women’s
status within the family. Whether or not laws afford protection for women’s rights depends not only on
how the laws are worded, but also on the social relations of the context in which they are to operate. As
Farida Shaheed points out, “since the interpretation of law cannot be detached from the specific cultural
context in which it is located, norms and accepted practices profoundly affect the application and the
interpretation of law” (Shaheed 1998:65). Hence in Pakistan, up to 1990, the defense of “grave and
sudden provocation” had been accepted to condone men’s murder of female relatives – even when the
evidence refuted the claim or there was no evidence at all that there was provocation, never mind
sudden or grave. The bare legal phrase had been clothed with socio-cultural norms about men’s and
women’s acceptable behaviour. Male relatives still are acquitted of killing female relatives. Even though
the defense of “grave and sudden provocation” is no longer available under the 1990 Law of Qisas and
Diyat, changing the attitude of lawyers and judges to ensure that men who murder their female relatives
are not given lighter sentences has proved an uphill task.
Undoubtedly, one of the greatest indications of the predominance of patriarchy is women’s overall lack
of access to justice, whether due to their lack of knowledge regarding their rights or other factors that
constrain them from approaching the courts to seek justice. This Handbook’s focus on formal laws must
be seen in this context: we have attempted to highlight provisions that are more option-giving for
women, but we have not always been able to comment on how far these provisions are meaningful in
practice.

inter-relationships of laws

One of the complexities of using law reform and access to rights in law as a tool for developing and
protecting women’s rights and autonomy is that it is insufficient to improve law in one area, without
taking into account other areas will be impacted. For instance, laws on divorce need to be cross-
referenced with provisions on mahr (is it recoverable or is it returnable?), child custody (will the mother
retain custody of her children?), marital property (will the woman be given a share of that property?),
etc; provisions regarding polygyny need to be examined in the light of provisions regarding maintenance
(can a co-wife approach the courts to demand equal maintenance, is this a condition for polygyny?),
registration of marriage (can a polygynous marriage be registered), divorce (can a wife seek divorce if
her husband contracts a polygynous marriage in violation of polygyny regulations?), mahr (does it
become due when her husband contracts another marriage?), property rights (how is marital property
divided in polygynous households?), and the possibility of negotiating stipulations in a marriage contract
(can the wife demand that the marriage remain monogamous, or does the husband have to choose
whether the marriage will be monogamous or polygynous?). Therefore, when using this Handbook as a
tool for discussing reform (whether of the formal law or bringing about changes in community practices)
in a particular family matter, it is necessary to be aware of all the related aspects that have to be
examined. For this reason, we have attempted to indicate where a section dealing with an issue should
be cross- referenced to another section.

Moreover, to analyze the implementation of a particular law and its impact on women’s lives, one has to
examine a range of interactions of family law with civil law, criminal law, court structures, constitutions,
judicial training facilities, etc. For example, the registration of marriages can be interrelated with rules,
directives, and laws on the qualifications of marriage registrars; constitutional provisions regarding the
right to found a family, or relationships between members of different religious communities; or penal
laws on sexual crimes (such as unregistered marriages leaving couples vulnerable to charges of zina).

law as a tool for reform

Those involved in law reform advocacy have to be particularly careful to consider whether or not, and in
what circumstances, a change that seems like a clear gain might have contradictory and painful
consequences. For example, the rights of wives are usually thought to be better protected when the law
requires marriages to be registered formally because when unregistered marriages are not recognized,
then forced and under-age marriages are much less likely to occur. However, if the law does not
recognize unregistered marriages, but they are nonetheless happening in large numbers, then this might
result in the wives from these unregistered marriages being unable to claim inheritance or maintenance,
or in their children’s paternity being unrecognized (therefore, they are unable to make claims on the
putative fathers).
It is not just that reform may have untoward consequences, but also that (as noted above in the
discussion regarding patriarchy and social contexts) in certain instances, there are very clear limitations
of law reform as a tool of social change. For example, reforms to restrict child marriage and polygyny
have been ineffective in many countries, and any change (increase or decrease in the practice) has been
in spite of, rather than because of, legal provisions. Similarly, maintenance for wives and children, no
matter how protective the legal provisions, is largely unrecoverable especially in undocumented,
poverty-ridden economies.

In the context of law reform, there is an on-going debate over whether it is more option-giving for
women to have a law which is exhaustive in detail (such as the pre-unification South Yemeni code and
many aspects of Malaysian Muslim family laws) or to have laws which lay down certain principles but
leave the courts considerable discretion in interpreting these principles. Detailed provisions (if well
drafted) have the advantage of leaving less room for endless litigation and the exploitation of loopholes
by the more powerful (generally men in the context of family laws) and setting the basic parameters for
court’s decisions. However, if detailed laws contain restrictive provisions, they can leave women,
progressive lawyers, and gender-sensitive judges little room to maneuver. On the other hand, vague
provisions leave women vulnerable to court attitudes and changes in the country’s political atmosphere
while also creating confusion about the intent of the law. Ultimately, when advocating for reform,
activists have to be aware of the dangers inherent in either explicit or implicit provisions.

There is also the question of whether or not regulation (particularly retrogressive or poorly drafted
provisions) is better than unregulated practices. Where women have a measure of autonomy recognized
by the community, a bad law can actually reduce their options. This is starkly illustrated for example in
Kerala, India, where divorce among Muslims is completely unregulated. In recent practice, women
migrant workers have been sending their husbands ‘talaq notices,’ and the communities are accepting
and upholding these. But, for example, if a law recognizes men’s unilateral ‘right’ of talaq and allows it
to be freely accessed apart from minor procedural requirements, while at the same time providing
women with only limited access to divorce through the courts, codification and regulation may work to
women’s detriment. This then points to the need for the involvement of women in the law reform
process to ensure that the introduction of regulation (which generally works to women’s advantage)
does not, in fact, remove any previous space for maneuvering that they had in an unregulated system.

Another matter to be considered in the law reform process is whether or not stricter regulation will
merely push underground the negative practice it is seeking to control. Yet again, it is clear that law
reform and regulation must be accompanied by wider efforts towards social change.

Finally, the local political context will determine which strategic approach is more appropriate when
seeking to strengthen women’s rights within the family. For example, factors such as the government’s
concern over the increasing influence of politico-religious parties in Turkey, the overall secular context
of family laws, and the high levels of education and employment among women enabled Turkish
women’s groups to launch a headlong challenge to conservative forces who opposed sweeping and
positive changes in the Turkish Civil Code. In other contexts, demanding progressive change in family
laws may be a political impossibility because the state is succumbing to the growing influence of identity
politics, and a reduction in women’s rights is invariably the first concession made to politico-religious
parties. Such concessions were made in Algeria’s 1984 Code de la Famille, as well as in the abandoning
of certain positive provisions introduced in 1979 during family law reform in Egypt in 1985. In such
contexts, reform of procedural laws and administrative procedures, which are less in the public
spotlight, may offer a more accessible avenue for immediate change.

To add further complications, certain family matters (e.g., marriage and divorce) may be dealt with by
courts applying a specific law based on religion or custom, while other family matters (e.g.,
maintenance, adoption, enforcement of decrees) may be governed by a general law applicable to all
communities. For women this can present extreme difficulties. For example, in Sri Lanka a maintenance
decree for a woman married under the Muslim Marriage and Divorce Act, 1951 is to be decided by the
Quazi Courts, but since the Quazi Courts have no powers of enforcement, the woman has to go to a
Magistrate Court for enforcement. And finally, in some countries (Cameroon, the Palestinian community
in Israel), the litigant may choose whether to approach a general forum or one which operates on the
basis of customary or Muslim laws.

Being able to choose which system is applied to them is usually not an option for most women because
of their lack of decision-making power in the area of family matters. Moreover, as the findings of the
W&L and the subsequent sections on family matters show, it is hard to categorically state which system
is ‘better’ for a woman. Within each system, her options may be increased in one sphere and decreased
in another. For example, marriages under the Matrimonial Causes Act in some West African countries
may bring stronger guarantees that the husband will remain monogamous or that he can be punished
for polygyny, but divorce options can be more limited than under customary and Muslim laws. Often, it
is men who are more able to take advantage of the existence of multiple systems. In India, Malaysia, and
Sri Lanka, conversion to Islam is a device used by Christian and Hindu husbands to avail themselves of
the easy unilateral divorce or the option of polygyny available to Muslim husbands.

A federal state structure can add further complexities. In federal Nigeria, customary laws vary from
place to place but are not coterminous with state boundaries. Meanwhile, since each State’s court
system is seen as autonomous, positive precedent in one State does not automatically apply in another.
In federal Malaysia, family law varies from State to State, and husbands can attempt to evade or side-
step the regulation of polygyny by moving their application for permission or conducting their
polygynous marriage in another State. However, non-Muslim wives in Malaysia appear to be protected
from their husband’s manipulation of conversion possibilities under a judgment of the Federal Court,
which laid down that any matrimonial disputes must be governed by the law applicable to the parties at
the time of their marriage where only one party has converted. But this may not have application across
all States.