Textbook Muslim Divorce in The Middle East Jessica Carlisle Ebook All Chapter PDF

Muslim Divorce in the Middle East
Jessica Carlisle
Visit to download the full and correct content document:
https://textbookfull.com/product/muslim-divorce-in-the-middle-east-jessica-carlisle/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
Chemical Regulation in the Middle East 1st Edition

Michael S. Wenk
https://textbookfull.com/product/chemical-regulation-in-the-
middle-east-1st-edition-michael-s-wenk/
The Neighbors CMES Modern Middle East Literatures in

Translation Mahmoud Ahmad
https://textbookfull.com/product/the-neighbors-cmes-modern-
middle-east-literatures-in-translation-mahmoud-ahmad/
The New Regional Order in the Middle East: Changes and

Challenges Sara Bazoobandi
https://textbookfull.com/product/the-new-regional-order-in-the-
middle-east-changes-and-challenges-sara-bazoobandi/
The Middle Man Professionals 6 1st Edition Jessica

Gadziala [Gadziala
https://textbookfull.com/product/the-middle-man-
professionals-6-1st-edition-jessica-gadziala-gadziala/
international relations of middle east Louise Fawcett
https://textbookfull.com/product/international-relations-of-
middle-east-louise-fawcett/
Islamic Populism in Indonesia and the Middle East 1st

Edition Vedi R. Hadiz
https://textbookfull.com/product/islamic-populism-in-indonesia-
and-the-middle-east-1st-edition-vedi-r-hadiz/
Communist Parties in the Middle East 100 Years of

History Laura Feliu (Editor)
https://textbookfull.com/product/communist-parties-in-the-middle-
east-100-years-of-history-laura-feliu-editor/
From War to Peace in the Balkans the Middle East and

Ukraine Daniel Serwer
https://textbookfull.com/product/from-war-to-peace-in-the-
balkans-the-middle-east-and-ukraine-daniel-serwer/
Kemalist Turkey and the Middle East International

Relations in the Interwar Period Amit Bein
https://textbookfull.com/product/kemalist-turkey-and-the-middle-
east-international-relations-in-the-interwar-period-amit-bein/
GENDER AND POLITICS
Series Editors: Johanna Kantola
and Sarah Childs
MUSLIM
DIVORCE IN THE
MIDDLE EAST
Contesting Gender
in the Contemporary
Courts
Jessica Carlisle
Gender and Politics
Series Editors
Johanna Kantola
University of Tampere
Tampere, Finland
Sarah Childs
Birkbeck, University of London
London, UK
The Gender and Politics series celebrated its 7th anniversary at the 5th
European Conference on Politics and Gender (ECPG) in June 2017 in
Lausanne, Switzerland having published more than 25 volumes to date.
The original idea for the book series was envisioned by the series editors
Johanna Kantola and Judith Squires at the first ECPG in Belfast in 2009,
and the series was officially launched at the Conference in Budapest in
2011. In 2014, Sarah Childs became the co-editor of the series, together
with Johanna Kantola. Gender and Politics showcases the very best inter-
national writing. It publishes world class monographs and edited collec-
tions from scholars—junior and well established—working in politics,
international relations and public policy, with specific reference to ques-
tions of gender. The 15 titles that have come out over the past five years
make key contributions to debates on intersectionality and diversity, gen-
der equality, social movements, Europeanization and institutionalism,
governance and norms, policies, and political institutions. Set in European,
US and Latin American contexts, these books provide rich new empirical
findings and push forward boundaries of feminist and politics conceptual
and theoretical research. The editors welcome the highest quality interna-
tional research on these topics and beyond, and look for proposals on
feminist political theory; on recent political transformations such as the
economic crisis or the rise of the populist right; as well as proposals on
continuing feminist dilemmas around participation and representation,
specific gendered policy fields, and policy making mechanisms. The series
can also include books published as a Palgrave pivot.
More information about this series at

http://www.palgrave.com/gp/series/14998
Jessica Carlisle
Muslim Divorce in the

Middle East
Contesting Gender in the Contemporary Courts
Jessica Carlisle
Centre for Science, Knowledge and Belief in Society
Newman University
Birmingham, UK
Gender and Politics

ISBN 978-3-319-77006-2 ISBN 978-3-319-77007-9 (eBook)
https://doi.org/10.1007/978-3-319-77007-9
Library of Congress Control Number: 2018938930
© The Editor(s) (if applicable) and The Author(s) 2019

This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights of
translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and retrieval,
electronic adaptation, computer software, or by similar or dissimilar methodology now
known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
exempt from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the pub-
lisher nor the authors or the editors give a warranty, express or implied, with respect to the
material contained herein or for any errors or omissions that may have been made. The
publisher remains neutral with regard to jurisdictional claims in published maps and institu-
tional affiliations.
Cover illustration: Melisa Hasan
Printed on acid-free paper
This Palgrave Pivot imprint is published by the registered company Springer International
Publishing AG part of Springer Nature.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
To all the judges, lawyers, and litigants who took part in my research for
this book. In the hope of better times to come for Syria and Libya.
Contents
1 Muslim Divorce in the MENA: Shari‘a, Codification, State

Feminism, and the Courts 1
2 The Damascus Shari‘a Court: The Judge, Arbitration,

and Lawyers in 2005 33
3 A Legal Aid Centre in Marrakesh: Civil Society Activists

and the Court in 2007 69
4 Tripoli’s Family Court: The Judge in Post-Revolution

2013 97
5 Challenges to State Feminism in Conflict-Afflicted Syria

and Libya 121
Conclusion 147
Index 153
vii
CHAPTER 1
Muslim Divorce in the MENA: Shari‘a,

Codification, State Feminism, and the Courts
Abstract The codification of shari‘a-derived Muslim family law was an

important aspect of state-building in post-colonial Middle Eastern and
North African states. This has included legislation specifying permissible
divorce forms. Governments have subsequently pursued state feminist
reform towards equalising men and women’s access to divorce and increas-
ing the courts’ powers to rule on gendered behaviour in marriage. These
reforms have been contested by conservative and Islamist critics who are
opposed to political elites, arguing that they undermine the family and
misinterpret the shari‘a. The legislation resulting from these debates is
interpreted by Muslim family court judges in response to litigants’ claims
during the legal process. This book discusses the production of gender
regimes during Syrian, Moroccan, and Libyan divorce cases and assesses
the impact of post–Arab Spring proto-states on divorce law.
Keywords Islamic state feminism • Muslim family law • fiqh codification

• shari‘a divorce • MENA judiciary • Gender regimes
On 12 March 2000, two large demonstrations took a fierce public debate

about divorce onto the streets of Morocco. Moroccan Muslim family law
(the Mudawwanat al-‘Usra, or Moudawana) had not significantly changed
since it had been enacted in 1957–58. Government plans to reform the
law, including expanding women’s access to divorce, were consequently
© The Author(s) 2019 1

J. Carlisle, Muslim Divorce in the Middle East, Gender and Politics,
https://doi.org/10.1007/978-3-319-77007-9_1
2 J. CARLISLE
controversial and catalysed an unprecedented stand-off between advocates

of two very different views of contemporary Morocco. The pro-reform
lobby argued that the Moudawana lagged behind social and economic
developments in Morocco, that it could be reformed within the bounds of
the Islamic shari‘a, and that it discriminated against women. Anti-
reformists countered that the existing law was already an authoritative
interpretation of the shari‘a, that it preserved morality within the family,
and that it was fair to both husbands and wives. This struggle over the
rights of women and men within the Muslim family was intimately tied up
with deeper disagreements about the state’s authority to determine politi-
cal, social, religious, and economic policy. In this highly charged atmo-
sphere different proposals for the law of divorce symbolised different ideas
of how to be Muslim in Morocco at the turn of the millennium.
In Rabat, a coalition of women’s associations, human rights groups,
and leftist political parties led an estimated 40,000–200,000 demonstra-
tors in support of reform. This pro-reform coalition had a diverse mem-
bership, but broadly advocated for fresh understandings of the shari‘a
based on the needs of contemporary Moroccan society. It supported a
wide range of amendments, including a proposal to make men’s and wom-
en’s access to divorce more equal.
The decision to organise the march on International Women’s Day
affiliated this pro-reform march with global movements towards women’s
rights. However, the reform proposals had been spearheaded by the
Moroccan monarchy and pro-reform protesters generally allied themselves
with King Mohammed VI in applauding his proposals to adapt Muslim
family law to changing social and marital dynamics. At least six govern-
ment ministers joined the march, with some of the marchers chanting:
‘No to reactionaries’.1 In particular, the protest organisers emphasised that
the reforms would address domestic violence and female poverty as part of
wider state programme to improve gender equality. Fatiha Sdass, an activ-
ist participating in the march, summed up a perception that the anti-
reform demonstrators were supporters of inequality by claiming: ‘Women
are taking part in the [other] march against their will after being forced by
their husbands and male relatives.’2
1
‘Moroccans and Women: Two Rallies’, The Associated Press, New York Times, 13/3/00
http://www.nytimes.com/2000/03/13/world/moroccans-and-women-two-rallies.html;
‘Rival Rallies over Women’s Rights’, BBC, 12/3/00 http://news.bbc.co.uk/1/hi/world/
africa/675182.stm.
2
Ibid.
MUSLIM DIVORCE IN THE MENA: SHARI‘A, CODIFICATION, STATE… 3
Fifty miles away, in Casablanca, Islamist political parties opposed to the

monarchy led at least twice as many people against legal reform, estimated
as 200,000–500,000 demonstrators. The movement in defence of the
legal status quo generally countered that the 40-year-old Moudawana
should not be reformed to accommodate ‘Western’ lifestyles and argued
that it enshrined sound interpretations of the shari‘a, which intrinsically
protected both women’s and men’s rights. Women and men marched in
separate columns, publicly demonstrating their understanding that Islam
mandates gender segregation, chanting: ‘We defend Islam with our bodies
and our souls!’ The organisers of this demonstration included members of
previously banned organisations, some of whom had been imprisoned for
opposing the monarchy. These opposition figures had frequently been
critical of the ruling elite surrounding Mohammed VI, emphasising the
elite’s control of state resources and their lack of connection with the gen-
eral Moroccan population, particularly in respect of religious belief. The
anti-reform demonstrators accused the government of threatening to
destabilise the foundations of Muslim marriage under pressure from secu-
lar interests. Strongly objecting to top-down declarations in support of a
reform they perceived as widely unpopular, they argued that the king’s
authoritarian intervention in the issue was evidence that his government
were unfit to govern. Nadia Yassine, the daughter of an active opponent of
the government and a driving force in calling for the protest, told a jour-
nalist: ‘Moroccan women reject these [reform] plans imposed by the West,
because shari‘a recognises women's rights and protects them.’3
Despite the rancour between these opposing movements, both sides
agreed that this debate was about the content and not the existence of
shari‘a-derived family law in Morocco. Although it vigorously opposed
the existing Moudawana, the pro-reform Rabat march was not actively
calling for the secularisation of Moroccan family law, even if some of its
organisers might ultimately aspire to secular legislation. Instead reformists
demanded legal modernisation of the Moudawana through a rereading of
the shari‘a. The Casablanca demonstrators countered that the existing
Moudawana was already true to the shari‘a’s ethical standards and conse-
quently preserved the Moroccan family from falling apart.
This debate reflected deep-seated differences existing across the Middle
East and North Africa (MENA) about how Muslim family law should be
3
‘Rival Rallies over Women’s Rights’, BBC, 12/3/00 http://news.bbc.co.uk/1/hi/
world/africa/675182.stm.
4 J. CARLISLE
interpreted and applied at the start of the twenty-first century. Almost all
nation states in the region have some form of state-codified Islamic law
governing Muslim marriage, divorce, child custody and guardianship,
spousal and child maintenance, and inheritance. These codifications have
been a part of post-colonial MENA state-building with governments
enshrining some interpretations of Islamic law (fiqh) on the family into
written legislation. The tendency of MENA governments over time to
pass legislation that has increasing levelled-out husbands’ and wives’ mari-
tal rights and their capacity to divorce within the parameters of the shari‘a
has been part of a project of ‘Islamic state feminism’ (Badran 2009).4
However, these legal reforms have been criticised as being half-heartedly
pursued by authoritarian or semi-authoritarian regimes that have instru-
mentalised ‘women’s rights’ as a diversion from undemocratic practices
and human rights abuses.5
There is currently no political prospect throughout the MENA of the
secularisation of family law, including the legislation of divorce. Debates
are primarily about who has the authority to draft and codify Islamic law,
how the shari‘a is interpreted and rendered into state law, and what result-
ing rules and norms are applied in court. This makes for very lively discus-
sion. It is often said that there are as many interpretations of Islam as there
are Muslims and there is a majority consensus that ‘no individual scholar
can claim a definitive view on Islamic law encompassing all possible per-
spectives’ (Sardar Ali 2016). This can be seen in the plethora of religious
opinions expressed during satellite TV shows, online, in mosques and
through state law.
Much of this debate and discussion is about the role of women and
men in society, their duties to God, and the ways in which the genders
should interact in public and at home. The legal construction of the mod-
ern family in the Muslim majority MENA has been founded on variations
of male guardianship (qiwāma) over women and children, who are
expected to obey the male head of the household (Sardar Ali 2016). In
this domestic arrangement a father is obliged to shelter and provide for
his family (Sardar Ali 2016). The initial post-colonial codification of
4
Mhadhbi, A ‘State Feminism in Tunisia: Reading between the Lines’ https://www.open-
democracy.net/5050/amira-mhadhbi/state-feminism-in-tunisia-reading-between-lines.
5
Nicola Pratt ‘How the West Undermined Women’s Rights in the Arab World’, Jadaliyya,
25/1/16 http://www.jadaliyya.com/pages/index/23693/how-the-west-undermined-
women%27s-rights-in-the-arab.
Muslim divorce law was predicated on this highly gendered conception of

marital roles. MENA states have subsequently reformed family legislation
defining divorce and this has increased wives’ and husbands’ to challenge
and complicate the gender regimes enforced in family courts.
Disputes about divorce in MENA Muslim family courts discursively
construct the appropriate gendered behaviours within a successful mar-
riage and acceptable responses to marital difficulties. Court hearings
encourage husbands and wives to make specific claims about gender roles
in marriage by asserting idealised masculinities and femininities (i.e. ‘The
basis of a good marriage is ...’, ‘A good wife should not ...’, ‘A loving
mother should...’, ‘I am a decent man who...’, ‘It isn’t right that a hus-
band...’, ‘Can it be right that a young husband/wife...?’, etc.). Lawyers,
legal aid workers, and judges often add their own opinions to the mix.
This creates an environment in which the boundaries of appropriate gen-
dered marital behaviour are asserted, disputed, and negotiated between
legal professionals, divorcing spouses, and their kin. These discussions
have increasingly been facilitated by shari‘a-derived family legislation and
legal processes in MENA societies undergoing economic, social, and polit-
ical transformations in the twenty-first century as legal reforms have moved
towards equalising husbands’ and wives’ abilities to end their marriages.
This book principally focuses on how three legal professionals have
evaluated husbands’ and wives’ claims about their marriages within the
framework of Muslim family law as they oversee divorce cases going
through the family courts. Their work provides a window on the out-
comes of Islamic state feminism in practice in different MENA states
around the turn of the twenty-first century: Syria before the uprising
against the Assad regime, Morocco shortly after legal reform under a sta-
ble monarchy, and Libya following the death of Gaddafi. Day-to-day legal
practice in these three countries demonstrates how Muslim divorce reform
can have unpredictable results as litigants and legal professionals use legis-
lation in innovative ways. My fieldwork, during a decade punctuated by
the ‘Arab Spring’, also highlights how legal practice and legislation alter
over time in response to social transformations, political upheavals, and
religious revivalisms.
All of the legal professionals I observed were working in cities: Ahmad,
a judge, presided over a family court in Damascus, Syria, in 2005; Nadia
was employed by a legal advice centre in Marrakesh, Morocco, in 2007;
and Maha was a family court judge in Tripoli, Libya, in 2013. The differ-
ent state-codified Muslim family laws that apply to their cases are the
6 J. CARLISLE
product of post-colonial state-building in specific historical, but generally

undemocratic, contexts. I spent time watching these three legal profes-
sionals applying the law and talking to them about specific cases. Their
interactions with spouses and their evaluations of husbands’ and wives’
marital behaviours express the power of MENA state gender discourses in
Syrian, Moroccan, and Libyan marriages. They are the human face of the
implementation of codified Muslim divorce law. Towards the end of the
book I review the rejection of nation states’ family legislation and court
systems by armed groups including extremist, ‘proto’-states such as
‘Islamic State’ and the impact that their violent co-option of the shari‘a
has had on divorce law and practice in areas under their control. In conclu-
sion, I note that while state and proto-state law has a predictably significant
impact on Syrian, Moroccan, and Libyan wives and husbands—disappoint-
ing some and liberating others—shari‘a-derived divorce legislation pro-
duces surprising results in interaction with daily, marital life.
1.1 The Shari‘a, Islamic Law, and Divorce

The intellectual field of Islamic law is rich and complex ‘not least due to
questions of authority and legitimacy of substance, content and context, as
well as the sheer diversity of interpretations and understandings of Islam’s
religious texts’ (Sardar Ali 2016). The term shari‘a, found in verse 45:18 in
the Quran, is most accurately translated as ‘pathway’ and is understood in
Islam as describing the guidance given to Muslims from God through
revelation to Prophet Muhammad. The shari‘a’s religio-ethical and legal
norms have a powerful significance in current MENA politics and
society.
The primary textual source of the shari‘a is the Quran, which Islamic
tradition relates is revelation received by the Prophet Muhammad from
God and recorded by his companions after his death in 632 AD–10
AH. The Quran provides some explicit instructions in ethical and legal
subjects (estimated between 75 and 350 verses), but also discusses histori-
cal events, cosmology and natural phenomenon, and eschatology (dealing
with the Day of Judgement and the afterlife). The shari‘a’s secondary
source is the sunna, exemplary stories (aḥādı̄th sg. ḥādı̄th) about the life
of the Prophet Muhammad, which are understood as having been col-
lected following his death and are authenticated by isnad (chains of trans-
mission by named individuals traced back to the Prophet’s lifetime).
These texts (the Quran and the sunna) also form the primary and sec-
ondary sources of the fiqh (commonly referred to in the West as Islamic
law), which is the human interpretation of the shari‘a. While the term
shari‘a connotes the divinely ordained, concrete, and timeless revelation
contained in the Quran and sunna, the fiqh (literally meaning ‘compre-
hension’) describes Muslim scholars’ efforts to extricate and interpret their
legal and ethical content. In common-day speech, shari‘a is often used in
the sense of the fiqh, both by Muslims and by non-Muslims. However, the
shari‘a has been understood by Islamic scholars (‘ulamā) as being infalli-
ble and unchanging, while the fiqh is understood as likely to alter subject
to different times and circumstances (Abdul-Haqq 2006).
The intellectual field of fiqh developed gradually during the extensive,
geographic spread of Islam during the seventh to tenth/first to third cen-
turies. The establishment of Muslim states and empires provided the
impetus for an Islamic political, legal, and ethical system, leading to the
gradual formation of different, geographically based legal schools
(madhāhib). By the fourth/tenth centuries, the intellectual field of fiqh
had been consolidated (an achievement attributed in Sunni Islam to the
great scholar Al-Shafi‘i) and the four current Sunni legal schools had
formed: Hanbalism, Malikism, Hanafism, and Shafi‘ism.6 These Sunni
schools had four basic sources of law (fiqh): (1) interpretations of the
Quran (tafsı̄r), (2) consultation and application of aḥādı̄th from the sunna
of the Prophet, (3) consensus of the legal opinions of the previous learned
scholars (ijmā‘), and (4) analogical deduction (qı̄yās) through which a
scholar searches for an approach or a solution to a new problem in existing
scholarship.
The subsequent regional influence of these schools depended on their
geographic origins and subsequent political events. The territory of
Morocco and Libya have historically remained Maliki, while modern day
Syria was Shafi‘i until the imposition of Hanafism by the Ottoman Empire
based in Constantinople (Istanbul).
Legal scholars (fuqahā) allied to all four schools interpreted and
expounded on the meaning of the Quran and the sunna, developing
6
There were possibly 15 Sunni schools of law in the first four centuries of the development
of Islam, but only 4 have survived into the modern day. The Sunni Zahiri school, which
rejected analogical reasoning, is considered to be extinct, but has an influence on members
of the Ahl-al-Hadith. Shi‘a denominations each also have their own legal schools, in which
the methods that scholars employ to formulate the law differ from those in Sunnism.
8 J. CARLISLE
complex methods by which to extricate their ethical and legal guidance.

This produced a vast body of resources by which to discover the law (fiqh),
including manuals on legal principles (usūl al-fiqh), texts on applicable
legal rules (furū), commentaries, and collections of legal opinions in
response to specific matters (fatāwa). Legal scholarship made a distinction
between two types of law: firstly, acts of worship (‘abādat), including ritual
purity, prayer, fasting, alms-giving, and pilgrimage; and secondly, interper-
sonal relations (mu‘amālāt), encompassing family relations (marriage,
divorce, inheritance, and bequests), contracts (sale, debt, hire, loan, gift,
and partnership), penalties, and judicial procedure (Beder 2004). Human
behaviours were categorised as obligatory, recommended, permissible,
reprehensible, or forbidden (Beder 2004).
Although there were broad areas of consensus, legal doctrines varied
both between and within schools. This was largely the product of differing
attitudes to the criteria for exercising interpretation of the texts, regional
social practices, the admissibility of custom (‘urf), and variations in the
forms of ijtihād (independent judgement) used by individual scholars.
The term mujtahid describes a scholar skilled in the use of ijtihād to extri-
cate ethical and legal norms from the Quran and the sunna. This included
methods allowing the exercise of discretion in selecting the best solution
for the public good (istihsān) or to utilising a presumption of desirability
(istihab) (Jokisch 1997).
In the Islamic legal tradition, only the most skilled and knowledgeable
legal scholars (mujtahidūn) could claim to have the intellectual status nec-
essary to practice ijtihād in all legal matters. These jurists responded to
requests from Muslims (including judges, or the qudāh, working in courts)
for fiqh-derived solutions to legal or ethical problems. However, as each
school accumulated increasing numbers of existing legal opinions and
imposed more restrictions on scholars claiming the authority to practice
ijtihād, there was a greater tendency to follow existing positive law (Hallaq
2001). By the fourth/tenth century, the archetypal, perhaps idealised,
mujtahid was expected to have comprehensive and wide-ranging knowl-
edge, including ‘of, among other things, legal methodology or usūl al-fiqh
(which [was] by necessity of his own creation), Quranic exegesis, hādı̄th
criticism, the theory of abrogation, legal language, positive and substan-
tive law, arithmetic and the science of juristic disagreement’ (Hallaq 2001).
With the maturing of the fiqh a doctrine developed that increasingly
advocated following the opinions of former great jurists (taqlı̄d). Although
scholars seem to have been less and less likely to be considered sufficiently
qualified to produce rulings in all areas of the law, the practice of ijtihād
by jurists (such as Al-Ghazzali and Ibn Taimiyya) continued to produce
jurisprudence up until the tenth/sixteenth centuries, in defiance of sup-
porters of taqlı̄d (Hallaq 1984; Weiss 1998). Moreover, ‘the closing of the
gate of ijtihād’ continued to be disputed and was openly challenged in the
colonial period in the MENA (Hallaq 1984).
The result of legal scholars’ intellectual endeavours came to form the
core of what would now be called the civil (including family), criminal,
constitutional, administrative, and procedural law, although political rul-
ers had the authority to legislate in areas which were not explicitly covered
by the Quran and the sunna. Rulers and later governments had the power
to appoint judges (qudāh, s. qādi) to enforce the law in courts. While mat-
ters falling under acts of worship were considered matters of individual
conscience, disputes involving interpersonal relationships might involve
the courts. This included questions of marriage and divorce: the gendered
rights and responsibilities of spouses, who had the right to end a marriage,
how they could do this, and what the consequences would be for the hus-
band and wife.
The fiqh model for gender relations within marriage broadly outlines
that the husband should pay his wife an agreed sum of dower (mahr) on
the contracting of the marriage and subsequently financially support (or
maintain) her and their children. In return, the wife is expected to be
physically present in the home and to engage in a sexual relationship with
her husband. The wife is not expected to contribute financially to the fam-
ily and should retain control of her own property. There is evidence that,
in fact, lived realities of marriage across the MENA have historically varied
from this fiqh ideal (Antoun 1980; Moors 1995; Pierce 2003) and that
judges have frequently taken this into account when hearing wives’ com-
plaints about their marriages.
Despite much of the sunna cautioning against the ending of marriage,
Islamic law has always allowed, and regulated, a plurality of divorce forms.
The fuqaha defined the conditions for both valid marriage and divorce
through their interpretation of the shari‘a towards preventing ‘adultery
and other confusions of paternity and maternity [which] subvert the roots
of Islamic society’ (Clarke 2009). This fiqh is intertwined with gendered
concepts of the role of women and men within the family and has resulted
in three principal types of divorce: unilateral repudiation (ṭalāq), mutually
negotiated divorce (khul‘ or mukhāla‘a and mubara‘a), and forms of judi-
cially ordered divorce (shiqāq or tafrı̄q). These three routes to divorce give
10 J. CARLISLE
power to enact a divorce to the husband (t ̣alāq), both spouses jointly

(khul‘), or the judge (shiqāq).7 Legal scholars understood marriage and the
household as headed by a husband with financial responsibility for his fam-
ily (Verse 2:28, Surat Al-Baqarah) and sought to protect women from
unwanted divorce. However, they acknowledged that in some circum-
stances wives would find marriage intolerable and awarded judges the
authority to force a divorce through at a wife’s request.
Talāq (repudiation) is founded on the Quran (Verse 2:229-31) sup-
ported by aḥādı̄th. This type of divorce is a husband’s prerogative, can-
not be prevented by the wife and can only be invalidated by a judge in
limited circumstances. Talāq is effected unilaterally by a sane, adult hus-
band stating that he is ending his marriage either verbally or in writing.
The wife does not have to be present when the repudiation is uttered
(Alami and Hinchcliffe 1992). However, it imposes financial obligations
on the husband and leaves him responsible for the guardianship of his
children.
Fiqh scholars made a distinction between one and two single pro-
nouncements of ṭalāq, which the husband can revoke within three months
(known as the ‘idda) in favour of continuing married life, and either a
third single t ̣alāq or three repeated t ̣alāqs, which is irrevocable and final.
All Sunni schools regarded the pronouncement of three t ̣alāqs or t ̣alāq
attached to a condition—such as ‘If it rains tomorrow you are repudi-
ated’—as reprehensible innovations (ṭalāq al-bid’a) against the spirit of
the law, but nevertheless considered them legally valid (Alami and
Hinchcliffe 1992). Hanbali, Maliki, and Shafi‘i jurists prohibited drunk
and angry men from divorcing their wives. Women divorced by husbands
in these states were considered to be still married. These schools also inval-
idated ṭalāq divorce uttered by husbands who were acting under duress or
divorcing by way of a jest, an oath, or a threat. Most jurists in the Hanafi
7
There are three main additional, almost obsolete forms of divorce: ila‘, in which a hus-
band swears not to have intercourse with his wife for at least four months, which, under
Hanafi fiqh, if honoured results in divorce; zihar, in which the husband compares his wife to
any of his close female blood relatives and then refuses to have sexual intercourse with her for
four months, in which case Maliki jurists would consider them divorced; and li‘an, in which
a husband swears that he is not the father of his child and attributes paternity to his wife’s
sexual infidelity and the wife swears that she has not been unfaithful, in which case all four
schools consider that the couple either are directly divorced (Malikis and Shafi’is) or must be
divorced by the judge (Hanafis and Hanbalis). Both ı̄lāʿ and li‘an are understood in Islamic
tradition to have been types of divorce practice before the coming of Islam.
school disapproved of t ̣alāq under all of these above circumstances, but

nevertheless considered these divorces to be legally valid.
This form of divorce is practised in contemporary Syria, Morocco, and
Libya, although, as I will discuss in the following chapters, husbands have
been decreasingly using ṭalāq. The right to pronounce ṭalāq can be allo-
cated to a wife by her husband in their marriage contract but, in modern
practice, this is extremely unusual.
When a ṭalāq divorce becomes final—either because it was a triple
repudiation or because the ‘idda (the time allowed in which to revoke a
first or second t ̣alāq) had passed—the husband is obliged to settle his
financial commitments to his ex-wife. Firstly, an ex-husband is required to
pay any of the dower (mahr) outstanding from the marriage contract; this
is a wife’s legal entitlement on being divorced or finding herself widowed.
Secondly, ex-wives are due maintenance payments for the three-month
period of the ‘idda (nafaqa al-‘idda), during which they are prohibited
from remarrying (even if their divorce is already final). Thirdly, ex-wives
are entitled to an allowance to care for their children while they remain in
her custody (nafaqa al-awlād). In addition, divorced men are obliged to
financially support their children and to have ultimate responsibility for
their upbringing.
Khul‘ or mukhāla‘a divorce is usually initiated by the wife who negoti-
ates its terms with her husband. This is effectively a kind of no-fault divorce
in which the court plays no part. It is also known as mubara’a, when the
dislike is mutual between spouses (although mukhāla‘a is the most used
contemporary term). This form of divorce is founded on the Quran
(Verses 2:229 and 4:128) and a ḥadı̄th which describes the Prophet
Muhammad agreeing to divorce a woman from her husband after she
stated that she feared she would not remain sexually faithful in her mar-
riage.8 As a settlement, the Prophet instructed the divorcing wife to return
all of her dower to her ex-husband. All of the four Sunni schools allowed
mukhāla‘a, although only the Shafi‘i school specified that the wife must
compensate the husband financially in order for the divorce to take effect.
8
The ḥādı̄th) is reported in the collection of Sahih al-Bukhari as: ‘The wife of Thabit bin
Qais came to the Prophet and said, “O Allah’s Messenger! I do not blame Thabit for defects
in his character or his religion, but I, being a Muslim, dislike behaving in un-Islamic manner
(if I remain with him).” On that Allah’s Messenger said (to her), “Will you give back the
garden which your husband has given you (as mahr)?” She said, “Yes.” Then the Prophet
said to Thabit, “O Thabit! Accept your garden, and divorce her once.”’
12 J. CARLISLE
Either spouse can initiate mukhāla‘a by proposing its terms. In Hanafi law
the husband cannot retract his offer of the compensation he is willing to
accept before the wife has responded, since his offer is in the nature of an
oath of repudiation which becomes effective as soon as she agrees (Alami
and Hinchcliffe 1992). However, the wife, according to Hanafi doctrine,
has three days in which to revoke her offer (Alami and Hinchliffe 1992).
The divorce is brought about by the husband after an agreement has
been reached on its terms, usually (in the contemporary Syrian, Moroccan,
and Libyan family courts) that the wife agrees to give up her claim to her
dower and three months maintenance. Children’s entitlement to financial
maintenance from their fathers cannot be waived under mukhāla‘a
agreements.
Only the final kind of divorce, tafrı̄q, requires grounds for the ending
of the marriage. All of the four Sunni schools agreed that a marriage was
immediately annulled if the husband apostatised from Islam, if a wife con-
verted to Islam and her husband was not Muslim, or if the spouses discov-
ered that they were related in a way that meant they were forbidden to
marry. However, the wife might have additional grounds on which to ask
a judge to pronounce a divorce. This is, consequently, the only type of
divorce that a wife can bring about against her husband’s will, although
she is reliant on the backing of the court.
The Hanafi school allows for judicial divorce solely on the grounds of a
husband’s impotence, insanity, or virulent disease making consummation
of the marriage impossible (Alami and Hinchcliffe 1992), or in cases of
young women having been married (by someone other than her father or
grandfather) to someone below their social status or having been coerced
by such a distant male relative into marriage (Tucker 1997). The Hanbali
and Shafi‘i schools consider impotence sufficient grounds and additionally
allow a judge to pronounce a divorce if a husband has abandoned his wife
or has been failing to pay her maintenance (Tucker 1997).
Consequently, unlike ṭalāq and mukhāla‘a, divorce by tafrı̄q must be
justified with proof (usually testimony from witnesses) and can be con-
tested by counterarguments. In addition, and crucially for divorce law in
the twenty-first-century Syria, Morocco, and Libya, the Maliki school
empowers a judge to award a divorce after assessing whether the wife is
being harmed (ḍarar) by her husband or if there is discord (shiqāq) in
their marriage. The wife first has the opportunity to present proof of her
allegations to the judge (who will accept hearsay evidence from witnesses).
If she is unable to do so, the court appoints two arbiters to try to resolve
the dispute and to make recommendations about the viability of the mar-
riage and the financial consequences of divorce (Alami and Hinchcliffe
1992). The arbiters can effect divorce and if they believe a husband to be
responsible for the discord they can instruct him to pay his wife her finan-
cial rights, or they can refuse to divorce the couple and instruct the hus-
band to treat his wife with kindness, or they can divorce a wife who they
regard as having contributed to the discord in return for her financially
compensating her husband (Alami and Hinchcliffe 1992).
In addition to these three routes to divorce, the four Sunni schools of
law provide for women to be financially compensated if they have been
divorced for no fault of their own (based on Quranic verses 2:236, 2:241,
33:28, and 33:49). The Shafi‘i school requires men to pay their ex-wives a
‘gift of consolation’ (mut‘a al-ṭalāq) if they are not to blame for the
divorce. The Maliki, Hanafi, and Hanbali schools broadly recommend that
men compensate their wives depending on the circumstances and type of
divorce. The sunna (which combines reports about both the Prophet and
his companions) contains examples of the Prophet’s companions volun-
tarily giving their wives compensation on divorcing them and this norm
has been used by judges to instruct men to make mut‘a payments.
1.2 Shari‘a Courts, Codification of Muslim

Family Law, and Legal Reforms
These three forms of divorce and their financial consequences provide the
framework for ending Muslim marriages in all Sunni Muslim family law
systems in the MENA. The practice of this divorce law has been the focus
of studies by historians and socio-legal researchers interested in Muslim
courts. Judges in these courts prior to legal codification were able to select
between the differing opinions of the applicable legal schools, to decide
what weight to give to witnesses, to interpret concepts like ‘insanity’ or
‘harm’, and to advise litigants about how to resolve their problems outside
of the courtroom. Codification had made legal practice more uniform and
less plural.
Historians of Islamic law have reconstructed what happened in shari‘a
courts in different periods and in differing regions by consulting legal
texts, court records, and collations of legal opinion (fatāwa). This work
shows that litigants often went to shari‘a courts and that the judiciary
(qudāh) were skilled in utilising the plural character of Islamic legal
doctrine and court procedure. Up until the twentieth century, the shari‘a
14 J. CARLISLE
courts dealt with all types of legal cases. Although they were unlikely to
claim to be practising ijtihād, there is ample evidence that judges exercised
judicial discretion in respect of the fiqh or relied on apparently extra-
judicial norms in reaching their judgements (Moosa 1999; Pierce 2003;
Powers 1994; Rosen 2000). There are also accounts of judges allowing
litigants to take their cases to another judge who followed a different legal
school if they could be more helpful in sorting a problem out (Tucker
1997). Some academic work has argued that judges interpreted the law to
protect socially disadvantaged litigants such as women, children, and reli-
gious minorities by taking their specific circumstances into account, despite
the ‘theoretical discrimination’ embodied in the fiqh, and that all social
groups, including non-Muslims, chose to use shari‘a courts (Al-Qattan
1996; Meriwether 1996; Pierce 2003; Powers 1994; White 2011).
The Ottoman Empire began the process of modernising and rationalis-
ing this legal system in the mid-nineteenth century in the context of politi-
cal and military interactions with increasingly powerful European powers.
The first codified fiqh-derived family law was issued from its political cen-
tre in modern day Istanbul as the Ottoman Law of Family Rights (OLFR)
in 1917, with an accompanying Law of Shar‘i Procedure organising the
work of state organised shari‘a courts (Welchman 2007). The Ottoman
government’s decision to codify Muslim family law across the Ottoman
Empire was provoked by demands from urban, middle-class elites and a
recognition of the problems faced by the enormous numbers of women
widowed by the ‘devastation of the male population’ by repeated wars
towards the end of the Empire (Altınbas 2014).
The OLFR reduced the huge corpus of fiqh into a list of short legal
articles using a method of selecting legal norms from different schools
(takhayyar) and piecing them together (talfı̄q) to produce easily applicable
legislation. This was a radical departure from a long-held practice of allow-
ing judges to consult the manuals and commentaries from the four Sunni
schools. The OLFR addressed matters of marriage, divorce, child custody,
and inheritance. It adopted dominant Hanafi opinions in many matters,
but combined them with some minority Hanafi opinions and opinions
from other legal schools and individual jurists (Welchman 2007). This
included legislating that t ̣alāq uttered by a drunk husband was invalid,
despite Hanafi acceptance of such a divorce as valid. The OLFR also drew
on Maliki fiqh to increase either spouses’ access to judicial divorce on the
grounds of having suffered severe abuse, or ‘discord and strife’ (niza‘ wa
shiqāq), during a marriage (Welchman 2007).
The OLFR’s relevance in Turkey was short-lived. The legislation was

abandoned by the new, secular Turkish government following the over-
throw of the sultan in 1917. However, it remained in force in former
Ottoman territories and set a precedent for codification of Muslim family
law via the legislative technique of selecting legal rules from across the
legal schools and combining them into unified legislation. Subsequent
codifications occurred following MENA states’ independence from
European colonial interventions. In this post-colonial period, Islam was
made central to emerging MENA states’ identities9 and nationalist dis-
courses promoted the family as the cornerstone of the nation and marriage
as the foundation of the family (Lindbekk 2014).
In the same period, MENA states almost completely secularised other
areas of legislation, retaining or introducing European-inspired criminal,
civil, and constitutional law. Increasingly, codified Muslim family law has
been practised in state civil, or specialised family, courts presided over by
judges who are graduates of law rather than theology faculties and who
have had minimal training in fiqh sources and methods (Cardinal 2005).
Religious scholars have become peripheral to the work of the courts and
their legal opinions are no longer central to legal processes, although
their ethical guidance is still frequently sought by the general public
(Clarke 2009).10 Modern day textbooks on fiqh are now written to fit
into Western legal categories, such as making a distinction between pub-
lic and private law, which would have been alien to precolonial legal
practice (Beder 2004). In effect, codified Muslim family law privileges a
selection of shari‘a norms to the exclusion of the general body of opin-
ions contained in the fiqh.
9
Article 6 of Morocco’s 1972 Constitution and Article 2 of Libya’s Interim Constitutional
Declaration of 1969 all make Islam the state religion. The shari‘a is made the source of leg-
islation (although this has not been honoured in practice) in Article 3(2) of Libya’s 1973
Constitution. Article 3 of Syria’s 1973 Constitution (amended in 2012) states that the presi-
dent should be a Muslim and that Islamic jurisprudence is the main source of legislation.
10
Most MENA states have a government-affiliated Grand Mufti with an office equipped to
issue fatāwa. These figures are frequently consulted for opinions regarding political policy by
governments; however, their authority is challenged by religious scholars who either are not
state employees, are located in bodies sponsored by other states, or are affiliated to interna-
tional bodies answering ethical queries, such as Shaykh Yusuf al-Qaradawi, the Islamic Fiqh
Academy of the Organization of the Islamic Conference in Jeddah, Saudi Arabia; the Islamic
Research Council based at Al-Azhar in Cairo, Egypt; and the Islamic Fiqh Council of the
Muslim World League in Mecca, Saudi Arabia.
16 J. CARLISLE
Although academics specialising in the study of Islamic law accept that

much family law codification was motivated by response to changing eco-
nomic, demographic, and social circumstances, many have argued that
current Muslim family law in practice has little of the flexibility found in
the historical fiqh. Historians have noted that the generation of applicable
legal norms was less centralised and more nuanced before state codifica-
tion of Muslim family law (Hallaq 1984; Powers 1994). These critical
voices contend that MENA states have adopted an occidental conception
of law in removing aspects of the shari‘a that do not fit into Western, posi-
tivistic conceptions and stripping out its ethical and ritual dimension
(Johansen 1998; Vogel 2000). Some add that codification has resulted in
a mechanistic form of law that is prejudiced against the needs of disadvan-
taged groups such as women (Al-Azhary Sonbol 1996; Layish 1978; Mir-
Hosseini 2000).
However, MENA states have asserted (often in preambles to legisla-
tion) that their intention has been to protect women and the family. When
codifying Muslim family law, governments reacted to social crises that
were perceived as threatening to destabilise the family, in particular men’s
tendency to divorce and abandon the mothers of their children (Bernard-
Maurignon 2014; Khouloussy 2010). These laws usually increased wives
ability to get out of marriages that were not sustainable (Bernard-
Maurignon 2014), and promoted a modern ideal of the middle-class,
nuclear family headed by an economically active husband (Asad 2001).
Syria and Morocco codified full Muslim family laws when they achieved
full post-colonial independence in the 1950s together with Tunisia, Iraq,
and the Gaza Strip. The OLFR’s lead on preventing a man from divorcing
his wife while drunk was followed in Syria (Art. 89:1, Law 59 1953) and
Morocco (Arts. 49 & 89, Family Code 1958). Libya (under the dictator-
ship of Muammar Gaddafi) did not codify its family law until nearly two
decades later in 1972.11
Since these initial codifications, MENA state governments have faced
new challenges of the socio-economic impacts of urbanisation, increased
access to education, globalisation, and altering patterns of employment. In
addition, the organisation of families and the role(s) of women in society
have changed dramatically. Women are now much more likely to be
11
Turkey ‘secularised’ its family legislation under Ataturk in the 1940s. Several Muslim
majority MENA states have only codified their family law relatively recently, including Qatar
and UAE in the 2000s. Saudi Arabia’s shari‘a courts still apply the fiqh.
literate, to complete university degrees, to be in employment (albeit at a

lower rate than the Organisation for Economic Co-operation and
Development [OECD] average), and to have fewer children. There has
been a decrease in the percentage of households living as extended families
towards smaller, nuclear families (Devlin 2010) with research showing
how husbands and wives adjust their expectations of married life to their
circumstances. Spouses often seem willing to tolerate relationships that
might be seen as defective according to legal or orthodox social standards
(Inhorn 1996). In particular, couples living in poverty or near poverty
frequently make compromises for the sake of their relationships and will
tolerate marriages that divert from the legal ideal of female obedience in
return for male breadwinning. Research has found that many wives choose
to overlook their husband’s failures to provide financially for the sake of
remaining in a loving, supportive relationship or in order to enjoy more
personal freedom (Hasso 2010; Inhorn 1996). Other wives risk the social
stigma and financial difficulties of being divorced when they calculate that
they might nevertheless be better off without husbands who are unem-
ployed or have costly addictions.
MENA governments have responded to evolving social and domestic
trends by reviewing and reforming family legislation. The ideal of a com-
panionate marriage has been increasingly protected by further political
decisions to regulate men’s capacity to divorce, polygamy, and serial mar-
riage (Hasso 2010; Lindbekk 2014). Following initial focus in post-
colonial codifications on restricting the abuse of ṭalāq, subsequent waves
of reform in the 1980s and 2000s have also increased women’s ability to
initiate divorce.12 Although the political and social forces provoking each
12
Law No. 1 (2000) and Law No. 10 (2004) in Egypt; Revolutionary Command Council
Resolution No. 127 (1999), Law No. 19 (1999) and Law No. 22 (1999) in Iraq; Temporary
Law No. 82 (2001) and Directive of the Qadi al-Qudah in accordance with Article 2 of
Temporary Law No. 82 (2001) in Jordan; Law No. 51 (1984) as amended by Law No. 29
(2004) in Kuwait; Law No. 70-03 on the Family Code, Ordinance No. 1.04.22 (2004) and
Joint Decision of the Minister of Justice and the Minister of Health No. 347-04 (2004) in
Morocco; Sultanic Ordinance No. 32 (1997) on the promulgation of the Law of Personal
Status in Oman; Amari Decree No. 22 regarding the Law of the Family (2006) in Qatar;
Qadi al-Qudah’s Administrative Directive No. 15/1366 (1999), Qadi al-Qudah’s
Administrative Directive No. 15/481 (2000), Qadi al-Qudah’s Administrative Directive
No. 15/711 (2000), Qadi al-Qudah’s Administrative Directive No. 15/1358 (2000), Law
of Maintenance Fund No. 6 (2005) and Draft Law of Personal Status (2005) in Palestine;
Law No. 18 (2003) in Syria; Federal Law No. 28 (2005) on Personal Status in United Arab
Emirates; and Law No. 24 (1999) in Yemen (Welchman 2007).
18 J. CARLISLE
of these reforms should be understood in their specific contexts, all states

‘explain the provenance of particular provisions in their codifications
through tracing them to the opinions of various past jurists and schools,
combined with arguments made on the basis of changing socio-economic
circumstances and the public interest’ (Welchman 2007). There is general
academic agreement that as Muslim family legislation has evolved into
virtually the only field of law that has not been replaced by European-
origin legislation, it has ‘become the symbol of [...] Islamic identity, the
hard irreducible core of what it means to be Muslim today’ (An-Na’im
2002). Muslim family law is widely supported in political and in public
discourse. Consequently, there is no question of abolishing fiqh-derived
family law in favour of ‘secular’ legislation. Reinterpretation of the shari‘a
is ‘the form of state intervention most readily available for the political
authorities in most Arab states to address the issue of women’s rights
within the family’ (Welchman 2007).
This makes it the site of much contention. During public debates
informing changes in divorce law, pro- and anti-reformers have pressed
different interpretations of the shari‘a regarding men’s and women’s
intrinsic characteristics, rights, and responsibilities, and have put forward
opposing perspectives on social developments. During periods of legal
transition liberal reformers and women’s activists (many of them Islamic
feminists) have stressed the rise of the companionate marriage and linked
‘their messages to Islamic notions that are [...] familiar to larger sections
of the population’ as they argue for more gender equality (Moors 2003;
Sherafeldin 2014).
Conservatives objecting to reform counter that Muslim family law
should not be manipulated to suit social trends and claim that the shari‘a
should not be interpreted by unqualified government appointees driven by
political motivations and lacking religious expertise. Critics of state reform
have emphasised that the shari‘a differentiates between the rights and
responsibilities of women and men because they have intrinsically different
natures. Conservatives have characterised women as naturally emotional
and men as inherently rational, insisting that the shari‘a offers protection
to wives and guards the stability of the family. They claim that many of the
problems that legal reforms seek to address would be resolved if society
returned to the pathway of the shari‘a (Buskens 2003; Sonneveld 2012).
When governments have rejected this position and pressed through
reforms that increase equal treatment of men and women in the family,
this has often been the outcome of political upheavals outside of debates
about family law (Al-Sharmani 2013; Buskens 2003). In effect, much

Muslim family law reform has been railroaded through by authoritarian
governments during periods of political crisis.
1.3 Public Discourse and Litigants in Modern Day

Courts
The most recent reforms that apply in the state family courts discussed in
the following three chapters were passed in Syria in 2005 (amending Law
53/1956 as previously amended by Law 34/1975), Morocco in 2004
(replacing the Mudawwanat al-‘Usra 1957–58 as amended in 1993), and
Libya in 2015 (amending Law 10/1984). My fieldwork with legal profes-
sionals working in these three codified family law systems was an opportu-
nity to explore if legal codification and reform had had the politically
desired effect. Court cases about marital breakdowns are both a window
into what wives and husbands will not tolerate from their spouses and the
extent to which MENA state legislation and the courts will support their
gendered arguments.
Although the state provides an authorised interpretation of shari‘a
divorce law through codification, its outline of gendered rights to end mar-
riages is fleshed out during legal cases. Judges bring their individual moral
and religious standards into court, which ‘inform the interpretation and
application of statutory instruments by the judiciary’ (Welchman 2007).
Husbands and wives’ social realities, and popular ideas about women’s
and men’s intrinsic natures, equally enter the legal process in the MENA
courts. Litigants present family court judges with a range of ideas about
how different kin should behave towards each other (husbands, wives,
fathers, mothers, in-laws, sons, daughters, etc.) based in their own experi-
ences ‘of a myriad of connective relationships’ (Joseph 1999). These expe-
riences are shaped (among other factors) by individual wives’ and husbands’
personal morality, class, gender, religious faith, social support network,
emotional history, socio-economic circumstances, and sense of agency.
Litigants also bring expectations of the legal process informed by their
political affiliations; religious studies and attendance at mosques; con-
sumption of popular religious tracts and advice manuals, television discus-
sion shows, newspaper columns, banned pamphlets, Internet sites,
archived sermons by religious scholars and leaders (Eickelman and
Anderson 1997), and popular culture (such as soap operas with legal sto-
rylines); and daily social interactions.
20 J. CARLISLE
This does not prepare litigants well for the experience of using the legal
system. The following three chapters illustrate that there is not always a fit
between what spouses demand of the divorce process and what they get
from a legal ruling. The family court is an unfamiliar environment to most
litigants. In entering it they find that their cases are subject to institutional
structural constraints such as the content of statutory and procedural law,
employment of unfamiliar technical language, whether there is time to
hear a case, what legal professionals perceive as real grounds for a claim,
and the financial cost of pursing a case. In addition, most litigants do not
know the applicable law, which may not reflect their expectations (Mir-
Hosseini 2000). Despite this, when they have the opportunity, litigants
bring their life experiences, their emotions, their relationship histories,
their personal moral compasses, their understanding of the shari‘a, and
their financial and social circumstances into the court room. I frequently
witnessed legal professionals, including judges, being swayed by the per-
sonal qualities of litigants and witnesses after they had presented claims in
their own words.
Muslim family court judges may, in particular, be sympathetic to liti-
gants who they regard as victimised or blameless for their predicament
(Mir-Hosseini 2000; Shehada 2005). Despite the constraints of codified
legislation, there is often scope for judicial discretion in applying Muslim
family law. Judges in MENA jurisdictions have been observed exercising
their discretion in order to secure litigants favourable rulings despite a legal
rule (Shehada 2005) or referring to religious principles or social norms
when applying an article of legislation (Mir-Hosseini 2000). It may be
‘tempting for the judge to refer to an external principle, whether it be
moral or religious’ when trying to reach a judgement since references to
the shari‘a have considerable normative force (Dupret 2001). There is
evidence that lawyers participate in this since they are better placed than
litigants to suggest resolutions to family court judges and to negotiate the
courtroom’s institutional structures. Litigants can appear in the family
court without legal representation, but those who hire the services of
lawyers are likely to benefit from access to legal know how (Mir-Hosseini
2000). However, lawyers’ fees are prohibitive for many litigants, who may
also find it difficult to bear some of the other costs associated with court
cases if they are in situations of poverty (as I discuss in Chap. 3 on the
Moroccan courts).
Socio-legal studies of Muslim family courts (Al-Sharmani 2012; Mir-
Hosseini 2000; Sonneveld 2012; Voorhoeve 2012, 2014) have described
how despite the obstacles litigants try to exercise their agency within the
context of the legal rules, court procedure, economic circumstances, and
social processes found within and surrounding the court. These studies
have also considered the extent to which litigants either accept or chal-
lenge the legal categories supported by the judiciary in the Muslim family
court. Institutional structures including financial costs, the legal rules,
habitual court procedure, and judicial discretion therefore establish the
legal environment in which divorce cases are processed. Litigants bring
their own expectations, life experiences, and common-sense understand-
ings into this legal environment. During disputes over divorce—particu-
larly during hearings related to judicial divorce (tafrı̄q) cases—they present
arguments and claims that provide many of the justifications and reason-
ing on which the judiciary base their rulings. Judges are, consequently,
dependent on wives and husbands to make the case for what constitutes a
good marriage, what (gendered) behaviours are unacceptable from a
spouse, and who is to blame for the marital breakdown.
1.4 Syrian, Moroccan, and Libyan Divorce Law

and Doing Research in the Family Courts
Syria, Morocco, and Libya have responded to the realities of marital break-
down by legislating differing divorce legislations allowing combinations of
repudiation (ṭalāq), mutually negotiated divorce (under mukhāla‘a or
khul‘) and forms of judicially ordered divorce (tafrı̄q and a form of khul‘),
and providing for compensation for ex-wives (mut‘a) and ex-husbands
(t‘awı̄d).
My case studies of these states’ Muslim family law systems are based on
differing degrees of access to the legal process. Each chapter gradually
builds on my increasing understanding of how MENA Muslim family
courts work, ending with an analysis of family law processes in conflict-
afflicted regions of Syria and Libya. My data consists of legislation,
collected legal case files, some basic statistics, media reports, and my

lengthy ethnographic observation of interactions between judges, lawyers
and legal advisers, female and male litigants, and kin during divorce cases
in legal advice centres and family courts. I spent as much time as I could
with legal professionals in order to observe them deal with divorces and to
talk to them about their cases. Getting close to the legal process was easier
in some legal jurisdictions than others. I have also had less time to do
fieldwork as my research career has progressed. My PhD was entirely
22 J. CARLISLE
devoted to studying a specific Syrian courtroom throughout 2005. I spent

seven months travelling around Morocco doing observation-based
research in 2007. However, by the time of my third project in Libya in
2013, I only had a few weeks to visit a court and talk to lawyers. As a
result, this book is based on unequal periods of research drawn together
by my growing experience of the similarities and differences between codi-
fied Muslim family law systems in the MENA.
Chapter 2 discusses the 14 months fieldwork I completed in shari‘a
(family) Court One for my PhD in Damascus, Syria, in 2005–06 with
Judge Ahmad Rahim. The Institut Français du Proche-Orient in Damascus
obtained permission for me to attend the court and this judge allowed me
to attend all of the hearings related to his court’s work, including closed
arbitration sessions associated with judicial divorce cases, and to read case
files. I worked independently in Arabic, attending the court every working
day (Sunday to Thursday from 10 am to 2 pm) and arbitration sessions
related to divorce cases every Thursday evening and all day on Saturdays
for ten months. Although I was not permitted to record these sessions or
meetings, I was allowed to take comprehensive notes. I was also often
present during discussions between legal professionals when they assessed
the progress of individual cases. My methods during this project were to
immerse myself as much as possible in legal professionals’ discourse, think-
ing, and practices, particularly the judge and court arbitrators overseeing
divorces. I was able to collect some basic statistics from the Syrian Ministry
of Justice (MoJ).
Chapter 3 discusses findings from my first postdoctoral research proj-
ect, including fieldwork in Morocco, over seven months during 2007–08,
with a six-week follow-up trip in 2010. Unfortunately, I was not granted
permission from the Moroccan MoJ to attend court sessions and to speak
to judges. I subsequently conducted research in French and Arabic con-
centrating on interviewing lawyers and organisations engaged in activism
regarding women and social issues, discussions with Moroccan social
scientists and in particular non-governmental legal advice centres, or cen-
tres d’écoute. Morocco has an extensive network of centres d’écoute, which
provide a range of legal, educational, psychological, and social support to
both female and male clients, often on a walk-in basis. The size of the
centres range from some that are linked to large, national non-governmental
organisations (NGOs) to small, locally based organisations.
I interviewed staff about family court practices and their involvement in
divorce cases in seven centres d’écoute based in Marrakesh, Rabat,
Another random document with
no related content on Scribd:
services by the foreign Powers for whom he acted. Mr. Bulwer wrote
to congratulate him on his success:—‘Your conduct and explanations
are equally good, and I am gratified with you beyond measure. There
is nothing to change in your views or intuitions.’
Again in a later letter, Mr. Bulwer repeats the expression of his
satisfaction:—‘I have a great regard for you, and a high opinion of
you, and, whenever it is in my power, will do you a service. Be sure
of success; I am for you. All of us have had to contend with
difficulties.’
Mr. Hay further received the thanks of the different Governments
concerned, and the Kings of Denmark and Sweden sent him
jewelled stars, as Commander of the Orders of the Danebrog, and of
the Polar Star respectively. These, according to Foreign Office
regulations, he declined, as also the Spanish Order of Charles XII.
Subsequently he received, from the two former sovereigns,
magnificent gifts of plate, which H.B.M.’s Government authorised
him to accept.
Some notes relating to this time, made by Mr. Hay in after years,
may prove of interest.
In the time of Sultan Mulai Abderahman it was not infrequent to

hear that some Basha, or Sheikh, who may have been supposed to
have taken part in an insurrection or given other serious cause for
displeasure to the Sultan, was summoned to the Court, and placed
in confinement.
The ‘Mul Meshwa’ or chief Usher of the Court acted on such
occasions as executioner, and bearing a cup of coffee, would visit
the victim and say, ‘Our Lord and Master sends you this,’ adding
peremptorily, should the unfortunate man hesitate, ‘Drink: it is our
Lord’s order. You are in the hands of God. What is written is written.’
During the time that Abd-el-Kader carried on hostilities against the
French in Algeria, Sultan Mulai Abderahman had given strict orders
to his Ministers and Governors not to hold any communication with
this active and daring chief, as H.M. feared the French might find
some pretext for a quarrel with Morocco.
Sid Mohammed Ben Dris, a very clever man, was at that time
chief Uzir, and was suspected of being in communication with Abd-
el-Kader, and even of having suggested to him that (as he thought it
most probable Abd-el-Kader would succeed in turning the French out
of Algeria) he should enter Morocco, upset the Sultan, and usurp the
throne.
There is little doubt that, had Abd-el-Kader listened to these
suggestions, he might have succeeded in such an enterprise.
A courier, who had been dispatched secretly by the Uzir to Abd-el-
Kader, was arrested by the Governor of ‘Hiazna’: his letters seized
and sent direct to the Sultan. Amongst them, the Sultan found a
letter from Ben Dris to Abd-el-Kader with treasonable propositions.
Ben Dris was summoned to the presence of the Sultan, who
exhibited to him his letters asking, ‘Whose handwriting is this?’ Ben
Dris threw himself at the feet of the Sultan, crying out, ‘Amán
(mercy)! It is mine.’ ‘You are a vile traitor,’ said H.M. ‘Approach; put
out that tongue with which you solemnly swore, only the other day,
you had never written, and would never write, to Abd-el-Kader.’
The Uzir put out his tongue, of which the Sultan took hold and,
with one wrench, tore[5] it from its socket, leaving the tongue
paralysed and useless. ‘Go,’ said the Sultan; ‘your tongue can no
longer lie.’
The Uzir withdrew, his tongue swelled in a frightful manner, and
he died shortly afterwards in great agonies; but few persons at the
time knew the cause of his disgrace and death.
French journals, and Frenchmen in general, accused the British
Government and their Representative in Morocco of being in
communication with Abd-el-Kader, and even of sending emissaries
and money to assist that chief in carrying on hostilities against the
French. But the accusations were without the slightest foundation,
and though on one occasion Abd-el-Kader addressed me a letter
asking for British intervention on his behalf, no reply was sent nor
was any notice taken of his communication, and certainly not one
farthing was ever given by our Government to this gallant and
patriotic chief. On the other hand, advice was unceasingly tendered
to the Moorish Government by my father, and subsequently by
myself, that they should hold no communication with Abd-el-Kader or
his followers, and should oppose his making the Rif country a basis
for hostile operations against the French, when driven out of Algeria.
Mr. Hay’s appointment at Tangier was as yet only a temporary

one. His chief at Constantinople, who evidently awaited his return,
writes in December, 1844:—
I am glad to hear that you have won such golden opinions in Spain and in
Downing Street, and for your sake I shall be glad to learn that promotion was the
result. But as the last letters from the Foreign Office speak of you as first attaché
to this Embassy on Alison’s apotheosis, I presume that you are to return, at least
for the present, and that being the case, I shall be glad to have your services as
soon as you can conveniently return to us. Napier is going home to be married. . . .
Add to this that I have lots of business in hand, and very important business too.
As Pisani is in the Chancery as of yore, I will avail myself of your help with less
sacrifice of your eyes, and hazard to your health.
I hope you will be able to read these hieroglyphics. Believe me very sincerely
yours,
S. C.
The reference to ‘less sacrifice to your eyes,’ it may be inferred,

was a jesting allusion to an occurrence which had taken place at
Stambul, when Mr. Hay was Acting Private Secretary. The story is
told by Mr. Stanley Lane-Poole, in his Life of Sir S. Canning, how the
fiery Ambassador and his not less hot-headed young attaché, both
worn out with over-work, lost their tempers and their self-control[6].
In 1845, Mr. Hay succeeded his father as Political Agent and
Consul-General in Morocco. As will be gathered from the following
letter addressed to him by Lord Ponsonby, congratulating him on his
appointment, Mr. Hay considered that in diverging from the direct line
of a diplomatic career by becoming Agent and Consul-General, he
endangered his hopes of future advancement. But he decided on
incurring this risk, in order to assist his widowed mother, who had
been left with slender means, by undertaking the education of his
younger brothers. For many years he devoted half his salary to this
object, and, at a later period, to starting them in life or assisting any
member of his family who was in need of aid.
‘I have been wishing,’ wrote Lord Ponsonby in April, 1845, ‘ever since I heard
of your appointment, to write to you and say how very much I rejoiced at it, but I
fancied it might be more prudent to hold my tongue; your letter of the 11th
(received this night) has set me free, and I will declare my conviction that however
advantageous your nomination to the important post may be to yourself, the
English Government will find it more so for their own objects. Your intimate
knowledge of the country where you are to serve, and I will add, your talents, your
zeal, your courage and honesty and manner, such as I know them to be, will
enable you to overcome difficulties which might be held insuperable; and I suspect
that the time will come when you will have to encounter them. Aberdeen is a kind
man, and I have no doubt of his considering your father’s services as they deserve
to be considered, but I am very sure he would not have shown his estimation of
them in the way he has done, unless he had cause to know and to appreciate the
capacity of the father’s son. Have no fear that “the door of ambition is closed
against you.” I think it is opened wide to you now; there will be plenty of room for
the display of your judgment and activity in the management of questions of great
importance, and as I feel confident you will succeed, I entertain no doubt of your
mounting to what are called higher posts, though I do doubt if you will find any of
them demanding more skill and vigour in the occupier than you will be called upon
to display where you now are.
‘Your most kind remembrance of the time we passed together gives me very
great pleasure; you are a man to make the most profit of experience, and in that
time I allude to, many affairs well worth noting were in fermentation. I am too wise
(excuse this vanity) to attribute to myself anything more than honesty and good
fortune as the cause of the success that attended the Embassy, and it is claiming a
great deal too much I fear. I will accept, gratefully, the kind things you say of me
personally, and I am happy to know that my manner to you (for there were no
deeds) showed the feeling of friendship for you which sprung up in me from my
observation of your good qualities.
‘Lady Ponsonby is well, and at this moment I hope amusing herself at a ball at
Lady Palmerston’s. I will give your message to her when she comes home, and I
am sure she will be most happy to receive it. She has shared in my rejoicings for
your advancement.’
CHAPTER VII.
POLITICAL AGENT AT TANGIER AND FIRST MISSION TO
MARÁKESH. 1845-46.
On November 6, 1845, Mr. Hay writes as follows to the Hon. A.

Gordon:—
I have been daily expecting a summons ‘to the Court exalted of the Lord’ (par
excellence), but His Sherifian Majesty has made a move from the city of Meknes,
fearing, I suppose, to be stalemated by the knight Bugeaud and his ten thousand
pawns.
By latest accounts from the interior the Sultan has arrived at the united town of
Rabat and Salli, the latter famous, as you may remember, in days of yore for its
dreaded rovers.
To-morrow I expect a courier from the Sultan which will decide, I hope, the time
and place for my visit to His Majesty, and, when en route, I hope to be able to
better amuse you by some accounts of this ‘barbarous’ people.
You ask whether I think the Moors will submit to be ‘peaceably invaded’ by the
French in their ‘chasse’ of Abd-el-Kader? My answer is in the negative, and I fear
that such invasion will produce a most complicated state of affairs throughout this
Empire, which might hereafter create a question of grave importance.
The French start from a wrong principle in their mania for destroying Abd-el-
Kader; for if this French hydra were killed to-morrow, few months would elapse
before another arose. It is to the hostile and fanatical feeling of the inhabitants that
they must attribute all their troubles, and until they find a better cure for this feeling
than a system of violence and retaliation, battle and murder will never cease in that
territory as long as an armed Arab exists.
When Algiers was first taken, my late father, who was an old soldier, and knew
the character of the Arab, remarked to the French Chargé d’Affaires, who was
boasting of the importance of their newly-acquired colony, that ‘it would prove a
very dear conquest,’ and that he felt positive that ‘before twenty years elapsed, a
hundred thousand men would be required to hold the country, and that each year
would bring fresh demands for troops, not to protect their colonists, but to destroy
the Arabs.’
Another evil for the French Government is that the military chiefs, sent to fight
in Africa, know that if there be no Abd-el-Kader there will be no Duc d’Isly, no
‘gloire,’ no crosses. Were either Louis Philippe, or Guizot, Governor of Algiers, I
could foresee something like future tranquillity; but at present I look forward to a
series of events, upon which I could write chapters, that will render necessary
either the conquest of Morocco by the French, or the limitation, for another score
of years, of their possessions to within a day’s journey of the coast.
I must not be more explicit on this subject, or you would think me perhaps to be
trespassing on the limits of what a servant of the public is not justified in writing
thus privately. . . .
Here at once, in a three hours’ sail from Gibraltar, you are transported, as if by
enchantment, a thousand or two thousand years back, and you find yourself
among the same people and the same style of living as you read of in the
Scriptures. The Bible and the ‘Arabian Nights’ are your best handbooks, and would
best prepare you for the scene. Lane’s most excellent work, on the ‘Customs and
Manners of the Egyptians,’ is the most exact work I ever read of Mohammedan
customs, and is very applicable to this country.
Mr. Hay started on his mission to Sultan Mulai Abderahman on

March 3, 1846. The following extracts are taken from letters
addressed to his mother during the journey, and forwarded by her to
the Hon. A. Gordon at Mr. Hay’s request.
I am off for the exalted Court of His Sherifian Majesty Sultan Mulai
Abderahman, and alas! it is Tuesday, an unlucky day for ‘the faithful’:
for ‘Telatsa felatsa,’ say the Moors—on the third day (Tuesday) all
fails; but good omens have attended the start, and, as I am taught by
my favourite trooper, Kaid Abd-el-Kerim, now snoring at my tent
door, good omens such as I have experienced this morning will
counterbalance the unlucky day: ‘God forbid,’ said he, ‘that its name
should be repeated.’
Yes, as I put my foot in the stirrup, a holy dervish, one who would
be profanely called in Europe a madman, rushed up and threw his
patchwork and party-coloured mantle over me, and, lifting up his
hand towards heaven, cried out, ‘God’s blessing and the Sultan’s
favour be with you!’ I threw his Holiness a small coin, for no doubt I
had deprived him of much virtue,—at least I should suppose so by
the otherwise unaccountable creeping and itching I experienced; but
perhaps my fancy may have misled me.
Kaid ‘Bu Jebel’ (‘the Father of the Mountain,’ grandfather, I
suppose, of the Mouse!), with his doughty followers, compose my
escort—some thirty in all. I found them drawn up in zig-zag line in
the little Sok (market-place), headed, though not commanded, by
young Sid Abd-el-Malek, the son of my old friend Kaid Ben Abu,
governor of Rif, who, at my particular request, is to accompany us.
In the outer market-place all the corps of foreign Representatives,
a host of chevaliers, but very mal à cheval, joined our party, and a
scene commenced, which continued till they left us, of snorting,
rearing, kicking, and exclamations. Apologies, mille pardonizing, ‘et
mille et mille’ were offered, when the heels of one of their chargers
passed within an inch of my knee-pan.
Powder-play was commenced by the Kaid, and some of my
colleagues became suddenly pedestrians. I think I can match any
one of them on horseback, although the pen may yield. God be
praised! we parted without injury.
An honest countryman from the village of Suanni, on passing by,
offered me his bowl of milk to drink. It was not to be refused, and as I
lifted the weighty earthen vessel to my mouth, my horse made a
slight plunge, and a copious libation gushed over my gilded
armour[7] and accoutrements.
‘Oh! what good fortune,’ shouted my escort. ‘Peace and plenty!’
Omen the second.
Our baggage had started some time before us, and had halted at
‘Ain Dalia,’ or ‘the fountain of the vine;’ the encampment, consisting
of some thirteen tents, enlivened the scene and the wild country
around.
A camp is a pretty sight, and these people, lately enfranchised, as
it were, from their nomad life, well understand the arrangements and
economy expedient on such occasions. Our nags were soon
picketed round the tents, and the camp attendants, drawn up in line,
called down, as I approached, God’s blessing on their work, with a
prayer for a safe journey and return.
A quarrel or two, with much screaming and uttering of the most
guttural sounds, followed this momentary calm. The Moors are
children, and children will quarrel. Kaddor swore at the Hadj’s great-
great-grandmother, and the Hadj burnt all Kaddor’s ancestors. Their
friends intervened, and there was much mediation, but peace could
not be effected. My turn then came, and I said, ‘God’s curse on the
devil, who causes men’s hearts to be blackened by passion. Love
each other, as God loveth you.’ So the Hadj gave Kaddor a hearty
buss, and Kaddor, with pouting lips, kissed the Hadj’s grizzly beard,
and each cursed the devil.
At coffee time I invited the Kaids and the Taleb to sip with me, and
wondrous tales ensued on their part, and in return I talked of
Stambul, its magnificence and fame.
Kaid Abd-el-Kerim informed me he commanded as ‘Kaid Erha,’ or
colonel, a body of cavalry at the battle of Isly in 1844, when
Maréchal Bugeaud invaded Morocco with a force of twelve thousand
men and attacked the Sultan’s army.
Kaid Abd-el-Kerim described the strong position that Sid
Mohammed, the eldest son of Sultan Mulai Abderahman, had taken
up with his forces on the brow of a hill, and how earthworks had
been thrown up, on which field-pieces were placed, under the
command of a Spanish renegade, who had been a sergeant of
artillery in Spain. ‘But,’ said the Kaid, ‘I do not consider the conflict
with the French can be called a battle.’
‘How is that?’ I inquired, ‘for the Moorish forces were routed, the
Sultan’s camp and the field-pieces taken possession of.’
‘Yes,’ said the Kaid. ‘Still I maintain it could not be called a battle,
for we never had an opportunity of a fair fight, so as to be able to
judge whether the Mussulmen or the French were the braver
warriors.’
I then asked the Kaid to describe what took place, as also his
reasons for not considering it a fair fight.
The Kaid replied: ‘When the French force first came in sight, at a
distance of about an hour’s walk (3½ miles), we observed that
neither cavalry, infantry, nor artillery were spread out—as ought to be
done—in line, before a battle. They had formed together a compact
mass like a “berod” (swarm of bees), and thus advanced towards us
without a halt, banners flying, and music playing. It was a “fraja” (a
very fine sight).
‘Sid Mohammed ordered our cavalry to advance on the plain
below the encampment, and the infantry, chiefly composed of tribes
of mountaineers, to take up their position on our flanks on the
adjoining slopes.
‘On came the French, on, on, without halting, or firing a gun,
notwithstanding that our artillery played upon them, and the tribes
kept up a running fire from the heights on each flank. On came the
French, without a pause that would give us an opportunity of a fair
fight to test the prowess of the contending forces.’
‘Explain,’ I interposed, ‘what you consider would have been a
battle.’
‘Why,’ resumed the Kaid, ‘the French force ought to have halted
when they got within half a mile; then we should have ordered a
body of cavalry to advance and charge; the French might have done
likewise; the troopers would have met, and a hand-to-hand conflict
would have ensued. Those who got worsted would have retreated;
other bodies on either side would have charged, and then likewise
the infantry would have advanced and joined in the affray. Finally,
when either force retreated, the artillery would have covered their
retreat, the battle would have been brought to a conclusion and we
should have known who were the best and bravest warriors: but no
—on came the French without a halt, and when our cavalry charged,
the French infantry fired and mowed them down, even killing with
their bayonets some of our troopers who had charged right up to the
mass of French soldiers.
‘On they came; our cavalry, after repeated charges, having no
opportunity of fair fight, retreated, and so did the tribes. The
renegade fired his field-pieces as the French advanced upon our
camp, and he, as also many of the artillerymen, were killed standing
at their guns.
‘What was to be done? It was quite a surprise. Sid Mohammed
fled with all the cavalry, abandoning tents, ammunition, and many
thousand animals.
‘It was not a fair battle, and therefore I do not consider it a defeat.’
The Taleb then gave us the following dialogue between the ‘fellah’
(farmer) Ben Taieb Zarhoni and the wise F’ki Sid Mohammed Ben
Nasr.
Ben Nasr. ‘God has permitted the cursed Nazarenes to take
possession of Algiers, as a punishment for the sins of the
Mussulmans of that territory who had neglected to follow the
precepts of our Prophet—may God’s blessing be upon him! Ere long
we Moors shall likewise be punished for our sins and wickedness by
the anger of God, who will permit the Christians to take possession
of the country of our forefathers.’
Zarhoni. ‘I do not comprehend why an all-just God should punish,
without discrimination, in this manner; for, in so doing, he punishes
the innocent as well as the guilty. Why should the man who has
obeyed God’s precepts from his youth upwards, become subject to
the law of the accursed Christian because some of his brethren are
sinful? How comes it that the Deity, in His wisdom, has not found
more just ways of inflicting punishment on the guilty?’
Ben Nasr. ‘After the Deluge and the destruction of mankind,
Noah’s mind was troubled with the same fallacies, and he prayed to
God to enlighten him and teach him why the innocent were drowned
as well as the sinful. He was thereupon thrown into a trance, and
God sent a great number of fleas which crawled up his leg; upon one
biting him, Noah awoke and rubbed his hand over the bitten part,
killing not only the offending flea, but many others.
‘An Angel then appeared and said, “O man! Why killest thou fleas
which have not injured thee?”
‘Noah answered and said, “O Lord! These fleas are insignificant
and noxious creatures.”
‘To which the Angel replied, “As thou hast destroyed these insects
and not distinguished between the guilty and the harmless, on
account of the offence of one flea, thus also had the Almighty
ordained the Deluge for the destruction of mankind—who were, in
His sight, but noxious creatures upon earth.”
‘Noah bowed his head to the ground, and was dumb.’
Zarhoni. ‘If I had been Noah, I should have replied to the Angel
—“An almighty, an all-seeing God could distinguish the guilty from
the innocent: but a poor ignorant man, awaking from a dream on
being bitten by a flea, could not be expected to select which was the
offending, and which the harmless flea.”’
Ben Nasr. ‘It appears Noah was not so ready with a reply as you
are.’
Next we had the history of the son of Tama, who would not say
‘Enshallah’ (God willing).
‘“Say Enshallah! when you propose to make a journey or to
undertake anything: then fortune will attend you,” said the learned
F’ki Bitiwi to his young friend Selam Amu.
‘Know you not what the other day befell Abd-el-Kerim the son of
Tama the widow of the Sheikh of Amar? Hear then.
‘Abd-el-Kerim, last market day, told his mother he was going to
the Sok of Had-el-Gharbía to buy a cow.
‘The widow Tama, a devout good woman, reprimanded her son
for not adding “Enshallah.” To this Abd-el-Kerim replied, in a taunting
and blasphemous manner, that he needed not God’s assistance,
either to go to market, or to buy a cow; for, said the rash young man,
“Have I not here in the hood of my jelab more than sufficient money
for the purpose? Have I not legs to carry me to the Sok? Are there
not always cows to be sold?”
‘His mother again rebuked him, saying, “Without God’s will and
His assistance, no man can succeed in life.”
‘Abd-el-Kerim laughed at her and, shaking the money in his hood,
set off to the market which was only about an hour’s journey from
their village.
‘On reaching the river Gharifa he found it unusually swollen and
was obliged to wade more than waist deep.
‘When he reached the middle of the stream, the current was
running very strong and there came on a heavy shower of rain. Abd-
el-Kerim forgot the money in the hood of his jelab and pulled it over
his head to prevent his getting wet, and the coins fell into the river
and were lost in the mud.
‘In vain did Abd-el-Kerim dive and endeavour to recover his
money. The river was rising, the current became more rapid every
moment and he was obliged to retrace his steps and return in a very
wretched state to his village. Wet to the skin, without his money or
his cow, bitterly repenting that he had not followed his mother’s
advice, he vowed he would endeavour to be a better Moslem in the
future.
‘On entering the village, he met his cousin Husain, who, having
seen him set out in the morning for the market, inquired what
brought him back so early.
‘Oh, said Abd-el-Kerim, it has pleased God that I should not listen
to the advice of my mother, who desired me to say “Enshallah.” I
intended to have bought a cow, but God ordained I should reach the
river just as it pleased God it should begin to rain. And then it was
His will that I should forget the money in the hood of my jelab: so I
pulled the hood over my head and by God’s will it was ordained that
my money should thus be lost in the river. Now, if it please God, I
vow with God’s assistance, never to say or do anything without
asking the aid and blessing of the Almighty—Enshallah!’
Another story was that of ‘the lion and the lark.’
A lion was prowling, on a hot summer’s day, in the plains of Sahel,

and was about to tread on the nest of a lark, which was brooding
over its unfledged larklings, when the bird thus addressed the royal
beast: ‘O greatest and most powerful Sultan of the forest, have pity
on a poor bird and her helpless young!’
The lion, looking with the greatest contempt on the little lark,
replied, ‘Is it for thy wretched offspring, or for thee—despicable bird
—that I should swerve one step from my course?’ And at the same
moment he placed his paw upon the nest, and crushed the young
larks.
The mother flew up towards the heavens, wailing piteously, and
trilled out, ‘O cruel tyrant! God created me and my little ones whom
thou hast now destroyed: from His throne do I seek justice and
retribution. With Him all creatures are equal: thy strength, O lion, in
His sight, is not more regarded than my helplessness.
‘O God! I place my confidence in Thee! Thou art our Defender.
Thou art the Judge of all creatures.’
‘A curse,’ said the lion, ‘upon thy babbling tongue!’
The lark, soaring higher and higher, continued her song of
lamentation and woe; when suddenly she heard a voice from
heaven, and Gabriel, the messenger of God, thus addressed her,
‘Thy prayer, O lark, is heard, and justice shall be done unto thee.
Seek the aid of the winged tribes, God ordains that they shall
succour thee.’
The lark had hardly recovered from her astonishment at the
heavenly voice, when a falcon and a host of flies and gnats
surrounded her. The falcon addressing her said, ‘Thou seekest
justice and revenge. They shall be thine, for I am sent by Allah. The
powerful one shall be humbled and shall be made to learn God’s
strength and might; even through his humblest creatures.
‘Hark ye, O gnats! Seek the lion in his den in the thicket; torment
him with myriads of stings until he flies into the open. I shall then
pounce on his back and tear his flesh with my talons. Then—O flies!
do ye enter into the wounds in his body and fill them with maggots
and corruption. Thus shall the strong be humbled. Thus shall those
who despise God’s creatures, and who rule with wanton tyranny over
the weak, be made to know that there is no power nor strength but in
God Almighty, the Most High.’
The directions of the falcon were carried out, and the lion,
tormented by myriads of gnats, fled from his lair unto the plain. There
the falcon pounced on his back and tore his flesh. Innumerable
swarms of flies filled his body with maggots and corruption.
In a few days the tyrant of the forest, the terror of man and beast,
died in a loathsome and miserable manner.
Thus was the lark avenged.
March 4. Our tents were struck at daybreak. More prisoners at the
muleteer’s tent, and again I had to play mediator. The accusation
was that sufficient barley had not been provided for the soldiers’
horses. On examining the case, I found that more than enough had
been brought; but that a Kaid, who had followed us from the town by
way of compliment, was now returning and wanted to carry with him
a rich harvest from these poor people. This I put a stop to and
released the prisoners.
Crossing the line of hills called Akba el Hamra, we passed Dar
Aklau, or house of Aklau—a famous robber—and reached a wide
plain traversed by the rivers of Kholj and Hashef, in which is found
much ‘shebbel[8],’ a fish like a salmon, though the flesh is white and
a most dainty dish when roasted or fried. The fisheries are a
monopoly of the Government. Here we were met by the Kaid Sheikh
of Gharbía and about seventy cavalry who, after welcoming us in the
name of the Sultan, wheeled round and headed our party.
Our place of encampment is again a well-chosen site. A ‘mona’ of
sheep, fowls, shebbel, eggs, butter, bread, milk and oranges was
now brought, and a horrid cutting of throats ensued. I wish we did
not know that mutton belonged to a sheep or the wing of a fowl to a
chicken. A camp scene sadly reminds me that man is a bloodthirsty
creature.
March 5. Rain! Rain in torrents!
About midday we had half an hour’s fine weather, and I sallied out
in search of antiquities, and found numbers of large square hewn
stones covering the green turf. Here and there were remains of a
well-built wall—but of no height or form to enable me, in my
ignorance, to say what these ruins had been. Every appearance
around indicated the remains of a town of importance, probably
Roman. The Moors tell me that in digging they find many ruins
underground. In one place, however, called Uhara, there were the
ruined remains of what would appear to have been a castle or
barrack. This the Arabs declared to have been the palace of the
Sultan of Portugal’s daughter. It is possible that this building is
Portuguese, for they—the Portuguese—possessed all this line of
country, and would naturally select the same advantageous position
for a castle as their predecessors the Romans. The material of this
building was thin flat stones, not hewn, but apparently collected from
the surface of the soil and built with a hard cement—not mortar—as
far as I could judge. The remnant of an arched well was near the
building. We also came across what appeared to have been an
amphitheatre, formed in part by the natural rising of the ground and
in part by the hand of man. Not far from this site, some years ago, I
stumbled by chance on a much more perfect amphitheatre[9], in
which were still the steps or seats for the spectators and the dens for
the wild beasts and gladiators.
On returning to camp I found that the Sheikh of Ibdaua had
arrived with his cavalry to present his salams; but had come empty-
handed—‘not even a bowl of milk’—as I was informed by Kaid
Serbul, who has been sent by the Basha to provide ‘mona.’ So this
Kaid-caterer has not allowed the Bedouin to approach my ‘Exalted
Presence.’ I must, however, make friends with this gentleman, and
show him by and by, if he prove a tame Moslem, that the Englishman
is not so hard upon him as his own countrymen. A good name is
what I wish to leave amongst these poor people. Some day it may
prove of importance.
March 7. Starting our baggage at an early hour, so as to give time
for the animals and baggage to be taken in boats across the river,
and the tents to be pitched, we followed in the afternoon.
El Araish was soon in sight, and its fine river El Kus (the Lixus of
the ancients). The Sultan’s fleet, consisting of four dismantled and
rotten brigs, lay in this river. The captains of these vessels hoisted
their flags as I passed. A twelve-oared boat, with the captain of the
port and crew in full dress, awaited me; and two or three boats for
the horses. One of these boats, by way of compliment, was destined
to convey my horse all alone! At the port-gate was the Governor of
the town, with a guard of honour drawn up to receive me, and in the
Custom House the administrator and other authorities welcomed us
with the usual salams and compliments.
The cat is out of the bag! Every night since we have started I have
heard loud disputing and high words, in which fowls, eggs, mutton,
&c., prevailed. It appears that from the plentiful mona I receive, a
large surplus of live-stock remains, though my servants and
followers eat to their hearts’ content and are looking twice as sleek
as when they left Tangier. These sheep and fowls had been
appropriated by them without my knowledge, and sold as they
thought best, and one of the ‘Faithful’ complained to me because my
Arab secretary, Sid Ben Yahia, insisted upon having his share of the
spoil. I have put a stop to this shameless proceeding and have let
them know that, as the food is given to me by the Sultan’s orders to
be eaten, it shall be eaten and not an atom sold. So what my friends
can’t eat, David Sicsu and the Arab secretary shall; and what they
cannot, my servants shall; and what they cannot eat, the muleteers
shall devour; and what the muleteers can’t eat, the poor shall; and
what the poor can’t eat, they shall keep till they can. I have made
one or two Moors discontented by this arrangement, but have
pleased the majority: this is my aim, and to be just to all.
March 8. Rain again in the morning, but we made a start, and it
turned out a most delightful day. Our path was over undulating hills
of a red sandy soil, covered with rich grass, and the ‘klakh[10],’ an
annual fennel-like plant, growing nine and ten feet high; the ‘silphion’
of the Greeks, producing gum ammoniac, the ‘fasogh’ of the Arabs.
Here and there we passed patches of fine wheat and barley, the
latter already in the ear. It is distressing to see this wide extent of
country almost uninhabited, and its rich soil only cultivated where the
wandering Arab happens to pitch his tent; yet capable, I should
judge, of competing with any corn producing country in Europe.
There was little or no variety of scenery on the road, and we did not
meet half a dozen persons, or see en passant more than two Arab
‘duars,’ till we reached the spot of our encampment, near a limpid
stream, called ‘Gla.’
March 9. On approaching an Arab duar, we witnessed a curious
spectacle. The Arabs were flitting, and conveying their mosque on
two mules’ backs. This place of prayer is a conical hut, about nine
feet high and five in diameter. The priest alone enters at the time of
prayer, the congregation going through their devotions in the open
air.
Our encampment we found near a lake or marsh called ‘el Kra.’
St. Leger and myself waded in up to our middles after coot and duck,
but only got a ducking and one coot.
Later, we Nazarenes sallied out to visit the Arab tents,
accompanied by Moors with sticks to keep off the dogs, which seem
to have a great dislike to the Christian, and bark their curses in as
guttural sounds as their masters. The women and children peeped at
us when distant, but scuttled into their tents as we approached,
though two old Arab hags, dressed in the dirtiest of woollen rags,
held together with large silver brooches (of the same form as the
Scotch brooch made for the plaid, and used much after the same
fashion for confining their dress at the shoulder), held their ground
and scrutinised us with witch-like eyes. One fine girl, however, took

Textbook Muslim Divorce in The Middle East Jessica Carlisle Ebook All Chapter PDF

Uploaded by

Copyright:

Available Formats

You might also like

Textbook Muslim Divorce in The Middle East Jessica Carlisle Ebook All Chapter PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Textbook Muslim Divorce in The Middle East Jessica Carlisle Ebook All Chapter PDF

Uploaded by

Copyright:

Available Formats

Muslim Divorce in the Middle East

Chemical Regulation in the Middle East 1st Edition

The Neighbors CMES Modern Middle East Literatures in

The New Regional Order in the Middle East: Changes and

The Middle Man Professionals 6 1st Edition Jessica

Islamic Populism in Indonesia and the Middle East 1st

Communist Parties in the Middle East 100 Years of

From War to Peace in the Balkans the Middle East and

Kemalist Turkey and the Middle East International

More information about this series at

Muslim Divorce in the

Gender and Politics

Library of Congress Control Number: 2018938930

© The Editor(s) (if applicable) and The Author(s) 2019

Cover illustration: Melisa Hasan

Printed on acid-free paper

1 Muslim Divorce in the MENA: Shari‘a, Codification, State

2 The Damascus Shari‘a Court: The Judge, Arbitration,

3 A Legal Aid Centre in Marrakesh: Civil Society Activists

4 Tripoli’s Family Court: The Judge in Post-­Revolution

5 Challenges to State Feminism in Conflict-­Afflicted Syria

Muslim Divorce in the MENA: Shari‘a,

Abstract The codification of shari‘a-derived Muslim family law was an

Keywords Islamic state feminism • Muslim family law • fiqh codification

On 12 March 2000, two large demonstrations took a fierce public debate

© The Author(s) 2019 1

controversial and catalysed an unprecedented stand-off between advocates

Fifty miles away, in Casablanca, Islamist political parties opposed to the

Muslim divorce law was predicated on this highly gendered conception of

product of post-colonial state-building in specific historical, but generally

1.1 The Shari‘a, Islamic Law, and Divorce

complex methods by which to extricate their ethical and legal guidance.

power to enact a divorce to the husband (t ̣alāq), both spouses jointly

school disapproved of t ̣alāq under all of these above circumstances, but

1.2 Shari‘a Courts, Codification of Muslim

The OLFR’s relevance in Turkey was short-lived. The legislation was

Although academics specialising in the study of Islamic law accept that

literate, to complete university degrees, to be in employment (albeit at a

of these reforms should be understood in their specific contexts, all states

about family law (Al-Sharmani 2013; Buskens 2003). In effect, much

1.3 Public Discourse and Litigants in Modern Day

1.4 Syrian, Moroccan, and Libyan Divorce Law

devoted to studying a specific Syrian courtroom throughout 2005. I spent

In the time of Sultan Mulai Abderahman it was not infrequent to

Mr. Hay’s appointment at Tangier was as yet only a temporary

The reference to ‘less sacrifice to your eyes,’ it may be inferred,

POLITICAL AGENT AT TANGIER AND FIRST MISSION TO

On November 6, 1845, Mr. Hay writes as follows to the Hon. A.

Mr. Hay started on his mission to Sultan Mulai Abderahman on

A lion was prowling, on a hot summer’s day, in the plains of Sahel,

You might also like

1 Muslim Divorce in the MENA: Shari‘a, Codification, State

2 The Damascus Shari‘a Court: The Judge, Arbitration,

3 A Legal Aid Centre in Marrakesh: Civil Society Activists

4 Tripoli’s Family Court: The Judge in Post-Revolution

5 Challenges to State Feminism in Conflict-Afflicted Syria