Modernizing Muslim family law: the case of Egypt.

• Author: Abu-Odeh, Lama

ABSTRACT

The Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law--from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes--is given. Islamic law has survived in the modern era primarily through family law, having lost jurisdiction over most other areas of law.

The Author next describes the nature of modern reforms of family law in Egypt. She argues that these reforms have been structurally limited because the Egyptian elites controlling the state pursued the policy of splitting the difference between the demands of women activists in Egypt pushing for liberal feminist reforms and those of a conservative religious intelligentsia that was antagonistic to these reforms. This policy of splitting the difference was notable in the nature of legislative reforms, family law adjudication by lower family courts, as well as in the constitutional adjudication of family law issues by the Supreme Constitutional Court of Egypt.

The Author ultimately argues that the only way to push for reforms in family law without the constraining influences of the religious intelligentsia is to secularize the legal system in its totality.

TABLE OF CONTENTS I. INTRODUCTION II. FAMILY LAW UNDER THE PRE-MODERN ISLAMIC LEGAL SYSTEM OF TAQLID A. Usul Al-Fiqh B. Institutional Structure and Legal Consciousness of the Taqlid System C. A Legal Narrative of Marriage and Divorce in the Taqlid Treatises D. The Family in the Doctrine of the Taqlid Schools of Law: A Structuralist Reading III. TRANSFORMATION OF THE LEGAL SYSTEM FROM TAQLID LAW TO ONE INFLUENCED BY EUROPEAN CODES A. Centralization of the Egyptian State During the Reign of Mohammad Ali B. The Defeat of Ali and The Europeanization of Egypt C. British Colonization and Reactions to the Continued Europeanization of the Egyptian Legal System 1. British Colonization and Subsequent Legal Developments 2. Reactions to Colonization, Modernists, and Nationalism D. A Compromise on the Question of Women and the Family III. LEGISLATING THE FAMILY A. Comparative Data B. A Comparative Reading of the Legislative Regulation of the Family 1. The Tunisian Model 2. Hanafi Doctrine C. The Specific Case of Family Law Reform in Egypt IV. ADJUDICATING THE FAMILY IN EGYPT A. Adjudicating Obedience 1. Obedience is Still Owed the Husband Even if He Beat His Wife 2. Court May Discipline A Husband Who Beats His Wife by Depriving Him of the Wife's Obedience 3. A Husband Who Beats His Wife Loses His Right to Her Obedience 4. Applying the Same Standard of Harm for Both Divorce and Obedience B. Adjudicating Divorce Based on Harm C. Constitutionalizing the Family V. CONCLUSION I. INTRODUCTION

Egyptian feminists who advocate reform of Egyptian family law are often charged with supporting changes that are un-Islamic. (1) The charge is of such normative appeal that it is often hard to dismiss. To understand its normative power, one has to place the charge of "unIslamicity" directed at reforming feminists by their adversaries in a larger context, that of the modern history of the Egyptian legal system.

During the second half of the nineteenth century, Egypt made a historic decision to dispose of the rules of Islamic law in most areas and fields of the law. (2) However, the Islamic rules on the family were preserved. (3) Egyptian elites understood this to be part of a badly needed move toward modernization, a process that unfolded over time but seems to have been completed by the mid-twentieth century. (4) For most areas of the law, Egyptian elites chose to borrow (in the manner of legal transplants) European laws that displaced the rules of the inherited legal system. (5) Europeanization inevitably led to secularization. (6) For those who were (and indeed, for those who still are) opposed to Europeanization and secularization, the Islamicity of the rules on the family came to symbolize the last bastion of a dismantled Islamic legal system, the reform of which threatened to flood Egypt with the European and the secular. (7) Thus, attachment to medieval patriarchy came to mean attachment to the Islamic.

This Article argues that while secularizing the legal system in Egypt through European transplants allowed for the possibility of either dismissing or radically reorganizing various elements of the doctrine on the family inherited from medieval Islamic jurisprudence to make it more progressive, it was also the same secularization/Europeanization process that placed limits on and defined the ceiling of such progressive reforms. This is so because historically, in order for all other laws to be secularized, family law had to represent the limit of, the exception to, or the sacrificial lamb of secularization. (8) In order for family law to be legislatively reformed, progressively interpreted by secular judges, or actively protected by elite constitutional judges, the outer limits have to be convincingly defined for a difficult-to-please religious audience. (9) It is through making patriarchal pronouncements on the outer limits that the "reformer" gains legitimacy for his or her reforms in the eyes of watchful religious contenders. This Article argues further that it is this unceasing and obsessive look to the outer limits that preempts a full-fledged secular critique of patriarchal relations of the family in Egypt.

Part I of this Article begins by providing an account of the Taqlid legal system, the pre-modern Islamic legal system that prevailed in the Muslim world (including Egypt) up to the early part of the nineteeth century, before modern legal transformations started to take place. It was during this pre-modern era that the vast majority of Islamic rules on the family were developed and articulated. (10)

Those very same rules, intricately modified, constitute the contemporary doctrine on the family in Egypt as well as the rest of the Arab world. (11) Part I also includes a structural reading of the Taqlid doctrine on the family and argues that while Taqlid law does not have an internally coherent view of the family--with each school of Taqlid law having its own doctrinal arrangement on the relationship between husband and wife--the differences between these schools amount to no more than possible positions within an overall gender regime that could be described as hierarchical to the benefit of the husband. This hierarchical regime has nevertheless a strong underlying element of transactional reciprocity of obligations between the spouses, in which husbands provide money in the form of maintenance, and wives provide conjugal society in return.

Part II begins by offering an account of the introduction of European legal transplants in Egypt, transforming the very nature of the legal system as a whole. It shows the ways in which, as a result of both the centralization and the Europeanization of the legal system, Taqlid law was crowded out of its historic jurisdiction until it was left with only the family to regulate. (12)

Part III proceeds to describe the modern doctrine on the family in Egypt, including the ways in which it was reformed and amended once European legal transplantation occurred. In order to understand the scope and nature of the various statutes adopted in Egypt with the goal of reforming rules and laws concerning the family, a comparative approach is used. (13) Part III places Egyptian reforms in a comparative relationship with those undertaken in Jordan and Tunisia. A comparative summary also includes the rules on the family under the Hanafi doctrine, an Islamic school of law that developed in the Taqlid era and that historically had the largest influence on Egyptian law. (14) Part III includes the Hanafi rules to show the extent to which the Egyptian reforms departed from their historic Taqlid origins.

A spectrum of reform possibilities emerges from this comparative picture. While Tunisian legislative reform appears to represent the most liberal approach, the Hanafi doctrine sits on the other end of the spectrum as the most conservative. Jordan and Egypt are located in the middle and are examples of countries that enacted what can be characterized as centrist reforms. Indeed, Tunisia seems to have gone as far as to legislate liberalism in its family code in a manner that has no parallel in the Arab world. (15) Tunisian lawmakers introduced terms such as "equality" in their legislation and made a concerted effort to abolish the structure of gendered reciprocity and complementarity inherited from Taqlid law. (16) By comparison, the Egyptian legislature preserved gender reciprocity, while at the same time chiped away at the husband's surplus of powers in the family. (17) The aim of the Egyptian legislation seems to be to replace the marital status regime provided for under Hanafi doctrine, the prevailing Taqlid doctrine in Egypt, with that of contract. (18)

Part IV argues that the family courts in Egypt have continued the legislative approach of chipping away at the husband's power in the family, without, however, destroying the regime of reciprocity. Part IV looks at lower family court and appellate court adjudication interpreting some of the new legislative rules. (19) Egyptian courts limited the husband's power in the marital relationship by restricting the interpretation of the wife's duty of obedience in the family, as well as expanding rather drastically the grounds available for her to request a divorce. The aggregate effect of these judicial moves, it is argued, has been to further undermine the status...