A global and historical exploration: Legislative reform in Muslim family laws in Muslim‐majority versus Muslim‐minority countries

• Published date: 01 April 2023
• Author: Yüksel Sezgin
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/lapo.12210

ORIGINAL ARTICLE

A global and historical exploration: Legislative reform

in Muslim family laws in Muslim-majority versus

Muslim-minority countries

Yüksel Sezgin

Political Science, Syracuse University,

Syracuse, New York, USA

Correspondence

Yüksel Sezgin, Political Science, Syracuse

University, 100 Eggers Hall, Syracuse,

NY 13244, USA.

Email: ysezgin@maxwell.syr.edu

Abstract

Thirty-five Muslim-majority and 18 Muslim-minority

countries formally integrate Muslim Family Laws

(MFLs) into their legal systems and enforce them

through state courts. Both Muslim-majority and

Muslim-minority governments have undertaken legisla-

tive reforms to alleviate the effects of religious laws on

fundamental human rights, increase accountability and

accessibility, and strengthen the rule of law within their

MFL systems. Extant literature is silent on whether

MFLs are more reformed or more human rights and

the rule of law compliant in Muslim-majority or

Muslim-minority countries. Utilizing a novel methodo-

logical tool, the MFL Index, this exploratory article

surveys cross-national and historical trends in MFL

reform (1946–2016). It shows that Muslim-majority

and -minority governments have opted for different

forms of legislative reform. Muslim-majority countries

favored substantive reform, while Muslim-minority

states prioritized exit reforms. The type and extent of

reform were strongly associated with colonial heritage,

secularism, women’s activism, ethnoreligious diversity,

and prevailing multicultural arrangements. These find-

ings have implications for studying multicultural the-

ory, human/women’s rights, and democratization in the

Muslim world and beyond.

1|INTRODUCTION

“The Muslim community in India has many problems. But I believe that Indian women under

the Muslim personal law are better off than women under Islamic family laws in Iran or Saudi

DOI: 10.1111/lapo.12210

©2023 University of Denver and Wiley Periodicals LLC.

110 Law & Policy. 2023;45:110–136.wileyonlinelibrary.com/journal/lapo

Arabia,”a female lawyer in Mumbai told me in a personal conversation in 2015.

1

Two years

earlier, an Israeli family court judge who was a Jew but occasionally presided over family cases

among Israeli Muslims alleged that he had applied Islamic law more “liberally”than qadis and

continually adjusted it to “modern times.”

2

Likewise, during a recent visit to Western Thrace,

Greece, I heard many informants refer to the law applied by muftis in the region as “light

shari‘a,”implying that their version of shari‘a was less restrictive of human/women’s rights than

family laws in Middle Eastern countries. These anecdotes suggested that, according to some,

Muslim Family Laws (MFLs) in Israel, India, and Greece—three Muslim-minority nations—

were less discriminatory or more “reformed”than shari‘a-inspired family laws in Muslim-

majority nations. Since then, I have wondered whether there is any truth to these claims. Do

Muslim-minority nations apply a more “reformed”version of MFL than Muslim-majority

countries? If so, what explains this difference? These questions lie at the heart of the present

article.

Operational MFLs are derived from the Qur’an, hadith,fiqh and secular legislation

(Ali, 2000). They regulate familial relations (e.g., marriage, divorce, etc.) among Muslims.

In addition to 35 Muslim-majority

3

nations, 18 Muslim-minority

4

countries formally inte-

grate MFLs into their domestic legal systems and enforce them through state courts. There

is rich literature dealing with various aspects of MFLs. However, several shortcomings

make it ill-suited to answer the questions above, which require a cross-national and cross-

historical examination. First, as Engelcke (2019, p. 12) notes, most studies on MFLs are

driven empirically rather than theoretically. They are often single-case or small-N compara-

tive studies that focus on Muslim-majority cases. The literature examining MFLs in

Muslim-minority countries is tiny,

5

while works comparing MFLs across Muslim-majority

and -minority countries are nearly nonexistent.

6

Second, the literature suffers from significant methodological limitations that hinder

our ability to observe spatio-temporal changes in MFLs and study the sources of variation.

Some suggest that various aspects of state-enforced MFLs (e.g., polygyny, unilateral

divorce, and underage marriage) impose limitations on human rights, especially those of

women and children, and undermine the rule of law (Temperman, 2010).

7

However, MFLs’

effects on human rights

8

and the rule of law

9

vary considerably between countries, as does

the extent of reform each government has undertaken in its respective system. We cannot

capture this variation as we cannot quantify the degree of reform or human rights compli-

ance of national MFL systems to compare them over time and space. In adjacent areas of

research, measurements allowing cross-national comparisons have been implemented, sub-

stantially contributing to our knowledge of Islamic constitutionalism, democratization

(Gouda & Hanafy, 2022), and the rule of law (Gutmann & Voigt, 2015). However, we still

lack such tools in the study of MFLs.

Third, the existing literature’s treatment of the concept of reform is limited. It conceptual-

izes reform as continuous linear progress, but this is too narrow to capture all instances of inter-

ventions into MFLs across Muslim-majority and -minority nations. Reform means legislative

or judicial interventions into relevant MFLs that aim to enhance individual and familial rights

and increase accountability, fairness, and accessibility of MFL courts. But it is essential to

remember that government interventions in MFLs may result in both “regression”and “pro-

gression”of fundamental rights and the rule of law. With that recognition, the present article

allows us to investigate the effects of all types of legislative interventions (“regressive”or “pro-

gressive”) in MFL systems over time and space.

Against this background, the article will introduce a novel methodological tool, the Muslim

Family Law Index (MFL-I). The index and its sub-indices will be utilized to explore cross-

national and cross-historical variations in MFLs and analyze differences in type and means of

legislative reforms between Muslim-majority and Muslim-minority countries. The article will

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