Islamic Law and the

Challenges of Modernity
 Islamic Law and the
Challenges of Modernity

Edited by Yvonne Yazbeck Haddad and

Barbara Freyer Stowasser

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Islamic law and the challenges of modernity I edited by Yvonne Yazbeck Haddad and
Barbara Freyer Stowasser.
p.cm.
Includes bibliographical references and index.
ISBN 0-7591-0670-3 (hardcover: alk. paper) - ISBN 0-7591-0671-1 (pbk.: alk.
paper)
1. Islamic law-Arab countries. 2. Law reform-Arab countries. I. Haddad, Yvonne
Yazbeck, 1935- II. Stowasser, Barbara Freyer, 1935- III. Title.
KBP144.I83 2004
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 To
Andy Stowasser and Michael Stowasser
Susan Haddad MacPhail and Ramsey Haddad
 CONTENTS

Acknowledgments ........................................ ix
Introduction: Islamic Law and the Challenge of Modernity ........ .

PART ONE
MODERNIZATION AND LEGAL REFORM IN
THE ARAB WORLD
CHAPTER ONE Can the Shari'a Be Restored? ............ 21
Wael B. Hallaq
CHAPTER TWO Inscribing the Islamic Shari'a in
Arab Constitutional Law ................ 55
Nathan J. Brown and Adel Omar Sherif
CHAPTER THREE A Typology of State Muftis ............... 81
Jakab Skovgaard-Petersen
CHAPTER FOUR A Contextual Approach to Improving
Asylum Law and Practices in the
Middle East ................ . . . . . . . . . .. 99
Nadia Yakoob and Aimen Mir

PART TWO
LEGAL REFORMS AND THE IMPACT ON WOMEN
CHAPTER FIVE Internationalizing the Conversation on
Women's Rights: Arab Countries Face
the CEDAW Committee ............... 133
Ann Elizabeth Mayer

Vll
CONTENTS

CHAPTER SIX Tahlil Marriage in Shari'a, Legal Codes,

and the Contemporary Fatwa Literature . . . 161
Barbara Freyer Stowasser and Zeinab Abul-Magd
CHAPTER SEVEN Egyptian Feminism: Trapped in
the Identity Debate ................... 183
Lama Abu-Odeh
CHAPTER EIGHT Muslim Women and Legal Reform:
The Case of Jordan and Women's Work . .. 213
Amira EI-Azhary Sonbol

Bibliography ........................................... , 233

Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 245
Index................................................. 251
About the Contributors .................................. 261

V1l1
 ACKNOWLEDGMENTS

TI
s book brings together studies on Islamic law as it has been recon-
ceived and applied in the modern world. The essays were delivered at
the 2001 symposium, Arab Legal Systems in Transition, sponsored
by the Center for Contemporary Arab Studies of Georgetown University
Edmund A. Walsh School of Foreign Service. The editors wish to acknowl-
edge with gratitude all those who assisted in the coordination of the effort,
faculty and staff at the center, the symposium steering committee, panel
chairpersons, and external readers of the papers. Special thanks are extended
to symposium manager Anne-Marie Chaaraoui; publication managers
Stephen Brannon, Jimmy Bishara, and Laila Shereen; publications assistant
Nawaal Durrani; graduate research assistants Dorothea Ewing, Paul Prud-
homme, and Julie Eadeh; information officer/administrative assistant Ryan
Leeson; and the center's proofreader extraordinaire, Nancy Farley.

ix
 INTRODUCTION
ISLAMIC LAW AND THE
CHALLENGE OF MODERNITY

n examining the transformation of traditional Islamic legal culture in

I a world of nation-states and tracing the as-yet uneasy relationship of

the culture with Western notions of human rights and civil liberties,
this volume is a contribution to the long-standing debates among schol-
ars both East and West on the nature and functions of shari 'a, Islamic law,
in the modern age. Both the Western notion of "Islamic law" and the use
of the concept of "shari'a" by the traditionalist and Islamist cadres among
the Muslim authorities have become problematic.
As globalization forces continue to push societies toward streamlining or
standardizing legal norms and international etiquette based largely on West-
ern notions, local populations are asserting their rights to determine their
own laws and to maintain their own traditions. Examples can be found across
the globe at both the local and the regional level. Some of these conflicts have
become bloody, while others are resolved in quiet processes of sociopolitical
change through legal and institutional means. The ideological debates that
would determine the path of the country are often waged between two or
more well-defined populations of citizens that the national government must
attempt to balance while simultaneously facing the demands of international
organizations that insist on democratic processes to determine that the will
of the people is being met (but on occasion, the government refuses to rec-
ognize democracy when the popular results differ from its own ideas of the
directions in which the country should be heading).
The following chapters examine the role oflaws and legal institutions
in the contemporary Arab world. Where appropriate, the authors situate

1
INTRODUCTION

their analyses of Arab legal systems within the broader context of the po-
litical, ideological, economic, and social changes that have marked Arab
history from the onset of Western encroachment on Arab affairs in the
nineteenth century to the creation of independent nation-states in the
twentieth, the beginnings of globalization, and the age of the Internet.
Throughout this long and eventful period of time, the processes of legal
modernization in the Arab world have been caught up in a spiraling dy-
namic oflargely contradictory political and ideological impulses that have
ranged from partial or wholesale adoption of Western codes of law to
mass-based efforts in support of renewed Islamification of laws and legal
institutions and that have variously legitimized their activities in the name
of "modernity" and "progress," "morality" and "authenticity," or a mixture
thereo£
Arab traditional law and legal institutions, including the educational
requirements and professional competencies of the clerics and jurists who
interpreted and administered the law, were at first indirecdy affected by
changes enacted in the Ottoman legal system in the nineteenth century.
With the growing presence of European colonial powers in Arab lands-
earlier in the Maghrib (North Africa), later in the Mashriq (Southwest
Asia)-the nineteenth and early twentieth centuries brought increasing
pressure from the West to replace or, at least, to modify Islamic laws and
legal systems according to Western models. Only small pockets of Arab
territory, mainly in the Arabian peninsula, escaped direct colonization and
thus retained their traditional legal systems. After independence from
Western domination-earlier in the Mashriq, later in the Maghrib-in
the twentieth century, the newly emerging Arab nation-states promul-
gated national codes of law that, to various degrees, perpetuated Western
influence in both form and substance while deferring to Islamic law
whenever possible. It was primarily in the areas of family law and gender
relations that the struggles on how or even whether to maintain the valid-
ity of Islamic law have been paramount. Arab Muslim reformist scholar-
ship, both clerical and lay, focused at an early date on matters of the
Muslim family and women's Islamic rights and obligations, as represented,
for example, by some of the work of the Egyptian lawyer-theologian
Muhammad Abduh (d. 1905) and his Syrian disciple Rashid Rida
(d. 1935), whose background was in journalism. Reformers were inspired
by the need to modernize Islam-mainly in "their region" -in order to re-

2
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

store it to its original strength while crafting the framework for the Is-
lamic renewal in terms that differed from the West. A similar sense of
mission continues to inform multiple Islamic discourses in the Arab world
that range from the reformist/modernist to the traditionalist and the Is-
lamist. Gender questions remain the batdeground on which most of the
cultural and legal wars about modernization, authenticity, and divine pre-
scriptions are waged. It is for this reason that the second half of this vol-
ume is dedicated to these issues.
In principle though not in fact, the notion of the sovereignty of Is-
lamic law over all spheres of life has continued to prevail in areas such as
commercial and penal law that were reframed on the basis of Western
models well before the promulgation of the national personal status
codes. According to Frank Vogel, most Muslim scholars have long ac-
cepted the westernizing changes on the grounds of "necessity" but also
have refused to endow them with legitimacy so that "Islamic law
remains-in faith if not in legal reality-the criterion for right action in
Muslim life."l
In the Arab world, especially in the Mashriq, the 1970s marked a
popular-based withdrawal of support from state-proclaimed secular ide-
ologies such as nationalism, Arabism, and socialism that was in large part
galvanized by the Arab defeat in the 1967 war and the loss of Jerusalem
and the West Bank to Israeli control. The 1970s was also the decade that
marked both the coming of age of the first generation of young men and
women who had attained Arabic literary proficiency in the postindepen-
dence government-sponsored schools open to all citizens and the larger
availability of television. Starting with the "Islamic resurgence" of the
1970s, it was not only the newly strengthened Islamist cadres who inten-
sified and popularized their demands to "restore the shari'a." Many of the
faithful, alienated by an impoverishing modernity that they perceived as
inspired by the West and dangerous to their moral as well as economic
well-being, sought refuge in leading more religious lives and as a matter
of piety focused on earnesdy (re)appropriating the shari'a-derived criteria
of lawful (halal) and forbidden (haram) as moral yardsticks, while others
supported the call to restore the shari'a as a means toward regaining cul-
tural autonomy and authenticity. State-sponsored legislation responded to
these demands in limited ways, such as inserting constitutional provisions
that recognized the shari'a as a-or even the--principal source of the laws

3
INTRODUCTION

of the land or by promulgating a new civil code in countries such as Jor-

dan and the United Arab Emirates. 2

Islamic Law, Shari'a, and Fiqh

The English term "Islamic law" serves as translation of both shari'a ("the
revealed, or canonical, law of Islam") and fiqh ("jurisprudence in Islam").
It therefore covers a wider range of meanings than those attributed to
"law" in the modern Western context in that it includes such matters as
worship, personal morality, family relations, and public welfare. On the
other hand, the constructs of both shari'a and fiqh have over time held dif-
ferent meanings in past and present Islamic discourses. Partly because of
its alien pedigree and partly also because of this imprecision, the term "Is-
lamic law" has become controversial. On the whole, twentieth-century
Orientalist scholars working in the area of the premodern legal tradition
who professed to analyze Islamic law qua shari'a have as a matter of fact
focused on classical fiqh. Others who are presently researching new Is-
lamic Qyr'an-based legal initiatives can be said to work in the area of
"modern fiqh" that differs from the classical in both subject matter and
method. The shifting borderline between shari'a and fiqh has historically
been a function of the precise meanings attributed to these two key com-
ponents by Muslim authorities. Exponents of Muslim modernist
hermeneutics who strive to rethink the Qyr'anic base of canonical law
(that is, the shari'a) in general terms are finding contradictions between
inherited legal norms (derived from fiqh) and Islamic ethical values (de-
rived from the Qyr'an). The question of where and how to draw the lines
between "revealed law" and its "juridic formulation" is of paramount im-
portance in all manner of contemporary Muslim discourses on the nature
and functions of both. Some schools of thought continue to maintain that
the shari'a can be known only by way of fiqh. Others legitimize various
far-reaching reform plans by proposing to scrap the institution of fiqh al-
together in favor of reestablishing a direct connection with shari'a. 3
Shari 'a ("The Way") stands for the normative order contained within
the corpus of the Qyr'anic revelation and early Islamic precedent, later re-
configured as the Prophet's example, the Sunna. Theology eventually con-
structed the latter as an embodiment of the divine command and as an

4
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

expression of, or inspired commentary on, God's law. Preserved by the

Prophet's companions and their successors in the form of discrete reports
(hadiths) that were transmitted from generation to generation, this sancti-
fied record of the Prophet's inspired words and actions became a sacred
text. Islamic jurisprudence developed as the science of interpretation of
both Qyr'an and Sunna. Especially in the modern period, legal-
theological scholarship has defined shari'a as revealed or divine law in or-
der to distinguish it from fiqh Gurists' law) and qanun (state law), with the
aim to stress the divine origin of the shari'a, whose norms are binding for
all times.
Fiqh ("understanding") connotes the efforts and activities, largely on
the part of qualified scholars, to discover and give expression to the many
facets of Qyr'an- and Sunna-derived principles of shari'a law. While
shari'a is a focus of the faith, fiqh is esteemed mainly as an intellectual lit-
erary tradition and!or the sophisticated product of centuries of Islamic
high legal culture. In elaborating the law, religious scholars combined ra-
tionalist readings of Qyr'an and Sunna with the specialists' knowledge of
previous and contemporaneous juristic opinions that incorporated time-
specific preferences and public policy options on the part of their framers.
The science of interpretation thus came to rest on a scheme labeled the
"roots of jurisprudence" (usul al-jiqh) that were brought together in a
process and methodology called ijtihad ("effort"-as a juristic term more
precisely signifYing "exertion of the utmost possible effort to discover, on
the basis of revelation interpreted in the light of all rules, the ruling on a
particular juristic question").4The resulting body oflaw (the classical fiqh)
was stated and recorded in the form of innumerable details, many of
which were contradictory. Even though the classical fiqh schools (mad-
hahib, "schools oflaw") each developed sophisticated general legal princi-
ples, the law was "not stated in those terms. . . . The rules and the
principles are interconnected at a level rarely made explicit. Moreover, the
rules and principles often are not only legal but moral, defeating at times
any hope of legalistic precision."5
During the many centuries of its florescence (roughly 800-1800),
classical jurisprudence thus developed a gigantic corpus of legal opinions
the main goal of which was to ensure the morality of the umma (Islamic
community), itself increasingly a cultural construct. While the jurists'
methodology was based on the "roots of law" that underlay the science of

5
INTRODUCTION

ijtihad, the subject matters that concerned them were the "branches of
law" (foru'al-fiqh), meaning all areas of community ritual and public social
life, usually divided into 'ibadat (ritual) and mu'amalat (social relations).
Inevitably, the jurists were connected in multiple ways with the political,
social, and economic realities of their time and place, so that new prob-
lems continued to inform their legal formulations. The jurists' opinions
occasioned changes in the body of the fiqh's precedent-driven legal max-
ims and specific detail. Overall, however, the jurists' purpose in employing
their professional monopoly regarding the right to engage in ijtihad was
to perpetuate a largely inherited, tradition-based moral vision. For this
reason, the classical fiqh literature represents an ongoing moral discourse
of scholars of theology and jurisprudence rather than a record of legal
practices. The latter were largely left to the know-how of judges (qadis)
who dealt with issues of family law, endowments, contracts, and the like
in civil courts often carried out under state supervision, while whole other
areas oflaw enforcement were left to a separate court structure established
by the state. The office of juristconsul (mufti) first emerged in part to
strengthen the input of fiqh into legal practice, but over time muftis be-
came more susceptible to state control than were the fuqaha'.
To the modernizing states of the nineteenth century and their new
modern-educated lawyers, the classical fiqh collections presented problems
on several levels. In part these derived from the unwieldy, atomistic nature
of the traditional legal compendia that only a student of medieval fiqh
could be expected to master. Equally or more important was the felt need
to bring Islamic jurisprudence into closer relationship with the pressures
and aspirations of modernization. The Ottoman Majalla (enacted in 1876)
was the first Middle Eastern code of law that represented the rewriting of
large parts of the Hanafi legal tradition in a modern format, enacted by a
committee of lawyers whose activities were also commissioned by the Ot-
toman government as part of its reform programs (Tanzimat).
As the notion of traditional fiqh as a salvageable body of Islamic ju-
risprudence under modern conditions was losing ground, modernists/
reformists such as Muhammad Abduh began to focus on the legal instru-
ment of ijtihad in a manner that disregarded the old differences between
law schools; by combining ("patching") the various strands of traditional
fiqh to find new solutions to new societal problems, Abduh and others
hoped to develop a "new fiqh" that would modernize the laws within es-

6
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

tablished parameters for the purposes of the emerging nation-state. Most

Arab legislatures adopted the methodology when elaborating personal
status codes, and increasing numbers of individual, traditionally trained le-
gal specialists have since then formulated legal opinions lfatwas) on max-
ims and verdicts derived from a combination of juristic traditions. The
overall result of these eclectic approaches to the classical fiqh, however, has
been to strengthen patriarchal structures in the new laws rather than to
produce more liberal modern alternatives. With regard to the personal sta-
tus codes that were developed in most Arab states after independence, the
reason for this modern trend toward greater patriarchy lies mainly in the
nature of the European law that heavily influenced the formulation of
the codes. Starting with Egypt, the modernizing paradigm was informed
primarily by nineteenth-century French law, which later spread across the
region as the Egyptian personal status code was largely copied by other
Arab nation-states, Tunisia being a notable exception. These efforts at
ijtihad by the scholars within the established methods of inherited fiqh
profoundly differ in form, if not always in substance, from the ijtihad now
used by a layperson interpreting the C2!lr'an and parts of Sunna, currently
a staple of the scripturalist activities of a wide variety of Islamist groups.
Ordinary, concerned Muslims of all ages and backgrounds and of both
sexes have also begun to consult the scripture directly in order to fashion
an individualized frame of reference for all life questions. These activities
represent a "democratization" of the concept of ijtihad as elaborated in the
classical legal tradition.

The Subsumation of Fiqh under the

Concept of Shari'a
Shari'a and fiqh are the star constructs in any study of Islamic law. Their
precise definition, however, is complicated by the fact that over time both
terms acquired layers of meaning that encompassed the crafting of laws
and legal institutions throughout the Islamic world as well as the politics
of their maintenance. Haifaa KhalafAllah distinguishes two different
spheres of meaning in the term "shari'a" of which the first refers to "a law-
ful way of making rules and the many constructs of scholarly ideas that
were added to it," while in the second sphere "the term acquires a legendary

7
INTRODUCTION

and vague definition ... [that implies] a divinely sanctioned and detailed
code of rules." The latter definition was used by political and religious es-
tablishments "to enforce conformity on the illiterate masses in a multi-
ethnic state."6 Fiqh is likewise a catchall word as to its sources,
manifestations, and sociopolitical functions. The relationship between
shari'a and fiqh is similarly complex. Some view the two as inseparable,
maintaining that the shari'a can be known only by way of fiqh, while oth-
ers draw a sharp line between the always time- and place-specific tradition
of fiqh on the one hand and the universally valid "revealed law" of the
shari'a on the other. While either position is problematic, the confusion can
serve to enhance the positive connotation of any existing (fiqh-based) legal
system by stamping it with some aspects of sanctity and unchangeability.
Conversely, the call for shari'a "signifies the semantics of the people's ex-
pectations that shari'a will solve the contradictions emerging under the im-
pact of modernity," even though this vision of the shari'a as better than its
traditional construction has remained largely utopian'?
The issue has problematized the access to the sacred texts themselves.
While many Muslim scholars, especially those of nonclerical background,
have lately focused on the area of Qyr'anic exegesis in order to "rethink" its
fundamental truths for the modern age, governments and also the expo-
nents of inherited legal structures have continued to thwart some of these
efforts. Islamic modernists see the path to the rejuvenation or overhaul of
Islamic legal institutions largely in a new, more liberal Qyr'anic interpreta-
tion, even though on the whole their influence on the legislative processes
in the Arab world has been limited. The work of modernist intellectuals is
essentially informed by what they perceive to be a harmful discrepancy be-
tween, on the one hand, the Qyr' anic ideals of freedom, equality, and jus-
tice and, on the other, the actual sociopolitical norms now operative in
Muslim societies that are enforced by legal codes that supposedly rest on
Qyr'anic foundations. Chief victims of this discrepancy have been Muslim
women and non-Muslim minorities. A common theme in the modernist
discourse is therefore the need to reestablish the vital link between social
practice and legal norms that initially informed the law, in other words, to
rediscover that the normative basis of shari'a should always lie in the social
norms of the time and place of its application. 8
Among the many modernist-reformist voices that have proposed to
bridge the gap between the Qyr'an's extrahistorical, transcendental value

8
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

system of equal rights and its actual application in Muslim legal tradition
riddled with discriminatory practices is the Sudanese jurist Abdullahi
An-Na'im, disciple of Shaykh Mahmoud Mohamed Taha (d. 1985),
founder of the Sudanese Republican Brothers movement. Taha's approach
to the problem, as outlined in his book The Second Message ofIslam,9 had
been to differentiate between the O!lr'an's early (Meccan) message (toler-
ant and egalitarian) and its later (Medinan) message (seen at least in part
as an adaptation to the socioeconomic and political situation of the
Prophet's Medinan community). An-Na'im has since developed his men-
tor's general principles into a framework for the radical reform of Islamic
law and legal institutions that invalidates the established historical insti-
tution of ijtihad in favor of a new "evolutionary principle" of O!lr' anic in-
terpretation; the latter is to reverse the historical process of shari'a positive
law formation (which was based on the O!lr'an's Medinan verses) byelab-
orating a new shari'a law (based on the Meccan revelations).l0 This mod-
ernist approach, which reflects a sort of revival of the beliefs of the early
Muslim jurists in the close relationship between law and culture in Islam,
denies all normative powers to the shari'a as presently formulated but
maintains the essential validity of the concept.
The problem regarding the position and ongoing normative powers of
the shari'a in contemporary Islamic societies has continued to exacerbate
polarization between secularist and traditionalist points of view. Secular-
ists have argued that the shari'a has lost its normative power and is no
longer applicable. According to Mohamed Charfi, a Tunisian law profes-
sor, for example, the shari'a laws relating to business and economy are out-
dated; other laws, such as those regarding slavery, are no longer valid, and
the remainder "is largely contrary to international human rights and indi-
vidual liberty laws."ll In diametrically opposed fashion, Islamists are like-
wise focused on the normative power of the shari'a (as presently
constituted) by upholding it in essentialist terms. This means that when
the law and social practices diverge, it is the law that is valid and social
practice that must change in order to achieve conformity with it. The less
society conforms to God's law, the more urgent is the Islamists' demand
for change and purification. As exemplified by Sayyid O!ltb (d. 1966),
chief ideologue of the Muslim Brothers in Nasser's Egypt, Islamism has
defined sovereignty largely within a framework oflaw and authority where
the sovereignty of God is synonymous with the sovereignty of the shari'a

9
INTRODUCTION

within an Islamic state. When Islamists, therefore, call for a "return of the
shari'a," they do not mean to bring back the traditionalist fiqh (tainted by
centuries of 'ulama-state accommodation); rather, they envisage an alter-
native shari'a based on the Qyr'an and, especially, the restoration of the
Prophet's Sunna that prominently involves the building of a new state
structure and new political institutions under Islamist leadership.
By contrast, when the traditionalists, especially now given a voice by
conservative clergy and legal experts, call to restore the shari'a, their de-
mand is generally for the restoration of Islamic fiqh to replace the legal
norms and institutions that were created during the colonial period or
by the postcolonialist nation-states. So far, only a few of the establish-
ment's religious scholars have used their professional credentials and le-
galistic expertise to develop innovative opinions within the legal
methods of traditional fiqh. Two prominent examples are Muhammad
al-Ghazali (d. 1996)12 and Yusuf al-Qgradawi,B both of whom arrived
at new formulations of Muslim women's social and political rights dur-
ing the 1990s by way of the established fiqh: indigenous methods of law
finding. In addition, the general public has to some degree begun to par-
ticipate in the civilizational debate on the role and meaning of Islamic
law in their modernizing societies. By way of the new media, especially
the new electronic means of communication, nonspecialist Muslim in-
dividuals, including women and the young, are beginning to create what
may perhaps one day turn out to be a groundswell of scripture-based in-
dividual opinions on legal issues that they derive largely from a personal
study of the ~r' an.

The contributors to this volume address the processes of change and

transformation in the legal culture of the modern Arab world from a va-
riety of vantage points. They focus on such questions as the following: Is
the shari'a as a legal system now defunct, as Wael Hallaq asserts? Or does
the shari'a continue to inform contemporary constitutional law (Brown
and Sherif) and also, potentially, Middle Eastern asylum law (Yakoob and
Mir)? What is the role of the traditional Muslim clergy who now find
themselves as employees of a nation-state (Skovgaard-Petersen)? How do
indigenous formulations of women's rights measure up to the standards of
international law on human rights and civil liberties enshrined in inter-
national legal documents to which Arab governments are signatories

10
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

(Mayer)? How and to what degree do shari'a and/or fiqh underlie present-
day family law as enshrined in the new national personal status codes
(Stowasser and Abul-Magd)? And what are the pressure points and also
the agents for legal reform on gender issues in Egypt (Abu-Odeh) and
Jordan (Sonbol)?
While there is a clamor by Islamists in the Arab world for the restitu-
tion of the shari'a and an affirmation of its efficacy and eternal validity,
Hallaq, in chapter 1, argues that the shari'a is "no longer a tenable reality,
that it has met its demise nearly a century ago, and that this sort of dis-
course is lodging itself in an irredeemable state of denial." Although sym-
pathetic to the desire of the Middle East to distinguish itself from the
West, Hallaq is firm in his assertion that the concept of nationalism and
the creation of modern nation-states have negated the possibility of living
by any comprehensive system of shari'a. He supports his thesis by analyz-
ing the nature of reforms currently under way that he refers to as the "cob-
bling together" of interpretations of shari'a borrowed from various
historical legal schools and other legal-theological traditions. Spurred by
international pressure to create a body oflaws that will adhere to the con-
ditions of a modern constitution, lawmakers in the various nation-states are
now creating hastily constructed legal templates that will satisfY both
international organizations and popular ideologies. The only way to
achieve such a precarious balance is to adopt the most lenient laws offered
by the various inherited legal traditions, those laws that will still receive the
support of the population. The only sector of law maintaining any unifor-
mity under these conditions, Hallaq argues, is personal status law. It may,
however, be precisely the latter's more Islamic uniformity, as opposed to the
heterogeneity of the rest of state law, that will eventually serve to accentu-
ate the larger legal system's incoherence and thus contribute to strain "the
intricate connection between the social fabric and the law as a system of
conflict resolution and social control." At the root of the problem, Hallaq
posits, is the modern state control of waqf(the wealth amassed by centuries
of private unalienable property contributions formerly administered by
representatives of the clerical establishment), the loss of which has under-
mined the ability of Islamic schools of law, institutions, and officials to
function independently of the political establishment and thus has de-
stroyed their tradition of legal innovation and adjustment that informed
the formulation and practice of Islamic law in the past.

11
INTRODUCTION

In chapter 2, Brown and Sherif examine the way in which the

Supreme Constitutional Court of Egypt has attempted to balance the
Egyptian national constitution (representing a largely man-made set of
laws tailored to the interests of the state) against popular Egyptian de-
mands for greater reliance on the shari'a. The writers demonstrate that
even though discussion of shari'a has recently become more prevalent than
before in Egyptian state courts, European legal customs have in fact long
dominated (or at least mitigated) the application of shari'a law in all areas.
The very creation of a modern national Egyptian constitution promul-
gated in the twentieth century is a case in point. At the same time, the
Egyptian experience proves that the shari'a can work within a modern
constitutional framework: "although this experience has yet to develop, it
has sought to prove over the past two decades that Islamic shari'a princi-
ples, as a legal system, have met, to a great extent, the needs and wishes of
the vast majority of the population, without prejudice to the constitutional
rights of minority religious groups in the country."
In chapter 3, Skovgaard-Petersen presents a comparative study of the
legal and sociopolitical efficacy of state muftis (official interpreters of Is-
lamic law) in Syria, Lebanon, and Egypt. He demonstrates that state con-
trol of waqf funds have to some extent limited the independent power of
the official ifta'system (the official Islamic system of providing legal in-
terpretation, manned by qualified Islamic clerics), so that on occasion its
members have found themselves in situations where they were forced to
support state policy that met with popular resistance on religious grounds.
Nevertheless, the record proves that, on the whole, state muftis have man-
aged to retain the ability to oppose state policy, something that occurs di-
rectly by way of confrontational legal pronouncements or else it can
materialize by way of galvanizing popular opinion at the grassroots level,
which may, in the long run, influence government action. In times of
change and hardship, the populace tends to rely more heavily on their
mufti's directives, which serves to secure his position when he would be at
his weakest politically. State control of the appointment or election of
muftis has thus become an exercise in official politics, meaning that these
processes must be handled deftly to avoid public outrage.
Chapter 4 concerns contemporary asylum law in the Arab world. On
this topic, Yakoob and Mir find justification for sanctuary, emigration, and
nonrefoulement (to not be returned to a place where one's life would be

12
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

threatened) laws in the Islamic legal tradition. Such shari'a-grounded

principles are, however, generally overlooked when modern international
treaties guaranteeing asylum rights are proposed for adoption by Arab na-
tions, so that the latter have generally gone unsigned by Arab states and
regional pacts created to deal with refugee problems have seen little action
to match their intent. To apply Islamic principles of protection for
refugees and other asylum seekers in the modern context will therefore re-
quire that these legal principles be pursued at the national state level by
way of their integration into state constitutions and that, even at state
level, they be implemented with the aid of international agencies. Yakoob
and Mir thus suggest that while the shari'a may provide the basis and jus-
tification for creating a working Islamic asylum law, the law remains un-
enforceable until melded with modern constitutionalism.
In chapter 5, Mayer builds on Hallaq's discussion of the strain
presently created by the existence of "Islam-based" personal status codes
within the (more clearly heterogeneous) larger legal systems of Arab na-
tions. Mayer avows that this situation has marred international credibility
in that it is difficult for international organizations such as the United Na-
tions to accept the claims of Arab governments that they are upholding
the shari'a in response to popular will in the arena of personal status law
when shari'a is neglected in many other areas. Mayer perceives the various
attempts on the part of Arab governments to meld traditional Islamic law
with modern constitutional law as a double gambit, meaning that a state's
promulgation of a shari'a-informed personal status code is usually in-
tended to appease the traditionalist and Islamist cadres among the citi-
zenry for the purpose that the state may then more freely embrace
Western law in other areas. Recent Arab attempts and measures to rein-
force traditional Islamic principles in personal status codes are indicative
of an anti-Western stance that will only become more apparent should
other areas of law undergo further Islamization. Nevertheless, Mayer
notes that "even as they resist reforming their laws to bring them into
compliance with CEDAW [the Convention on the Elimination of All
Forms of Discrimination Against Women], the fact that these [Arab]
countries work so hard to portray themselves as compliant with the prin-
ciples of international human rights law signals that change is afoot."
In chapter 6, Stowasser and Abul-Magd use the issue of tahlil (a sort
of temporary marriage) to investigate how the legacy of the classical legal

13
INTRODUCTION

tradition of fiqh has been adapted to fit within the framework of modern,
largely European-derived personal status codes. Their analysis detects a
bifurcation of the classical tradition regarding this aspect of Islamic mar-
riage law into two new paradigms, one of which (represented by the mod-
ern national family codes) is on the whole silent on the issue of tah1il,
while the other (represented by the voices of individual clerics recorded
mainly in the form of fatwas, or legal opinions) employs the most restric-
tive stance on the issue that can be culled from among multiple classical
readings. The evidence therefore suggests that in modern usage, the tradi-
tional constructs of Islamic family law have in part been profoundly al-
tered by the processes of foreign-inspired legal modernization; in
particular, it is the imported notion of "the family as cornerstone of soci-
ety" that now underlies both state legislatures and the appropriation of the
historical legal tradition by scripturalist specialists.
In chapter 7, Abu-Odeh investigates the modern and contemporary
Egyptian debates regarding family law and women's rights while locating
her inquiry within the wider context constituted by a new Arab civiliza-
tional focus on the relationship between culture and legal systems. She ar-
gues that the latter, "legal systems," has come to stand for cultural
authenticity, so that its defense now represents an act of defiance against
the entrenchment that the European legal system has attained in the Mid-
dle East. European law has so completely uprooted the preceding Islamic
legal tradition that only family law, even in its new format of European-
style codification, has managed to retain some of its Islamic under-
pinnings. This fact represents the result of a long tradition of ongoing and
deliberate negotiations between the conservative Islamic Right and the
liberal Europe-embracing Left that over time allowed for the progressive
westernization of all areas of the law except for family law. At present, it
is this inherited situation that has boxed Egyptian feminists into a corner
where they have been forced to engage in debates on the Islamic nature of
gender-specific laws before being able to pursue reform in the area of
women's rights "on its own merits." Abu-Odeh maps the colliding para-
digms of her reading of Egyptian feminism as a triangle where Islam, the
West, and patriarchy each represent an angle while Egyptian feminism
has been forced to respond to all three simultaneously.
In chapter 8, Sonbol examines the local biases that work against the
practical reformation of personal status laws in Jordan. While Sonbol

14
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

credits the Jordanian monarchy for its efforts as catalyst in driving lib-
eral reforms, sometimes carried out in direct opposition to the Jordan-
ian parliament, she argues that the laws that affect women's freedom of
mobility and their right to employment in the Jordanian workforce re-
main "merely nominal" compared to other Middle Eastern nations. Son-
bol attributes this discriminatory situation largely to the tribal!
patriarchal system prevailing in Jordan since pre-Islamic times. Yet this
old legal system that confines women to the home and their father's or
husband's keeping is now sold as "Islamic" to the population at large and
by consequence today enjoys a great deal of popularity across class lines
and societal groupings. Sonbol demonstrates that there are many pas-
sages in the Qyr' an as well as hallowed examples ("precedents") culled
from Islamic history that would support a woman's freedom to work
outside the home by her own will and decision, without having to seek
permission from her husband or father. The contemporary Jordanian de-
bate on how to modernizel"Islamicize" these entrenched legal customs,
however, is more often than not caught up in a larger discourse that pits
Islamic authenticity against Western-inspired changes; by nature, this
discourse privileges the status quo.
The concept of shari'a remains a powerful cultural symbol in the Arab
world today. Arab governments, state-controlled clerical institutions, Is-
lamist groups, parties, associations, and liberal-minded intellectual elites
may profoundly differ on the shari'a's precise nature but largely share in
the assumption that the shari'a is an inalienable part ofIslamic identity. In
many Arab countries (such as Bahrain, Kuwait, Jordan, Lebanon, Egypt,
Yemen, Algeria, and Morocco), Islamists have now managed to gain a
foothold in the legislative bodies, while their power base remains embod-
ied in the local voluntary associations that provide social services to the
community. Emmanuel Sivan recently also noted an "osmosis of radical
Islamic ideas into the conservative Islamic establishment," made evident,
for example, in the opposition of al-Azhar University's Ulama Front group
to granting greater rights to women in Egyptian divorce law. 14 By contrast
to the Islamists, Islamic liberals have fared less well in effectively propa-
gating their notion that shari'a law has always been historically contextu-
alized and must therefore be thoroughly reformed and modernized at the
present time to remain meaningful. Unlike Islamism, Arab Islamic liber-
alism is represented largely by elitist intellectuals who lack mass-focused

15
INTRODUCTION

organizational skills, rarely speak in popular language in the mass media,

and have thus failed to garner popular support. is
A major factor in undermining the position of Arab Islamic liberal-
ism and strengthening as well as radicalizing the positions of Arab Is-
lamism and even Arab Islamic conservatism has lately come from abroad.
In the aftermath of 9/11, the Bush administration has ventured on a
course that seeks to restructure and reformulate Islamic thought. It is a
major undertaking that has been placed under the umbrella of fighting
terrorism. As it unfolds, the policy has targeted Islamic school texts, seek-
ing to purge them from anti-American, anti-Western, and anti-Israeli di-
atribes. This policy has also occasioned the organization of a special
bureaucratic structure and program in the US. State Department whose
mandate is the reform of women's issues in Islam, to be accomplished by
empowering Muslim organizations and programs on the ground that
propagate a moderate Islam. By adopting this policy, the US. government
has set itself against the dominant Islamist interpretation of the centrality
of Islamic law as divinely mandated. America's declared interest in em-
powering a moderate Islam is also further weakening the credibility and
influence of indigenous Arab Islamic liberalism. For observers from the
Arab and Muslim world, it spells hegemonic interference more intrusive
and nefarious than US. efforts to change the political map of the Arab
world.

Notes
1. Frank E. Vogel and Samuel L. Hayes III, eds., Islamic Law and Finance
(The Hague: Kluwer Law International, 1998), 19-20.
2. Vogel and Hayes, Islamic Law and Finance, 20.
3. In Islamic Law and Finance, Frank Vogel avowed that "the outsider who
wishes to comment on Islamic legal phenomena in history without questioning
either the perfection of Divine Law or the truth of Muslim beliefs may find [the
distinction between shari'a and fiqh] indispensable" (24).
4. Norman Calder, "Law," in Oxford Encyclopedia ofthe Modern Islamic World,
vol. 2, ed.John L. Esposito et al. (New York: Oxford University Press, 1995),452.
5. Vogel and Hayes, Islamic Law and Finance, 28.
6. Haifaa KhalafAllah, "Rethinking Islamic Law: Genesis and Evolution in
the Islamic Legal Method and Structure. The Case of a 20th Century 'Alim's

16
 ISLAMIC LAW AND THE CHALLENGE OF MODERNITY

Journey into His Legal Traditions. Muhammad al-Ghazali (1917-1996)" (Ph.D.

diss., Georgetown University, 1999), 17-19.
7. Muhammad Khalid Masud, Muslim Jurists' Questfor the Normative Basis of
Shari a (Leiden: International Institute for the Study of Islam in the Modern
World, 2001), 4-5.
8. Masud, Muslim Jurists' Quest, 4-5 and elsewhere.
9. Mahmoud Mohamed Taha, The Second Message ofIslam, trans. Abdul1ahi
Ahmed An-Na'im (Syracuse, N.Y.: Syracuse University Press, 1987). First pub-
lished in Arabic in 1967.
10. Abd Allahi Ahmad An-Nairn, Toward an Islamic Reformism: Civil Liber-
ties, Human Rights, and International Law (Syracuse, N.Y.: Syracuse University
Press, 1990).
11. Masud, Muslim Jurists' Quest,S.
12. Compare KhalafA11ah, Rethinking Islamic Law, on Muhammad al-Ghazali.
13. Compare Barbara Stowasser, "Old Shaykhs, Young Women, and the In-
ternet: The Rewriting of Women's Political Rights in Islam," The Muslim World
19 (spring 2001): 99-119.
14. Emmanuel Sivan, "The Clash within Islam," Survival 45, no. 1 (spring
2003): 29.
15. Sivan, "Clash," pp. 39-41.

17
 Part One
MODERNIZATION AND LEGAL
REFORM IN THE ARAB WORLD
 CHAPTER ONE
CAN THE SHARI'A BE RESTORED?
Wael B. Hal/aq

uring the past two decades, the forms of discourse demanding a

D return to Islamic values and practices have been many, including

literature in print; radio and television programs; the propagan-
dist activities of Islamic parties, associations, and clubs; and the literature
of medical, financial, and other institutions. Permeating these forms is the
distinct call to reapply or reinforce the shari'a. In the majority of cases, the
shari'a is conceived as a well-defined, wholesome entity; the only problem
is that it has been pushed aside to the backburner, so to speak. The Islamic
book market affords the outside observer an abundance of materials em-
bodying the deontic message as to how to apply the shari'a. A fairly rep-
resentative example of such a beckoning call is a collection of articles by
distinguished men of Islamic learning, tellingly titled Wujub Tatbiq
a/-Shari 'a a/-Is/amiyya (The Necessity to Apply the Islamic Shari'a).l One
author, for instance, suggests that a means to achieve this goal is for the
political sovereign to spread the religious ethic and to "institute a code to
be promulgated for the benefit of organizations and institutions, a code
that is compiled by an assembly of learned and experienced specialists in
law and Islam."2 Another essay by a prominent author merely presents an
introductory, even sketchy, discussion of the general principles (qawa'id)
of the Shari'a for the benefit of secular lawyers who are "entirely ignorant"
of Islamic law and who have left behind the religious law in favor of the
"importation of western legislation into the Arab countries. They are not
the shari'a jurists but rather the 'other group' which needs to be addressed
with such a simplified manner."3 The underlying assumption here is the

21
WAEL B. HALLAQ

due admission that the hegemonic and professional legal power lies in the
hands of this secular group whose knowledge-and, by implication,
appreciation-of Islamic law is virtually nonexistent, a fact that justifies
simplification of the shari'a subject matter for the purpose of persuading
them to adopt it in legal application. In short, in this discourse the shari'a
appears as an extramental object that can be applied or pushed aside, ap-
preciated or marginalized, but it is qualitatively and most certainly a
known entity the only predicament of which is that it is capable of being
subject to these preferences.
It is my contention here that this pervasive and dominating discourse
misses the crucial point that the shari'a is no longer a tenable reality, that
it has met its demise nearly a century ago, and that this sort of discourse
is lodging itself in an irredeemable state of denial. This chapter, therefore,
is concerned with showing the features of this demise and of the crises
that still persist in the pursuit of an Islamic legal identity.

The demise of the shari'a was ushered in by the material internalization of

the concept of nationalism in Muslim countries, mainly by the creation of
the nation-state. This transformation in the role of the state is perhaps the
most crucial fact about the so-called legal reforms. Whereas the tradi-
tional ruler considered himself subject to the law and left the judicial and
legislative functions and authority to the 'ulama, the modern state reversed
this principle, thereby assuming the authority that dictated what the law
is or is not. The ruler's traditional role was generally limited to the ap-
pointment and dismissal of judges, coupled with the enforcement of the
qadi's decisions. Interference in legislative processes, in the determination
of legal doctrine, and in the overall internal dynamics of the law was
nearly, if not totally, absent. The modern state, on the other hand, arro-
gated to itself the status of a legislator, an act that assigned it a place above
the law. Legislative interference, often arbitrary, has become a central fea-
ture of modern reform and in itself is evidence of the dramatic shift in the
balance of legal power.
A direct effect of this shift was the adoption by the new nation-state
of the model of codification that altered the nature of the law. Codifica-

22
 CAN THE SHARI'A BE RESTORED?

tion is not an inherently neutral form of law, nor is it an innocent tool of

legal practice, devoid of political or other goals. It is a deliberate choice in
the exercise of political and legal power, a means by which a conscious re-
striction is placed on the interpretive freedoms of jurists, judges, and
lawyers. 4 In the Islamic context, the adoption of codification has an added
significance since it represents potently efficacious modus operandi
through which the law was refashioned in structured ways. Among other
things, it precluded the traditional means of the law from ever coming
into play. But to this significant transformation, which is primarily epis-
temic and hermeneutical, we will have to return later.
An essential tool-indeed, constitutive component-of the nation-
state is centralization. In addition to codification, which could not have
been achieved without this tool, centralizing mechanisms were carefully
harnessed to confiscate the realm oflaw in favor of state control. As early
as 1826, the Ottoman sultan Mahmud II and his men created the so-
called Ministry of Imperial Pious Endowments, which brought the ad-
ministration of the empire's major waqfs under central administration. s
All rich endowments and their revenues and assets, supervised for cen-
turies by the legal profession in the empire's various regions, came under
Istanbul's direct supervision. This ushered a new era during which the ju-
rists gradually lost control over their own source of power and became
heavily dependent on state allocations that diminished in a steady and sys-
tematic manner.
But this was not all. The chipping away of the powers of the religious
elite was bolstered by the creation of alternative elites that began to form
during the first half of the nineteenth century. Under Mahmud II, there was
already a proliferation of technical schools independent of the religious col-
leges, schools that eroded the monopoly the religious institutions had over
the legal system. As if this is not enough, both the Ottoman sultans and the
local Egyptian rulers created a new group oflegal professionals, among oth-
ers, who began to displace the traditional legal elite. With the adoption-
indeed, coercive enforcementl'-of Western-style hierarchical courts and
law schools, these new elites were easily incorporated into the emerging le-
gal structures while at the same time the religious lawyers found themselves
unequipped to deal with this new reality. These courts operated on the ba-
sis of codes, and the lawyers who staffed them had little, if any, knowledge
of the workings of religious law, be it doctrinally, judicially, or otherwise. On

23
WAEL B. HALLAQ

the other hand, while the foreign elements were incomprehensible to the
traditional legal hierarchy, their madrasas, which depended almost exclu-
sively on the dwindling waqf revenues, were systematically pushed aside and
later totally displaced by the modern, university law faculties. The tradi-
tionallegal specialists lost not only their judicial offices as judges, legal ad-
ministrators, and court officials but also their teaching posts and educational
institutions, the backbone of their very existence as a profession. This latter
loss constituted the coup de grace, for it was depriving them not merely of
their careers but mainly of their procreative faculties: they were no longer al-
lowed to reproduce their pedigree. The ruin of the madrasa was the ruin of
Islamic law, for its compass of activities epitomized all that made Islamic law
what it is was.
Thus, the demise of the shari'a was ensured by the strategy of "de-
molish and replace": the weakening and final collapse of educational
waqfs, the madrasa, positive Islamic law, and the shari'a court was made
collateral, diachronically correlational, and causally conjoined with the in-
troduction of state finance (or, to put it more accurately, finance through
the controlling agency of the state), Western-style law schools, European
codes, and European court system. If law were to represent the entire
spectrum of Islamic culture, it would not be an exaggeration to state that
by the middle of the twentieth century, nothing in Islam was saved from
a distinctly determined and omnipotent European hegemony.
What has remained of the traditional system in the modern codes is
no more than a veneer. Penal law, land law, commercial law, torts, proce-
dural law, bankruptcy, and much else has been totally replaced by their
European counterparts and supplemented, in due course, by several other
codes and regulations, such as the law of corporation, copyright law,
patent law, and maritime law. Traditional rules are still to be found in the
law of personal status, but these have been uprooted from their indigenous
context, a fact bearing, as we will see, much significance. As is well known,
one of the favorite tools of modernists is the method of takhayyur, namely,
picking and choosing legal rules from a variety of sources. Thus, the prin-
ciples and rules of the marriage contract, for instance, may draw on more
than one Sunni legal school, expediency being the rationale for an arbi-
trary amalgamation of doctrines. The modern legislators in Sunni coun-
tries furthermore resorted to Shi'i law in order to supplement their civil
codes where Sunni law was deemed lacking in the fulfillment of their ex-

24
 CAN THE SHARI'A BE RESTORED?

pedient methods. But they were extraordinarily daring not only insofar as
the sources on which they drew were concerned but also in the manner in
which they drew on traditional doctrine: they combined, in what is known
as taifiq, several elements pertaining to a single issue from more than one
source regardless of the positive legal principles, reasoning, and intellec-
tual integrity that gave rise to the rulings in the first place. This approach
is arbitrary in that it does not take into serious account-as should be the
case-the subtle and intricate connection between the social fabric and
the law as a system of conflict resolution and social control.
These considerations, on the other hand, were ever-present in the
minds of the traditional jurists and the system they produced, a fact that
explains the constancy and stability of classical Islamic law over the long
course of twelve centuries. This lack of sensitivity to social reality among
the modern legislators is manifest on a number of levels and in many ar-
eas of the law, but revealing examples of it may be found in the tinkering
of the Indian and Jordanian legislators: in the Muslim Marriages Act of
1939, British India adopted numerous doctrines of the Maliki school
when the country had had a long history of exclusive Hanafi jurispru-
dence. As Joseph Schacht aptly remarked in this regard, "The whole Act
is typical of modernist legislation in the Near East, but it is hardly in
keeping with the development of Anglo-Muhammadan law which had
followed an independent course so far, nor even with the tendency under-
lying the Shariat Act of 1937."7 Similarly, but even more flagrantly, in
1927 a Jordanian Law of Family Rights was enacted on the basis of the
1917 Ottoman Law of Family Rights, but in 1943, in less than a decade
and a half, this law was replaced by the traditional shari'a law. Only eight
years later, in 1951, the law was again repealed in favor of a codified law
of family rights, inspired largely by the Egyptian and Syrian laws of per-
sonal status. Here it is difficult to draw any conclusion that Jordanian so-
ciety had undergone, in the span of only two and a half decades, serious
changes-and in different directions to boot. Insensitivity to social struc-
tures, arbitrariness, and inconsistency speak for themselves.
The point to be made here is that what little that has been preserved
of the shari'a in modern codes has been so flagrantly manipulated that it
lost its organic connection with both traditional law and society. This ar-
bitrariness is simply a manifestation of the effects of infrastructural dem-
olition of the traditional legal system.

25
WAEL B. HALLAQ

As the opening paragraph of this chapter attests, the workings of the

traditional system are little understood today, as has been the case since
the end of the nineteenth century, if not even earlier. In the Ottoman Ma-
jaffa, enacted in 1876, the Drafting Committee acknowledged the inabil-
ity of the judges staffing the new courts to understand the shari'a law. "In
fact," the committee argued,

Islamic jurisprudence resembles an immense ocean on whose bottom

one has to search, at the price of very great efforts, for the pearls which
are hidden there. A person has to possess great experience as well as
great learning in order to find in the sacred law the proper solutions for
all the questions which present themselves. This is particularly true of
the Hanafi School. In this school there are many commentators whose
opinions differ markedly from one another. . .. One can thus under-
stand how difficult it is to ascertain in all this diversity of opinions the
best one and to apply it in a given case. 8

With the increasing adoption of Western legal concepts and institutions,

the difficulties mentioned by the Drafting Committee were also doubled
and multiplied. The traditional system was steadily rendered irrelevant,
useless, and a thing of the exotic past. It is on this account that the impli-
cations and consequences of the methods of takhayyur and talfiq were and
still are little understood and appreciated by the modern legislators. It is
perhaps telling that a Chief Justice of the High Constitutional Court of
Egypt, when queried about his professional interest in the positive legal
works of the traditional schools, told this writer that they are archaic and
incomprehensible.

II
The rupture, therefore, is certainly one of epistemology and goes deep into
the inner structure of legal thinking. The modern Muslim lawyer and
judge, by the very fact of their training-which is wholly alien to its tra-
ditional counterpart-have lost the epistemological and hermeneutical
framework within which their foqih predecessor operated. To begin with,
the modern lawyer has no understanding whatsoever of what taqfid, as an
authorizing tool, is all about. One of the functions of taqlid was the de-

26
 CAN THE SHARI'A BE RESTORED?

fense of the school as a methodological and interpretive entity, an entity

that was constituted of identifiable theoretical and substantive principles. 9
The school was defined by its substantive boundaries, namely, by a certain
body of positive doctrine that clearly identified the outer limits of the
school, limits beyond which the jurist ventured only at the risk of being
considered to have abandoned his madhhab (legal school). An essential
part of the school's authority, therefore, was its consistency in identifYing
such a body of doctrine that was formed of the totality of the founder's
opinions, substantive principles, and legal methodology, be they genuinely
his or merely attributed to him.lO Added to this were the doctrines oflater
jurists deemed to have formulated legal norms in accordance with the
founder's substantive and theoretical principles. In other words, Islamic
law represented the total sum of doctrinal accretions beginning with the
founder down to any point of time in the history of the school.
The multiplicity of doctrinal narrative resulted in the development of
a technical terminology whose purpose was to distinguish between types of
legal opinion. The evolution of this terminology was symptomatic of the
staggering variety of opinion that resulted from a fundamental structural
and epistemological feature in Islamic law, a feature that emerged early on
and was to determine the later course oflegal development. Its root cause
was perhaps the absence of a central legislative agency-a role that could
have been served by the state or the office of the caliphate but was not. The
power to determine what the law was had lain instead, from the very be-
ginning, in the hands of the legal specialists, the proto-.foqaha', and later the
fuqaha' themselves. It was these men who undertook the task of elaborat-
ing on the legal significance of the revealed texts, and it was they who fi-
nally established a legal epistemology that depended in its entirety on the
premise of an individualistic interpretation of the law. This feature was to
win for Islamic law, in modern scholarship, the epithet "jurist's law." The
ultimate manifestation of this individual hermeneutical activity was the
doctrine of kull mujtahid musib, that is, that each and every mujtahid is cor-
rect. 11 The legitimation of this activity and the plurality that it produced
had already been articulated as a matter of theory by as early a figure as
Shafi'i. 12 It was also as a result of this salient feature that juristic disagree-
ment, properly known as khilaf or ikhtilaf, came to be regarded as one of
the most important fields of learning and enquiry, a field in which the
opinions of a veritable who's who of jurists were studied and discussed.13

27
WAEL B. HALLAQ

This feature of what we might term ijtihadic pluralism had already be-
come part of the epistemology that was integral to the overall structure
and operation of the law. Its permanency is evidenced by the fact that,
even after the final evolution of the madhhab, plurality could not be
curbed: the old multiplicity of opinion that had emerged before the rise of
the madhhabs conflated with the plurality that surfaced later at every
juncture of Islamic history.
If legal pluralism was there to stay-a fact that the jurists never
questioned-then it had to be somehow controlled in the interest of con-
sistency and judicial process, for doctrinal uncertainty was detrimental.
Which of the two, three, or four opinions available should the judge adopt
in deciding cases or the jurisconsult opt for in issuing fatwas? The dis-
course of the jurists, in the hundreds of major works that we have at our
disposal, is overwhelmingly preoccupied by this problem: which is the
most authoritative opinion? No reader, even a casual one, can miss either
the direct or oblique references to this difficult question. Of course, the
problem was not couched in terms of plurality and pluralism, for that
would have amounted to stating the obvious. Rather, the problem was ex-
pressed as one of trying to determine the most sound or most authorita-
tive opinion, although without entirely excluding the possibility that
subjectivity-as is admitted in all legal systems-might influence the de-
cision. It is no exaggeration to maintain therefore that one of the central
aims of most legal works was precisely to determine which opinion was
sound and which less so, if at all. As in all legal systems, consistency and
certainty are not only a desideratum but also indispensable. In short, it
cannot be overstated that reducing the multiplicity to a single authorita-
tive opinion was seen as absolutely essential for achieving the highest pos-
sible degree of both consistency and predictability. However, it must be
emphasized here that plurality was not seen as a problem. To the contrary,
and as has been concluded elsewhere,14 it was viewed as conducive to both
legal flexibility and legal change.
The same system that produced and maintained legal pluralism also
produced the means to deal with the difficulties that this pluralism pre-
sented. Legal theory was based on the premise that the activity of discov-
ering the law was both purely hermeneutical and totally individualistic.
The allowances that were given to personal ijtihad created, within the the-
ory itself, the realization that, epistemologically and judicially, pluralism

28
 CAN THE SHARI'A BE RESTORED?

had to be subjected to a further hermeneutical process by which plurality

was reduced to a minimum. Different opinions on a single matter had to
be pitted against each other in a bid to find out which of them was epis-
temologically the soundest or the weightiest. This elimination by compar-
ison was in theoretical discourse termed tarjih, or preponderance, namely,
weighing conflicting or incongruent evidence. Here evidence should be
understood as the totality of the components making up the opinion it-
self: the revealed text from which the legal norm was derived, its modes of
transmission, the qualifications and integrity of the transmitters, and the
quality oflinguistic and inferential reasoning employed in formulating the
OpInlOn.
The theoretical account of tarjih represents, in general terms, the
methodological terrain in which the jurists were trained to deal with all
conceivable possibilities of conflict in textual evidence and in the methods
of legal reasoning. Their knowledge of all the issues involved in prepon-
derance equipped them for the world of positive law where theory met
with legal practice. It is with this arsenal of legal knowledge of the theo-
retical principles of preponderance that the jurists tackled the problem of
legal pluralism and plurality of opinion. These principles provided the
epistemic and methodological starting point for the operative terminology
used in the determination of substantive law.
Law treatises are replete with statements declaring certain opinions to
be correct (sahih), more correct (asahh), widespread (mashhur), and so on. lS
These terms are emblematic of a complex juristic activity that involves a
proficient handling of the fundamentals of preponderance as expounded
in works oflegal theory. But as an organic part of the environment of sub-
stantive law that includes as one of its essential components the schoo1's
authoritative and long-established positive doctrine, the authorization of
opinion was bound to take into account both the methodological and the
substantive principles of the school. Thus, in realistic terms it acquired a
complexity that exceeded that observed in the discourse of legal theory.
Despite (or perhaps because of) the fact that a staggering number of
opinions are determined in terms of sahih or mashhur, the authors oflaw
books seldom bother to demonstrate for the reader the process by which
an opinion was subjected to these processes of authorization. This phe-
nomenon, I think, is not difficult to explain. Authorization usually in-
volved a protracted discussion of textual evidence and lines of legal

29
WAEL B. HALLAQ

reasoning whose aim was often not only the justification of rules as such
but also the defense of the madhhab. Most works, or at least those avail-
able to us, do shy away from providing such self-indulgent detail. The
Hanafi Ibn Ghanim al-Baghdadi, for instance, explains the problem in his
introduction to Majma' al-Damanat, where he states, "Except for a few
cases, I have not included the lines of reasoning employed in the justifica-
tion of the rules, because this book is not concerned with verification
(tahqiq).16 Our duty is rather limited to showing which [opinion] is sahih
and which is asahh."17 The task of "verifYing" the opinions was not only
too protracted but also intellectually demanding. It is precisely this
achievement of "verifYing" all available opinions pertaining to one case
and declaring one of them to be the strongest that gave Nawawi and Rafi'i
such a glorious reputation in the Shafi'i school and Ibn Qydama the same
reputation in the Hanbali school. 18 This was an achievement of few dur-
ing the entire history of the four schools.
In his magisterial Majmu', Nawawi sometimes, but by no means fre-
quently, explains the reasoning involved in tashih. Consider the following
examples, the first of which pertains to the types of otherwise impermis-
sible food that a Muslim can eat should he find himself, say, in a desert
where lawful food is not to be had:

Our associates held that the impermissible foods which a person finds
himself compelled to eat are of two types: intoxicating and non-
intoxicating.... As for the non-intoxicant type, all foods are permitted
for consumption as long as these do not involve the destruction of things
protected under the law (it/a! ma'sum). He who finds himself compelled
to eat is permitted to consume carrion, blood, swine meat, urine, and
other impure substances. There is no juristic disagreement (khilaf) as to
whether he is permitted to kill fighters against Islam and apostates and
to eat them. There are two wajh-opinions 19 [though] concerning the
married fornicator (zani muhsan),20 rebels and those who refuse to pray
(tarik al-salat). The more correct of the two opinions (asahh) is that he
is permitted [to kill and eat them]. Imam al-Haramayn, the author [Shi-
razi],21 and the majority of jurists (Jumhur) conclusively affirm the rule
of permissibility. [In justification of permissibility] Imam al-Haramayn
maintained that this is because the prohibition [imposed on individual
Muslims] to kill these is due to the power delegated to governing au-
thority (tafwidan ila ai-sultan), so that the exercise of this power is not

30
 CAN THE SHARI'A BE RESTORED?

preempted. When a dire need to eat arises, then this prohibition ceases
to hold. 22

Juwayni's reasoning here was used by Nawawi to achieve two purposes: the
first to present Juwayni's OWn reaSOn for adopting this wajh-opinion and
the second to use the same reasoning to show why Nawawi himself
thought this opinion to be the more correct of the two. Thus, the absolute
legal power of the sultan to execute married fornicators, rebels, and prayer
deserters is preempted by the private individual's need to eat, should he or
she face starvation.
Note here that Nawawi gives only the line of reasoning underlying the
opinion that he considers to be more correct of the two despite the fact
that the other wajh-opinion is admitted as sahih. This was the general
practice of authors, a practice that has an important implication: if another
jurist thought the second, sahih opinion to be in effect superior to the One
identified by Nawawi as the asahh, then it was the responsibility of that
jurist to retrieve from the authoritative sources the line of reasoning sus-
taining that opinion and to show how it outweighed the arguments of
Juwayni and of others. In fact, this was the invariable practice since
nowhere does one encounter a reprimand or a complaint that the author
failed to present the lines of reasoning in justification of what he thought
to be the less authoritative or correct opinion(s).
There was no need to present the evidence of non-sahih opinions be-
cause they were by definition negligible-not worth, as it were, the ef-
fort. 23 These opinions became known as fasid (void), da'if(weak), shadhdh
(irregular), or gharib (unknown), terms that never acquired any fixed
meaning and remained largely interchangeable. 24 No particular value was
attached to any of them, for just as in the study of hadith, a da'if report
was dismissed out of hand. A premium, On the other hand, was placed on
the category of the sahih and its cognate, the asahh. At first, it might seem
self-evident that the asahh is by definition superior to the sahih. But this
is not the case. Claiming sahih status for an opinion necessarily implies
that the competing opinion or opinions are not sahih but rather da'if,
fasid, shadhdh, or gharib. 25 But declaring an opinion asahh means that the
competing opinions are sahih, no less. Thus, in two cases, one having a
sahih opinion and the other an asahh opinion, the former would be Con-
sidered, in terms of authoritative status, superior to the latter since the

31
WAEL B. HALLAQ

sahih had been taken a step further in declaring the competing opinion(s)
weak or irregular, whereas the asahh had not been. In other words, the
sahih ipso facto marginalizes the competing opinions, whereas the asahh
does not, this having the effect that the competing opinion(s) in the case
of the asahh continue(s) to retain the status of sahih. The practical impli-
cation of this epistemic gradation is that it was possible for the opinions
that had competed with the asahh to be used as a basis for ifta', or court
decisions, whereas those opinions which had competed with the sahih
could no longer serve any purpose once the sahih had been identified (that
is, unless a mujtahid or a capable jurist were to reassess one of these weak
opinions and vindicate it as being more sound than that which had been
declared earlier as sahih; this, in fact, was one means by which legal
change took place).26
This epistemic evaluation of tashih was usually helpful in assessing
opinions between and among a number of jurists belonging to one school.
At times, however, it was necessary to evaluate opinions within the doc-
trinal corpus of a single jurist, in which case the sahih and the asahh would
acquire different values. If a case has only two opinions and the jurist de-
clares one to be sahih and the other asahh, then the latter is obviously the
more preponderant one. But if the case has three or more opinions, then
the principles of evaluation as applied to the larger school doctrine would
apply here too. It is to be noted, however, that these principles of evalua-
tion were generally, but by no means universally, accepted. Disagreements
about the comparative epistemic value of tashih or tashhir (the rendering
of an opinion as mashhur) persisted and were never resolved, a fact abun-
dandy attested to by the informative account penned by the last great
Hanafi jurist Ibn 'Abidin (d. 1252/1836).27
The more important point to be made here is the basis on which
opinions were authorized. In some cases, the basis was purely hermeneu-
tical in the sense that doctrinal considerations of established principles
dictated a certain extension of these principles. In other cases, it was based
on considerations of customary practices ('ada) and of social need and ne-
cessity. In fact, the latter consideration is cited as grounds for abandoning
an otherwise sahih opinion in favor of another that would become on
these very grounds the sahih. The Hanafi jurist Ibn 'Abidin argues this
much: "Not every sahih [opinion] may be used as a basis for issuing fat-
was because another opinion may be adopted out of necessity (darura) or

32
 CAN THE SHARI'A BE RESTORED?

due to its being more agreeable to changing times and similar considera-
tions. This latter opinion, which is designated as fit for ifta' (!i-hi laft
al-fotwa), includes two things, one of which is its suitability for issuing
fatwas, the other is its correctness (sihhatihi), because using it as the basis
of ifta' is in itself [an act] by which it is corrected (tashih la-hu)."28 These
notions of tashih did not remain a matter of theory or an un accomplished
ideal. In his al-Fatawa al-Khayriyya, Khayr al-Din al-Ramli offers a sub-
stantial collection of questions which were addressed to him and which he
answered with opinions that had been corrected (sahhahahu) by the lead-
ing Hanafi scholars on the basis of considerations having to do with
changing requirements of the age and of society.29
Needless to say, the basis of tashih may also be any of the considera-
tions articulated in the theory of preponderance. Illustrations of such con-
siderations, especially those related to Sunnaic textual evidence, abound. 30
Obviously, the purposes of authorization through tashih, tashhir, and
other concepts fundamentally differ from those of defending the mad-
hhab, but the processes involved in both activities are very much the same:
they are offshoots of tarjih or adaptations thereo£
Preponderance, as we have seen, depends in part on corroboration by
other members of a class, which is to say that it is subject to inductive cor-
roboration by an aggregate body of the same type of evidence. Thus, a tra-
dition transmitted by a certain number of channels and transmitters was
considered superior to another transmitted by fewer channels and trans-
mitters. Similarly, a ratio legis attested by more than one text was deemed
to outweigh another supported by a single text. Consensus itself, episte-
mologically the most powerful sanctioning authority, depended on uni-
versal corroboration. Thus, what we have called inductive corroboration
no doubt constituted a fundamental feature of legal thinking, both in the
theory of preponderance and elsewhere in the law. 31
It is perhaps with this all-important notion in mind that we might ap-
preciate the controversy that found its way into the discourse on the sahih.
Taj al-Din al-Subki reports that in his magisterial work al-Muharrar,
Rafi'i was rumoured to have determined opinions to be sahih on the basis
of what the majority of leading Shafi'i considered to fall into this cate-
gory,32 this majority being determined by an inductive survey of the opin-
ions of individual jurists. Ramli reiterated this perception of Rafl'i's
endeavor and added that he did so because maintaining the authority of

33
WAEL B. HALLAQ

school doctrine is tantamount to transmitting it, which is to say that au-

thority is a devolving tradition that is continually generated by a collec-
tivity of individual transmissions. He immediately adds, however, that
preponderance by number is particularly useful when two (or more) opin-
ions are of the same weight. 33
Be that as it may, tashih on the basis of number or majority appears to
have become a standard, especially, if not exclusively, when all other con-
siderations seemed equal. Ibn al-Salah maintained that if the jurist cannot
determine which opinion is the sahih because the evidence and reasoning
in all competing opinions under investigation appear to him to be of equal
strength, he must nonetheless decide which is the sahih and preponderant
opinion according to three considerations in descending order of impor-
tance: superior number or majority, knowledge, and piety.34 Thus, an opin-
ion would be considered sahih if more jurists considered it to be such than
they did another. The tashih of a highly learned jurist outweighs that of a
less knowledgeable one and that of a pious jurist superior to another of a
less pious one. In the same vein, an opinion held to be sahih by a number
of jurists would be considered superior to another held as such by a single
jurist, however learned he may be. The same preference is given to a
learned jurist over a pious one. Thus, tashih operates both within and be-
tween these categories.
That number is important should in no way be surprising. The entire
enterprise and concept of the madhhab is based on group affiliation to a
set of doctrines, considered to have an authoritative core. Reducing plu-
rality through number or any other means was certainly a desideratum. It
is therefore perfectly reasonable to find the Maliki Hattab declaring, like
many others, that the descending order of number, knowledge, and piety
is a denominator common to all four schools. 35
Tashih and tashhir (the latter having particular importance in the Ma-
liki school) did not alone bear the burden of authorization. The four
schools resorted to other means, each of which was labeled with what we
have called an operative term. Leaving aside any consideration of their or-
der of importance, these terms were as follows: rajih, zahir, awjah, ashbah,
sawab, madhhab, mafti bi-hi, ma'mul bi-hi, and mukhtar. Together with the
sahih, the mashhur, and their derivatives, these constituted the backbone
of the operative discourse of substantive law. Of these, two are most rele-
vant to my argument here, namely, the madhhab and mafti bi-hi.

34
 CAN THE SHARI'A BE RESTORED?

The term "madhhab" acquired different meanings throughout Islamic

history. Its earliest use was merely to signifY the opinion or opinions of a
jurist, such as in the pronouncement that the madhhab of so and so in a
particular case is such and such. 36 Later the term acquired a more techni-
cal sense. During and after the formation of the schools, it was used to re-
fer to the totality of the corpus juris belonging to a leading mujtahid, be he
a founder of a school or not. In this formative period, the term also meant
the doctrine adopted by a founder and by those of his followers, this doc-
trine being considered cumulative and accretive. Concomitant with this, if
not somewhat earlier, appeared the notion of madhhab as a corporate en-
tity in the sense of an integral school to which individual jurists consid-
ered themselves to belong. This was the personal meaning of the
madhhab, in contrast to its purely doctrinal meaning, which was expressed
as loyalty to a general body of doctrine.
There was at least one other important sense of the term that deserves
our attention here, namely, the individual opinion, accepted as the most
authoritative in the collective doctrinal corpus of the school. In order to
distinguish it from the other meanings of the word "madhhab," we will as-
sign to it the compound expression "madhhab-opinion."
In this doctrinal sense, the term "madhhab" meant the opinion
adopted as the most authoritative in the school. Unlike the sahih and the
mashhur, there were no particular or ftxed criteria for determining what
the madhhab-opinion was since it might be based on general acceptance
on the grounds of tashih, tashhir, or some other basis. Yet it was possible
that the madhhab-opinion could be different, say, from a sahih-opinion. 37
However, the most fundamental feature of the madhhab-opinion re-
mained its general acceptance as the most authoritative in the school, in-
cluding its widespread practice and application in courts and fatwas. This
type of opinion is to be distinguished from the mashhur, in that the latter
is deemed widespread among a majority, but not the totality, of jurists be-
longing to a school. This explains why the madhhab-opinion could not be,
as a rule, outweighed by another, competing opinion.
A distinctive feature of the madhhab-opinion was its status as the
normative opinion in legal application and practice. It is precisely here
that an organic connection between fatwa and madhhab-opinion was
forged-the fatwa being a reflection oflitigation and the legal concerns of
mundane social life. 38 Hattab's commentary on the matter eloquently

35
WAEL B. HALLAQ

speaks of this connection: the term "al-madhhab," he remarked, was used

by the more recent jurists (muta'akhkhirun) of all the schools to refer to the
opinion issued in fatwas. He also remarked, conversely, that any fatwa is-
sued on the basis of something other than the madhhab-opinion ought
not to be taken into account (fa yakun la-ha'i'tibar).39 In these pronounce-
ments ofHattab, two important matters must be noted: first, that the con-
nection between fatwa practice and the term "madhhab (-opinion)" is one
that appeared among the muta'akhkhirun, not among the mutaqaddimun,
that is, the early jurists who flourished between the second/eighth and
fourth/tenth centuries, a period in which the schools were formed,40 and
second, that the fatwa practice defines the general body of madhhab-
opinion in any given school.
But how did the jurist know which opinion constituted the standard
basis of fatwas or the madhhab-opinion? This became one of the most ur-
gent questions, constituting a serious challenge to later jurists for whom
the determination of the most authoritative school doctrine was essential.
N awawi provides an answer:

You ought to know that law books of the school contain significant dis-
agreements among the associates, so much so that the reader cannot be
confident that a certain author's opinion expresses the madhhab-opinion
until he, the reader, deciphers the majority of the school's well-known
law books .... This is why (in my book) I do not exclude the mention
of any of Shafi'i's opinions, of the wajh-opinions,41 or other opinions
even if they happen to be weak or insignificant.... In addition, I also
mention that which is preponderant, and show the weakness of that
which is weak ... and stress the error of him who held it, even though
he may have been a distinguished jurist (min al-akabir) . ... I also take
special care in perusing the law books of the early and more recent asso-
ciates down to my own time, including the comprehensive works (mab-
sutat), the abridgements (mukhtasarat), and the recensions of the school
founder's doctrine, Shafi'i .... I have also read the fatwas of the associ-
ates and their various writings on legal theory, biographies, hadith-
annotation, as well as other works .... You should not be alarmed when
at times I mention many jurists who held an opinion different from that
of the majority or from the mashhur, etc., for if I omit the names of
those constituting the majority it is because I do not wish to prolong my
discussion since they are too many to enumerate. 42

36
 CAN THE SHARI'A BE RESTORED?

Nawawi did not live long enough to conclude his ambitious project, hav-
ing completed only about a third of it by the time of his death. Yet for him
to know what was the madhhab-opinion was in each case, he felt com-
pelled to investigate the great majority of what he saw as the most impor-
tant early and later works. Hidden between the lines of this passage is the
fundamental assumption that in order to identify the basis of fatwa prac-
tice, one must know what the generally accepted doctrine was. Only an in-
timate knowledge of the contents of the legal works written throughout the
centuries could have revealed which opinions remained in circulation-
that is, in practice-and which had become obsolete. It is precisely this
knowledge that became a desideratum, and this is why the subject of khi-
laf was so important. The study of khilaf was the means by which the ju-
rist came to know what the madhhab-opinions were. Law students, for
instance, are often reported to have studied law, madhhaban wa-khilafan,
under a particular teacher. The Maliki Ibn 'Abd al-Barr emphatically states
that for one to be called a jurist (faqih), he must be adept at the science of
khilaf, for this was par excellence the means by which the jurist could de-
termine which opinions represented the authoritative doctrines of the
madhhab. 43
Although the determination of the madhhab-opinion was more an
inductive survey than a hermeneutical-epistemological engagement, it
nonetheless entailed some difficulties, not unlike those the jurists faced in
deciding what the sahih and the mashhur opinions were. In his notable ef-
fort, Nawawi himself did rather well on this score, which explains his pres-
tige and authority in the Shafi'i school. Nonetheless, he and Rafi'i are said
to have erred in about fifty cases, claiming them to be madhhab-opinions
when they were thought by many not to be SO.44 The following case from
the Fatawa ofTaqi al-Din al-Subki further illustrates the uncertainty in-
volved:

Two men die, one owing a debt to the other. Each leaves minor children
behind. The guardian of the minors, whose father was the lender, estab-
lishes against the debtor's children the outstanding debt in a court of law.
Should the execution of the judgement (in favour of the first party) be sus-
pended until the defendants (viz., the debtor's children) reach majority, or
should the guardian take the oath (and have the debt be paid back)? ...
The madhhab-opinion is the latter. However, he who investigates the

37
WAEL B. HALLAQ

matter might think that the madhhab-opinion is that the judgment

should await implementation (till the children reach majority), but this
may lead to the loss of their rights. By the time the debtor's children at-
tain majority, the money may well have vanished at the hands of the
debtor's heirs.45

Note here the ambiguity as to which of the two is the madhhab-opinion.

Subki identifies immediate execution of the judgment as the madhhab-
opinion, while at the same time he also admits that anyone who investi-
gates the matter will find that the opposing opinion has the same status.
Subki does not even go so far as to claim that the one who espouses the
latter is mistaken.
Be that as it may, the term "madhhab," when referring to an individual
opinion, was used to determine what the law on a particular case was. And
the criterion for acquiring this status was general acceptance and the fact of
its being standard practice in the schooL The madhhab-opinions therefore
gained authoritative status because they were used predominantly as the ba-
sis of issuing fatwas. The Shafi'i Rarnli declares that the jurist's most impor-
tant task is to determine which opinions in his school are regularly applied
(mutadawala) in the practice of ifta' since this will determine the authorita-
tive madhhab-opinions. 46 In his widely known work Multaqa al-Abhur, the
Hanafi Halabi also considered his chief task to be the determination of
which opinions were the most authoritative. It turns out that next to the
sahih and the asahh, the most weighty opinions were those "chosen for fat-
was" (al-mukhtar lil-Jatwa)Y In the Maliki school, the authoritative category
of the mashhur was in part determined by the common practice of ifta'. Hat-
tab maintains that tashhir is determined, among other things, by the mafti
bi-hi, the opinions predominantly adopted by the jurisconsults. 48 At the risk
of repetition, it is important at this point to recall Ibn 'Abidin's statement that
reflected the centuries-old practice of his school: "Not every sahih [opinion]
may be used as a basis for issuing fatwas because another opinion may be
adopted out of necessity (darura) or due to its being more agreeable to chang-
ing times and the likes of such considerations. This latter opinion, which is
designated as fit for ifta' lft-hi laJz al-Jatwa), includes two things, one of
which is its suitability for issuing fatwas, the other its correctness (sihhatihi),
because using it as the basis ofifta' is in itself [an act] by which it is corrected
(tashih la-hu)."49

38
 CAN THE SHARI'A BE RESTORED?

Similarly, the rules that were commonly applied, that is, the ma'mul
bi-hi, acquired paramount importance as the authoritative doctrine of the
school. Like the mafti bi-hi, the ma'mul bi-hi formed the basis of tashhir
in the Maliki schoo1,50 the assumption being that the authoritative opin-
ions of Malik, Ibn al-Qgsim, and those of the later mujtahids make up the
foundations of dominant judicial practice. In his commentary on
Nawawi's Minhaj, the Shafi'i Ram1i purportedly included in his work only
those opinions that were in predominant use, and whenever citing weaker
opinions, he alerted the reader to this fact by distinguishing between the
two types. 51 In the Hanafi school, the madhhab-opinion was organically
linked both to fatwa and to 'amal (practice). No fatwa was to be consid-
ered valid or at least authoritative unless it was backed by the judicial prac-
tice of the community ('alayhi 'amal al-umma).52 Ibn Hajar al-Haytami
summed up the entire issue when he said that" 'alayhi al-'amal" was a tar-
jih formula used to determine which opinions are correct and authorita-
tive. 53 Conversely, an opinion that is not resorted to in judicial practice
will become obsolete, and therefore negligible, if not altogether needless.
Speaking of authorial practices, Tufi argues that the author-jurist must
not, as a rule, record those opinions that are not relevant to practice, for
"they are need1ess."54
Since practice varied from one region to another, an opinion thought to
have gained wide circulation in one region might not have been regarded as
such in another, an added factor in the disagreement over which opinion
was deemed authoritative in the school and which not. The Maliki dis-
course on this matter perhaps best illustrates the difficulties involved. Ibn
Farhun states that the commonly used formula "This is the prevailing prac-
tice in this matter" (al-ladhijara al-'amal bi-hiji hadhihi al-mas'ala) cannot
be generalized to include all domains in which a particular school prevailed.
Rather, such a formula would have been applicable only to that region or lo-
cale in which the practice had prevailed. This explains, he maintains, why
the jurists attempted to restrict the applicability of the formula by adding to
it expressions like "in such and such region" f.ji balad kadha). Otherwise, if
they did not qualifY the formula, then the opinion would be said to be uni-
versally applicable. The opinion's purported universality was in itself an ar-
gument in favor of its preponderance as the authoritative opinion of the
school no matter where the opinion might be appealed to. Ibn Farhun also
asserts that the principle of authorization by dominant practice is accepted

39
WAEL B. HALLAQ

by the Shafi'i as well. 55 To the Shafi'i, he might as well have added the
Hanafi, who, as we have seen and as we will further see in the next chapter,
placed great stress on dominant practice as a legitimizing factor. The Han-
bali, on the other hand, appear to have laid slighdy less stress on it than any
of the other schools, if we are to judge by what seems to have been a lower
statistical frequency of explicit reference to practice in their works. But this
is by no means correct in all cases. In his Muntaha al-Iradat, for instance,
Ibn al-Najjar considers practice (alayhi al-amal) to be a preponderating
factor, standing on a par with tashih and tashhir. 56
The foregoing discussion has shown that operative terminology
evolved as a response to the plurality and thus indeterminacy oflegal rules.
All operative terms had in common a single purpose, namely, the deter-
mination of the authoritative opinion on any given case, a determination
that amounted in effect to reducing plurality to a single opinion. Episte-
mologically, this determination and the varied vocabulary that expressed it
stood as the binary opposite of ijtihad. The latter created multiplicity,
while the former attempted to suppress or at least minimize it. Ijtihad,
then, was causally connected with operative terminology, for it stood as its
progenitor, historically, hermeneutically, and epistemologically.
A salient feature of operative terminology that evolved as a response
to the indeterminacy of legal rules is its own indeterminacy. Yet juristic
disagreement was indeed a blessing, a rahma, as the jurists might have
said. The very diversity of opinion that resulted from this failure allowed
Islamic law to keep up with change, a theme that I have discussed in de-
tail elsewhere. 57 (It is worth noting in passing that recent findings 58 to the
effect that the mechanisms of change were integral to the very structure
of Islamic law raise the question of why the so-called legal reforms were
so massive, drastic, and destructive of the established legal structures.)

III
Thus, the traditional jurists operated within a self-sufficient system in
which practice, hermeneutics, and positive legal doctrine were conjoined
to produce the legal culture, which largely defined their world. Practice
stood in a dialectical relationship with doctrine, informing it and by which
it was informed. Practice also formed an integral part of interpretation and

40
 CAN THE SHARI'A BE RESTORED?

was by no means a mere tail-end of a process, a funnel through which jus-

tice was disposed. The legal practitioners and jurists constituted likewise
an epistemic community, which was systematically engaged on a
hermeneutical leveL Their practice was both pragmatic and discursive and
was the direct result of a legal tradition that bound them with the author-
itative demands of doctrine and continuity. Their present was primarily
the last moment of a historical tradition, integral to and inseparable from
it. When a qadi or a mufti adjudicated a case or a question, his engage-
ment epitomized at once horizontal and vertical fields of synchronic and
historic legal activity: it brought into play 1) the hermeneutical presuppo-
sitions oflegal theory and methodology and the exegetical arsenal associ-
ated with it throughout centuries of refinement and evolution; 2) the
principles of positive law,59 which had been constructed as part of the
founders' authority, which in turn was seen as the founding principle of
the school as a doctrinal entity;6o 3) the aggregate but diverse body of
knowledge generated by the authoritative figures of the school in the in-
terpretation of these principles; and 4) the reception of these interpreta-
tions by the community of jurists within the school, a reception
determined by the extent of the interpretive applications in the social,
mundane order.
The coming into play of these diachronic and synchronic elements
was integrated into other parts of juristic and pedagogical experiences:
The qadi or the mufti (or any legal professional for that matter) engaged
himself, at one and the same time, in a tradition in which 1) he acquired
legal education through the method of "closed texts," which, together with
the ijaza (license) system, constituted a fundamentally different sort of
training from that which the modern law school offered; 2) he was ap-
prenticed, during and after his graduate study, in shari'a courts where doc-
trine met practice and where the imposing intellectualism of the law
collided, but was always synthesized, with the reality of society and judi-
cial practice; 3) the religious ethic was the sole dominating force and the
final arbiter oflegallegitimacy; 4) the entire juristic (doctrinal) and judi-
cial enterprise was thoroughly <;upported by financially and administra-
tively self-sufficient and independent institutions; and 5) the authority of
the jurist was individualistic and exclusively personal (ijtihadic).
None of these elements continues to exist in the modern legal systems
of Muslim countries, and what remains of the traditional system, as we

41
WAEL B. HALLAQ

have already said, are remnants of mutilated doctrine patched up in a dis-

parate and methodologically deficient manner. Even if we submit that
these remnants are faithful to the Islamic ethos as it stands nowadays-
which we do not-they are, by virtue of their displacement and organic
disconnection from the erstwhile dynamic and vibrant school tradition,
incapable of further development and change, at least not so in a system-
atic and coherent manner; on the one hand, they have lost their method-
ological, hermeneutical, practice-based, and institutional connection with
the Islamic legal tradition. If the name foru' (branches) is to be taken in
any real sense, as it well may be, then their stem, through which they are
literally nourished, no longer survives. On the other hand, they have been
systematically alienated from the modernist legal system, and their dis-
connection from it is equally obvious.
To put our argument more plainly, in order to rejuvenate the entire
traditional system-in its founding principles, axioms, hermeneutics, and
financial, educational, and madhhab institutions-it would be required
that Islamic law be more than a dead "branch." And this, in light of the
intractable and well-nigh irreversible modernity and its imperatives, is a
manifest impossibility.61 Since traditional shari'a can surely be said to
have gone without return, the question that poses itself therefore is, Can
a form of Islamic law be created from within or without the ruins of the
old system?
Before attempting an answer to this intricate question, an explanation
must be provided as to the assumption underlying this question, namely,
the posited necessity for today's Muslims to live by a religious law. Since
the middle of the nineteenth century, Muslim societies have embarked on
a course of identity crisis caused, among other things, by the disappear-
ance from their daily lives of the religious structures that sustained them
for over a millennium. One of these structures, and a central one at that,
was Islamic law as a religious and pragmatic system. To say that this law
was "the core and kernel" of Islamic life is indeed to state the obvious.
Thus, for these societies to regain their cultural and religious identities, a
form of Islamic law must obtain-and this for two good reasons. First,
historically, Islamic societies have lived by a religious law for over twelve
centuries, and what made their identities what they have always been was
their possession of a particular legal phenomenon. Islam has always been
a nomocracy. Indeed, Islamic societies and polities have throughout these

42
 CAN THE SHARI'A BE RESTORED?

centuries exemplified the highest form of what a nomocracy can be. Sec-
ond, it is at present inconceivable that Muslims can or will want to trans-
form their Weltanschauung into a Western model of rationality and
secularism. They view the modernity of the West as incompatible with
their vision of morality and ethics, as having miserably failed in maintain-
ing the social fabric and in creating a coherent worldview or a meaningful
cosmology. The truth claims of Western reason and modernity seem dia-
metrically oppositional and extremely antithetical to the Islamic ethos.
The "return to Islam" that we have been witnessing since the Iranian Rev-
olution is partly caused by this disenchantment with Western culture and
its products. The solution for Muslims seems to lie in an institutional and
normative revival of Islam. It would appear that the legality and legal-
mindedness that governed Muslim life for so many centuries is again re-
quired to surface in order to redress the havoc that the problems of cultural
and religious crises have wreaked.
Joseph Schacht once argued that the problems that modern Muslims
face are parallel to those that prevailed during the early formation of Is-
lamic law, namely, the first two Islamic centuries:

[T]he subject matter ofIslamic law is to a great extent not originally Is-
lamic, let alone Koranic; it became Islamic law only through having the
categories ofIslamic jurisprudence imposed on it. Islamic jurisprudence
derived its fundamental attitude from the Koran, elaborated and devel-
oped it, and thereby created an integrating principle which made of an
agglomerate of various elements a unique phenomenon sui generis. Dur-
ing the first two centuries ofIslam, Islamic jurisprudence created a cen-
tral core of ideas and institutions which went far beyond the mere
contents and even the implications of the Koran, but which the Muslims
considered and have continued to consider specifically Islamic.... This
assimilating power of the Islamic core over foreign elements anticipated
the assimilating power and spiritual ascendancy ofIslamic law, as a reli-
gious ideal, over the practice, after the two had irremediably separated. 62

Schacht's views represent a major voice in the discourse that was

generated-and is still being generated-by the colonizing cultures. In the
spirit of this discourse, he persistently upheld the idea that a fundamental
gap had always existed between doctrine and practice in Islam63 and that
if Muslims could live with this gap for so many centuries, then why should

43
WAEL B. HALLAQ

they not be able to do so now. In other words, Schacht believes that mod-
ern Muslims can construct a new jurisprudence and law, but they must
continue to live with the fact that much of what they "assimilate" will al-
ways go beyond the dictates of the Qyr'an. Just as they initially assimilated
Jewish, Roman, and other legal institutions and concepts that had domi-
nated the ancient Near East, they can now do the same with Western
norms and institutions.
Be that as it may, Schacht's position fails to appreciate the detail of
the two historical situations that he sees as parallel. First, when the early
Muslims embarked on constructing a legal system and jurisprudence,
they-of course unknowingly-were unencumbered by, and in fact
largely free from, restrictive and constricting historical precedents or a
binding tradition. This is not the case at present. Their movement there-
fore is detained, if not also limited, by the fact that departures from tra-
ditional, religious doctrine must be constantly justified Gustification here
is taken to be no less than the art of persuasion on which hinges the suc-
cess or failure of a proposed enterprise). The doctrines of usul al-fiqh
constitute a powerful grip over the minds of Muslims today, for they are
intimately connected with the holy texts. No refashioning of doctrine or
jurisprudence can even take off without due considerations of the im-
peratives that the usul theory dictates. Second, when the early Muslims
embarked on constructing a law and a legal system, they did so from a
position of international hegemonic power, a fact that allowed them to
speak and act with confidence. Whatever they appropriated from other
cultures became theirs, especially in light of the fundamental transfor-
mations to which they subjected borrowed concepts and institutions.
The present situation is significantly different: modernity is a Western
product, a fact poignantly obvious to everyone. On both popular and
state levels, today's Muslims perceive themselves, and rightly so, as col-
onized and dominated subjects, and whatever they adopt of Western
ideas and institutions is not, and will never be, theirs. The balance of
power, which determines the legitimacy of cultural and other appropri-
ations, is simply not in their favor. Third, and issuing from our forego-
ing consideration, the balance oflegal power does not lie in the hands of
the religious-legal specialists who were exclusively, individually and col-
lectively, responsible for constructing early Islamic jurisprudence and
law. The modern state's appropriation of legal powers changes the old

44
 CAN THE SHARI'A BE RESTORED?

equation and, as we have seen, totally marginalizes even the potential

contributions of the individual shari'a-minded jurists (assuming that
these now exist). And as long as the modern Muslim states remain
vassal-like entities in relation to the Western hegemonic powers, their
dedication to the Islamic imperatives will always remain vacuous, espe-
cially in light of the close control that the West, especially the United
States, has been exercising over politics and the religious movements in
the Muslim world.

IV
If the modern reality of Muslims is unprecedented, then what is the solu-
tion? First of all, the traditional theory of usul al-jiqh is no longer sufficient
to deal with the exigencies of modern life, even if we assume-against all
odds-that a professional legal class, qualified to harness it, can be resur-
rected. This theory is essentially literalist, paying heed to the lexical and
technical meanings of the revealed texts. In some cases, central to society
and economy, no amount of interpretation can change the dictates of cer-
tain revealed texts. This theory therefore has no chance of any revival
(much less success) unless a necessary and sufficient condition is met, a
condition some recent Muslim intellectuals are arguing for, namely, the
abandonment of all things, material and otherwise, that conflict or contra-
dict with the dictates of this theory. In other words, on their view, much of
modernity must be thrown to the wastebasket, for it is not only incongru-
ent with Islam but also harmful in the first place. This writer, however, begs
to differ with this assessment. Modernity, as intrinsically reprehensible as
it may be, is a reality that cannot be pushed aside or in any manner neu-
tralized from the midst of Muslim life. Modernity is not only technology
and science, Hollywood, McDonald's, and Calvin Klein jeans but also a
psychology, an ethic, a set of values, an epistemology, and, in short, a state
of mind and a way of life. Modernity is here to stay, at least for a long time
to come. The realistic solution, therefore, is to alter what can be altered: le-
gal theory has in any case been on the back shelf for a century and a half,
and it is far more realistic and practical to remold it than to sweep
modernity-with all its powerful values, institutions, and epistemologies-
aside.

45
WAEL B. HALLAQ

If traditional legal theory cannot provide a solution, then what can?

Elsewhere, I have discussed in some detail the reformists' proposals to-
ward fashioning a new theory oflaw and have concluded that no alterna-
tive thus far seems to meet the requirements of the time. 64 What I have
labeled the "Religious Utilitarianists" fail to produce a cogent legal theory
or methodology and thus offer nothing more than shallow juristic devices
that at best attempt to justifY the existing arbitrariness of state legislation.
Their refashioned concepts of necessity (darura) and public interest
(maslaha, istislah), which are inspired by traditional methodology, are
taken so far as to obliterate the very system from which they themselves
derive. In addition to the incurable subjectivity into which these propos-
als fall, they fail to provide any tools that permit a coherent, logical, or
consistent development of the law. Their utilitarianist positions are barely
appropriate solutions for the present, and the proposals they offer can by
no means function as dynamic methodologies, organically tied to the de-
mands of an evolving legal sociology.
The other group of reformers we have identified are the "Religious
Liberalists" who offer a diversity of theories that have at their core prom-
ising nonliteralist methodologies. 65 The proposals of F azlur Rahman and
Muhammad Shahrur represent two major examples of this group. Their
merit lies in the fact that they provide methodologies that maintain a co-
herent hermeneutical link with the religious texts but, at the same time,
manage to escape the traditional literalist approach, which, in light of the
drastic changes brought to the fore by modernity, is highly restrictive and
leads to tortuous lines of legal reasoning. However, associated with these
proposals there remain three main problems. First, none of them has been
sufficiendy elaborated as to create a comprehensive and structured theory,
matching in caliber its traditional usul counterpart. What has been offered
thus far is no more than an outline, so to speak. Second, these proposals
remain circumscribed, having little appeal to Muslims at large. Rahman's
ideas, for instance, were and remain a marginal voice, and Shahrur has
been the subject of much negative controversy. Personally, I have yet to
meet one Muslim intellectual who has adopted a favorable attitude toward
him. In fact, the book market is now replete with works and pamphlets re-
futing or criticizing his intelligent contributions. Third, even if these pro-
posals were received with great favor by the general Muslim public, which
is clearly not the case, they have so far had no effect whatsoever on the

46
 CAN THE SHARI'A BE RESTORED?

centers of power-the state officials and political rulers who have turned
a deaf ear to them as they did virtually to all others. And it is unlikely that
this situation will soon change.
What we are witnessing therefore is no less than a formidable im-
passe. The cries of Muslim intellectuals, however promising their ideas
mayor may not be, are still and will remain marginalized. At the same
time, the interest of the Muslim states, with their authoritarian and auto-
cratic regimes, is little served by the adoption of a full-scale program ofIs-
lamization. The relatively very few regimes that claim themselves to be
Islamic (with the exception of Saudi Arabia and Iran) take this stance as
a political device and strategy. The promulgation of the hudud penal law
hardly constitutes a genuine restoration of the shari'a and fails to mask the
political expediency underlying the seemingly legal initiative. As long as
the Muslim intellectuals are estranged from state apparatus and as long as
the present regimes continue to hold a firm grip over power, there can be
no hope for a true Islamic revival.
Yet it is only the state that can bring about a revival of Islamic law, but
not without the full participation of Muslim intelligentsia and, more impor-
tant, not while the present regimes remain in power. The Iranian experience
affords an eloquent example of the combination of political and legal gov-
erning, but then the Shi'ite religious elite differs from its Sunnite counterpart
in fundamentally structural ways. The solution for the Sunnite countries,
therefore, is for the new Muslim state to incorporate the religious intelli-
gentsia into its ranks. The custody ofIslamic law, history has shown, must re-
side with a learned hierarchy largely dissociated from political power: the
independence oflaw from the concerns of politics is as much an Islamic phe-
nomenon as it is American or European. In fact, this independence has a
much longer history in Islam. The state must re-create the necessary condi-
tions for a modern version of Islamic law to be constructed and to evolve
largely on its own. It must financially sustain religious institutions, especially
shari'a colleges; it must install the religious hierarchy in the respective social
and political hierarchy so as to enable the legal profession to sense and reflect
societal concerns on all levels; it must be able to give this legal profession a
free range in determining what the law is; and finally it must respect its ver-
dict. But none of this can be attained without a genuinely Islamic polity.
Theory, however, is one thing, reality another. A most central and vex-
ing problem remains, and the solution to it seems thus far untenable. The

47
WAEL B. HALLAQ

question that today's Muslims must answer is to what extent they are will-
ing to subscribe to modernity and to adopt its products. To reject it com-
pletely is obviously out of the question: modernity, we have said, is not
merely a material phenomenon but primarily one that effected a systematic
restructuring of psychology and epistemology, among many other things.
Accordingly, if they were to adopt of it what suits them, what is to be
adopted? If commercial, corporate, and other business laws are to be
adopted, as they have and as they must, can Muslims do so while escaping
the snares of usurious interest?66 If they are to join the other nations in sign-
ing human rights charters and conventions, as they have, can they, or are
they willing to, enact religious laws that grant their religious minorities an
equal status? If the education of women has become an essential feature of
their society, can the religious law forge for the Muslim woman a commen-
surate status compatible with her new role in society? If this status were to
be accorded, can this law, while maintaining its intellectual and religious in-
tegrity, deal with the implications and consequences of this new role? And
if all this were to take place, how are the revealed texts to be interpreted?

Notes
1. Salih Ganim Sadlan, Wujub Tatbiq al-Shari'a al-Islamiyya (1404; reprint,
Riyadh: Idarat al-Thaqafa wal-Nashr bi-Jami'at Muhammad b. Sa'ud, 1984).
2. See especially the essay by Muhammad Salih 'Uthman, Wujub Tatbiq
ai-Shari 'a al-Islamiyya, 143-82, especially 176.
3. See Mustafa al-Zarqa, Wujub Tatbiq al-Shari'a al-Islamiyya, 227.
4. Paul Koschaker, Europa und das romische Recht (Munich: C. H. Becksche
Verlagsbuchhandlung, 1966), 183.
5. Madeline C. Zilfi, "The Ilmiye Registers and the Ottoman Medrese System
Prior to the Tanzimat," in Contribution al'histoire economique et sociale de l'Empire
ottoman (Leuvin: Editions Peeters, 1993),309-27.
6. See, for example, Nathan J. Brown, The Rule ifLaw in the Arab World (Cam-
bridge: Cambridge University Press, 1997),26-29, 33-40. However, the author's
view that "the legal reforms of the late nineteenth and early twentieth centuries can-
not be seen as an external imposition" (49) is entirely unwarranted. It is based on
fragmented evidence and is inconsistent with the indisputable facts of history, in-
cluding those rehearsed by the author himself (see, for example, 33-40). It also
grossly ignores central facts about Islamic legal history, the nature of colonialist ven-

48
 CAN THE SHARI'A BE RESTORED?

tures, and the pervasive effects of modernity. Furthermore, even if we go by Brown's

partial and superficial explanation that the adoption of European law was the Arab
nationalists' choice and means of "resisting direct European penetration," it still is
the colonialist enterprise that imposed this option on the nationalists and that, wit-
tingly or not, created severe legal ruptures in the Muslim world. The crux of Brown's
explanation is the underlying assumption, adopted by a large number of Western
scholars, that modernity and modernization are universal phenomena and that it is
natural and expected that everyone in the world should want to adopt them. This
eccentric assumption has been seriously challenged by Western social anthropolo-
gists, critical theorists, as well as others, but our field, instead of pioneering these re-
assessments, still labors with an archaic nineteenth-century mentality.
7. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press,
1964),104.
8. Cited in H. Liebesny, The Law ofthe Near and Middle East: Readings, Cases
and Materials (Albany: State University of New York Press, 1975), 67-68.
9. Namely, those principles that were elaborated in legal theory (usul al-Jiqh)
and those that governed the hermeneutical activity of taqlid in substantive law
(also known as usu!). Being fundamentally different from each other, these two
types of principles must not be confused with each other. On the function of
taqlid, see W. Hallaq, Authority, Continuity and Change in Islamic Law (Cam-
bridge: Cambridge University Press, 2001), chap. 4.
10. On the construction of the Imam's authority, see Hallaq, Authority, 24 ff.
11. Abu Ishaq Ibrahim aI-Shirazi, Sharh al-Luma', ed. 'Abd aI-Majid Turki, 2
vols. (Beirut: Dar al-Gharb al-Islami, 1988), 2:1043-45; Ahmad b. 'Ali Ibn
Barhan, al-Wusul ila al-Usul, ed. 'Abd aI-Hamid Abu Zunayd, 2 vols. (Riyad:
Maktabat al-Ma'arif, 1404/1984),2:341-51.
12. Muhammad b. Idris al-Shafi'i, al-Risala, ed. Ahmad Muhammad Shakir
(Cairo: Mustafa Baba al-Halabi, 1969),560-600; Norman Calder, "Ikhtilaf and
Ijma in Shafi'i's Risala," Studia Islamica 58 (1984): 55-81.
13. Abu 'Umar YusufIbn 'Abd al-Barr,fami' Bayan al- 11m wa-Fadlihi, 2 vols.
(Cairo: Idarat al-Tiba'a al-Muniriyya, n.d.), 2:45 f£; G. Makdisi, The Rise of Col-
leges (Edinburgh: Edinburgh University Press, 1981), 107-11.
14. Hallaq, Authority, 166 ff., 236 f£
15. On the non-sahih-opinions, see note 24.
16. Verification is the activity of the "verifiers" (muhaqqiqun), scholars who es-
tablish the solution to problems by means of original proof and reasoning. See
Muhammad b. 'Ali al-Tahanawi, KashshafIstilahat al-Funun, 2 vols. (Calcutta: W.
N. Leeds' Press, 1862),2:336 (s.v. tahqiq); W. B. Hallaq, Ibn Taymiyya against the
Greek Logicians (Oxford: Clarendon Press, 1993), 12 n. 2.

49
WAEL B. HALLAQ

17. Ibn Ghanim Muhammad al-Baghdadi, Majma' al-Damanat (Cairo:

al-Matba'a al-Khayriyya, 1308/1890), 3.
18. In the Hanafi school, Marghinani, among others, acquired a similar status.
In Malikism, it was Ibn Rushd, Mazari, and Ibn Buzayza, although in his
Mukhtasar, Khalil was to bring together the fruits of these and other jurists' ef-
forts.
19. Opinions formulated by ashab al-wujuh or ashab al-takhrij. See Hallaq,
Authority, 43 ff.
20. Since, unlike the unmarried fornicator whose punishment falls short of the
death penalty, the married fornicator receives the full extent of this punishment.
See Sharaf al-Din Muhyi al-Din al-Nawawi, Rawdat al-Talibin, ed. 'Adil 'Abd
al-Mawjud and 'Ali Mu'awwad, 8 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, n.d.),
7:305-6.
21. Since Nawawi's work is a commentary on Shirazi's Muhadhdhab, he refers
to him as "The Author" (al-musannij), a common practice among commentators.
22. Sharaf al-Din al-Nawawi, al-Majmu:' Sharh al-Muhadhdhab, 12 vols.
(Cairo: Matba'at al-Tadamun, 1344/1925), 9:43-44.
23. For example, in his al-Majmu', 1:5, Nawawi states that he will overlook the
lines of reasoning in justification of weak opinions even when these opinions are
of the widespread (mashhur) category.
24. Taqi al-Din al-Subki, Fatawa, 2 vols. (Cairo: Maktabat al-QIdsi, 1937),
2:10 f£; Jalal al-Din al-Suyuti, al-Ashbah wal-Naza'ir (Beirut: Dar al-Kutub
al-'Ilmiyya, 1979), 104; Sharaf al-Din al-Nawawi, Tahdhib al-Asma' wal-Lughat,
3 vols. (Cairo: Idarat al-Tiba'a al-Muniriyya, 1927), 1:94, 113, 164; 'Ala' al-Din
al-Ba'li, al-Ikhtiyarat al-Fiqhiyya (Beirut: Dar al-Fikr, 1369/1949),24; 'Ali b. Su-
layman al-Mirdawi, Tashih al-Furu', ed. 'Abd al-Sattar Farraj, 6 vols. (Beirut:
'Alam al-Kutub, 1985), 1:25,31,32; 'Isa b. 'Ali al-'Alami, Kitab al-Nawazil, 3 vols.
(Rabat: Wizarat al-Awqafwal-Shu'un al-Islamiyya, 1983),3:6. Abu al-Khattab
al-Kilwadhani (d. 510/1116) was said to have held a number of opinions not
shared by the members of his school, opinions described as taforrudat. These
opinions, also characterized as ghara'ib (pI. of gharib, lit. unfamiliar, thus irregu-
lar), were corrected (sahhaha) later by Hanbali. See 'Abd aI-Rahman Ibn Rajab,
al-Dhayl 'ala Tabaqat al-Hanabila, 2 vols. (Cairo: Matba'at al-Sunna al-Muham-
madiyya, 1952-1953), 1:116, 120, 126-27. It is to be noted that in some cases the
opposite of the da'ifwas the qawi (lit. strong) or the aqwa (stronger), terms that
were rarely used and whose technical meaning remained unfixed. See, for in-
stance, the Hanbali 'Ala' al-Din al-Ba'li, al-Ikhtiyarat al-Fiqhiyya (Beirut: Dar
al-Fikr, 1949), 11. The same may be said of the term sawab or its fuller expres-
sion wa-hadha aqrab ila al-sawab (this is more likely to be true or correct), which

50
 CAN THE SHARI'A BE RESTORED?

was used infrequently to designate the status of an opinion. See, for example, ~a
al-Din al-Kasana, Bada'i' al-Sana'i', 7 vols. (Beirut: Dar al-Kitab al-'Arabi, 1982),
1:31. A very rare labeling of weak opinions is the term quwayl, which is the
diminutive of qawl (opinion). See the Hanbali Shams al-Din al-Zarkashi, Sharh
al-Zarkashi 'ala Mukhtasar al-Khiraqi, ed. 'Abd Allah al-Jabrin, 7 vols. (Riyadh:
Maktabat al-'Ubaykan, 1413/1993), 1:63,290.
25. It is quite possible that the last two, and particularly the fourth, of this
quartet may have referred to opinions lacking in terms of sufficient circulation,
without any consideration of correctness or soundness. However, the connection
that was made between authoritative status and level of acceptance meant that
widely circulated opinions were correct, whereas those that failed to gain wide
acceptance were problematic. See further discussion on this issue later in this
chapter.
26. See Hallaq, Authority, 166 fE
27. See his splendid discussion in Sharh al-Manzuma, printed in his Majmu'ar
Rasa'il, 2 vols. (n.p., 1970), 1:10-52, at 38 fE, which marshals a myriad of opin-
ions from the early and late periods.
28. Ibn 'Abidin, Sharh al-Manzuma, 1:38-39.
29. Khayr aI-Din al-Ramli, al-Fatawa al-Khayriyya, printed on the margins of
Ibn 'Abidin's al- 'Uqud al-Durriyya Ji Tanqih al-Fatawa al-Hamidiyya (Cairo:
al-Matba'a al-Maymuna, 1893), 3.
30. See Hallaq, Authority, chap. 4.
31. On this theme, see Wael B. Hallaq, "On Inductive Corroboration, Proba-
bility and Certainty in Sunni Legal Thought," in Islamic Law and Jurisprudence:
Studies in Honor oJFarhatJ Ziadeh, ed. N. Heer (Seattle: University of Washing-
ton Press, 1990),3-31.
32. Taj aI-Din al-Subki, Tabaqat al-ShaJi'iyya al-Kubra, 6 vols. (Cairo:
al-Maktaba al-Husayniyya, 1906), 5:124.
33. Shams aI-Din al-Ramli, Nihayat al-Muhtaj ila Sharh al-Minhaj, 8 vols.
(Cairo: Mustafa Babi al-Halabi, 1357/1938), 1:37.
34. Taqi al-Din Ibn al-Salah, Adab ai-Mufti wal-Mustqfti, ed. Muwaffaq b. 'Abd
al-Qedir (Beirut: 'Alam al-Kutub, 1407/1986), 126.
35. Muhammad al-Hattab, Mawahib al-Jalilli-Sharh Mukhtasar Khalil, 6 vols.
(Tarablus, Libya: Maktabat al-Najah, 1969), 6:91. See also Mirdawi, Tashih
al-Furu', 1:51; Nawawi, Majmu, 1:68.
36. For example, see Muhammad b. Idris al-Shafi'i, al-Umm, ed. Mahmud
Matarji, 9 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 141311993),2:102, 113, 136,
163, and passim.
37. Mirdawi, Tashih al-Furu', 1:50-51.

51
WAEL B. HALLAQ

38. This has been demonstrated in W. Hallaq, "From Fatwas to Furu':

Growth and Change in Islamic Substantive Law," Islamic Law and Society 1
(1994),17-56, at 31-38.
39. Hattab, Mawahib al-Jalil, 1:24; 6:91.
40. This periodization, which is determined by our independent investigation
of the madhhab evolution and the construction of authority, agrees with the tra-
ditional distinction between the "early" and "later" jurists.
41. Wajh-opinions are those formulated by ashab al-wujuh or ashab
al-takhrij, jurists who flourished mainly during the third/ninth-fourth/tenth
centuries. The activity of the ashab, however, continued on a smaller scale
throughout the next three or four centuries. On these, see Hallaq, Authority,
43 ff.
42. Nawawi, Majmu', 1:4-5.
43. Ibn 'Abd al-Barr,fami' Bayan al- 'lIm, 2:43 ff.
44. Ramli, Nihayat al-Muhtaj, 1:38.
45. Subki, Fatawa, 1:324.
46. Ramli, Nihayat al-Muhtaj, 1:36-37.
47. Ibrahim al-Halabi, Mulatqa al-Abhur, ed. Wahbi al-Albani, 2 vols. (Beirut:
Mu'assasat al-Risala, 1409/1989), 1:10; 2:194, 202, 207, 210, 211, and passim.
48. Hattab, Mawahib al-Jalil, 1:36.
49. Ibn 'Abiciin, Sharh al-Manzuma, 1:38-39.
50. Hattab, Mawahib al-Jalil, 1:36.
51. Ramli, Nihayat al-Muhtaj, 1:9.
52. 'Ala' al-Din al-Haskafi, al-Durr al-Mukhtar, 8 vols. (Beirut: Dar al-Fikr,
1979),1:72-73. See also Ibn 'Abidin, Sharh al-Manzuma, 38.
53. Ibn Hajar al-Haytami, al-Fatawa al-Kubra al-Fiqhiyya, 4 vols. (Cairo:
'Abd al-Hamid Ahmad al-Hanafi, 1938),4:293.
54. Najm al-Din al-Tufi, Sharh Mukhtasar al-Rawda, ed. 'Abd Allah al-Turki,
3 vols. (Beirut: Mu'assasat al-Risala, 1407/1987),3:626; "idh ma la 'amala 'alayh la
hajata ilayh."
55. Shams al-Din Ibn Farhun, Tabsirat al-Hukkam, 2 vols. (Cairo: al-Matba'a
al-'Amira al-Sharafiyya, 1883), 1:49.
56. Taqi al-Din Ibn al-Najjar, Muntaha al-Iradat, 2 vols. (Cairo: Maktabat
Dar al-'Uruba, 1961-1962), 1:6.
57. See Hallaq, Authority, chap. 6.
58. See Hallaq, Authority, chap. 6.
59. See note 7.
60. On the later construction of the founders' authority, see Hallaq, Authority,
chap. 2.

52
 CAN THE SHARI'A BE RESTORED?

61. Today, some Muslim intellectuals argue that the loss of the religious ethic
is the cause of failure to apply the shari'a. They maintain that the restoration of
this ethic and the regaining of the religious Geist will guarantee the creation of a
reality in which Muslims will abandon all that is contrary to the legal ethic,
thereby abandoning in the process all the evils of modernity. In other words, their
argument amounts to the claim that popular conviction can change the facts on
the ground, facts here meaning all that is associated with the nation-state, tech-
nology, economic modes of production, finance, consumerism, and much else.
This writer, however, begs to differ. Even if this popular conviction were to ob-
tain, there remains the problem of how to accommodate the modernist material
reality within the parameters ofIs1amic values.
62. Joseph Schacht, "Problems of Modern Islamic Legislation," Studia Islam-
ica 12 (1960), 100-101.
63. A major doctrine of Orientalist legal scholarship that was required to vin-
dicate the colonialist enterprise generally and, more specifically, the massive legal
restructuring to which the Muslim institutions and concepts were subjected.
64. Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge
University Press, 1997), chap. 6.
65. Hallaq, A History ofIslam ic Legal Theories, 231 f£
66. In other words, can modern Islamic banking and finance still operate, as it
does, in a global market and still avoid, in a true and genuine manner, engage-
ment in usurious transactions? The experience on the ground thus far has shown
this to be untenable.

53
 CHAPTER TWO
INSCRIBING THE ISLAMIC SHARI'A IN ARAB
CONSTITUTIONAL LAW
Nathan }. Brown and Adel Omar Sherif

n the vast majority of Arab states, official claims of obeisance to the

I principles of the Islamic shari'a are inscribed in constitutional texts

derived far more from European than Islamic legal traditions. The
precise formula varies from state to state, but in most constitutions a ju-
ristic paradox is created. On the one hand, the constitution presents itself
as the fundamental law of the state and (usually) the expression of the will
of a sovereign people; it therefore becomes the law that makes other laws
possible. On the other hand, the references to the Islamic shari'a imply
and sometimes explicitly state the existence of a higher or prior law.
A similar kind of paradox is quite common in many constitutional tra-
ditions. It is not uncommon to argue that the constitution itself is bound by
prior or higher principles. In the United States, for instance, the Constitu-
tion treats rights as recognized-and not created-by the Constitution; un-
less specifically limited, those rights continue to apply, as the document
itself boldly (if quite ambiguously) was amended to read: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or dis-
parage others retained by the people [Amendment IX]. The powers not del-
egated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people [Amendment
Xl" It is also common to argue (drawing partly on a natural-law tradition)
that constitutions assume certain constitutional principles (such as reason or
limited government) and must be interpreted in their light. 1
Arab constitutional texts tend to sharpen this paradox for two reasons.
First, the Islamic shari'a (especially as it has come to be understood in recent

55
NATHAN J. BROWN AND ADEL OMAR SHERIF

years) entails not merely general principles but also very specific rules. 2 But
it does not always do so in a way that determines political structure. Al-
though the Islamic shari'a is commonly referred to for the sake of simplicity
as "Islamic law," even by Muslims, its nature is different and broader than this
might imply. It is better seen as a method or even a code (based on religious
principles) designed to inform and regulate the conduct of Muslims in all as-
pects of life, including social, commercial, domestic, criminal, and political
affairs, as well as devotional practices. 3 Yet despite such comprehensiveness,
the Islamic shari'a does not provide explicidy for a specific framework or a
particular legal and government system. While some might therefore view
the Islamic shari'a as incomplete, it is perhaps fairer to view it as flexible, leav-
ing details of the political and legal order-including the procedures as well
as substantive details-to be determined by Muslims as circumstances dic-
tate, within the broad basic principles of shari'a.
Second, Arab constitutional texts often sharpen the paradox when
they imply not merely that the shari'a must guide interpretation but also
that it supersedes all other legal rules-including, perhaps, the constitu-
tion itsel£ The paradox is not merely theoretical or abstract: much con-
tentious political debate (and sometimes violence) has centered on the
proper relationship between the legal order devised by human beings and
that derived from divine sources.
The purpose of this chapter is to answer two questions: first, how did
current Arab constitutional texts take the form of inscribing the Islamic
shari'a, and, second, what have been the practical effects of adopting such
provisions? The first question will be answered with a broad survey of the
development of Arab constitutional practice. The second question will be
answered with a special focus on the most developed attempt to work out
the meaning of such provisions in practice: the Egyptian Supreme Con-
stitutional Court's interpretation of Article 2 of that country's 1971 con-
stitution.

The Islamic Shari'a in Arab Constitutional Texts

Middle Eastern states began experimenting with writt~n constitutional
texts in the middle of the nineteenth century, generally in an effort to con-
front deep and simultaneous fiscal and international crises. 4 While these

56
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

constitutions are often portrayed as alien imports, they were generally in-
digenously generated. The states involved sought less to impress European
states and creditors (the most often cited motive for constitutional reform)
and more to practice fiscal discipline and regularize state authority (and
thus fend off European control).

Constitutional Roads Not Taken

For a variety of reasons, early constitutional experiments did not al-
ways provoke questions of the relationship between the constitutional text
and the Islamic shari'a. This was partly because constitutions presented
themselves as either consistent with or irrelevant to the application of Is-
lamic law. Two constitutional forms emerged early in Arab constitutional
history that have generally not survived past the middle of the twentieth
century; brief exposition of these alternative forms sheds some light on the
problems raised by the more ambitious, comprehensive, and European-
style documents adopted by most Arab states in this century.
The first alternative is best exemplified by the first Middle Eastern
constitutional document: the qanun al-dawla al-tunisiyya (law of the
Tunisian state or dynasty) of1861. This law was understood by Europeans
at the time-and by some scholars since-as a mechanical and inappro-
priate adaptation of European constitutional forms. A reading of the doc-
ument, however, reveals something quite different: an attempt to borrow
. some emerging constitutional practices within a framework described in
familiar (and sometimes Islamic) terms. Islamic political vocabulary was
used (members of the newly established Grand Council, for instance, were
referred to as ahl ai-hall wa-l- aqd, literally, "the people who loosen and
bind," and the population was generally referred to as raayana, literally,
"our flock"). Some European usage was also adopted (the ruler was re-
ferred to as the king-al-malik-rather than bey-perhaps an implicit as-
sertion of Tunisian sovereignty) but less than is often supposed. The
Grand Council and other councils clearly mixed administrative and judi-
cial functions, violating emerging European constitutional norms of the
separation of powers. 5 There were some real innovations in the
document-such as insisting on designating only a share of the state
budget for the king himself or that taxes be levied only on a legal basis-
but these were not viewed as inimical to Islamic political practice. (The

57
NATHAN J. BROWN AND ADEL OMAR SHERIF

law did imply civil equality regardless of religion, but this principle had al-
ready been proclaimed in Tunisia prior to the promulgation of the law.) In
short, the Tunisian constitution presented itself to Tunisians less as a new
political system based on non-Islamic sources and more as a new codifi-
cation of preexisting political practices and institutions. The Tunisian con-
stitution appears to be an attempt to develop a constitutionalist system
that is Islamic but not democratic. The point is to render authority ac-
countable to the Islamic shari'a and to an elite that keeps the interests of
the community in mind. 6 Yet the attempt to put such a constitutionalism
into practice proved abortive not only in Tunisia but also elsewhere. Other
Middle Eastern states have occasionally attempted to use Islamic political
terminology to present their constitutional reforms, but generally on an ad
hoc and isolated basis. 7
A second alternative constitutional path was to issue modest docu-
ments that purported to be not comprehensive bases for the political or-
der but merely procedural guidelines for operating existing institutions.
Many early Arab constitutional efforts followed this model. Perhaps the
earliest example came with Egypt's 1882 constitution (termed the funda-
mental ordinance, or al-Ia'iha al-asasiyya). The document was fairly brief,
focusing almost all its fifty-two articles on the Consultative Council that
was already sitting. An elected body, the Council was given an extensive
role in legislation and in oversight of public finances. Ministers were in-
vited to attend the Council sessions; they could also be summoned. While
the constitution stipulated that ministers were responsible to the Council,
it also mandated new elections if a difference between the cabinet and the
Council could not be resolved. If a newly elected Council insisted on the
position of the former Council, its opinion was binding. The few rights
provisions were directly related to the Council, covering issues such as pe-
titioning the Councilor the immunity of Council members.8 In short, this
law is better understood as an organic law for the Council rather than a
comprehensive legal framework. It thus provoked little debate about its
relationship with Islamic law.
Several other Arab constitutional documents followed this pattern.
For instance, the collapse of Ottoman rule in the Arab provinces moti-
vated the composition of short-lived and little-remembered constitutional
documents in areas that eventually became part of Transjordan and
Libya. 9 Kuwait in 1938 and the Kingdom of Hijaz (after its conquest by

58
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

the Saudi family in the 1920s) issued brief constitutional documents that
are noteworthy in retrospect for their brevity and the modesty of their
provisions. 10
Yet even in the late nineteenth century, a far more ambitious path was
opened to constitutional development-one that has provoked controver-
sies and problems regarding how to reconcile it with the prevalence ofIs-
lamic legal norms and provisions. The paths described here worked to
insinuate constitutional practices by incorporating them into prevailing
Islamic vocabularies or by presenting them as modest organizational tools.
Emerging European conceptions presented a far more ambitious image of
constitutions: they were comprehensive legal and political frameworks
emanating from the sovereign will (a sovereign that was either a monarch
or a people or some odd amalgamation of the two). The Ottoman consti-
tution of 1876 introduced such views, and it has emerged as the dominant
form for Arab constitutional texts over the past century.
The Ottoman constitution of 1876 was drafted by a group ofleading
officials and members of the 'ulama and modified by the cabinet before
promulgation by the sultanY The draft the committee finally submitted
to the sultan most closely resembled the Belgian constitution of 1831;
there were also parallels with the Prussian constitution, itself a more roy-
alist version of the Belgian model. The sultan submitted the draft to the
cabinet, which made some changes before promulgation.
Because the Ottoman constitution presented itself as a comprehensive
governing framework, it provoked some debate regarding the role ofIslam
and the shari'a in Ottoman governance. Indeed, some members of the
'ulama so bitterly and publicly opposed the entrance of non-Muslims into
the Parliament that they were exiled. The constitution seemed partly de-
signed to further legal equality between Muslims and non-Muslims. Yet it
stopped far short of establishing a secular state. Islam was clearly estab-
lished as the state religion in various institutional and symbolic ways. For
instance, the sultan was charged with executing provisions of shari'a and
qanun law. The authors of the constitution most likely sought no more
than to further legitimate positive legislation alongside the Islamic shari'a;
they also probably wished to wean non-Muslims away from separatist
hopes. The constitution implicitly (by the way it was issued as well as its
effective implementation 12 ) issued from the sovereign and absolute au-
thority of the sultan-a feature affirmed by the decision of the sultan to

59
NATHAN J. BROWN AND ADEL OMAR SHERIF

suspend its operation less than two years after promulgation. Yet the doc-
ument was reimposed in 1908 and amended the following year to intro-
duce a symbolically critical change: the sultan was now required to swear
an oath to the shari'a, the constitution, the homeland, and the nation, thus
formalizing the idea that the sultan himself was subject to the will of God
and the people.
The Ottoman constitution of 1876 served as a model for constitu-
tional development in the Arab world, which also inherited the contro-
versies and problems connected to its complex messages regarding the role
of Islam in politics and governance. These controversies began in fairly
muted fashion but have emerged in virtually all Arab countries participat-
ing in this Arab constitutional tradition.

Inscribing Islam
In the aftermath of World War I and the collapse of the Ottoman
Empire, two Arab states sought to establish their sovereignty and politi-
cal structure through composing constitutional texts. The first effort was
undertaken in Damascus by a new (and abortive) Arab state and turned
immediately to the Ottoman constitution for inspiration. While the con-
stitution was not promulgated before the collapse of the state (which oc-
curred with the imposition of the French Mandate), it set the pattern for
other documents in the Arab East. Later Syrian, Iraqi, Lebanese, Jordan-
ian, and Kuwaiti documents all drew heavily on the Ottoman constitution.
There was a subde difference in the political context in which these con-
stitutions were written, however. The Ottoman document was issued in an
established and recognized state whose leadership was attempting to fend
off foreign penetration and fiscal collapse. The constitutions of the Arab
East were issued by states that were asserting (or often striving to assert)
their independence; this tended to heighten the importance of symbolic
elements of the constitution. It is therefore not surprising that the Islamic
provisions of the Ottoman constitution-often indirect or connected with
the Ottoman sultanate that Arab states were interested in denying-were
insufficient for emerging states eager to assert their standing and identity.
They thus generally inserted two explicit provisions that were only im-
plicit in the Ottoman constitution. First, Islam has almost always pro-
claimed the religion of the state. Second, the head of state has been

60
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

generally required to be a Muslim. In one other case (Iraq), the constitu-

tion recognized the shari'a courts as authoritative in personal status mat-
ters for Muslims (Article 76).
The second effort at constitution writing occurred in Egypt with its
1923 constitution. This experience was successful only in comparison with
the 1920 Syrian constitution: the king suspended it twice and strained at
the limits implied in its provisions even when it was in force. Neverthe-
less, it proved extremely influential. Not only did all subsequent Egyptian
constitutions begin with the 1923 document as their starting point, but
the influence of Egyptian constitutional lawyers throughout the Arab
world has led to many of its formulations reappearing throughout the
Arab world. Those who drafted the 1923 constitution turned to the Ot-
toman constitution but also drew on their broad familiarity with Euro-
pean constitutional law. As with their Eastern counterparts, the Egyptian
drafters were largely satisfied with declaring Islam to be the "religion of
the state" with little elaboration. Shaykh Bakhit, the country's former
mufti, drafted the language, which provoked litde controversy.13 Indeed,
the only controversy involving religion was occasioned by Shaykh Bakhit's
objection to a clause stating that "the state will protect morals and feelings
of religions and creeds"; he complained that this would offend Egypt's ex-
isting religions. The other drafters rejected his argument, motivated not
simply by liberal sentiments but likely as well by the desire to avoid giv-
ing Great Britain any excuse to intervene protecting foreigners and mi-
norities. 14
Thus, the early architects of comprehensive constitutions in the Arab
world were largely satisfied with symbolic declarations. These provisions
had litde effect on constitutional and political practice. And even on a
symbolic level, the provisions appear fairly modest in retrospect. Two is-
sues that have since emerged as central to debates about Islam and the po-
litical order-the source of sovereignty and the relationship between
positive and shari'a law-were not addressed, nor was this failure deemed
particularly noteworthy at the time.
Such reticence can be explained by several factors. First, religious in-
stitutions (such as shari'a courts and institutions oflearning) at that time
tended to focus their attention on maintaining autonomy rather than es-
tablishing hegemony over the political system as a whole. IS Second,
most of the constitutions were written in an effort to establish or affirm

61
NATHAN J. BROWN AND ADEL OMAR SHERIF

independence from European rule (and, in some cases, such as Egypt, an

effort to end European extraterritoriality). Thus, establishing national
sovereignty was hardly seen as inimical to Islamic values. Finally, the
constitutions written during the period generally restricted themselves
to modest general statements about the political order and specific pro-
cedural provisions. The lengthy ideological and programmatic constitu-
tions were a thing of the future.
Yet as Arab constitutional law continued to develop and Arab politics
grew increasingly ideological, the symbolic provisions related to Islam of-
ten grew. Islamic legal principles were often cited in constitutional de-
bates. 16 It was no longer enough to refer simply to Islam as the state
religion, but lengthy catalogs of principles often grew to include references
to Islamic values or heritage. The Saudi Basic Law of 1992 cites Islam and
Islamic law in numerous provisions. In some cases-such as in the Libyan
and Iraqi constitutions-newer provisions were as vague as the older ones.
Occasionally, however, new, more specific elements were added. The Mo-
roccan constitution of 1962 barred amendments diminishing the royal or
Muslim nature of the state; the 1970 constitution specifically excepted
these matters from parliamentary immunity.17 Algeria invented a Higher
Islamic Council in 1996 for its political system, specifically enjoined to ex-
ercise ijtihad. And specific steps were taken, especially in the states of the
Arabian peninsula, to mandate Islamic legal norms in specific areas. In the
Kuwaiti constitutions for instance, Article 18 stipulates, "Inheritance is a
right governed by the Islamic shari'a." Yemeni constitutions have probably
been most ambitious and specific in this regard. The 1970 constitution, for
instance, required enforcement of Islamic law in business transactions.
The constitution further provided that "[i]n cases heard by the Courts, the
provisions of this constitution and of the State's laws shall be applied. If
there is no precedent, the Courts shall pass their judgment in the case they
are dealing with in accordance with the general principles of the Islamic
shari'a."18
Despite the increased salience of Islamic issues in constitutional de-
bates, the provisions discussed thus far still generally preserved the consti-
tution as the supreme law in the country. There might be symbolic or
institutional concessions to Islamic beliefs, practices, and law, but ultimate
political authority remains elsewhere: in the constitution, in the people
(with popular sovereignty proclaimed in most constitutions), or in the

62
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

head of state (formally in some royal system and effectively in some re-
publican systems).
Yet there is another set of provisions in some Arab constitutional texts
that suggests a different relationship between the political order described
in the constitution and the legal system enjoined by Islam. Beginning with
the Syrian constitution of 1950, some Arab constitutional systems have
cited the Islamic shari'a as a source or, more ambitiously, as the chief
source oflaw. The 1950 Syrian constitution-the first Arab document to
introduce long ideological sections and catalogs of social and economic as
well as political rights-was in effect for only a few years, and its provi-
sion regarding Islamic law had no noticeable effect. 19 In Kuwait's 1962
constitution, a similar provision was introduced in which "the Islamic
shari'a is a primary source oflegislation." Periodic proposals to amend the
constitution to make the Islamic shari'a the rather than a primary source
of legislation have thus far been unsuccessful, though there appears to be
considerable popular support for such a change. Similar language has been
adopted in other peninsular states (such as the United Arab Emirates and
Oman); Saudi Arabia's 1992 basic law has a much more specific and de-
tailed provision: according to Article 48, "The courts will apply the rules
of the Islamic shari'a in the cases that are brought before them, in accor-
dance with what is indicated in the Book and the Sunna, and statutes de-
creed by the Ruler which do not contradict the Book or the Sunna."20
The effect of such provisions is to imply a very different basis for the
legal order. Rather than the constitution sanctioning Islam as an official
religion and observance of the Islamic shari'a in specific areas, these pro-
visions imply that the shari'a itself stands prior to the positive legal
order-including, potentially and by implication, the constitution itsel£ If
the shari'a is a primary source-or even the primary source-of legisla-
tion, then it becomes possible to argue that it forms the fundamental le-
gal framework. Indeed, it is noteworthy in this regard that constitutional
texts tend to refer to the shari'a as a basis of legislation (tashri), which
would include all legal enactments (including laws, decrees, administrative
regulations, and arguably the constitution), rather than as a basis of laws
(qawanin), which would refer only to a specific category of legislation
(laws passed by parliament or their equivalent).
It is therefore not surprising that these constitutional provisions have
emboldened those who seek the Islamicization of the political order. Such

63
NATHAN J. BROWN AND ADEL OMAR SHERIF

language makes it possible to challenge legislation that does not seem to

be in conformity with Islamic shari'a principles on constitutional grounds.
In short, it makes it possible-through constitutional jurisprudence-to
make the principles of the Islamic shari'a a supraconstitutional order.
Making such a challenge successfully is not easy, however, because of
more prosaic elements of Arab constitutional orders. In general, consti-
tutional challenges are exceedingly difficult to mount. While the princi-
ple of judicial review of the constitutionality of legislation is firmly
accepted in most Arab political systems, a host of procedural, legal, and
political obstacles obstruct its exercise in most countries. 21 The most sig-
nificant exception is Egypt, where a strong constitutional court has
emerged willing to strike down legislation as unconstitutional with star-
tling boldness.
In 1971, Egypt received its "permanent" constitution to replace the
avowedly temporary documents of the Nasser years. That constitution's
second article went beyond mere declaration ofIslam as the religion of the
state; such a formula was deemed insufficient. It more ambitiously de-
scribed the principles of the Islamic shari'a as "a principle source of legis-
lation." Arguments in favor of still stronger provisions were rejected for
the moment. 22 Yet the proponents of a stronger Article 2 won a delayed
victory as the constitution was amended nine years later to make the prin-
ciples of the Islamic shari'a the principle source oflegislation. As amended,
Article 2 of the Egyptian constitution now proclaims, "Islam is the reli-
gion of the State, Arabic is its official language and the principles of the
Islamic shari'a are the principal source of legislation." Thus, Egypt has
joined other Arab and Islamic countries in providing explicitly for a link
between the Islamic shari'a and legislation.
Adoption of the new formula set off a debate in which even advocates
of a greater role for Islam in political life found themselves divided. Some
jurists charged that the change was unnecessary because as long as the
constitution provided that Islam is the religion of the state, then the state
is constitutionally Islamic. Thus, they argued, all acts of government and
public powers were already required to be in line with the shari'a. A fur-
ther constitutional provision on Islamic shari'a principles, whether as a
source or principal source of legislation, did not really add much to this
understanding and was occasioned by the desire to appeal to public opin-
ion rather than effect real change.

64
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

The counterview, nonetheless, was upheld, and the constitutional

amendment was carried out. Supporters of this view believed that elevat-
ing shari'a principles to become the principal source, not merely a main
source, oflegislation carried significant meanings and implications. Before
the amendment, Islamic shari'a principles were seen as merely one main
source of legislation beside which other main sources did exist. The
amended Article 2 elevated shari'a principles to become the principle
source. To be sure, other subsidiary sources of legislation remained valid,
but they are accorded lower importance.
This debate might have attracted little attention-and the skeptics
about the effectiveness of amending the text would have been vindicated-
had it not been for a more subtle and then little-noticed change in Egypt's
constitutional order. In 1969, President Nasser had moved against the
country's judiciary and dismissed a large number of sitting judges. He also
constructed by decree a new "Supreme Court" to sit at the apex of Egypt's
judicial structure in a thinly disguised bid to establish firm presidential
control over the judiciary. That body was renamed the "Supreme Constitu-
tional Court" in the 1971 constitution, but matters of its organization were
left to ordinary legislation. Not until 1979 was that legislation enacted, but
when it was, it created a far different court than had been envisioned a
decade earlier. The sitting judges on the court constituted a "General As-
sembly" that was to forward nominations for new members to the presi-
dent. While the president retained his formal appointment authority over
the judges of the court, he effectively exercised it according to the wishes
of those judges already members. In effect, the law created a largely self-
perpetuating body, relatively free from executive interference.
Thus, since the amended Article 2 of the constitution came into force,
it has attracted attention from scholars and activists. Surprisingly, there is
probably greater attention to the issue-at least in its constitutional
form-outside Egypt and the Arab world. This should not be taken to
mean that jurists in Egypt and the Arab world have not yet realized the
potential impact of the amended text. Rather, it means while others be-
lieve that this amendment is an unprecedented constitutional transforma-
tion in the country, jurists in Egypt view this amendment as a revival of
Islamic norms that have always been inherent in their religious tradition
and society. A gradual return to such tradition is thus perceived as an ex-
pected and logical step in the march of development of a religious society

65
NATHAN J. BROWN AND ADEL OMAR SHERIF

and a part of a peaceful process of incorporating religious norms into a

constitutional system. Hence, such developments may not encourage a
noticeable debate by nonspecialists within the region at the short run.

The Religious Nature of the Society in Egypt

The level of religiosity in Egyptian public life is high, and Egyptians gen-
erally cast their understanding of relations not only between individuals
and God but also among individuals in terms of religious concepts and
obligations. The dominance of Islam in Egyptian society (with perhaps
over 90 percent of the society professing to be Muslims) is acknowledged
in all Egyptian constitutional texts in the twentieth century. Nevertheless,
those same constitutional documents insist that non-Muslim Egyptians
are to be accorded the same status as Muslim Egyptian citizens. 23 Such
provisions can be--and are-understood not as antithetical to a shari'a-
based order but as intrinsic to it, founded on provisions for freedom of re-
ligion and belief
The political order in Egypt has presented itself as Islamic since the
arrival ofIslam to the country almost 1,400 years ago. With the majority
of the Egyptian population turning to Islam, the shari'a became the ac-
cepted basis not only for governance but also for social relations. While
total obeisance to shari'a principles was probably never the norm, the Is-
lamic shari'a still held ideological dominance until the late nineteenth
century. At that point, new and comprehensive law codes, derived mainly
from the European codes, began to be introduced in the Ottoman Empire
and its affiliated Arab countries, including Egypt. 24 The result was to re-
strict the applicability of shari'a-based legal principles in almost all fields,
with the exception of the family status issues field, in which Islamic shari'a
principles continued to prevail. Non-Muslims continued to be governed
by their own religious ru1es, a practice itself in accordance with Islamic
principles guaranteeing followers of divine revelations (Christians and
Jews) the right to apply their own religious laws. 25
In fact, the process of transformation has left its impact on these
countries since then up until now. Today, legislation in most Arab coun-
tries, including Egypt, generally is not drawn from the Islamic shari'a but
is grounded in those European codes. For instance, civil and criminal

66
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

codes now applied in Egypt are ultimately derived from French codes and
have in turn inspired a multiplicity of the substantive and procedural legal
rules in the region. 26 This state of affairs has become increasingly contro-
versial in recent years not only in Egypt but throughout the Arab world
as well. Increasing calls are heard from various Islamic movements for an
Islamic state based on shari'a. Such calls seem to strike a strong resonance
in predominantly Muslim societies, and Egypt has seen remarkable intel-
lectual ferment concerning the issue. It is not surprising, therefore, that
Egypt has, along with many other Arab countries, moved to attempt to
adopt a shari'a-based constitutionalism.
Despite this trend, and despite the fact that the constitutions of Is-
lamic countries-to which the constitution of Egypt belongs-ensure
their religious nature, the recent movement to accommodate religion has
not yet resulted in a noticeable change to the system of government and
the practices of public authorities in these countries, which remain essen-
tially secular. This, in fact, presents a conflict between state and religion in
Islamic countries that these countries are now attempting to address in
various ways. The struggles that have gained the most international atten-
tion have taken violent form. Yet a constitutional and legal struggle, oc-
curring far less in the (especially Western) public eye, has also led to a
remarkable effort to diminish the gap between law and governance on the
one hand and shari'a derived principles and practice on the other. In
Egypt, the country's Supreme Constitutional Court has found itself in the
forefront of that effort, largely because of the attempt to give life to the
very general wording of Article 2. The understandings and rulings of the
Court, the highest judicial institution in the country and one of the most
influential in the Arab world, will help determine the extent to which the
Islamic shari'a serves as a sound base for a constitutional democracy in the
contemporary world.

The Supreme Constitutional Court's Interpretation

of Article 2 of the Constitution
Article 2 of the constitution of Egypt is potentially quite influential, de-
pending not only on the explicit words of the text (which are strong but
general) but also on the judicial interpretation given to them. The impact

67
NATHAN J. BROWN AND ADEL OMAR SHERIF

of such interpretation is not confined to Egypt. Rather, it extends to other

Arab countries in the region. The pioneering role of Egypt's legal system
means that the Egyptian experience in legal and judicial areas is closely
observed by other judicial systems and governments within the region. 27
On the national level, it is worth mentioning, however, that attempts
to challenge the constitutionality of legislation for its unconformity with
Article 2 of the constitution began shortly after the constitution was
adopted in 1971 and even before this article was amended in 1980. The
Supreme Court (SC), the predecessor of the Supreme Constitutional
Court (SCC), addressed the issue ofIslamic shari'a principles in Article 2
on several occasions before the text was amended. The SCC later upheld
some of its reasoning in this area after the constitutional amendment. 28 In
fact, the SC's rulings in this area presented the SCC with an important
source for judging future cases.
A comprehensive view on Article 2, however, was not developed un-
til the text was amended and the SCC was called on to give its binding in-
terpretation to what is meant by this text in a number of constitutional
cases. Here, we will try to have a look at the Court's rulings on Islamic
shari'a principles as the principal source of legislation.
The SCC has established three foundations in developing its ju-
risprudence and binding interpretation of the meaning of Islamic shari'a
principles within a constitutional framework. The first of these is that Ar-
ticle 2, together with the rest of the articles in the 1971 constitution, form
a unified organic unit. The second is that the constitutional obligation im-
posed on the legislature to adhere to Islamic shari'a, in accordance with
Article 2, is prospective and not retrospective in nature. The third base as-
serts that the application of shari'a principles in constitutional litigation
must be based on a distinction between its definitive and indefinite
sources.

The Egyptian Constitution as an Organic Unit

Unity of the constitution is a prevailing theme running throughout
the jurisprudence of the SCc. The Court believes that the exercise of the
power of judicial review requires a rigid constitution ensuring the su-
premacy of its provisions over other, inferior rules. In principle, a consti-
tution is perceived as a viable instrument coping with an advanced

68
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

democratic system, protecting individual liberties, laying down grounds

for their development, balancing power between the different branches of
the government within the framework of checks and balances, advancing
societal values, and promoting openness, talented behavior, and scientific
research. A constitution does not simply reflect norms of mandatory char-
acter but substantiates advanced concepts that, in their entirety and taken
together, are expected to enhance new patterns of behavior, subject in all
their forms to the rule oflaw. Constitutional limitations, if adequately ob-
served, shall base all aspects of power on the public will, further their ef-
fectiveness, and eliminate deviations therefrom. A constitution may
ensure a better understanding of the relationship between the state and its
citizens. It may also fail to match their expected aspirations. However, in
both cases, the constitution shall remain at the apex of all other rules, be-
ing the paramount law of the land. This principle has been incorporated
into the preamble of the 1971 constitution, which declares the determi-
nation of the people to vigorously ensure its protection and that no au-
thority may abstain from yielding thereto. 29
This view of the constitution leads the SCC to deny the supremacy of
a particular constitutional text over the rest of the constitution. Instead,
the Court has insisted that constitutional provisions do not collide with
each other but collectively form an interrelated, organic unit, accom-
plished by coordinated methods of construction that conserve society-
oriented values. In Case No. 23 of the fifteenth judicial year, decided
February 5, 1994, the Court assured that these constitutional provisions
are to be understood as a coherent, harmonized body of rules, reconciled
and brought together to the extent that none of them is to be viewed as
standing in isolation from the other.
This rule undoubtedly extends to Article 2 of the constitution, and
therefore the Islamic shari'a should always be perceived in a way that as-
sures its harmony with other constitutional commands. Article 2 can
therefore not be taken to undermine the rest of the text; instead, the var-
ious provisions of the Egyptian constitution must be viewed together. This
same understanding was advocated by the drafting committee for the
1980 constitutional amendment. The committee's report stated that it "is
evident that any provision in the Constitution should be interpreted in
harmony with, not in isolation of, other provisions. This is also applied to
the interpretation of the amended Article 2 of the Constitution."

69
NATHAN J. BROWN AND ADEL OMAR SHERIF

The Prospective Nature of Article 2

The SCC has ruled that the binding obligation to derive legislation
from the principles of the Islamic shari'a applies only to the future. Leg-
islation passed before the amendment cannot therefore be contested on
constitutional grounds as a violation of Islamic shari'a. The Court laid
down this principle in early constitutional litigation in the 1980s. The
constitutional issue in question in this case was whether charging the Uni-
versity of Al-Azhar interest on commercial debt violates Islamic shari'a
and hence contradicts the constitution. 3o
Legal observers expected that the Court would either uphold the
provision in question or declare it unconstitutional. Instead, however,
the Court issued a ruling rejecting the claim of unconstitutionality while
avoiding a ruling based on its interpretation of the Islamic shari'a. The
SCC's judgment, issued on May 4, 1985, included an important legal
principle within its apparently narrow ruling. 31 The critical point in-
volved the Court's perception of the chronological applicability of Arti-
cle 2 and whether it could be applied retroactively. The Court reviewed
the drafting committee report defining the meaning of the draft 1980
amendment and concluded that the requirement that all legislation be
consistent with the shari'a was prospective only from the date of adop-
tion of the constitutional amendment, that is, May 22, 1980. All legis-
lation passed after that date must be consistent with the shari'a as well
as other constitutional commands. The Court held that Article 2 is a
limitation on the legislature, which must determine for itself whether
legislation adopted before May 22, 1980, is consistent with the Islamic
shari'a. By implication, the Court would review all contested legislation
adopted after that date for consistency with the Islamic shari'a and
hence the constitution. 32
Based on this conception, the Court ruled that the true purpose of the
amendment was to limit the legislative power of the legislature, which
logically could be exercised only for future legislation. 33 Yet the Court did
not free the legislature of any responsibility for ensuring that pre-1980
legislation conformed to shari'a principles. On the contrary, the SCC im-
posed a political responsibility on the legislature to initiate new legislation
to amend such texts where they were clearly in contradiction with princi-
ples ofIslamic shari'a. Eventually, both existing and future legislation have
to be consistent with Islamic shari'a.

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 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

The nonretroactivity application of Article 2 was first decided on the

Al-Azhar case in 1985 but since then has become a well-established prin-
cipal of judicial review, echoed in all subsequent cases dealing with this ar-
ticle, especially those pertaining to legislation adopted prior to the 1980
constitutional amendment.

Distinguishing between Definitive and Indefinite Norms

The final and most complex principle developed by the Court in-
volves the nature of shari'a principles. In essence, the SCC has held that
shari'a-based norms have different value: such norms are either definitive
or indefinite. The niqab case presents the clearest example of the Court's
understanding of the distinction between the two kinds of norms. In
defining Islamic shari'a principles, in this case, the Court relied on an un-
shaken chain of precedents that clearly stated that definitive principles are
Islamic norms that are not debatable with respect to either their source or
their precise meaning. Such definitive norms must be applied. 34 All other
Islamic norms are indefinite in that they are susceptible to different inter-
pretations and-because of their nature-changeable in response to the
exigencies of time, place, and circumstances. Such flexibility reflects not a
defect in the shari'a in the Court's eyes but a strength because it allows the
principles to be adapted to changing realities and ensures their continued
vitality and elasticity. Only in the realm of Islamic indefinite norms may
the legislature intervene to regulate matters of common concern and
achieve related interests. It must do so consistent with basic Islamic
norms, the aim of which is the preservation of religion, reason, honor,
property, and the body. The legislature might develop different practical
solutions to satisfy variable societal needs. The SCC regards the bulk of
Islamic indefinite norms as highly developed, intrinsically in harmony
with changeable circumstances, repulsive of rigidity, and incompatible
with absoluteness and firmness. In no way mayan Islamic indefinite norm
that is fading-whether because of time, place, or pertinent situations-
be mandated by the Court or the constitution. 35
The niqab ruling, along with many similar SCC judgments, has al-
ways upheld this distinction between definitive or peremptory provisions
or norms of the shari'a on the one hand and its indefinite or nonperemp-
tory provisions or norms on the other. After the 1980 amendment of the

71
NATHAN J. BROWN AND ADEL OMAR SHERIF

constitution, all newly enacted legislation must adhere to definitive or

peremptory norms of Islamic shari'a. Where no such definitive norm ex-
ists, the legislature should adhere to the ijtihad most favorable for the peo-
ple, selected from among indefinite or nonperemptory norms of the
Islamic shari'a.
Thus, ijtihad governs the process of determining the best applicable
rule within indefinite norms. Ijtihad within the nonperemptory provisions
in shari'a is a process of reasoning to deduce practical rules to regulate the
life of the people and achieve their interest. It should, therefore, cope with
the context of events prevailing at the time. While the legislature might
choose a specific interpretation as the basis of legislation, it cannot give
that interpretation the status of binding doctrine, except on those who ac-
cept it. The Court's jurisprudence is based on viewing such multiple pos-
sibilities as a sign of divine mercy that encourages Muslims to think and
discuss, diminishing the possibility of human error. The existence of in-
definite norms is also taken to ensure that the Islamic shari'a always de-
velops and displays flexibility to accept ijtihad of responsible people to
achieve the public interest. 36
When invoking Islamic shari'a, the Court, therefore, first searches for
peremptory norms and, if finding none, looks at ijtihad that is consistent
with the challenged legislation and achieving the interest of the people.
Then the Court examines the purposes of this legislation. And at the out-
set, the Court determines whether the challenged provision is consistent
with the interests of the people and decides its constitutionality on the ba-
sis of this conclusion.

Conclusion
In 1971 and 1980, Egypt took steps toward sharpening the apparent par-
adox between an Islamic legal order and a constitutional one. While the
Egyptian constitution presents itself as based on popular sovereignty and
borrows much of its language from European constitutional traditions, the
amended Article 2 seems to promote a higher and prior law, the Islamic
shari'a. The matter of how to resolve this paradox in practical legal terms
has been thrown to Egypt's SCC because it is charged with the task of re-
solving constitutional disputes in an authoritative manner. There are some

72
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

within Egyptian society who view large elements on the existing legal or-
der not simply as imported but also as hostile to and incompatible with Is-
lamic law, and they have resorted to the Court with some regularity. This
has compelled the SCC to develop an approach to melding shari'a princi-
ples with constitutional interpretation.
The SCC's approach to Article 2 has already had considerable influ-
ence in Egypt because the Court has pursued it consistently for the past
sixteen years. But it is also likely to have influence outside Egypt for sev-
eral reasons. First, similar language exists in some other Arab constitutional
texts, and there is considerable pressure in many Arab societies to deepen
the Islamic nature of the constitutional order. Second, Egyptian legal
thinking and jurisprudence is widely followed in many Arab countries; in-
deed, some Arab countries consciously modeled their own legal orders (and
sometimes their legal education) on Egyptian models. Third, the SCC's ju-
risprudence is likely to appeal to those who seek practical guidance on how
to bring shari'a principles to bear on a modern society. The approach of
Egypt's SCC may be summarized in general terms as follows.
The Court began with a fairly conservative approach toward the
amended Article 2. It took the SCC almost five years (after the 1980
amendment) to exercise its power of judicial review on legislation alleged
to violate Islamic shari'a. Even when it did so, at the time, it was not will-
ing to address the issue in question substantively and opted to cast its ar-
gument in procedural terms. While the SCC has a reputation for
boldness, the Court's policy on this issue is best understood within the
theory of judicial self-restraint. Given the sensitivity of the issue and the
potential impact resulting from any ruling on the merits, whether by hold-
ing the challenged legislative provision or declaring it unconstitutional,
the Court found it wiser not to rule on the substantive part of the case be-
cause other grounds to decide the case, without invoking the constitu-
tional issue, were available. This is, in fact, the essence of the theory of
judicial self-restraint. To avoid undesirable attacks from the judiciary on
the legislature, a court with a power of judicial review, within this theory,
would not strike down legislation unless it is absolutely necessary and no
alternative basis for judgment is available. This is, in fact, what the SCC
followed in this particular case.
Despite such self-restraint and the decision to review only legislation
coming into force after the 1980 constitutional amendment, the Court has

73
NATHAN J. BROWN AND ADEL OMAR SHERIF

found itself gradually giving increasing attention to shari'a issues. The pres-
sure of public opinion and the steady growth in cases related to the Islamic
shari'a lodged in the Court's docket left the SCC no alternative. Having
been unavoidably confronted with the necessity of measuring Egyptian
legislation against the constitutional provisions on the Islamic shari'a, SCC
judges took up the task. Trained both in law and in Islamic shari'a, they
find themselves fully competent to deliver opinions based on shari'a. Fol-
lowing their conservative ruling in the Al-Azhar case, they have, in reality,
been dealing with Islamic shari'a issues comfortably. They have managed to
strike a balance between Islamic shari'a principles on the one hand and the
constitution on the other. To provide litigants with effective legal remedies,
they invoked Islamic shari'a principles largely not only in cases wherein the
amended Article 2 was applicable but even in other cases within which vi-
olations ofIslamic shari'a were not initially alleged.
The SCC views Islamic shari'a principles mainly as a legal system.
This is evident from the distinction the Court adopted to determine what
norms ofIslamic shari'a are definite and what are not. In accordance with
the Court's policy in this area, since the space occupied by the definite
norms of shari'a is considerably limited, the majority of shari'a rules would
be derived from its indefinite norms. This is, in fact, a discretionary power
basically left to the ruler. But this power is not absolute: it finds its limi-
tations in the public welfare of the society. If the ruler misuses this power
or selects an ijtihad that is not consistent with public interest in a specific
time, his legislation becomes in violation with Islamic shari'a. The Court
may therefore decide whether the selected ijtihad is consistent or in con-
tradiction with societal needs and interest. Therefore, despite its initial
reticence, the Court has the potential to playa significant role in deter-
mining what is meant by Islamic shari'a principles.
Deference to Islamic shari'a principles, within the limits prescribed
by the SCC, does not mean these principles have become the sole
source of legislation. Nor does this deference elevate them to a higher
status than that of the constitution itself. Rulings of the SCC are clear
that other sources may be employed and consulted in the legislative
process. They also adhere to the principle that the amended Article 2
bears the same binding force as other articles of the constitution. The
unity of the constitution requires this comprehension, which conse-
quently presumes that the applicability of Islamic shari'a principles

74
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

would eventually be understood in the context of other commands en-

shrined in the constitution.
From the beginning, the see has sought to use the power of judicial
review in a restrained manner, but it has also taken up the task of assist-
ing the peaceful integration of Islamic shari'a principles in the constitu-
tional order and daily life of the Egyptian citizen. Although this
experience has yet to develop, it has sought to prove over the past two
decades that Islamic shari'a principles, as a legal system, have met, to a
great extent, the needs and wishes of the vast majority of the population,
without prejudice to the constitutional rights of minority religious groups
in the country.

Notes
1. John Finn makes this argument for constitutional emergencies in Consti-
tutions in Crisis: Political Violence and the Rule ofLaw (New York: Oxford Univer-
sity Press, 1991).
2. For a general examination of this shift, see Nathan J. Brown, "Shari'a and
State in the Modern Middle East," InternationalJournal ofMiddle East Studies 29,
no. 3 (1997): 359-76.
3. In Islam, all rights can be viewed as bestowed by God and divided into two
categories: the "rights of God" and the "rights of worshipers." Whether a right
falls within the former and not the latter category depends on the extent to which
that right is related to the public interests of the society. Rights granted in the
public interest are considered rights of God, while rights bestowed to protect pri-
vate interests are deemed rights of worshipers.
4. See Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Ba-
sic Laws and the Prospects for Accountable Government (Albany: State University of
New York Press, 2002), chap. 1.
5. The mixture of such functions in a single body was quite common in Eu-
rope at the time, of course, but those states that were devising written constitu-
tions did so partly to avoid such a practice.
6. For a general articulation of the ideology behind the constitution by one
of its primary advocates, see the writings of Khayr al-Din al-Tunisi. His major
treatise on the subject has been translated into English by L. Carl Brown, The
Surest Path: The Political Treatise of a Nineteenth-Century Muslim Statesman, a
Translation of the Introduction to "The Surest Path to Knowledge concerning the
Condition of Countries" by Khayr ai-Din al- Tunisi, Harvard Middle Eastern

75
NATHAN J. BROWN AND ADEL OMAR SHERIF

Monographs 16 (Cambridge, Mass.: Harvard University, Center for Middle

Eastern Studies, 1967).
7. For instance, the addition of an upper house to the Egyptian parliament in
1979 was given some Islamic coloration by designating it the majlis al-shura (con-
sultative council). The Saudi Basic Law of 1992 uses such vocabulary more ex-
tensively.
8. The text of the document can be found in AI-Dasatir al-Misriyya 1805-1971:
Nusus wa-Tahlil (The Egyptian Constitutions 1805-1971: Texts and Analysis)
(Cairo: Markaz al-Tanzim wa-l-Mikrufllm, 1976). See also Juan R. I. Cole, Colo-
nialism and Revolution in the Middle East: Social and Cultural Origins ofEgypt's 'Urabi
Movement (Princeton, N.J.: Princeton University Press, 1993), 105, and Alexander
Scholch, Egyptfor the Egyptians! The Socio-Political Crisis in Egypt 1878-1882 (Lon-
don: Ithaca Press, 1981),213.
9. Eugene Rogan mentions a 1920 "Constitution of the Arab Government of
Moab" in Frontiers of the State in the Late Ottoman Empire (Cambridge: Cam-
bridge University Press, 1999),251. The constitutional efforts of the Tripoli Re-
public, partly negotiated with Italy, are treated in Karim Mezran,
"Constitutionalism in Libya," in Islam and Constitutionalism, ed. Sohail Hashmi
and Houchang Chehabi (forthcoming).
10. The most comprehensive source for constitutional documents can be
found at www.uni-wuerzburg.de/law/home.html.
11. Scholarly writings on the Ottoman constitution of 1876 are reasonably ex-
tensive, but because of the declining interest among scholars in legal and political
history, the most comprehensive works tend to be older. The account here depends
primarily on such older works, including Robert Devereux, The First Ottoman Con-
stitutional Period' A Study ofthe Midhat Constitution and Parliament (Baltimore: Johns
Hopkins University Press, 1963); Roderic H. Davison, "The Advent of the Princi-
pIe of Representation in the Government of the Ottoman Empire," in Essays in Ot-
toman and Turkish History, 1774-1923: The Impact of the T#?st (Austin: University of
Texas Press, 1990); Roderic H. Davison, Reform in the Ottoman Empire 1856-1876
(Princeton, N.J.: Princeton University Press, 1963); and Stanford J. Shaw and Ezel
Kural Shaw, History of the Ottoman Empire and Modern Turkey, Volume IL' Reform,
Revolution, and Republic: The Rise ofModern Turkey, 1808-1975 (Cambridge: Cam-
bridge University Press, 1977). See also Bernard Lewis, The Emergence of Modern
Turkey (Oxford: Oxford University Press, 1968), and Nader Sohrabi, "Historicizing
Revolution: Constitutional Revolutions in the Ottoman Empire, Iran, and Russia,
1905-1908," AmericanJournal of Sociology 100, no. 6 (May 1995): 1383-447.
12. Not only did the Ottoman sultan promulgate and suspend the constitution
at will, but he also made clear that he did not regard his authority as bound by

76
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

the constitution. For instance, he claimed the right to issue legislation completely
outside the constitutional framework, insisting that the constitutional procedures
governed only legislation that went through the parliament. Few current rulers
would be so bold in doctrine, but many executives in the Arab world have re-
tained constitutional mechanisms for bypassing parliamentary and other institu-
tions.
13. The minutes of the drafting committee have been preserved, allowing us
some insight into the intentions of the drafters. See the discussion of Article 149
in Majlis al-Shuyukh, Al-dustur: Ta'liqat 'ala Mawadihi bi-l-A'mal al- Tahdiriyya
wa-l-Munaqashat al-Barlamaniyya (Cairo: Matba'at Misr, 1940), pt. 3.
14. Majlis al-Shuyukh, Al-Dustur, pt. 1, discussion of Article 13.
15. See Brown, "Shari'a and State."
16. In the debate over the adoption of the first Moroccan constitution, for in-
stance, the opposition was able to cite the opinion of a leading Islamic scholar
criticizing the document because it assigned a greater right to legislation to the
state than should exist in an Islamic system. See Charles F. Gallagher, "Toward
Constitutional Government in Morocco: A Referendum Endorses the Constitu-
tion," American Universities Field Staff, North Africa Series, vol. 9, no. 1 (Mo-
rocco), 1963, 7. For a very different example, see the discussion of women's
suffrage in "Women in the Constitutional Committee," Ruz al-Yusuf, October
19,1953,13. At that time, a committee drafting a constitution for Egypt consid-
ered the right of women to vote. Some committee members unsuccessfully cited
Islamic grounds for opposing this right.
17. Ahmad Majid Binjalun, Al-Dustur al-Maghrabi: Mabadi'uhu wa Ahka-
muhu (Casablanca: Dar al-Kitab, 1977), 151-52.
18. Article 153. For the text, see Albert P. Blausetien and Gisbert H. Flanz,
eds., Constitutions of the World (Dobbs Ferry, N .Y.: Oceana Publications, updated
periodically) .
19. On the Syrian constitution of 1950, including Article 3, which described the
Islamic shari'a as the chief source of legislation, see Majid Khadduri, "Constitu-
tional Development in Syria," Middle EastJournal5, no. 2 (spring 1951): 137-60.
Ironically, Syria later made Arab constitutional history when a constitution was
proposed that removed the requirement that the head of state be a Muslim.
20. A translation of the Saudi Basic Law is available at www.oefre.unibe.chllaw/
icllsaOOOOO_.html (accessed December 20, 2002).
21. On this point more generally, see Nathan]. Brown, "Judicial Review in the
Arab World," Journal ofDemocracy 9, no. 4 (October 1998): 85-99.
22. See Jamal al-'Utayfi, Ara'fi al-Shari'a wa-ji al-Hurriyya (Opinions on the
Shari'a and Freedom) (Cairo: Al-hay'a al-misriyya al-'arnma li-l-kitab, 1980);Joseph

77
NATHAN J. BROWN AND ADEL OMAR SHERIF

P. O'Kane, "Islam in the New Egyptian Constitution: Some Discussions in

ai-Abram," Middle East Journal 26, no. 2 (1972): 137-48; and Minutes of the
Preparatory Committee for Drafting the Constitution [for the Arab Republic of
Egypt, 1971] (held in the library of the Majlis al-Sha'b, Cairo).
23. In Constitutional Case No. 74 for the seventeenth judicial year, decided on
March 1, 1997, the SCC held that the constitution and the Islamic shari'a recog-
nized that other major religions represented in the population had the right to the
application of their own religious norms the same as Muslims.
24. Islamic shari'a, however, occupied an important position under the Civil
Code. This code considered shari'a the third general source to which judges re-
sort in case they do not find a legislative provision or customary rule applied to
the litigation they are handling. In addition, a great number oflegal rules in this
code were derivative from Islamic shari'a principles. See Enid Hill, "Al-Sanhuri
and Islamic Law," Cairo Papers in Social Science 10, no. 1 (1987): 1-140.
25. For more details, see Adel Omar Sherif, ''An Overview of the Egyptian Ju-
dicial System and Its History," Yearbook of Islamic and Middle Eastern Law 5
(1998/1999):3-28.
26. The legal system of Egypt is based, therefore, on Islamic law and civil law
(particularly French codes). For a more extensive treatment, see Nathan]. Brown,
The Rule ofLaw in the Arab World: Courts in Egypt and the Gu(f(New York: Cam-
bridge University Press, 1997).
27. Because Egyptian experience has always been available for other Arab sys-
tems, many attempts by other Arab countries over the years to adopt the Egypt-
ian system have taken place but met with varying results.
28. For example, in the Constitutional Case No. 10 for the fifth judicial year,
decided on July 3, 1976, the SC ruled that when providing for Islamic shari'a
principles as a main source of legislation, Article 2 meant to guide the legislator
to derive legislation from these principles. In doing so, and if no definitive provi-
sion of shari'a is applicable, the legislator will then have a discretionary power to
choose the proper rule to follow, from among the various ijtihads available in var-
ious juristic schools, know as madhahib. This understanding, to a great extent, car-
ries a vital distinction: one between definitive and indefinite provisions ofIslamic
shari'a, on which the SCC soon after, as we will shordy discuss, laid down its own
interpretation of Article 2 of the constitution.
29. See Constitutional Case No. 23 for the fifteenth judicial year, decided on
February 5, 1994.
30. A judgment of the Administrative Judicature Court of the Council of the
State had ruled against Al-Azhar University during the 1970s, charging the uni-
versityinterest on commercial debt. The proceedings in this action had seen the rec-

78
 INSCRIBING THE ISLAMIC SHARI'A IN ARAB CONSTITUTIONAL LAW

tor of the university, together with the minister of Waqfs and the dean of the uni-
versity's Faculty of Medicine, ordered to pay a creditor the balance of the price of
surgical instruments supplied to the university. The trial court had also ordered the
university to pay interest on this amount at the rate of 4 percent, starting from the
date of filing the action. The ruling was based on Article 226 of the Civil Code,
adopted by the Parliament in 1948, which imposed postjudgment interest on non-
payment of debt. When this ruling was appealed before the High Administrative
Court, the rector of Al-Azhar challenged the constitutionality of Article 226 and
received permission from the appellate court to file his constitutional allegation be-
fore the SCC. He then filed Constitutional Case No. 20 for the first judicial year,
advancing the claim that charging this interest was riba (or usury) prohibited by the
~r'an and therefore contradicted the principles of the Islamic shari'a.
31. Although the SCC failed to reach the riba issue in the Al-Azhar case, it
had with it substantively, soon after, in Constitutional Case No. 93 for the sixth
judicial year, decided on March 18, 1996. In this case, a company was late in pay-
ment of its taxes and was, therefore, assessed a late penalty in the form of inter-
est on its obligation. The tax agency proceeded to confiscate the company's
property in order to pay the obligation and late penalty, then the company
claimed that this interest is riba, prohibited by the ~r'an. The Court determined
that Article 2 was applicable and that the agreed peremptory norm of shari'a was
that riba is defined as "an agreement between a creditor and debtor to extend
payment deadline in return for additional interest money." When the Court ex-
amined the transaction in question, however, it found that there was no agree-
ment between creditor and debtor. The company had not borrowed money for
which an extension had been requested. The ~r'anic prohibition, therefore, did
not apply to this transaction, which led the Court to reject the unconstitutional-
ity allegation.
32. A preparatory committee to the draft amendment explained in a report,
dated July 19, 1979, as the Court highlighted, that Article 2 had obliged the leg-
islature, in its quest for the rule oflaw, to have recourse to the rules of the Islamic
shari'a to the exclusion of any other system of law. If it did not find a clear rule in
Islamic shari'a, it should then apply the approved methods of deducing legal rules
from the authorized sources of ijtihad in Islamic jurisprudence. This process, the
committee added, would help the legislature in reaching a ruling that is consis-
tent with the principles and general framework of the Islamic shari'a. This report
was also confirmed by the drafting committee and approved by the People's As-
sembly on April 30, 1980.
33. This understanding, in fact, was supported and confirmed by a statement
from the Report of the General Committee of the People's Assembly, dated

79
NATHAN J. BROWN AND ADEL OMAR SHERIF

September 13, 1981, presented to and approved by the Assembly on September

15,1981, in which the committee explained that the amendment meant to re-
quire the revision of laws in effect before the application of the constitution of
1971 and to amend these laws in such a manner as to make them conform to
the principles ofIslamic shari'a. Nonetheless, the departure from the present le-
gal institutions of Egypt, which go back more than one hundred years, and their
replacement in their entirety by Islamic shari'a require patient efforts and care-
ful practical considerations. Consequently, the change of the whole legal organ-
ization should not be contemplated without giving the lawmakers a chance and
a reasonable period of time to collect all legal materials and amalgamate them
into a complete system within the framework of the Qyr'an, the Sunna, and the
opinions of learned Moslem jurists and Imams.
34. The definitive norms of Islamic shari'a are usually called "al-nusus
al-qat'iyyat al-dalala wa al-thubut," which is an old terminology offiqh with its
classical meanings and usage. This term refers to texts of the shari'a sources (that
is, Qyr'an and Sunna) that are definitive and indisputable both in their meaning
and in their authenticity. Such texts are beyond doubt. They must be historically
accurate and authentic and have only one meaning.
35. See the niqab case, Constitutional Case No.8 of the eighteenth judicial
year, decided on May 18,1996.
36. See the niqab case, Constitutional Case No.8 of the eighteenth judicial
year, decided on May 18, 1996.

80
 CHAPTER THREE
A TYPOLOGY OF STATE MUFTIS
Jakob Skovgaard-Petersen

espite their obvious political and social relevance, no one has ever

D made any systematic comparative study of state mziftis (inter-

preters ofIslamic law). Judging from the scant literature on the
phenomenon of state muftis in general, the reason for this lack of study
seems to be that this office is seen as self-explanatory: a state mufti is the
state's mufti, a religious instrument of the state, producing or at least pro-
moting a kind of religious culture that accepts the state and its policies.
There is a lot of truth in this premise; a state mufti is an employee of
the state, a bureaucrat, and a key figure of its religious administration. In
practically any Arab country, one would be able to point to an instance when
the state mufti was apparendy mobilized to support elements of state policy
that were unpopular and met with resistance on religious grounds. But pre-
cisely this political utilization is well worth studying, as it will give us useful
practical information on the relationship between state and religion in the
various Muslim countries-pieces of information that could be used for in-
teresting comparisons. Studying the fotwas, public appearances, and admin-
istrative dealings of state muftis should give us some indications of how
states have been striving to make their policies religiously acceptable and
may in some cases give a rare glimpse of the awareness of autocratic regimes
of the degree oflegitimacy-or lack thereof-of their authority and policies.
Moreover, it is not always so easy to identifY what the state wants and who
is running it. Under certain circumstances, the state mufti may be less a rep-
resentative of the state as such and rather an ally of a faction of the regime,
and it will be important to study his activities in that light.

81
JAKOB SKOVGAARD-PETERSEN

Finally, not surprisingly, state muftis tend to see themselves as some-

thing more than, if not indeed opposite to, the instrument of the state.
What they tend to stress is their role as spokesmen for the religious sec-
tor of society, as defenders of the shari'a and its norms in a society moving
toward secularization. They contend that it is they themselves who use the
state as an instrument for their pious and devout religious policies, a claim
that has some elements of truth in that very often the state muftis have
the budget and the authority to convene conferences, publish information,
institute policies, and in other ways influence the public on issues where
they perceive a threat to religious norms, values, and rules. And there is
also the rare occasion when a state mufti actually stands up against the
government and demands that it change its policy on a specific point.
This dual role of the state mufti is similar to that of the 'ulama (Mus-
lim religious scholars) at large as it has been described in earlier Muslim
societies. Modern biographies of state muftis come across as much akin to
the traditional tabaqat (biographies of the 'ulama) literature, highlighting
the few instances of direct opposition and generally stressing their appro-
priately distant relations with the powers-that-be.
The role of the state mufti may vary quite considerably from state to
state. While in some cases he is under tight control and very actively used
by the state, in others he appears to have some leeway in following his own
course and is able to take initiatives of his own, and in still others he is a
fairly marginal person, of little interest to either the state or the public at
large. Obviously, the role of the state mufti is dependent on factors such
as the nature of government, state ideology, the composition of the 'ulama,
and the degree of autonomy of the religious sector. But it is also influenced
by the role and importance of religion in each society, including the phe-
nomenon of the rise ofIslamism (here understood as the ideology of non-
separation of state and Islam) and of the legal nature ofIslam.
Given this variety, it might be useful to establish a typology of state
muftis. This chapter is an attempt to do this on a minor scale in order to
discuss some of the variables that may be considered in such a typology.
To do this, I will compare three state mufti offices, namely, those of Syria,
Lebanon, and Egypt, drawing on my own work on the Egyptian Mufti
(Skovgaard-Petersen 1997) and on recent works, especially those on the
Syrian mufti by Lina al-Homsi (1996) and Annabelle Bottcher (1998).
The Syrian and Lebanese state muftis are of particular interest because

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 A TYPOLOGY OF STATE MUFTIS

both stem from the same office, that of the provincial mufti of the Ot-
toman Empire, and were subject to the same administrative laws in the
early period of the French Mandate but have nevertheless developed in
fairly different directions. They are thus evidence to the proposition that
it is not so much local tradition as state ideology and organization that will
determine the role of the state mufti in a given state.
In order to compare the three offices, I have selected a number of vari-
abIes to be identified in each case: appointments and tenure, administra-
tive tasks and position in bureaucracy, backgrounds of the individual
muftis, the numbers and topics of their latwas, involvement in Islamic
internationalism, role in the national media, and competitors and response
to the rise of Islamism.

The Ottoman Mufti

To understand the modern office of state mufti, it is important to exam-
ine its historical precedent during the late Ottoman period. As is well
known, the Ottoman Empire developed a hierarchical religious adminis-
tration with the mufti ofIstanbul, the Shaykh ai-Islam, at its head. 1 The
Shaykh al-Islam had wide-ranging powers and was usually closely linked
to the sultan and his wazir. He was appointed by the sultan and, in most
cases, held the position for life. At least until the nineteenth century, his
fatwas had great influence in courts, where they were often referred to in
the verdicts given by the judges. It was therefore an established practice
that litigants, in order to strengthen their case, asked for a fatwa from the
Shaykh aI-Islam in advance. His administration would rewrite the peti-
tion, erasing all particular information on time, place, and persons, thus
formalizing it as a legal principle that the mufti would then endorse or re-
ject. Some of the more important of these fatwas were collected in books
and circulated, thus becoming legal precedence to be taken into account
by judges while adjudicating similar cases. 2 In addition to this important
and time-consuming task, the Shaykh al-Islam was also the head of the
'ulama and appointed the head judges and muftis of the empire.
While the Shaykh al-Islam operated out ofIstanbul, on the local level
(in our case in Damascus and Beirut and until some point in the nine-
teenth century also in Egypt), there were local muftis of each madhhab

83
JAKOB SKOVGAARD-PETERSEN

(school of law), the Hanafi mufti being the most important, as this was
the madhhab of the Ottoman government. These muftis were in control
of some awqaf(pious foundations) and were consulted by the courts, but
their fatwas never developed into a standardized legal instrument, as did
those of the Shaykh al-Islam. Instead, these muftis were often well-known
scholars who devoted much of their time to studying and teaching, and
the fatwa collections they left behind seem to have been intended for the
study ofjiqh and its methods rather than as legal manuals.
Two laws of the late Ottoman Empire, dated 1913 and 1917, gave
these local Hanafi muftis great discretionary powers, as they were entrusted
with giving fatwas, heading the 'ulama, supervising religious schools, and
heading the council of waqp In addition, they were often members of lo-
cal administrative councils. The appointment of these muftis was a com-
promise between local and central interests inasmuch as the Shaykh
al-Islam would appoint one of three locally elected candidates. 4

Syria
With the collapse of the Ottoman Empire, the role of the mufti of Dam-
ascus passed on to the Faysal administration in 1918 continued under the
French mandatory administration in 1920. Because of the importance of
the office in terms of honor and control of appointments and awqaf, it had
been the object of rivalry between a small number of'ulama families who
had, by the late nineteenth century, given up their hostile attitude toward
the Ottomans and pursued a strategy of incorporation into the Ottoman
bureaucracy and intermarriage with the leading political families. 5
In November 1918, immediately after the conquest of Damascus,
Faysal appointed a new mufti of Damascus, Muhammad Ata al-Kasm
(1844-1938), and gave him the title "general mufti ofSham."6 And in the
territorial Syria that gradually emerged, as the French mandatory admin-
istration gave up its attempt at dividing it into smaller statelets, the gen-
eral mufti of Sham became the mufti of the Republic of Syria. It was
unclear, however, what exactly would be the role of a "mufti of the Re-
public" when this republic was in fact secular.
The role of fatwas in courts disappeared, and with the establishment
of a Parliament, not to mention the very powerful French administration,

84
 A TYPOLOGY OF STATE MUFTIS

the mufti no longer had any direct role in politics. The French adminis-
tration also took an interest in religious affairs, especially waqf, which they
tried to bring under control with the establishment of a special adminis-
tration, the "Controle General des Wakfs Musulmans," in 1921.7 This ad-
ministration had its seat in Beirut and was headed not by a mufti but by
a local qadi Gudge) in the shari'a court. In 1930, the Syrian and Lebanese
awqaf administrations were separated from each other. In independent
Syria, a decree in 1947 affirmed the separation of the state mufti from the
affairs of awqaf. 8
The mufti of the Republic did, however, retain some control over the
'ulama, and in the previously mentioned decree of 1947, he was placed at
the head of a central administration of ifta' (issuing fatwas) with branches
all over Syria. There were forty-eight provincial muftis, a few of them rep-
resenting the Isma'ili and Shi'a schools of jurisprudence. These muftis
were not, however, appointed by the state mufti himself but rather by the
prime minister. 9
In 1961, a new law on the religious administration of Syria was prom-
ulgated, and it is essentially still in place. It set up a Ministry of Awqaf and
made the minister the highest authority of the Sunni religious sector. The
mufti retained a number of very important functions but now through a
collective body, the "Higher Council of Ifta'," with six members and the
state mufti as its head. This Higher Council ofIfta was made responsible
not only for issuing and registering fatwas but also for administering the
religious sector as a whole: it administered the mosques, religious schools,
and religious cultural institutions, including the hiring and firing of per-
sonnel.lO When the Baath Party came to power in 1963, it did not abol-
ish this quite important body but added extra members to it and began
transferring parts of its function, especially the right of promotion, to the
minister himsel£
The political importance of the state mufti is reflected in the many at-
tempts by the various Syrian regimes at influencing his election by alter-
ing the laws of appointment to the office.!1 When Muhammad Ata
al-Kasm died in 1938, he was simply followed by his aide (the amin
al-Jatwa), Muhammad Shukri al-Ustuwani (1869-1955). When the lat-
ter died, however, a new law had come into force whereby a committee
consisting of provincial muftis agreed on three candidates from whom the
prime minister chose the new mufti. This law was followed when the new

85
JAKOB SKOVGAARD-PETERSEN

mufti, Muhammad Abu I-Yusr Abidin (1890-1981), was elected in 1954.

The law of 1961 established a new electoral procedure whereby an elec-
toral college consisting of the members of the Higher Council ofIfta', the
provincial muftis, the qadis of Damascus and Aleppo, and a further ten
'ulama actually elected the new mufti by secret ballot. This in effect made
the mufti a representative of the 'ulama. However, when Mufti Abidin was
dismissed in 1963 and this procedure was adopted for the first time in
1964 (after a period with an interim mufti), the election of the current
mufti, Shaykh Ahmad Koftaro (b. 1915), with a majority of one vote,
seems to have come as a surprise to many of the thirty-six members of the
electoral body who had congregated in the offices of the minister of
Awqa£12 In 1967, the electoral law was changed again, so that whenever
Mufti Koftaro dies, the Ministry will list three candidates from whom the
mufti will be selected by the Council of Ministers.
Despite the political bickering around the appointments-or perhaps
because of it-most muftis have held the position for life, sitting on aver-
age for twenty years. This contrasts sharply with the Ottoman period,
when the average tenure was around four years. Particularly during the
late Ottoman period, the office of mufti of Damascus was inscribed in an
elaborate hierarchy of religious positions. The muftis had made their ca-
reer in the courts, and some of them went on to become, for instance, qadi
of the holy cities. In modern Syria, the mufti of the Republic is the top
position, it is not related to the courts, and the incumbents are more likely
to have had a career in preaching and teaching. And only one of them has
been dismissed, namely, Muhammad Abu I-Yusr Abidin, who was re-
moved from his position in 1961 because of his opposition to state con-
fiscation of private property.13 After the demise of the United Arab
Republic that same year, he was appointed again, apparently only to be
dismissed once again in 1963 with the coming to power of the Baath
Party. This, at least, is the interpretation of Annabelle Bottcher, who also
points out that the fact that his successor, Ahmad Koftaro, was a Kurd and
a Shafi'i weakened the latter's power base among the Damascene 'ulama
and made him an attractive candidate for the Baath. 14
I have not been able to obtain the precise number of the fatwas given
by the various muftis in their official capacity. According to Lina
al-Homsi, the Da'irat al-Ifta' has lost the fatwa registers for the first half
of the twentieth century, but apparently the fatwas of the first mufti,

86
 A TYPOLOGY OF STATE MUFTIS

Muhammad Ata al- Kasm, now kept by his son, number more than
14,000. 15 This is a very,high number but not wholly unlikely given the
drastic social and legal ~hanges during the French Mandate; it may well
be that many Syrian Muslims considered the mufti the authority to turn
to in matters of how to live and deal with the many novelties introduced
during this period. However, it is also quite likely that, in independent
Syria, to many Muslims the mufti is no longer seen as an independent
moral authority, and they may prefer to consult other 'ulama outside the
state bureaucracy.
It seems safe to say that with an office headed by the amin al-fatwa,
who actually prepares the fatwas, the state mufti today cannot be much
burdened with ifta. Instead, the twentieth-century muftis have been much
involved in teaching. In contrast to his predecessors, the current mufti,
Ahmad Koftaro, has had an impressive travel program, participating in
more than fifty international Islamic conferences around the world, often
explicitly to promote interreligious understanding. 16 With state support,
in 1972 a huge six-story religious center, the Abu Nur Mosque, was built
for his teaching activities, and here he has succeeded in building up a sig-
nificant following who attend classes and lectures and participate in his
particular branch of the Naqshbandiya Sufi order. With the rise of Is-
lamism in the 1970s, the position of a state mufti in a secularist, Alawi-
dominated state was bound to be precarious, and there has been much
opposition against him within the Islamist movement. But anyone who
has visited the Abu Nur Mosque can testifY that he has succeeded in di-
verting a substantial part of the broader phenomenon of the Islamic awak-
ening toward religious activities of a less political nature.
To sum up, we have seen that, in independent Syria, the state has
taken great efforts to control the appointment and activities of the state
mufti. The many important tasks of the Ottoman provincial Mufti have
gradually been removed from it. And with the establishment of the Min-
istry of Awqaf, the regime has taken control over mosques and religious
schools, including their financial administration. Today, the mufti is a re-
ligious functionary in the Ministry with few administrative powers and
little independence. He remains, however, an important figure as the offi-
cial embodiment of Islamic law and morals. Especially in the era of the
Baath Party, there have been attempts at instrumentalizing the office to
legitimize the regime and its policies. Ahmad Koftaro has taken part in

87
JAKOB SKOVGAARD-PETERSEN

this, of course. But he has also pursued a strategy of withdrawal-or per-

haps privatization of his religious functions-preferring to act through his
teaching, thereby successfully tapping in to and furthering the Islamic
awakening in Syria.
It is a difficult game: his official biographers, including the previously
mentioned Lina al-Homsi, stress the few times that he actually resisted
and criticized government policies; for example, in 1967 he threatened to
resign if an atheist article in the journal of the Syrian army was not offi-
cially withdrawnY One could argue that such stories emphasize the moral
and religious integrity of the man in office and only serve the interests of
the powers-that-be in affirming that the mufti is a "great intellectual" who
can certifY that the social order is religiously acceptable and morally right.
On the other hand, one could also argue that these stories deceive no one
but that they do affirm a general skeptical worldview of at least parts of
the Syrian population that the state and religion are in a basic conflict and
that any decent state mufti will be operating in a perpetual conflict of
moral dilemmas.

Lebanon
Turning to the Lebanese case, we initially see the same basic pattern fol-
lowed by the French administration that stripped the office of provincial
Mufti of some of its functions, most importantly the control of awqa£ But
very quickly, the story moves in a different direction. This is due to the na-
ture of the Lebanese state that emerged in the 1920s. First of all, the es-
tablishment of the position of mufti of Lebanon was rather more
controversial than in the case of Syria, as probably the majority of Sunnis,
and especially the 'ulama, for decades rejected the idea of territorial
Lebanon. Consequently, the mufti of Beirut, Mustafa an-Naja, declined
to take part in the preparation of the constitution of 1926, and he did not
accept the title of mufti of the Lebanese Republic but insisted on being
just mufti of Beirut right up to his death in 1932.18 By then, however, the
confessional power sharing system of the Lebanese state was in place, pro-
viding each of the religious confessions a great measure of autonomy in
the religious and educational sphere. A mufti of the Republic was thus in-
dispensable for administrative and confessional guidance, if not for his

88
 A TYPOLOGY OF STATE MUFTIS

fatwas. Even the control of awqaf, which, as mentioned, was reorganized

and taken away from the muftis in 1921, was partly placed under his au-
thority again with the establishment of a "Supreme Legal Council" in
1931 with the mufti at its head. 19 The following mufti, Muhammad Taw-
fiq Khalid, strove to use the new title and powers to act as a general
spokesman of the Sunni Muslims in religious matters. What we have left
from him is a collection of political speeches and sermons directed mainly
against the French. After the war, in independent Lebanon, he built the
Dar al-Fatwa complex in western Beirut, which houses the mufti's office
and administration of mosques and their staff as well as an institution of
higher Islamic studies. When Khalid died in 1951, he was succeeded by
Muhammad Alaya, a less political mufti. 2o
In 1955, a law was passed instituting the Sunni Muslim religious ad-
ministration in independent Lebanon. The aim was to secure for the Sun-
nis an absolute independence from the state by setting up an institution
with legislative powers within the field of Sunni religious and internal af-
fairs. This meant that a new and powerful Supreme Legal Council was
erected with the participation of all Sunni ministers, ex-ministers, and
members of Parliament but still headed by the mufti. 21 The inclusion of
all important Sunni political leaders meant, of course, that their political
rivalry was also played out in this body, which had, moreover, an impor-
tant role as employer of staff in schools and mosques and was thus a ma-
jor source of patronage. In addition, an electoral committee for the
Council was set up consisting not only of'ulama but also of the politicians
and members of the Sunni professional elite.
Article 2 in Law 18 of 1955 reads, "The Mufti of the Lebanese Re-
public is the religious head of the Muslims, and in this capacity, he repre-
sents them vis-a.-vis the authorities. He is entitled to the same respect,
rights and privileges that are enjoyed by the other superior heads of reli-
gion, without modification or exception."22 Article 3 makes him the direct
head of all Muslim men of religion and the highest authority in matters
of waqf and ifta', and he is in charge of all Muslims' religious and social
affairs. Article 6 gives him life tenure. The powers of the mufti of the
Lebanese Republic are thus very considerable, and, once elected, he is very
difficult to get rid o£ With this law, he is constituted not only as a reli-
gious administrator but as a kind of behind-the-scenes Sunni politician
with great influence.

89
JAKOB SKOVGAARD-PETERSEN

As is the case in Syria, the political importance of the state mufti is

clearly reflected in the ever-changing rules of his selection. The interest-
ing thing in Lebanon-and this is a general feature of Lebanese politics-
is not the question of appointment versus election, for the electoral
principle is not in doubt, but the question of the composition of the elec-
torate. In 1932, the French administration left the election of Muhammad
Tawfiq Khalid entirely to an electoral college consisting of thirty-two high
'ulama. With the adoption of the Law of 1955, on the other hand, the
mufti was not really the representative of the 'ulama anymore but rather
of the Sunni community at large. Consequently, his election was no longer
seen as the prerogative of the 'ulama, but he was to be elected by a much
larger committee consisting of all eminent Sunni representatives in poli-
tics and the administration and professions. A decree of 1967 further en-
larged this electoral body, rendering the 'ulama a clear minority.23 The
problem with the Law of 1955, of course, is that the election of the mufti
of the Republic is turned into a quite direct and dangerous competition for
influence by the leading Sunni politicians. This happened for the first
time in 1966, when the two leading conservative Sunni politicians in
Beirut at the time, Saib Salam and Abd Allah al-Yafi, invested great ef-
forts in promoting a relatively unknown judge, Hasan Khalid, in order to
avoid the nomination of a left-leaning populist preacher, Shafiq Yamut. 24
Hasan Khalid was assassinated in 1989, and his appointed successor,
Muhammad Rashid al-~bbani, acted as interim mufti for seven years,
pending a decision by the leading Sunni politicians to go ahead with new
elections, a potentially dangerous and divisive procedure in the aftermath
of the civil war. When elections were finally held, once again a new law
had to be passed, reducing the number of electors from more than 1,000
to 96. This made it easier to convene and control the electorate. The law
was passed in the morning on December 26, 1996, and in the afternoon
the electorate convened and elected ~bbani mufti of the Republic. 25 Two
days prior to that, it should be added, he had been received in audience by
Syrian President Hafez al-Asad. This can be seen as the end of a long
process whereby the election of the mufti has been removed from the men
of religion and relegated to the Sunni politicians. 26
The only group to protest against the election and its procedure was the
Jama'a Islamiya, the Islamist party of Lebanon, which saw this as political
interference in religious affairs. Another critic of al-~bbani who seems to

90
 A TYPOLOGY OF STATE MUFTIS

have nurtured ambitions for himself, the political leader of the group known
as al-Ahbash, Nizar al-Halabi, was shot down in August 1995. It seems fair
to assert that a main reason for the final promotion of al-Qebbani to full
mufti of the Republic was the need among the leading Sunni politicians for
an institution that could represent a non-Islamist version of Sunni Islam to
the public and ensure the promotion of non-Islamist preachers in the
mosque hierarchy. On the other hand, it also seems fair to assert that the
reason why it took seven years to promote al-Qebbani was that the leading
Sunni politicians, primarily Prime Minister Rafiq al-Hariri, had little inter-
est in reviving a strong mufti of the Republic. Although Hasan Khalid had
been the candidate of the leading politicians in 1966, he had soon demon-
strated a capacity to carve out a power base for himself, partly through es-
tablishing contacts to Islamically oriented regimes abroad, and during the
Lebanese civil war, when the militias of the Sunni political leaders were de-
feated by the militias of the other confessions, the mufti and the Dar
al-Fatwa had evolved into a central Sunni political institution.
To conclude, the figure of Hasan Khalid, in particular, chosen for his
political views and pursuing a political strategy, demonstrates well the
transformation of an essentially religious office into a predominantly po-
litical one in the Lebanese case. The mufti of Lebanon gives few fatwas,
according to the amin al-fatwa, perhaps fifty per year, and these are pri-
vate ones, prepared by the amin and not by the mufti himself (interview,
Dar al-Fatwa, March 1996). There are other muftis much more respected
for their knowledge of fiqh and consulted by the Sunnis of Lebanon. But
Qebbani is often in the news, representing a Sunni view on social and re-
ligious issues and, like the heads of the other confessions, a symbol and
sometimes affirmer of the confessionalist system. This is also expressed in
the new constitution of 1990, which calls for the abolition of the confes-
sional system and the establishment of a second chamber where the heads
of religion will have permanent seats in addition to a special authority to
raise issues directly with the Constitutional Court. 27

Egypt
The office of "mufti of the Egyptian lands" took form in the late nine-
teenth century, parallel to a number of legal reforms that abolished the

91
JAKOB SKOVGAARD-PETERSEN

role of fatwas in courts. Instead, the mufti became involved in state re-
formist policies, especially under the muftiship of Muhammad Abduh
(1899-1905), who found a new role for the mufti as a public service insti-
tution, giving fatwas to the administration and the public at large, some-
times to help out-of-court settlements. 28
In contrast to the Ottoman Empire and its successors in Syria and
Lebanon, the state mufti in Egypt is not involved in the administration of
religious education, which is the preserve of al-Azhar. Neither is he in-
volved in the awqaf, which have their own ministry. The mufti is em-
ployed by the Ministry of Justice but is only vaguely related to the court
system, primarily through the task of scrutinizing death sentences that
have to be in conformity with the rules of fiqh. With the abolishment of
the shari'a courts in 1955, some minor tasks, previously the preserve of the
chief qadi, were transferred to the state mufti, the most important of
which today is the announcement of the beginning of the Islamic lunar
months based on the observation of the new moon. 29
The question of selection is very different from the Syrian and the
Lebanese cases. In Egypt, the mufti is simply appointed by the president,
formerly by the king, and there has been no prior nomination of candi-
dates by the 'ulama. In general, the selected man has had a distinguished
career at al-Azhar and, until recently, in the shari'a courts. He is consid-
ered to be loyal, reasonable, and capable by the president: his usefulness
will be enhanced if he is also respected as a scholar by the 'ulama and the
public at large. For most of the twentieth century, there had been a retire-
ment age for state employees in Egypt, and this is one reason why the
muftis have been in office for much shorter time than is the case in Syria
and Lebanon. Another reason is that a few of them chose to resign after
political disagreements with the king. Yet another reason, especially char-
acteristic of the past two decades, is that the mufti, having demonstrated
his loyalty and general capacities, has been promoted to the even higher
position of shaykh of al-Azhar, the highest religious dignitary in the coun-
try. Since World War I, there have thus been fourteen state muftis in
Egypt, in contrast to Syria's four and Lebanon's five. This is why they are
not listed here.
The Egyptian mufti of the Republic could perhaps be described as a
kind of religious handyman for the state. He can point out discrepancies
in legislation and administration that might cause problems with the reli-

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 A TYPOLOGY OF STATE MUFTIS

gious sentiments of parts of the population. He can sit on committees, for

instance, preparing new legislation on family law and similar Islam-related
issues. He can address and answer the religious anxieties and questions of
the public, thereby affirming the religiously acceptable nature or at least
the good religious intentions of the state and its administration. Finally,
he can be an important counterweight to the shaykh of al-Azhar if the lat-
ter develops too independent and oppositional ideas. This was witnessed
in the early 1990s.3o
Apart from these tasks, the mufti of the Republic has his own agenda.
He can arrange conferences and sometimes act behind the scene to pro-
mote Islamic issues. But most important, he can raise issues directly with
the public through a special type oflonger, more studied fatwa that has ei-
ther been requested by a state agency or simply prepared by himself as a
kind of report or press statement. Some of these fatwas may be fully in ac-
cordance with the wishes and priorities of the government, for instance,
his fatwa on the Camp David peace accord or his fatwas on family plan-
ning. But there are others that are less closely related to government poli-
cies and seem more to reflect a strategy of asserting Islamic values in the
face of a threatening secularization.
That the mufti must have preserved a certain religious integrity in at
least some people's eyes is evidenced in his ifta', which is on a much larger
scale than in Lebanon and probably also Syria today. The mufti of Egypt
issues around 500 fatwas per year, mainly to ordinary Egyptian mustaftis
(those seeking his opinion) but also as a response to inquiries from the ad-
ministration and from abroad. 31 Many of these fatwas are later published
by the Dar al-Ifta', especially the longer important ones, for instance, on
current medical and economic issues. More than his Syrian and Lebanese
counterparts, the mufti of Egypt thus represents an important voice in the
debates on Islamic solutions to modern challenges, especially in the field
of law. In this, he can be seen as a competitor also to the international
fatwa-issuing bodies, such as the Muslim World League's fiqh committee
or al-Azhar's own Academy ofIslamic Research.
These are not his only competitors, however. Especially since the
1970s, the state mufti has come up for criticism by the new Islamist groups
who generally have their own muftis to rely on. They have criticized him
for being a puppet of the state who gives Islamic credence to its anti-
Islamic policies. The mufti has had to respond to these accusations, which,

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JAKOB SKOVGAARD-PETERSEN

because of a relatively free press, are formulated and circulated much more
widely in Egypt than in Syria. 32 The idea of being a defender of Islam
against the onslaught of secularization is, of course, more difficult to up-
hold for the mufti when he is criticized openly on Islamic terms. In short,
while the general Islamic awakening may have multiplied the questions for
fatwas and done much to make the state mufti an important figure in the
Egyptian public today, the Islamist criticism has rendered the very position
of state mufti in a country like Egypt quite precarious. His response has
been to affirm his authority and mastery of the Islamic authoritative texts
and expose Islamism as an ill-informed and misguided political exploita-
tion of Islam. Since the 1970s, the state mufti of Egypt has been at the
forefront of the government campaign against Islamism. He has been re-
warded with an enlarged administration and a new office building in neo-
Islamic style, symbolically overlooking al-Azhar at ad-Darasa.
In more substantive and concrete questions, he has identified himself
with a pious pragmatism, a kind of Salafi modernism where modern life
and thought can be given its due as long as this does not infringe on ba-
sic Islamic principles. Hence, in the 1980s, the mufti chose to redirect
some of the more difficult questions posed to him to specialists on the is-
sue involved (finance, for instance), thus in effect transforming himself
into a concerned mustafti who will evaluate the answer from the point of
view of Islamic law and ethics. This, to me, is an interesting attempt at
disclaiming some of the authority vested on him and opting for a more
modest role as a kind of model conscience, discussing the issue rather than
settling it. I have not come across anything similar in Syria or Lebanon.

Conciusions:The Role of State Muftis

in an Age of Islam ism
We have seen three different developments of the office of state mufti
from the late nineteenth century and until today. Both the Syrian and the
Lebanese cases have preserved the essentially administrative identity of
the provincial mufti but in different ways. In Syria, he is still formally the
head of the 'ulama, but now through the body of the Higher Council of
Ifta', which has little to do with actual fatwa giving. This body, however,
has gradually been emptied of its political importance, and especially since

94
 A TYPOLOGY OF STATE MUFTIS

the early 1960s, a tendency toward greater state control and instrumental-
ization can be observed. In Lebanon, on the other hand, the mufti of
Beirut has developed into a political figure of potential importance, with
an institutional power base and considerable control over the Sunni reli-
gious sector, which, in turn, enjoys considerable independence from the
state. In Lebanon, the mufti of the Republic is certainly not a representa-
tive of the state but rather the formal head of an interest group that he
represents vis-a.-vis the state and the other confessions. In Egypt, finally,
the mufti has no administrative tasks or political power base or indeed for-
mal independence. But there is an established tradition of the mufti act-
ing as an Islamic conscience in society, and his longer fatwas directed at
the public at large have sometimes set the agenda for public debate. While
the Egyptian mufti is clearly a legitimizing instrument of the state, he is
also more of an intellectual than in the Syrian and Lebanese cases and has
to debate important issues in public. In contrast to the others, his ifta' is
central but contested.
The three impressive administrative buildings of the muftis of Syria,
Lebanon, and Egypt say it rather well: all of them built ~t a high point of
state gratitude for the services rendered by the mufti. As will be clear by
now, the general inference that the role of state muftis is to sanction state
policies and mobilize public support is generally correct. But it is not an
adequate explanation. Political fatwas there are, but they are relatively few,
and other fatwas reveal a certain independence and sometimes a more par-
ticularist agenda. It seems fair to say that, while he certainly has to serve
the state, the individual state mufti also has some room for maneuvering
himself And where state pressures are most massively felt, as in Syria of
the 1970s and Egypt of the 1980s, the state mufti can also adopt new
strategies, such as Koftaro's privatization of his functions and concentra-
tion on education or the Egyptian mufti Sayyid Tantawi's sometimes al-
most open-ended fatwas where material is put forward and discussed and
several solutions are suggested.
It is interesting to note that precisely these two muftis, who have been
particularly singled out for criticism by the Islamist oppositions, have re-
tained a certain popularity in non-Islamist circles-some of them also af-
fected by the general Islamic awakening. They have been admired for their
courage to speak up against, or at least present an alternative to, what in these
circles is seen as a rigid and conformist version ofIslam. It is my impression

95
JAKOB SKOVGAARD-PETERSEN

that many non-Islamist Muslims are well aware that the state mufti is under
pressure from the state and that they may disagree profoundly with the
regime on many other issues-that they, in other words, sympathize with the
mufti not for representing the state but for the views he expresses. Whether
in Syria, Lebanon, or Egypt, it seems that a state mufti's authority cannot rest
solely on being vested with the authority of the state. As the status of the in-
dependent postcolonial state has dwindled in the eyes of its citizenry, a state
mufti is perhaps increasingly seen not as someone who should automatically
command respect, as the state would have it, or disrespect, as the Islamist op-
position would insist. Rather, it seems that today, above anything else, the
state mufti is faced with the task oflegitimizing himse1£

Notes
1. On the history of the Ottoman Shaykh al-Islam, see Richard Repp, The
Mufti ofIstanbul (London: Ithaca Press, 1986).
2. Haim Gerber, State, Society, Law in Islam: Ottoman Law in Comparative
Perspective (Albany: State University of New York Press, 1994), 88-92.
3. Adnan Ahmed Badr, AI-Ifta' wa 'l-Awqaf al-Islamiya ji Lubnan (Beirut:
al-Mu'assassa al-Jama'iyya, 1992), 14-15. On the transition from Ottoman to Re-
publican muftis in Syria and Lebanon, see Jakob Skovgaard-Petersen, "Levantine
State Muftis-An Ottoman Legacy?," in The Ottoman Intellectual Heritage, ed.
Elizabeth Ozdalga (in press).
4. Badr, AI-Ifta wa 'l-Awqaf al-Islamiya ji Lubnan, 15.
5. Ruth Roded, "Ottoman Service as a Vehicle for the Rise of New Upstarts
among the Urban Elite Families of Syria in the Last Decades of Ottoman Rule,"
Asian and African Studies 17 (1983): 63-94; Philip Khoury, Urban Notables and
Arab Nationalism (Cambridge: Cambridge University Press, 1983).
6. Lina al-Homsi,AI-Muftun al-'Ammunji Suriya (Damascus: Dar al-'Asma'
1996),29.
7. Badr, AI-Ifta' wa 'l-Awqafal-Islamiya ji Lubnan, 17-22.
8. Annabelle Bottcher, Syrische Religionspolitik unter Asad (Freiburg: Arnold
Bergstrasser Institut, 1998), 19.
9. Bottcher, Syrische Religionspolitik unter Asad, 49.
10. Bottcher, Syrische Religionspolitik unter Asad, 63-65.
11. Bottcher, Syrische Religionspolitik unter Asad, 54.
12. Bottcher, Syrische Religionspolitik unter Asad, 56.
13. al-Homsi, AI-Muftun al-'Ammun ji Suriya: Damascus, Dar al-'Asma', 35.

96
 A TYPOLOGY OF STATE MUFTIS

14. Bottcher, Syrische Religionspolitik unter Asad, 55-58.

15. al-Homsi, Al-Muftun al-Ammun fi Suriya: Damascus, Dar al-Asma', 25, 29,
n.5.
16. al-Homsi,AI-Muftun al-Ammunfi Suriya: Damascus, Daral-Asma', 80-92.
17. al- Homsi, Al-Muftun al-Ammun fi Suriya: Damascus, Dar al-Asma', 117-18.
18. Badawi Swaid, "As-Sunna fi Lubnan," Ad-Diyar 18-25: 10 (1990).
19. Decree 157/1 of December 16, 1931, § 23. Al-Hut, Abd aI-Rahman,
al-Awqaf al-Islamiyya fi Lubnan (Beirut: N .p., 1984), 18-20.
20. Swaid, "As-Sunna fi Lubnan," 24/10.
21. Badr, Al-Ifta' wa 'l-Awqaf al-Islamiya fi Lubnan, 159-70.
22. Badr, AI-Ifta' wa 'l-Awqaf al-Islamiya fi Lubnan, 248.
23. Badr, Al-Ifta' wa 'l-Awqaf al-Islamiya fi Lubnan, 90-94.
24. Swaid, ''As-Sunna fi Lubnan," 24/10.
25. AI-Hayat, December 30,1996,3.
26. Jakob Skovgaard-Petersen, "The Sunni Religious Scene in Beirut,"
Mediterranean Politics 3, no. 1 (1998): 69-80.
27. Lebanese Constitution (1990), § 22, 19. See Beirut Review 4 (1994):
119-60 for the full text of the constitution in English.
28. Jakob Skovgaard-Petersen, Defining Islam for the Egyptian State (Leiden:
Brill, 1997), 375-76.
29. Skovgaard-Petersen, Defining Islam for the Egyptian State, 196-97.
30. Skovgaard-Petersen, Defining Islam for the Egyptian State, 286-89.
31. Skovgaard-Petersen, Defining Islam for the Egyptian State, 387-78.
32. Skovgaard-Petersen, Defining Islam for the Egyptian State, 298-315.

97
 CHAPTER FOUR
A CONTEXTUAL APPROACH TO IMPROVING
ASYLUM LAW AND PRACTICES IN THE
MIDDLE EAST
Nadia Yakoob and Aimen Mir

T
he approach in the Middle East toward asylum and refugees, like
many other areas of law and society in the region, provides an ex-
ample of the tension between culturally appropriate practices and
the applicability of international notions of human rights. On the one
hand, the states in the Middle East enjoy a rich history of offering pro-
tection to forced migrants. On the other hand, these states face pressure
to adopt the international legal framework that developed in the West for
the protection of "refugees." Middle Eastern states and human rights ad-
vocates are, as a result, faced with the challenge of reconciling the regional
history and custom of protecting forced migrants in the Middle East with
the internationalization of legal standards governing the protection of
refugees.
We begin by presenting a snapshot of the current refugee flows in the
Middle East. By looking at these numbers, we ask on what basis are these
individuals permitted to enter and remain in the host states. This chapter
explores the relevance of international legal obligations, regional frame-
works, Islamic teachings, and domestic mechanisms for the reception and
protection of forced migrants. We seek to identifY the bases on which pro-
tection is offered in order to find a way by which to hold these states ac-
countable, thereby making protection less arbitrary and ad hoc while
preserving the fundamental right to seek asylum and not to be returned to
a place where an individual faces persecution.
Through this examination, we found that the most realistic approach
to building and strengthening existing regimes for the protection of forced

99
NADIA YAKOOB AND AIMEN MIR

migrants in the Middle East is at the individual state level. We also note
that improving mechanisms for protection is ultimately related to and de-
pendent on addressing more fundamental human rights violations in the
reglOn.

Identifying the Bases for Protection of

Forced Migrants in the Middle East
States highly value their sovereign right to "control the entry, residence,
and expulsion of aliens."l Yet despite this jealously guarded right, states-
including those in the Middle East, as reflected in table 4.1-permit the
entry of aliens, even where the entry is primarily a source of burden rather
than benefit for the host state. Most states recognize some obligation to
assist those fleeing persecution and have taken some measures to formal-
ize such an obligation. Many states have chosen to bind themselves inter-
nationally, with the 1951 Refugee Convention being the primary
instrument and the foundation of modem international refugee law. 2 Sur-
prisingly, most states in the Middle East have not ratified the 1951 Con-
vention or its 1967 ProtocoI.3 The only Arab countries to accede to the
Convention are Yemen and Egypt.
Some states that have not bound themselves to international instru-
ments nonetheless bind themselves under domestic law. Constitutional
provisions of most Arab states prohibit the extradition of political
refugees. Several of them explicitly mention the right to political asylum.
Very few Arab states, however, have passed domestic legislation that guar-
antees the right to seek asylum. Iraq, Lebanon, and Yemen are the only
three countries in the Middle East to have passed laws concerning
refugees.
These generally weak laws and the absence of legal mechanisms to
protect refugees in the remaining states of the Middle East cause concern
to many refugee and human rights lawyers. This concern is amplified by
the large-scale forcible displacement that has occurred in the region, for ex-
ample, after the Gulf War in 1991. Typically, the Middle Eastern states
have been urged by the United Nations to remedy the situation by ratifY-
ing the 1951 Convention and the 1967 Protocol and establishing some
form of regional framework for the protection of refugees. While such rec-
ommendations are justifiable, we argue that building national capacities for

100
Table 4.1. The Number of Forced Migrants in the Middle East"
Population of Concern Number of
Country to UNHCR Asylum Seekers Origins of Refugees
Egyptb 22.900 15.655 Sudanese
Somalis
Yemen is
Iraq 130.500 393 Iranians
Turks
Palestinians
Jordan 6.400 5.297 Iraqis
(1.263.000 Palestinians) Sudanese
Somalis
Syrians
Libyans
Former Yugoslavians
Kuwait 139.300 80 Stateless Bedouins
Afghanis
Iraqis
Somalis
Palestinians
Lebanon 6.500 3.680 Iraqis
(350.000 Palestinians) Afghanis
Sudanese
Somalis
Libya 11.700 15 Palestinians
Somalis
Eritreans
Sudanese
Ethiopians
Saudi Arabia 245.500 234 Iraqis
Afghanis
Syria 4.000 605 Iraqis
Yemenis
Somalis
Sudanese
United Arab 900 361 Somalis
Emirates Ugandans
Iraqis
Iranians
Yemen b 72.000 2.361 Somalis
Eritreans
Ethiopians
Totals 639.700
Individuals of Concern
to UNHCR
2.252.700
total displaced
populations including
Palestinians

, Numbers based on UNHCR's Statistical Yearbook 200 I (available at www.unhcr.ch).

b Countries that are party to the 1951 Refugee Convention and 1967 Protocol.
NADIA YAKOOB AND AIMEN MIR

the protection of refugees should come first. Efforts by the international

community to date have focused primarily on creating a regional mecha-
nism under the auspices of the League of Arab States, though political di-
vides within the region have tempered the effectiveness of such efforts. The
League's draft declaration relating to the status of refugees, issued in 1994,
has no legal effect. The development of national laws and national institu-
tions, however, could bypass the need to overcome political divides in the
region and reflect domestic political realities for states in a region that is
marked by conflict. Such a politically realistic approach is necessary to sur-
mount the enormous obstacles that relate to the very basic tension between
international law and state sovereignty that is captured by refugee law.

Is There a Right to Protection?

International refugee law is based on the idea that a person who is
persecuted or oppressed in his or her country of origin has the right to
leave and seek protection in another state. The right to seek asylum is a
principle of international law that challenges the sovereignty of a state be-
cause it requires that an outsider be permitted to enter a sovereign state
and ask for protection. 4 Thus, the state's fundamental right to control the
entry of aliens (to the ultimate aim of preserving its community) is mod-
ified.
An asylum seeker can exercise the right to asylum if he or she meets
the definition of refugee established by the host state-that is, he or she
is recognized as worthy of protection. 5 The right to asylum necessarily en-
compasses the right not to be returned to a place where one faces perse-
cution or oppression. In certain situations, a state will resettle a recognized
refugee in another country where he or she will be free from persecution.
Resettlement provides protection for the refugee and also allows a state to
exercise some measure of discretion in choosing who can stay within its
borders. According to the UN High Commissioner for Refugees (UN-
HCR), resettlement is one of three durable solutions to the plight of
refugees, the other two being voluntary repatriation and integration into
the host state. 6
Unlike the right to seek asylum, the right to asylum and the right to
not be returned to a place of persecution are subject to certain overriding
state interests, such as national security and the public interest. The 1951

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 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

Refugee Convention specifically enumerates categories of individuals that

are per se unworthy of protection, such as war criminals and persons who
have committed serious nonpolitical crimes before arriving in the host
state. 7 A state can also expel or return refugees who have committed a par-
ticularly serious crime in the host state or constitute a danger to the com-
munity of that country, even if the refugee's life or freedom would be
threatened on return. 8 National security interests clearly permeate the
Refugee Convention and trump the right of refugees to enduring protec-
tion. Encouraging the Middle Eastern states to promulgate domestic asy-
lum laws while recognizing national concerns is, therefore, also compatible
with the principles of international refugee law.
Furthermore, analyzing refugee flows from a security paradigm reveals
that an influx of refugees can threaten a host state's sociopolitical stability.
Myron Weiner identified four principal ways in which refugee populations
can destabilize a host state. 9 First, the host country's decision to grant
refugee protection can create or reinforce an adversarial relationship with
the refugee-producing country. Second, refugee populations may become
so strong as to function independently of the host state, often at the host
state's detriment. The Palestinians in Jordan during the 1960s are a case in
point. Third, large refugee communities can challenge a cultural identity.
Finally, host states often perceive refugees as social or economic burdens.
The economic costs associated with protecting refugees, the additional
competition in tight job markets, and the resentment experienced by local
impoverished communities toward the international assistance given to
refugees exacerbate tensions. Security10 concerns, therefore, lead states to
grant refugee protection with caution. Some states even fear that giving
protection to a small number of individuals "might open a flood-gate and
lead to the entry of more immigrants than society is prepared to accept."ll
As such, states prefer restrictive criteria in order to keep the influx small. 12

The 1951 Convention Relating to the

Status of Refugees and Its Protocol
We have chosen to emphasize the development of domestic asylum law
not only because it allows each state in the Middle East to address its do-
mestic political interests but also because we recognize the valid concerns
held by these states regarding the 1951 Refugee Convention and regional

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NADIA YAKOOB AND AIMEN MIR

frameworks, specifically under the League of Arab States. The 1951

Refugee Convention was formulated in the immediate post-World War II
period in response to the flow of European refugees. The Convention's
scope was limited in both time and territorial application. First, the Con-
vention applied only to individuals fleeing persecution on account of events
occurring before January 1, 1951,13 Second, the Convention allowed state
parties to limit the territorial application to Europe. Under Article l(B),
"the words 'events occurring before 1 January 1951' in Article 1, Section A,
shall be understood to mean either a) 'events occurring in Europe before 1
January 1951'; or b) 'events occurring in Europe or elsewhere before 1 Jan-
uary 1951.'" State parties had to specifY at the time of signature, ratification,
or accession which meaning they intended to follow.
Furthermore, the Convention excludes Palestinian refugees from its
mandate under Article l(D), which states, "This Convention shall not ap-
ply to persons who are at present receiving from organs or agencies of the
United Nations other than the United Nations High Commissioner for
Refugee protection or assistance." Since Palestinians were receiving assis-
tance from the UN Relief and Works Agency (UNRWA), created specif-
ically to assist them, they could not fall within the scope of the 1951
Refugee Convention.
The 1951 Convention was thus a Eurocentric instrument designed to
deal with European-defined problems. Professor Khadija Elmadmad ob-
served, "This Convention did not take into consideration the traditions,
laws and values relating to asylum and forced migration in other parts of
the world, and very few Moslem States participated in the drafting."14 It
is therefore not surprising that Arab states have been reluctant to sign it.
Of the twenty-one member countries of the Arab League, only nine have
ratified the 1951 Convention relating to the status of refugees, the major-
ity of which are in Africa: Algeria, Djibouti, Egypt, Mauritania, Morocco,
Somalia, Sudan, Tunisia, and Yemen. 1S
The 1967 Protocol, however, lifted both the time and the territorial
limits.16 Under Article 1(2), the term "refugee" would no longer be limited
to those individuals fleeing persecution as a result of events occurring be-
fore January 1, 1951,17 Article 1(3) provides that "the present Protocol
shall be applied by the State Parties hereto without any geographical lim i-
tation."18 The Protocol removed the European orientation of the 1951
Convention, making it a more universal document. While such a docu-

104
 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

ment should be more appealing to the Arab states, the continuing resist-
ance to it is understandable in light of its historical origins. 19 Moreover,
the exclusion of the Palestinians continued in the Protocol. The Arab
states were generally frustrated with the United Nations and the inter-
national community for failing to implement the numerous General As-
sembly resolutions passed concerning the Palestinians refugees' right to
return,20 which influenced and reinforced their skepticism toward human
rights instruments issued by the United Nations.

Regional Frameworks: The League of Arab States

Efforts to create a regional framework for the protection of refugees
have been under way since the 1980s, culminating in the Arab Conven-
tion on Refugees in 1994 under the auspices of the League of Arab
States. 21 To date, no country has ratified it, and only Egypt has signed it. 22
It is, therefore, not yet in effect. While the Arab Convention incorporates
language from the 1951 Convention, it adopts a much broader definition
of refugee. Curiously, although the Preamble of the Arab Convention
refers to the Universal Declaration Human Rights, the two International
Covenants of 1966, and the Cairo Declaration on the Protection of
Refugees and Displaced Persons in the Arab World, it does not mention
the 1951 Convention or the 1967 Protocol.
The Arab Convention, under Article 1, defines a refugee as anyone
who, owing to a well-founded fear of being persecuted on account of race,
religion, nationality, or membership of a particular social group, is outside
the country of his nationality and is unable or, owing to such fear, unwill-
ing to avail himself of the protection of that country.23 This language ef-
fectively mirrors that of the 1951 Refugee Convention except for one
omission. The Arab Convention omits political opinion as a ground for
having a well-founded fear of persecution. This gap, however, could be
filled by the League of Arab States' 1952 Arab Convention on Extradi-
tion, which forbids the extradition of political offenders except for crimes
against kings and heads of state and their families (Article 4).24
In addition, the Arab Convention recognizes the following reasons for
flight that warrant refugee protection: 1) foreign aggression, occupation, or
domination; 2) events seriously disturbing public order in whole or parts of
the country; and 3) natural catastrophes. The first two categories reflect the

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NADIA YAKOOB AND AIMEN MIR

expanded definition of refugee found m the Organization for African

Unity's Convention Governing the Specific Aspects of Refugee Problems in
Africa. 25 The third category recognizes that oppression leading to forced
migration does not necessarily need to be man-made. Environmental degra-
dation, droughts, famines, and floods can also threaten a person's existence
and compel flight. Such a broadened definition of refugee is clearly com-
mendable. Yet it runs counter to valid security concerns that stem from large
flows of refugees. This tension may explain why no country has ratified the
Arab Convention, leaving it to be an ambitious regional declaration.
Much like the 1951 Refugee Convention, the Arab Convention ex-
cludes certain criminals from protection and enumerates conditions that
permit the termination of refugee protection. It guarantees certain human
rights to the refugee, such as nondiscrimination, nonre.fOulement (that is, to
not be returned to a place where one's life would be threatened), non-
expulsion, and freedom of movement.
Aside from the basic definition, the Arab Convention differs from the
1951 Convention in two further aspects. First, it grants the right to tem-
porary asylum for asylum seekers whose life might be in danger if returned.
Second, it prohibits the refugee from engaging in any "acts against" the
refugee's country of origin (Article 13). Article 13 serves as a restriction on
freedom of speech, but it may stem from the earlier omission of persecu-
tion for political opinion as a basis for protection, revealing a general wari-
ness of political dissidents. In addition, one could argue that the national
security or public order grounds for revoking refugee protection under the
1951 Convention could be interpreted to possibly justifY such a prohibi-
tion. 26 While the abridged right to free speech granted to a refugee is
clearly problematic in light of prevailing norms concerning democracy and
human rights, it may reflect a certain political reality in which the major-
ity of refugees are fleeing conflict in neighboring states, and hosting them
could mean some level of involvement in that conflict. For example, the
Palestinians often launched attacks from Jordan or Lebanon, ultimately
drawing their host states into the Palestinian conflict with IsraeP7
Despite the particularized contents of the Arab Convention on
Refugees, it still has no force. As mentioned earlier, this may simply be a
function of the broad definition given for a refugee, which may be im-
practical or threatening for states to accept. More important, it reveals that
efforts at the regional level are not yielding effective results. 28 This is not

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so surprising in light of current trends in other parts of the world. At-

tempts to harmonize asylum law in Europe have met with difficulty, as
each state has markedly differing interpretations of the 1951 Refugee
Convention. 29 Similar efforts in the Americas to coordinate burden shar-
ing of refugee flows also face challenges. 3o

Islam
Another possible source of authority in which to ground refugee pro-
tection is Islam. Historical Islamic jurisprudence is replete with discussion
of persecution and migration. Indeed, central to Islamic history is the per-
secution of the Prophet Muhammad and his companions and their Hijra,
or migration, to attain a state of security. The Qyr'an and Sunnah can,
therefore, be read as being extremely sympathetic to the plight of those
who face oppression on account of their beliefs and who, therefore, choose
to flee to a place of greater security-particularly where the oppression is
based on religious belie£31
Several modern writers have looked at these basic Islamic notions of
concern for the oppressed and for migrants, taking note of various
Qyr'anic verses and historical practices where Muslims granted protec-
tion to the persecuted and based on such sources and practices have con-
tended that a long-standing right to asylum exists under Islamic law. 32
However, while the shari'a and historical Muslim practice may not pre-
clude, may be consistent with, or may even-in today's context-
mandate the modern notions of asylum reflected in the 1951 Refugee
Convention and other recent regional instruments, such a notion of asy-
lum received little attention, if any at all, for the major part of Muslim
history.
The purpose of this section is to examine historical Islamic institu-
tions of protection, their textual bases, their similarity or dissimilarity to
modern notions of asylum, and the applicability of the underlying princi-
ples to the current context.

The Three Institutions of Protection in Islamic Tradition

Sanctuary. The tradition of protection literally begins at the core of
the Islamic world and history-the Ka'ba, the focal point ofIslamic wor-
ship in Mecca. The Qyr'an establishes the Ka'ba and the precincts of the

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surrounding mosque as the haram, or sanctuary.33 Therein, every person is

deemed safe, even those who have committed a crime, until they emerge
from the sanctuary. Similarly, the Prophet Muhammad identified the city
of Medina as a sanctuary.
Hijra. The second institution that has historically been associated
with protection in Islam relates to Hijra, or migration from one's home.
Hijra is considered an obligation on able Muslims when they are perse-
cuted and oppressed such that they are unable to practice their religion. 34
The obligation of Hijra and the conditions necessitating Hijra have his-
torically been the subject of extensive discussion in large part because of
the prominent role Hijra has played in Islamic history. The earliest exam-
ple of Hijra was the migration of a group of early Muslims to Abyssinia
to seek the protection of the Christian king and to escape the persecution
being inflicted on the Muslims by the C2!traish, the ruling clan of Mecca.
The second and undoubtedly the most important instance of migration in
Islamic history was Muhammad's migration from Mecca to Medina. The
significance of this later migration from a place of persecution to a place
of safety is reflected by the numerous changes that accompanied the Hi-
jra: the Muslims moved from a position of subjugation to a position of
control, from a period of developing inner strength to a period of outward
expansion, and from a religious community to a religious state. Indeed,
this Hijra is the reference point for the Muslim calendar.
The relevance of Hijra to asylum, however, is found in the obligation
of Muslims in a place that can offer security to receive the Muslims mak-
ing Hijra from their home on account of religious persecution. The
C2!tr'an does not explicitly establish any such obligation. This obligation,
however, has been presumed by some modern writers to exist as an im-
plied obligation concomitant to the obligation to make Hijra. 35 Even if
such an obligation can be presumed, for reasons we address later, there has
historically been very little explicit discussion regarding the obligation of
Muslims to receive other Muslims fleeing persecution or even more gen-
erally regarding rules governing the movement of Muslims between or
into Muslim territory.
Aman. The third institution of protection, Aman, is perhaps the most
similar to the modern institution of asylum. Aman is a grant of security
from a Muslim to a non-Muslim. The textual source for such an action is
Sura 9:6, which states, "If one amongst the Pagans asks thee for refuge [is-

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tlj"arak], grant it to him, so that he may hear the Word of Allah; and then
escort him to where he can be secure. That is because they are men with-
out knowledge." The most apparent meaning of this verse gives Muslims
permission to grant Aman to non-Muslims. Aman is the "practice of re-
fraining from opposing [belligerents] through killing or capturing, for the
sake of God."36 Aman was, therefore, initially understood as a form of
quarter, or clemency to be granted to enemies. The refuge provided for in
the C2!tr'an entails securing the subject of the Aman, or musta'min, from
any immediate threat that he might be facing and later returning him, but
only to another place of safety. Subsequently, the institution of Aman was
expanded to mean granting safe conduct or protection generally for pur-
poses of trade or travel in Muslim territory. 37
As discussed by jurists, little differentiation was made between the
rules of Aman as a grant of quarter and Aman as grant of safe conduct. 38
Aman could be granted by any sane and mature Muslim, male or female,
including the poor, sick, and blind, and, according to some jurists, even by
slaves, and the grant would be binding on the entire state. The grant could
be official (that is, the result of a peace treaty or general amnesty) or pri-
vate. The grant could be the result of an individual request from a non-
Muslim, or it could be given without request. Acceptance of a request for
Arnan could be inferred from any sign of assent, even if nonverbal. A grant
of Aman entitled the musta'min (the person seeking safety) to move safely
in or through Muslim territory. While in Muslim territory, the musta'min
was subject to the civil and criminal laws of the territory but could also
avail himself of the judicial system. Commission of certain crimes could
result in revocation of the grant. A grant of Aman is theoretically tempo-
rary, with the time limits and other conditions established at the time of
the grant. Permanent residency could be established only by accepting Is-
lam or by accepting "dhimma" status, which legally referred to the entitle-
ment of a non-Muslim to an indefinite Aman, though not full citizenship,
in return for the payment of a poll tax referred to as the ''jizya.''39

Limitations on the Continued Relevance ofthe

Three Classical Institutions of Protection
For Islamic notions of protection to be useful to advocates today and
for such notions to gain any acceptance, they must also be compatible with

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and capable of addressing the modern geopolitical context-one in which

the entire world is organized into territorially defined states, where cross-
border traffic and immigration are potentially subject to the complete
control of the central government, and where citizenship is based on place
of birth or blood relations.
The relevance of the historical Islamic institution of sanctuary has
limited applicability in today's world because the Muslim world has ex-
panded far beyond the reaches of Mecca and Medina, because access to
the two sanctuaries is restricted to Muslims, and because, even for Mus-
lims, access is tightly controlled by the Saudi government. Furthermore,
sanctuary, whether in a mosque, a church, or any other place of peace, of-
fers a protection of a sort different from asylum. Sanctuary clearly is not a
durable solution to the fears of a person seeking protection. Eventually,
that person must venture out of the sanctuary.
The institution of Hijra also appears to have limited relevance today
since the primary focus of Hijra is on the duty to migrate rather than on
any duty to receive or offer protection. Furthermore, even if one were to
presume that a right to seek asylum is derived from the obligation to make
Hijra, such a right would exist only to the extent that Hijra is an obliga-
tion. Today, despite many glaring injustices in the Middle East, there ex-
ists relative freedom to practice Islam, even if only privately. Under such
circumstances, few would consider Hijra-and therefore the concomitant
duty to receive the migrant-to be an obligation.
Classical jurisprudence on Arnan, by contrast, has several elements that
would be familiar to modern human rights advocates and would offer some
refugees protection approaching that offered under the Refugee Conven-
tion. First, for example, the Qyr'anic verse cited as the basis for Arnan ex-
plicitly provides that the musta'min, at the end of the period of Arnan, must
be delivered to a place of safety, meaning that the mustamin cannot be re-
turned to the place from where he came if he would not find safety there.
This prohibition on returning a refugee to a place of insecurity is similar to
the modern principle of nonrefoulement. Second, a grant of Aman, similar
to the recognition of refugee status under the Refugee Convention, does
not automatically entitle the protected individual to permanent residence
or citizenship in the host community.40 Finally, the musta'min is subject to
the laws of the host state, and violation of those laws may be the basis for
revoking protection and expulsion from the host state.

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Aman as traditionally understood, however, also has several elements

that are seemingly irreconcilable with the modern context and with pre-
cepts of human rights that, for better or for worse, have been accepted as
fundamental among most human rights advocates and have shaped the
modern context. First, for example, the right of each individual to grant
Aman to another would be impractical in the modern context, where im-
migration is usually subject to the strict control of the central government
and where an individual generally has the ability to bind the entire state
only if he or she has sufficient government credentials. Second, Aman has
been traditionally viewed as a grant of protection to non-Muslims, and
there is little evidence to suggest that it was used as an institution to offer
protection to Muslims. Therefore, even if Aman were otherwise viable as
an institution for protection of refugees today, it would only be a partial so-
lution, as many forced migrants in the Middle East-and the world-
today are Muslim. Third, even for non-Muslims, durable status was
available only on conversion to Islam or acceptance of dhimma status-
requirements that would be likely to find little acceptance today, even in the
Muslim world.

Application of the Underlying Islamic Principles of

Protection to the Modern Context
While the classical notions of protection may not be suited for direct
application to the modern context, the underlying Islamic principles may
continue to be relevant. The classical notions of protection were the result
of interpretation of the underlying Islamic principles within the particu-
lar historical context, which included the growth of the Muslim empire
that extended from the Atlantic Ocean in the west and the Indus River in
the east. Because of the vast expanse of the empire, many functions that
later became the exclusive domain of the government, at that time, were
fulfilled by individuals acting in their private capacity. One such function
was the granting of Aman.
Furthermore, despite the great expanse of the Muslim world, it was
for a time, at least nominally, a unitary state. And reflecting the ~r'anic
notion that Muslims form a single community or brotherhood, a Muslim
in one area-even if not within the Muslim empire-was considered to be
a member of the same community as a Muslim many hundreds of miles

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away.41 Therefore, there seems to have been little need for jurists to engage
in discussion of or to develop rcles for Muslim movement, whether for
purposes of seeking refuge or for trade. Related accounts of Muslim travel
from one part of the Muslim world to another seem to suggest that the
movement was generally accomplished without the need for any special
permission and without significant restriction. 42
The classical Muslim worldview divided the world into dar aI-Islam
(the abode ofIslam) and dar al-harb (the abode of war).43 The defaclt rela-
tionship between dar al-Islam and dar al-harb was a technical state of war.
Thus, in the absence of a treaty, a person from dar al-harb was liable to be
killed if he or she entered Muslim territory without some special grant of
protection. Verse 9:6 of the Qyr'an easily lent itself to an interpretation per-
mitting the grant of protection to someone who was fleeing dar al-harb.
However, some form of protection was also needed for those who were not
fleeing dar al-harb but were entering dar al-Islam for purposes of trade.
Thus, the O!tr'anic principles were interpreted to facilitate such trade.
Furthermore, consistent with the organizing principles of the Muslim
state, an individual's status in dar al-Islam was dependent on his or her
faith. To obtain status in the Muslim state, a non-Muslim from dar al-harb
wocld have to either accept dhimma status or depart from the Muslim
state on expiration of the grant of Arnan, just like a modern-day visa.
The apparent irreconcilability of certain characteristics of traditional
Islamic forms of protection and the modern context is, therefore, more ob-
viously the resclt of a historical interpretation of Qur'anic and other un-
derlying Islamic principles, in light of the contextual realities of that time,
than a necessary resclt of the principles themselves. 44 Many scholars to-
day agree that Islam prescribes no specific form of state;45 it also does not
prescribe a specific form of protection. Rather, any state must adhere to
the more general and basic principles established in the O!tr'an and
prophetic traditions. This suggests the possibility and need for a renewed
understanding and interpretation of underlying Islamic principles to ad-
dress the modern context.
Looking beyond the medieval Islamic world as the historical context
within which Islamic principles of protection must be interpreted but in
keeping with the practical contextual approach adopted by jurists of that
time, Islamic scholars of today and human rights advocates can seek a new

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understanding of the underlying Islamic principles as they relate to the mod-

ern context-a context where dar al-harb/dar al-Islam is no longer a main-
stream paradigm, where there is no unitary Muslim state, and where the
concept of ummah does not entitle one to free access to all Muslim countries.
Understanding the Islamic principles in the modern context may reveal
that certain forms of protection previously underdeveloped because of the
historical context may be commendable today or, possibly, obligatory on
any Muslim state. For example, traditionally the obligation to provide pro-
tection was viewed as existing only when a person asked to hear about Is-
lam. In other circumstances, the grant of protection was discretionary and
generally was used for what was viewed as in the public interest, such as
trade. The Qyr'anic verse regarding protection of idolaters clearly addresses
idolaters who left their homes specifically to fight the Muslims. Yet they
were granted protection. Scholars then argued that if protection could be
granted to such people, surely it could be granted (even if not required)
where the person came in peace and would benefit the community.46 Ex-
tending this reasoning further, one could argue that ifboth those categories
of people were worthy of protection, surely someone both coming in peace
and seeking refuge deserves protection. And surely, if the protection should
be extended to non-Muslims, it also should be extended to Muslims.

International Islamic Human Rights Instruments

Muslim states have, in fact, recognized the commendablility of of-
fering protection that is more expansive than the historical institutions
of protection. In 1990, the Organization of the Islamic Conference,
then consisting of forty-three Arab and non-Arab member states, is-
sued the Cairo Declaration on Human Rights in Islam. Article 12 of
the Declaration recognizes the right to seek asylumY Specifically, it
states,

Every man shall have the right, within the framework of the shari'a [Is-
lamic law] to free movement and to select his place of residence whether
inside or outside his country and, if persecuted, is entitled to seek asy-
lum in another country. The country of refuge shall ensure his protec-
tion until he reaches safety, unless asylum is motivated by an act which
the Shari'a regards as a crime. 48

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Article 20 provides a supplementary form of protection. It prohibits the

exile of an individual "without legitimate reason." In addition, it proscribes
the use of physical or psychological torture or any form of humiliation,
cruelty, or indignity. The prohibition on such treatment can be interpreted
to include expulsion or return to a place where one's life would be threat-
ened. The European Court of Human Rights has interpreted a similar
provision in its Convention on Human Rights, which forbids torture or
inhuman or degrading treatment or punishment, as preventing the return
of an individual to a place where he or she may be exposed to such ill treat-
ment. 49
The Islamic Council of Europe, a nongovernmental organization, also
adopted a Universal Islamic Declaration of Human Rights in which the
right to seek asylum was recognized. Article 9 provides, "Anyone perse-
cuted or oppressed has the right to seek refuge and asylum. This is guar-
anteed to every human being, irrespective of race, religion, color or sex."so
As a declaration of a nongovernmental organization, however, it has no le-
gal effect. The Cairo Declaration discussed previously is similarly not en-
forceable. No mechanism exists to ensure the implementation and
protection of the rights guaranteed therein. Although the lack of legisla-
tion in the Arab and Muslim world relating to asylum leads one to con-
sider the possibility of applying Islamic law of asylum, no Islamic body for
enforcement and oversight exists. For example, the Islamic Conference
could ideally provide an institutional framework, but it does not have any
enforcement capacity. Furthermore, vast differences between Muslim
states also present difficulty in creating a binding Islamic legal instrument
relating to refugees. These impracticalities, just like the idealism of other
regional human rights instruments, fail to capture the realistic approach of
classical Islamic jurisprudence, which elaborated on institutions of protec-
tion that were consistent with the underlying Islamic principles while rec-
ognizing the evolving practical needs of the community in its particular
place and time.
Of course, enforcement is a problem of international human rights
law generally. If a state chooses to flout its obligations under an inter-
national treaty, the international community can only respond by con-
demning that state. Sovereign states can use diplomacy in an effort to
compel compliance, but generally no international body can enforce com-
pliance. International law is premised on the will of the member states to

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comply. As such, declarations issued by a supranational authority, such as

various Muslim organizations or the League of Arab states, are of practi-
cal benefit only to the extent the national authorities choose to comply.
This brings us back to an examination of domestic sources for the protec-
tion of refugees in the Middle East.

Domestic Sources
Constitutional Provisions The constitutions of the various Arab
states offer some legal support for the right to seek asylum or the right not
to be returned to a place where one would be persecuted. We identified
three types of provisions that could be useful. First, most of the constitu-
tions prohibit the extradition of political refugees. Second, a few constitu-
tions explicidy recognize the right to seek asylum. Third, several of the
constitutions prohibit torture or other such ill treatment.
Constitutional provisions can play an important role in upholding hu-
man rights in the absence of binding international obligations. For exam-
ple, such provisions have been utilized in India, which is not a party to the
1951 Convention or the 1967 Protocol. The Supreme Court interpreted
the right to protection oflife and personal liberty in its constitution to im-
pose an obligation on the state government to protect refugees of the
Chakma tribe. 51 State authorities in Tripura and Assam were threatening
these refugees with expulsion. The decision in National Human Rights
Commission v. State ifArunachal Pradesh ordered the state government to
protect the "life and liberty" of the Chakma refugees. 52
Provisions prohibiting the extradition of political refugees are found in
the following state constitutions: Bahrain (Art. 21),53 Kuwait (Art. 46),54
Jordan (Art. 21),55 Libya (Art. 11),56 Oman (Art. 36),57 Syria (Art. 34),58
and Yemen (Art. 45).59 Although the language in these provisions could be
used to prevent the return of refugees, two serious problems exist with this
language. First, extradition occurs if state A requests state B to return a
criminal originally from state A or who has committed a crime in state A.
As such, this provision comes into effect only when there has been a re-
quest by the state of origin. Where the criminal is requested for political
crimes, he or she can invoke the prohibition on return. This brings us to
the second problem: the language is limited to political offenses. Individu-
als persecuted for race, nationality, or religion cannot invoke this provision

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unless they can show that the crime for which they are being sought is ac-
tually persecution disguised as prosecution and that persecution based on
race or religion is tantamount to political persecution. In effect, this provi-
sion narrowly applies to situations where a state requests the return of a
person and where that person is being sought for political offenses.
Second, several state constitutions recognize the right to seek asylum
and, in some cases, to asylum itself, thus providing the clearest authority
for enforcement. For example, Article 53 of Egypt's constitution provides
that "the right to political asylum shall be granted by the State to every
foreigner persecuted for defending the people's interests, human rights,
peace or justice."6o Article 34 ofIraq's constitution grants "the right of po-
litical asylum for all militants, persecuted in their country because of de-
fending the liberal and human principles, which are assumed by the Iraqi
people in this Constitution."61 Article 42 of Saudi Arabia's Basic Law of
Government stipulates that "the State grants political asylum when pub-
lic interest requires it."62 Finally, although not a direct source of authority,
Yemen's constitution, under Article 118, lists granting political asylum as
one of the president's responsibilities. These provisions, however, limit
protection to political dissidents. Where a person is persecuted for his na-
tionality or religion, it is not clear whether he can invoke one of the pre-
viously mentioned provisions.
Finally, provisions proscribing torture and other ill treatment can be
found in several constitutions. For example, Article 31(2) of Kuwait's con-
stitution provides that "no person shall be subjected to torture or degrad-
ing treatment." Article 22(a) of Iraq's constitution states, "The dignity of
man is safeguarded. It is inadmissible to cause any physical or psycholog-
ical harm." These provisions could be invoked to prevent refoulement.
Such language could be interpreted as preventing the separation of a per-
son to a place where her life would be threatened. The European Court of
Human Rights has interpreted the prohibition on torture and inhuman
treatment in its Convention on Human Rights in such a manner.
DomesticAsylum Law Three countries in the Middle East-Iraq,63
Lebanon,64 and Yemen65-have passed domestic legislation regarding
refugees. The law in Lebanon, however, has not yet been implemented,66
and Yemen, as mentioned, is a party to the 1951 Convention and the 1967
Protocol. What is worth noting is the variety of the definitions of
"refugee" under each domestic scheme, the rights and obligations of those

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recognized as refugees, and the conditions under which the host state can
revoke protection.
Varied definitions of a refugee exist in domestic asylum law. For ex-
ample, under the Political Refugee Act of 1971, Iraq defines a refugee as
any person who seeks asylum in Iraq for political or military reasons. 67
Lebanon, on the other hand, defines a refugee as any foreigner who is a
political offender or whose life or liberty is threatened for political rea-
sons,68 while Yemen, having signed the Refugee Convention, follows the
definition therein.
As to the rights and obligations of a recognized refugee, the 1951
Convention accorded such a person an array of rights-the underlying
principle being that he or she should be able to start a new life and as-
similate. Iraq and Yemen offer refugees a generous range of rights accom-
panied by a series of obligations that reveal serious national concerns.
Concerning economic and social rights, Iraq grants financial assistance,
social services, and employment authorization to refugees. It also allows
for family reunification. Under Article 11(1) of the Political Refugee Act,
the Iraqi law states that a refugee recognized in Iraq shall enjoy the same
rights of the Iraqi citizen with respect to social services, employment,
land, and education. Civil and political rights are more circumscribed.
There is limited freedom of movement and a prohibition on carrying
firearms. Most important, unlike the 1951 Convention, the nonrefoule-
ment provision is absolute. In Yemen, under a Ministerial Resolution Re-
garding the Organization of Refugees' Department, the refugee is not
entided to a set of rights. Rather, this resolution describes the duties and
responsibilities of the Refugee Department from which we can infer what
possible benefits a refugee may enjoy in Yemen. The Refugee Department
must provide material assistance, shelter, employment opportunities, and
social and medical care. Lebanon, in contrast, is less generous. Under its
Law Regulating the Entry, Stay, and Exit of Foreigners in Lebanon of
1962, it forbids the refugee from engaging in any political activity, limits
freedom of movement, and denies any judicial review of a negative asylum
determination. However, the right to nonrefoulement is absolute.
There are, however, certain conditions that permit withdrawal of pro-
tection. Under the 1951 Refugee Convention, protection can be revoked in
two circumstances. First, where the conditions that necessitated protection
have ceased to exist, the host state can return the refugee to his country of

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origin. 69 Second, where the refugee commits a particularly serious crime in

the host state or poses a threat to national security, the host state can re-
voke protection and return the refugee to his country of origin even if he
or she would be threatened for one of the five enumerated grounds. 70
Under Iraqi asylum law, nonrefoulement is absolute. Article 4 states,
"Under no circumstances shall a refugee be handed over to his state." Iraqi
law allows the revocation of protection where the refugee commits an offense
affecting the security or political stakes of the state. This provision, however,
is not listed as an exception to the nonreturn provision. As such, the non-
return provision, in light of its strict language, arguably trumps the with-
drawal of protection where a threat to the refugee's life persists. Therefore,
where protection is revoked, a person can be expelled, but he or she absolutely
cannot be returned to a place where a threat to his or her existence exists.
Yemen lists three circumstances under which protection can be with-
drawn: first, when protection is no longer needed; second, when the
refugee is a threat to national security or public order; and third, when the
refugee violates objectives and principles of the United Nations or com-
mits war crimes.
Under Lebanese law, protection can be canceled at any time. The
same law states that nonrefoulement is absolute. However, the govern-
ment may cancel protection and expel the individual consistent with the
nonrefoulement provision if the expulsion is to another state where the
refugee's life would not be threatened.
The three previously mentioned laws reveal that each state has drafted
its domestic laws according to political and economic realities in their re-
spective state. They provide a model for other states in the region that may
resist the idea of adopting the 1951 Refugee Convention or the overly
broad Declaration by the League of Arab States. In fact, UNHCR has
recognized Iraq as a country that maintains a generous policy toward
refugees in general and in particular to those who have sought asylum
from neighboring countries. 71

Refugee Protection on the Ground

In light of the previous analysis, several different legal bases can be identi-
fied for imposing an obligation to preserve the right to seek asylum. Yet the

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question persists: what is actually happening on the ground, particularly in

those countries where relevant legal provisions are not enforceable? In most
Arab states, UNHCR maintains a presence. Its legal authority derives from
the Statute of the Office of the UNHCR, adopted by the UN General As-
sembly in its Resolution 428(v) of December 14, 1950.72 The statute pro-
vides that "the High Commissioner shall assume the function of providing
international protection, under the auspices of the United Nations, to
refugees who fall within the scope of the Statute and of seeking permanent
solutions for the problems of refugees by assisting governments and ... pri-
vate organizations to facilitate the voluntary repatriation of such refugees,
or their assimilation within new national communities."73
Certain Arab states have concluded memorandums of understanding
(MOUs) with UNHCR, giving UNHCR explicit permission to open an of-
fice and define UNHCR's role in that state.74 For example, in the MOU with
Kuwait, UNHCR's role includes not only international protection but also
the organization and provision of humanitarian assistance to the refugees.75
Similarly, the MOU with Jordan memorializes both parties' agreement to co-
operate "in the field of international protection of and humanitarian assis-
tance to refugees and other persons of concern to UNHCR."76
Even though these countries have not signed the 1951 Convention,
they recognize the authority of UNHCR and its indispensable value in
providing international protection to refugees. In particular, these states
probably realize that UNHCR is far more adept at coordinating resettle-
ment to third countries and humanitarian assistance for refugees than they
are. Therefore, certain Arab states have formalized the presence of UN-
HCR within their jurisdiction. Finally, the League of Arab States and
UNHCR have recently agreed to "cooperate in the humanitarian fields re-
lating to the protection of refugee rights and assistance to refugees ac-
cording to the Arab and the international instruments and legislations."77
Yet the absence of an MOU does not result in the absence of UN-
HCR. In Arab states that have not acceded to the 1951 Refugee Con-
vention, do not have domestic asylum regimes, and have not signed
MOUs with UNHCR, UNHCR is nonetheless permitted to establish a
presence, particularly at borders at which refugees are arriving. In such
cases, UNHCR assumes both a decision-making and a protective func-
tion. It first determines whether the forced migrant meets the definition
of refugee as defined by its mandate, the 1951 Convention, and whether

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NADIA YAKOOB AND AIMEN MIR

that individual is ineligible for protection. Typically, where a state has a

functioning domestic asylum system, the determination process is carried
out by domestic authorities. Where such internal mechanisms do not ex-
ist, UNHCR carries out the determination process.
Where the individual is found to be a Convention refugee, UNHCR
gives that individual some form of identification card and humanitarian as-
sistance. Again, such identification and assistance would normally be coordi-
nated by state authorities. UNHCR also administers refugee camps and
other shelter. In certain states, despite the existence of an asylum regime, eco-
nomic realities are such that the host state simply cannot afford humanitar-
ian assistance. In these circumstances, UNHCR fills the gap and supplies
humanitarian assistance to needy cases. For example, Lebanon has passed but
not implemented domestic asylum laws. UNHCR provides supplementary
assistance, medical care, and educational grants with priority given to needy
families and vulnerable cases. In Syria, a state that is not a party to the Con-
vention and does not have a domestic asylum regime,78 UNHCR gives as-
sistance to Convention refugees in the form of monthly subsistence
allowances, basic health care, and educational or vocational training.
Finally, UNHCR considers long-term durable solutions for the
refugee, such as voluntary repatriation (if possible), integration into the
host state, or resettlement to another state. For example, UNHCR organ-
ized the repatriation of 886 Eritreans and 152 Ethiopians in 1997 from
Libya. 79 Similarly, UNHCR assisted 874 Somali refugees to repatriate to
safe areas in their country of origin from Yemen. UNHCR also resettles
refugees to third countries where options for repatriation or local integra-
tion do not exist. In Lebanon, for example, local integration is very diffi-
cult, and repatriation of most refugees residing in Lebanon is nearly
impossible. UNHCR therefore resettled over 120 persons in 1997.
While the efforts and presence of UNHCR allow the principle of
asylum to be upheld in the Middle East, refugee protection remains arbi-
trary, uncertain, and ad hoc. In addition, UNHCR itself faces resource
constraints and external political concerns. It is subject to the vagaries of
international politics. As such, significant reliance on UNHCR could be
misplaced. The Arab states, in light of their experience with the Palestin-
ian refugees, pursue a policy of keeping an international presence in the
region through UN agencies so that the international community does not
forget them. Yet such a strategy must be complemented by domestic in-

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 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

volvement and domestic action. Leaving the refugees that arrive to UN-
HCR's care is to abandon control over a matter intimately tied to state
sovereignty: the entry and control of noncitizens. Practically speaking, it
would be in the host state's interest to actively participate in the asylum
regime that develops as forced migrants arrive.
Moreover, these states have recognized in one way or another the obli-
gation of allowing a forced migrant to seek asylum: by signing the 1951
Convention, passing domestic asylum laws, or including a provision in their
domestic constitutions related to asylum. There is a need, however, for de-
veloping national laws that actualize this obligation. National laws will set
the foundation for a domestic asylum regime, which could help bring ac-
countability, coherence, and security to asylum practices in the Middle East.

Conclusion
The previous discussion reveals several guidelines for advocates seeking
the development of an effective asylum regime in the Middle East, which,
because of its varying political landscapes and unpredictability, may not
yet be ready to adopt a comprehensive asylum regime on a regional,
multilateral basis. Therefore, advocates are likely to find the greatest suc-
cess working at the state level. In so doing, they can adopt culturally sen-
sitive approaches, thereby avoiding the obstacle that has faced arguments
for acceding to the 1951 Refugee Convention. Furthermore, advocates
can argue that strong refugee protection is commendable under basic Is-
lamic principles and consistent with the spirit ofIslamic history. They can
also increase the likelihood that any asylum regime adopted will be effec-
tive by arguing for laws that are practical and sensitive to the state's his-
torical experience with refugees and with the state's security concerns.
Such an approach would greatly reduce the arbitrariness of refugee pro-
tection in each state and will also begin to relieve UNHCR.

Postscript on the Effect of Regional Human Rights

Conditions on Asylum
As a postscript and to place the preceding discussion regarding asylum law
into perspective, it is important to recognize that asylum law is only one

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NADIA YAKOOB AND AIMEN MIR

Table 4.2. Asylum Flows to and from the Middle East"

Number of
Applications Number Submitted Number Submitted
Submitted in in States of the in the West
Country of Origin 1999 Anywhere Middle East (%)b -at least (%)
Middle East origin
Egypt 1,390 1,110(80%)
Iraq 49,240 12,720 (26%) 32,880 (67%)
Jordan 420 310 (73%)
Lebanon 2,170 1,910 (88%)
Libya 580 490 (84%)
Morocco 770 550 (71%)
Palestinians 470 130 in Yemen Unknown
Sudan 13,330 7,790 (63%) 3,090 (23%)
Syria 4,710 4,160 (88%)
Tunisia 610 380 (62%)
Yemen 590 310 (53%)
Total 73,810 45,190 (61%)
(excluding (73% excluding
Palestine) Iraq, Palestine,
and Sudan)
Non-Middle East origin
Ethiopia 12,280 510 (4.2%)
Iran 19,560 560 (2.9%)
Sierra Leone 11,500 110 (1%)
Somalia 21,640 900 (4.2%)

'Figures are based on 200 I UNHCR Statistical Overview of Refugees and Others of Concern to UNHCR. Because
of reporting thresholds, the actual numbers are likely to be higher than reflected in this table.
bAn empty cell means that no more than one hundred applications from refugees of the particular country were
submitted in any state in the Middle East. In addition, for the applicants of non-Middle East origin listings, only
four states are listed because no state in the Middle East received more than one hundred applications from
refugees of any other single state.

aspect of an exceedingly complex human rights dilemma in the Middle

East. Table 4.2 provides an approximate representation of the flow of
asylum-seeking refugees to and from the Middle East in 1999.
A preliminary examination of these figures reveals several trends. For
example, asylum seekers from the Middle East tend to seek asylum outside
the Middle East. That trend is even more evident if excluding places of
widespread unrest or deep instability (such as Iraq, Palestine, and Sudan).
Furthermore, most of the asylum seekers apply for asylum in the West. Fi-
nally, very few people seek asylum in the Middle East, and the few who do
are mostly from neighboring states with large-scale internal problems.
Refugees typically seek asylum in a country near their home state.
Doing so is consistent with the hope of many refugees that they will be

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 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

able to return to their homes. Furthermore, remaining close to home

also reduces the shock of dislocation, as neighboring states are more
likely to be culturally familiar and share similar languages. The trends
in the Middle East, however, suggest that, except for massive distur-
bances that lead to large-scale flows where forced migrants need im-
mediate physical security, most asylum seekers from the Middle East do
not view application for asylum in another state in the region to be a vi-
able option.
There are, undoubtedly, numerous factors that account for the reluc-
tance to seek asylum in the Middle East, but one of the more important
factors is likely the lack of any appreciable difference between the human
rights situations in each of the states of the Middle East. To the extent
that violence against minorities and government oppression are endemic
problems in the Middle East, members of persecuted minority religious
groups and political groups with opinions disfavored by the authoritarian
governments are skeptical that they will be afforded any more protection
in one Middle Eastern state than another.
Thus, no matter how sophisticated the multilateral and domestic asy-
lum laws of the Middle East, asylum will remain a largely irrelevant insti-
tution as long as the human rights situation across the Middle East
remains uniformly poor.

Notes
1. The European Court of Human Rights in its case law repeatedly empha-
sizes that states have the right, "as a matter of well-established international law
and subject to their treaty obligations ... to control the entry, residence and ex-
pulsion of aliens." Cruz Varas and Others v. Sweden,201 Eur. Ct. H.R. (ser. A), at
para. 70 (1991).
2. Convention Relating to the Status of Refugees, July 28, 1951, 189
UN.T.S. 137 (hereinafter "1951 Convention").
3. Protocol Relating to the Status of Refugees, January 31, 1967, 606
UN.T.S. 267 (hereinafter "1967 Protocol").
4. There are situations where a person can apply for asylum while he is still
in his country of residence by applying at the embassy of a selected host state. But
in life-threatening situations, there is no time for such measures. Furthermore,
such an application process presupposes a high educational level and also certain
financial conditions, neither of which is characteristic of most refugees.

123
NADIA YAKOOB AND AIMEN MIR

5. Most states follow the definition of refugee set forth in Article 1(A)(2) of
the 1951 Refugee Convention, which is any person who "owing to a well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his national-
ity and is unable or, owing to such fear, is unwilling to avail himself of the pro-
tection of that country." 1951 Refugee Convention, note 2 at Art. 1(A)(2).
6. Statute of the Office of the United Nations High Commissioner for
Refugees, G.A. Res. 428, U.N. GAOR, 5th Sess., Supp. No. 20, at 48 (para. 8)
U.N. Doc. Nl775 (1950) (hereinafter "UNHCR Statute").
7. 1951 Refugee Convention, note 2 at Art. l(F).
8. 1951 Refugee Convention, at Art. 33(2).
9. Myron Weiner, "A Security Perspective on International Migration,"
Fletcher Forum of World Affairs 20 (1996): 17-33.
10. Weiner defines "security" as follows: "a social construct with different
meanings in different societies. An ethnically homogeneous society, for exam-
ple, may place higher value on preserving its ethnic character than does a
heterogeneous society and may, therefore, regard a population influx as a threat
to its security. Providing a haven for those who share one's values is important in
some countries, but not in others. In some countries, therefore, an influx of 'free-
dom fighters' may not be regarded as a security threat. Moreover, even in a given
country, what is highly valued may not be shared by elites and counterelites. One
ethnic group may welcome migrants, while another is vehemently opposed to
them." Weiner, "A Security Perspective on International Migration," 22.
11. Weiner,"A Security Perspective on International Migration," 28.
12. For example, states often penalize airlines or other carriers for failing to
appropriately verifY the legal status of a person boarding the plane. Detaining asy-
lum seekers, returning them to "safe" countries through which they traveled, or
simply designating certain countries as "safe" and thereby not recognizing asylum
claims from nationals of these so-called safe countries are some restrictive poli-
cies that have been implemented. See Justice A. M. North and Nehal Bhuta, "The
Future of Protection-The Role of the Judge," Georgetown Immigration Law
Journal 15, no. 3 (2001): 479, 483. See also Andrew 1. Schoenholtz, "Beyond the
Supreme Court: A Modest Plea to Improve Our Asylum System," Georgetown
Immigration Law Journal 14, no. 2 (2000): 541-42.
13. Article l(A) states, "For the purposes of the present Convention, the term
'refugee' shall apply to any person who: As a result of events occurring before 1 Jan-
uary 1951 and owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion,
is outside the country of his nationality and is unable or, owing to such fear, is un-

124
 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

willing to avail himself of the protection of that country." 1951 Convention, note
2 at Art. 1(A)(2).
14. Khadija Elmadmad, ''An Arab Convention on Forced Migration: Desir-
ability and Possibilities," InternationalJournal Refugee Law 3 (1991): 461,473.
15. Ghassan Maarouf Arnaout, Asylum in the Arab-Islamic Tradition (Geneva:
UNHCR, 1987),45.
16. 1967 Protocol, January 31,1967,606 U.N.T.S. 267.
17. 1967 Protocol,January 31,1967,606 U.N.T.S. 267, at 268.
18. 1967 Protocol, January 31,1967,606 U.N.T.S. 267, at 268.
19. As a side note, the United States ratified and implemented the 1967 Pro-
tocol and not the 1951 Convention. Refugee Act of1980, Pub. L. No. 96-212, 94
Stat. 102.
20. For example, the Preamble of the 1992 Cairo Declaration on the Protec-
tion of Refugees and Displaced Persons in the Arab World recalled the rights of
the Palestinians, "[e]mphasizing the need for the effective Implementation of
paragraph 11 of the General Assembly Resolution 194(III) of 11 December
1948, calling for the right of return or compensation for Palestinian refugees."
UNHCR, Collection of International Instruments and Other Legal Texts con-
cerning Refugees and Displaced Persons II (1995), 116.
21. Arab Convention on Refugees, March 26, 1994, Resolution No. 5389
(available only in Arabic).
22. Khadija Elmadmad, "Asylum in the Arab World: Some Recent Instru-
ments," Journal ofPeace Studies, January-February 1999, 25, 29.
23. Elmadmad, ''Asylum in the Arab World," 29.
24. Cited in Elmadmad, ''An Arab Convention on Forced Migration," 475.
25. OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa, September 10, 1969, Art. 1(2), 1001 U.N.T.S" at 45, 47.
26. For example, in a leading asylum case in the United Kingdom, the British
government sought to expel a prominent Sikh separatist lawfully residing in Lon-
don on national security grounds. The government reasoned that his involvement
in acts of civil disobedience and suspected participation in certain attacks on In-
dian leaders visiting the United Kingdom made him a threat to national security
and therefore expellable. Chalal v. United Kingdom, Eur. Ct. H.R. Report of 27
June 1995, para. 98. Chahal's speech was clearly causing national security concern
for the United Kingdom, which permitted it to proceed with deportation. Cha-
hal brought a suit against the United Kingdom at the Court of Human Rights,
which ruled against the United Kingdom on the grounds that Chahal's return
would expose him to torture, which violated Article 3 of the European Conven-
tion on Human Rights. Under Article 3, no one shall be subjected to torture or

125
NADIA YAKOOB AND AIMEN MIR

to inhuman or degrading treatment or punishment. The dispositive fact here was

the clear threat to Chahal's life if returned to India, not the issue of his freedom
of speech. Furthermore, Article 3 is nonderogable; as such, national security con-
cerns are subordinate to the prohibition on proscribed ill treatment.
27. Mark A. Tessler, A History of the Israeli-Palestinian Conflict (Bloomington:
Indiana University Press, 1994),461-64; Speech to the United Nations General
Assembly on October 18, 1982, in New York; Amine Gemayal, Peace and Unity:
Major Speeches 1982-1984 (Buckinghamshire: Colin Smythe, 1984), 16; Rashid
Khalidi, Under Siege: P.L. O. Decisionmaking during the 1982 War (New York: Co-
lumbia University Press, 1986),21.
28. Shortly after the Arab Convention on Refugees was released, the League
of Arab States issued the Arab Charter on Human Rights. Article 23 recognizes
the right to political asylum: "When faced with persecution, every citizen has the
right to seek political asylum in another State. This right is not invoked in the
case of a person condemned for the commission of a common crime." Arab Char-
ter on Human Rights, September 10, 1994, reprinted in Human Rights Law Jour-
nal18 (1997): 151. This charter, like the Arab Convention on Refugees, has not
been ratified by any Arab state and has not yet entered into force.
29. See generally Karoline Kerber, "Temporary Protection in the European
Union: A Chronology," Georgetown Immigration Law Journaf14, no. 1 (1999): 35.
30. See generally Susan Martin et aI., "Temporary Protection: Towards a New
Regional and Domestic Framework," Georgetown Immigration Law Journal 12,
no. 4 (1998): 543.
31. See, for example, Qyr'an 4:97-100; 8:74-75; 59:8-9.
32. See, for example, Astri Suhrke, "Refugees and Asylum in the Muslim
World," in The Cambridge Survey of World Migration, ed. Robin Cohen (New
York: Cambridge University Press, 1995), 457, 459 (stating that Muslims and
non-Muslims "have a right to protection"), and Arnaout, Asylum in the Arab-
Islamic Tradition ("In no case might the asylum-seeker be refused access or ad-
mission to the territory of the country where he has requested refuge" [21]).
33. See Qyr'an 2:125 (Ka'ba); 3:97 (station ofIbrahim); 5:97 (precincts of the
mosque surrounding the Ka'ba).
34. See Qyr'an 4:97-100.
35. See, for example, Suhrke, "Refugees and Asylum in the Muslim World,"
459; Martin et al., "Temporary Protection," 543; and Arnaout, Asylum in the
Arab-Islamic Tradition, 18. Examples of verses of the Qyr'an cited as implying an
obligation to receive those who have made Hijra include 4:100, 8:74, and 59:8-9.
36. Sarakhsiy, SharhAI-Siyar Al-Kabir, 1,189 quoted in Muhammad Hamidul-
lah, Muslim Conduct of State (Lahore: Sh. Muhammad Ashraf, 1977), 209.

126
 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

37. The Islamic concept of Aman was thus a continuation and expansion of the
pre-Islamic practice of ijara, a form of tribal hospitality ensuring protection of any
travelers or wayfarers. See Arnaout, Asylum in the Arab-Islamic Tradition, 14-16.
38. See Hamidullah, Muslim Conduct 0/ State, 256. For a full discussion of the
rules of granting Aman and the rights and obligations of a musta'min, see Hamidul-
1ah, Muslim Conduct o/State, 209-11, 256-58; Majid Khadduri, War and Peace in the
Law o/Islam (Washington, D.C.: Middle East Institute, 1955), 162-69.
39. "Dhimma" literally means "a compact which the believer agrees to respect,
the violation of which makes him liable to dhamm (blame)." Khadduri, War and
Peace in the Law o/Islam, 176-77. The rights and obligations of dhimmis differed
from those of Muslims in several ways. For example, dhimmis had to pay the jizya
and sometimes a land tax, the kharaj; Muslims did not. Muslims had to pay alms,
or zakat; dhimmis did not. Fighting injihadwas a communal obligation for Mus-
lims; dhimmis were not required to engage in fighting for any reason. The jizya
was mainly in return for the protection received from the Muslims, though the
tax was not required if the non-Muslims fought as allies with the Muslims. Ma-
jid Khadduri and Herbert J. Liebesny, Law in the Middle East: Origin and Devel-
opment o/Islamic Law, vol. 1 (New York: AMS Press, 1984),363.
40. Article 34 of the 1951 Convention, however, urges state parties that have
granted asylum to expedite the process of naturalization.
41. See Qrr'an 4:97-100; Hamidullah, Qrr'an, 11(}-1l ("[A]s soon as a Mus-
lim migrates from his non-Muslim home and comes to Islamic territory, with the
intention of residing there, he at once becomes a full-fledged citizen of the Mus-
lim State; he has the same rights as other Muslim citizens and the same obliga-
tion as they.").
42. Hamidullah, Muslim Conduct o/State, 129-30. Hamidullah also notes that
there is little known about whether there was special treatment for Muslims trav-
eling from one Muslim area to another after the Muslim world broke into more
than one state.
43. Additional classifications that developed included dar al-ahd (abode of
treaty) and dar al-sulh (abode of truce).
44. For a discussion of basic Islamic principles relevant to a discussion of asy-
lum, see Arnaout, Asylum in the Arab-Islamic Tradition, 29-32. Other basic Is-
lamic principles, for example, are those related to the commendability of assisting
those who have made Hijra. On the inviolability of grants of protection, see
Suhrke, "Refugees and Asylum in the Muslim World," 457, 459. On the notion
of ummah, or community, see Sahih Bukhari, vol. 3, bk. 30, no. 94, 21:92, 49:10;
on the pursuit of justice, even at detriment to self, see 4:135; and on the right of
the needy in the wealth of Muslims, see 51:19.

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NADIA YAKOOB AND AIMEN MIR

45. See, for example, Hassan al-Turabi, "The Islamic State," in Voices ifResur-
gent Islam, ed. John L. Esposito (New York: Oxford University Press, 1983),
241-51, and Javid Iqbal, "Democracy and the Modern Islamic State," in Espos-
ito, ed., 252-60.
46. See Hamidullah, Muslim Conduct if State, 256-57.
47. Cairo Declaration on Human Rights in Islam, August 9, 1990, available in
UNHCR, Collection ifInternational Instruments and Other Legal Texts concerning
Refugees and Displaced Persons, vol. 2 (Geneva: UNCHR, 1995), 120.
48. UNHCR, Collection ifInternational Instruments, 123.
49. See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), paras. 98-99
(1989).
50. The Universal Islamic Declaration is available on the Islamic Council's
website at www.alhewar.comlISLAMDECL.html.
51. Speech at the Fourth Conference of the International Association of
Refugee Law Judges on October 26, 2000, in Bern, Switzerland; Bellur N. Srikr-
ishna, The Indian Experience, citing National Human Rights Commission v. State if
Arunachal Pradesh, A.I.R. 1996 S.C.11234.
52. Speech at the Fourth Conference, 1234.
53. Constitution of Bahrain (1973).
54. Constitution of Kuwait (November 11, 1962).
55. Constitution ofJordan (November 1, 1952).
56. Constitutional Proclamation of Libya (December 11, 1969).
57. The Basic Law of the Sultanate of Oman, Royal Decree No. 101/96 (No-
vember 6, 1996).
58. Constitution of Syria (1973).
59. Constitution of the Republic of Yemen (September 29,1994).
60. Constitution of the Arab Republic of Egypt (September 22,1971).
61. Iraq Interim Constitution (1990).
62. Saudi Arabia Basic Law of Government (March 1,1992).
63. Political Refugee Act, No. 51, Official Gazette No. 1985 (Aprrill0, 1971).
64. "Law Regulating the Entry, Stay and Exit of Foreigners in Lebanon," July
10,1962, Official Journal No. 28-1962, at chap. 7 (hereinafter "Lebanon's Asy-
lum Law").
65. Ministerial Resolution No. 10 regarding Organization of Refugees' De-
partment (June 6, 1984).
66. Country Profile-Lebanon (available at www.unhcr.chlworldlmidellebanon
.htm; last updated April 1998).
67. Political Refugee Act, Article 1(3).
68. Lebanon's Asylum Law, Article 26.

128
 IMPROVING ASYLUM LAW AND PRACTICES IN THE MIDDLE EAST

69. 1951 Convention, Article 1(C).

70. 1951 Convention, Article 33(2).
71. UNHCR Country Profrles-Iraq (available at www.unhcr.chlworlcllmide/
iraq.htm; last updated September 1999).
72. UNHCR Statute.
73. UNHCR Statute. para. 8.
74. UNHCR has concluded MOUs with Egypt,Jordan, Kuwait, and Yemen.
Of particular interest here are Jordan and Kuwait, neither of which has ratified
the 1951 Convention. These MOUs are available on the UNHCR's Refworld
website at www.unhcr.chlrefworld.
75. Cooperation and Office Agreement between the Office of the United Na-
tions High Commissioner for Refugees and the Government of the State of
Kuwait, April 8,1996, Art. 4(a).
76. Agreement between the Government of the Hashemite Kingdom of Jor-
dan and the United Nations High Commissioner for Refugees, July 30, 1997,
Art. III.
77. Cooperation Agreement between the League of Arab States and the
United Nations High Commissioner for Refugees,June 27, 2000, Art. 1.
78. Citizens of Arab countries may enter Syria without visas and seek and en-
joy asylum. However, Iraqis and Somalis require security clearance from the Syr-
ian authorities to facilitate their admission and residence.
79. UNHCR Country Profiles-Libya (available at www.unhcr.chlworld/afril
libya.htm; last updated July 1998).

129
 Part Two
LEGAL REFORMS AND
THE IMPACT ON WOMEN
 CHAPTER FIVE
INTERNATIONALIZING THE CONVERSATION
ON WOMEN'S RIGHTS:ARAB COUNTRIES
FACE THE CEDAW COMMITTEE
Ann Elizabeth Mayer

T
his chapter discusses how, when Arab countries elect to join the
international human rights system, they are obliged to respond to
public critiques of how their domestic laws and policies fall short
by international standards. It offers analyses of selected excerpts from
Arab governments' interactions with the committee that monitors com-
pliance with the Women's Convention, the full tide of which is Conven-
tion on the Elimination of All Forms of Discrimination Against Women,
commonly known by the acronym CEDAW. This chapter probes how
Arab countries have been placed on the defensive as they seek to justifY
their discriminatory treatment of women before the CEDAW Commit-
tee. When under scrutiny by this UN body, Arab countries effectively con-
cede that discrimination against women is wrong and resort to a variety of
tactics to make their policies look respectable, often seeking to portray
them as compatible with women's international human rights even where
they are fundamentally at odds with these rights. This chapter proposes
that once the governments go on the record as supporting equality for
women in their statements before international bodies, it becomes harder
for these same governments to justifY standing by discriminatory laws.
Among other things, their responses to the CEDAW Committee are
matters of public record, now accessible on Internet sites, where advocates
of women's rights can harvest them for future use in challenges to dis-
criminatory laws and policies, throwing the governments' own statements
back at them and generating pressures for upgrading domestic laws to
meet international standards.

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ANN ELIZABETH MAYER

Even as they resist reforming their laws to bring them into compli-
ance with CEDAW, the fact that these countries work so hard to portray
themselves as compliant with the principles of international human rights
law signals that change is afoot. Arab countries may hope that calculated
hypocrisy will enable them to stay members in good standing of the
international community while they continue to treat women like second-
class citizens on the home front. However, their formal acceptance of
international human rights law sets in motion a dynamic that over time
should lead to mounting pressures for actual compliance with human
rights standards. Put another way, when Arab countries decide to speak to
the CEDAW Committee as ifthey had already accepted the principle that
women are entitled to equality, this serves as an indicator that their legal
systems have moved into a transitional stage-even though the govern-
ments involved may not always appreciate this.
A clarification seems in order at the outset. In focusing on the diffi-
culties that Arab countries have experienced as they adjust to international
human rights law, this chapter does not intend to suggest that these diffi-
culties are unique. Arab countries are far from being the only ones that are
engaged in a tension-filled and complicated dialectic with the inter-
national human rights system. To appreciate how Arab countries' experi-
ence is part and parcel of a broader process of engagement in the inter-
national human rights system corroding barriers to equality within domes-
tic legal systems, the US. experience will be briefly alluded to. Becoming
integrated in the UN system highlighted nonconforming US. laws man-
dating racial discrimination and placed the supporters of such discrimina-
tion on the defensive. Long-standing tensions between the ideal of equality
and the reality of racial discrimination became far more acute after the is-
suance of the 1948 Universal Declaration of Human Rights; racially dis-
criminatory US. laws flagrantly violated the egalitarian principles of the
declaration. In the 1950s, US. racial discrimination became more starkly
exposed to the scrutiny and the opprobrium of the international commu-
nity. Domestic laws and practices in the United States affecting nonwhites
threatened to do fatal damage to US. prestige in the international arena
and to thwart its efforts to win allies in the new UN system, where most
members had populations that did not meet US. definitions of"white."l
Among other things, many UN delegates and Washington embassy per-
sonnellearned firsthand about the ugly legacy of slavery and racism, be-

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 INTERNATIONALIZING THE CONVERSATION ON WOMEN'S RIGHTS

ing subjected to humiliating treatment by reason of their skin color.

Meanwhile, African Americans were voicing their demands for full equal-
ity with new vigor, so that domestic pressures for reform complemented
international pressures.
Although the need to dismantle racial discrimination seemed urgent,
the executive and legislative branches were unwilling to confront the
forces committed to preserving discrimination. It therefore fell to the ju-
dicial branch, more specifically to the U.S. Supreme Court, to cut the
Gordian knot. There is reason to believe that the 1954 decision in Brown
v. Board if Education, declaring racial segregation in primary schools un-
constitutional, was prompted in large measure by the Court's concern
about the grave harm that racist laws and practices were doing to the in-
ternational image and the foreign policy of the United States. 2
Like many Arab countries, the United States has continued to have
difficulties adjusting to international human rights standards, in part be-
cause it, like them, remains reluctant to part with time-honored elements
of its legal heritage, including a constitution that is the oldest constitu-
tion in the world still in force and that is bereft of modern human rights
provisions. 3 While refusing to update its laws to meet international hu-
man rights standards, in international forums U.S. representatives try to
depict U.S. laws and policies as if they meet or even exceed international
criteria. They are not above dissimulating where there are embarrassing
discrepancies. For example, with the proposed Equal Rights Amendment
to the Constitution having been defeated in 1982, the United States lacks
a constitutional guarantee of equality for women, a basic feature of mod-
ern constitutions that are informed by the philosophy of international
human rights. This deficiency is something that the United States would
like to suppress when discussing its laws on women's equality in inter-
national forums. As I have shown, in talking about how its domestic
standards mesh with the International Covenant on Civil and Political
Rights, the United States has deliberately endeavored to mislead the
committee overseeing compliance with the Women's Convention by mis-
representing the constitutional protections afforded U.S. women. 4 One
could say that the conversation between the United States and represen-
tatives of the international human rights system has become internation-
alized in the sense that in international forums the United States does
not candidly discuss its nonconforming laws, preferring to speak as if it

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has already assimilated international human rights principles that it ac-

tually has still not digested.
Arab countries are finding themselves in a similar predicament. Being
keenly aware of the prestige of international human rights, they seek to
avoid being stigmatized for retaining nonconforming laws. The matter of
women's international human rights is especially sensitive because Arab
countries, in widely varying degrees, retain domestic laws and policies that
violate these rights. Hoping to avoid condemnation by the international
community, Arab countries may resort to hypocritical assertions and mis-
leading statements about the status of their women citizens, often with
some chance of confusing outsiders. The blatant discrimination affecting
women in a country like Saudi Arabia is notorious, but the full scope of
most Arab countries' discrimination against women is not obvious to the
average outsider, who is unlikely to possess mastery of the details of Arab
countries' domestic systems. Profiting from this lack of familiarity, in in-
ternational forums, Arab countries may try to foster the impression that
they are closer to complying with international human rights law than
they actually are. Among other things, some Arab countries have tried to
minimize the significance of the reservations that they entered to
CEDAW at the time of ratification. 5 Via these reservations, they placed
conditions on their adherence to CEDAW, indicating their determination
to adhere to nonconforming domestic standards-often appealing to the
need to respect Islamic law in this connection. Some reservations were
worded in deliberately misleading ways in hopes of deflecting criticisms
by other parties to the Women's Convention. 6 The full implications of the
reservations were often obscure. 7
Arab governments that are parties to the Women's Convention must
submit required reports and defend their records before the CEDAW
Committee, which exposes them to robust challenges that they are not al-
ways equipped to meet. They encounter many pitfalls as they seek to por-
tray themselves as supporters of women's international human rights in
the face of grilling by members-often called "experts"-of the CEDAW
Committee. Probing questions from committee members about their
reservations and other topics put them on the spot. For one thing, having
put on the record reservations that indicate that they will uphold domes-
tic norms in conflict with CEDAW, it becomes difficult for Arab coun-
tries to argue convincingly that their domestic laws do comply with

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CEDAW. The most awkward questions often come from committee

members who are women from Muslim countries. The latter are familiar
with patterns of discrimination in Muslim countries and are prepared to
challenge aggressively the notion that Islam requires discrimination
against women and other rationales for discriminatory policies. CEDAW
Committee members' store of information may be augmented by submis-
sions offered by various feminist groups and human rights organizations,
organizations that are subject to censorship inside Arab countries but that
can freely report on and criticize governmental policies on women's rights
in the context of UN-sponsored meetings in New York. For example, Al-
geria, which normally publishes the texts of ratified human rights con-
ventions in the Journal OjJiciel, the official record of laws in force, had
decided not to publish CEDAW in the journal, with the result that
CEDAW was not treated as part of domestic law-hardly the way Alge-
ria would have treated CEDAW had the government been sincerely com-
mitted to using the Women's Convention as an instrument of change. In
a move that promised to embarrass Algeria, this crucial fact, which Alge-
ria had deliberately omitted from its CEDAW report, was noted in a
shadow report submitted to the CEDAW Committee by the FIDH, a
French human rights nongovernmental organization. 8
Why Arab countries that are determined to stand by discriminatory
rules affecting women choose to ratifY CEDAW and thereby expose
themselves to public pummeling is open to speculation. It seems that
CEDAWexerts a strong pull on Arab countries, rather like the sun's grav-
ity, so that, even if they are philosophically as far away from CEDAW as
the planet Neptune is from the sun, they nonetheless are attracted to move
in its orbit. Despite having records that should make most of them wary
of joining the CEDAW system, only a few have failed to ratifY-Bahrain,
Oman, Qgtar, Sudan, Syria, and the United Arab Emirates. Knowing that
they are reputed to treat women especially badly, Arab countries may cal-
culate that ratifying CEDAW will by itself enhance their images.
A wish to polish a severely tarnished image may have prompted Saudi
Arabia to ratify CEDAW on September 7,2000, even though its official
version of Islamic law calls for severe and pervasive discrimination against
women, discrimination amounting to a kind of gender apartheid. 9 In 2000,
the Saudi regime was bracing for compromises to its sovereignty that were
needed for it to qualify for membership in the World Trade Organization.

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ANN ELIZABETH MAYER

It seems that it also embarked on a broad strategy of rehabilitating its poor

image in the area of human rights, the need having become more urgent
after the publication of a blistering report in the spring of 2000 by Amnesty
International on the abysmal Saudi human rights record. 10 Saudi Arabia
campaigned to win a position on the UN Commission on Human Rights,
to which it was elected in May 2000. As surprising as the Saudi decision
to become a party to CEDAW was, it was no more incongruous than Saudi
Arabia taking a seat on this commission.
As would have been expected, when ratifYing CEDAW, Saudi Ara-
bia entered reservations to leave room for its continued noncompliance.
Like the reservations of many other Arab countries, its reservations in-
cluded an assertion that in case of conflicts, Islamic norms would over-
ride the Women's Convention. It stated, "1. In case of contradiction
between any term of the Convention and the norms of Islamic law the
Kingdom is not under obligation to observe the contradictory terms of
the Convention." Those behind the reservation may have hoped that,
shielded behind this reservation, the status quo could survive. Certainly
Prince Nayef, the Interior Minister, did not want CEDAW ratification
to be a prelude to any public debate on the status of women in Saudi Ara-
bia, as is exemplified by his announcement on January 25, 2001, in re-
sponse to a question about whether there would be such debate when he
asserted that any discussion was "out of the question."ll Despite this,
Saudi Arabia's CEDAW ratification will open up whole new areas of
contestation as CEDAW standards place the government's policies and
its retrograde conception of Islam in a particularly unfavorable light.
When one reviews the experience of some other Arab countries before
the CEDAW Committee, one can predict that Saudi Arabia will be ex-
posing itself to withering attacks from CEDAW experts, attacks that will
at the very least force Saudi Arabia to start to reexamine and to reformu-
late its positions.
Another preview of what lies in store for Saudi Arabia can be found
in the rough treatment that it received in January 2001 from the Com-
mittee on the Rights of the Child. In 1996, the kingdom had ratified the
Convention on the Rights of the Child-with an Islamic reservation, as-
serting that it was entering "reservations with respect to all such articles as
are in conflict with the provisions ofIslamic law."12 Saudi Arabia thereby

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opened itself to its first confrontation with a UN committee monitoring

compliance with a human rights convention. The committee offered a
harsh public indictment of Saudi policies as violative of human rights, an
indictment that encompassed references to the kingdom's discriminatory
treatment of girls and women. This may have surprised Saudi Arabia,
which had submitted a detailed eighty-seven-page report that extolled the
virtues of the Saudi system, boasted of its excellent human rights record
and its extensive programs for children, and repeatedly referred to the
Qyr'an while skirting all discussion of problematic aspects of the actual
treatment of children or the kingdom's stance on the Women's Conven-
tion.13 The Saudi position was that its rules on children's welfare were de-
rived from the divinely revealed teachings ofIslam, "which are in harmony
with and even surpass the provisions of the Convention."14 Of course, this
claim was paradoxical given Saudi Arabia's reservation to all Women's
Convention articles that were "in conflict with the principles of Islamic
law." This was not the only Saudi statement that was indecipherable. The
report claimed that "reservations concerning all articles conflicting with
the provisions of Islamic law" had accompanied ratification "because the
Kingdom pays considerable attention to child welfare and aims to
strengthen its international cooperation through the United Nations and
because the provisions set forth in this Convention are in conformity with
the teachings of Islamic law" (italics added).15 Why it spoke of articles
conflicting with Islamic law when it was simultaneously claiming that
Women's Convention provisions were in coriformity with Islamic law was
not clarified. Saudi inability to formulate a coherent position on the rela-
tionship of Saudi domestic laws to international human rights law was
manifest.
The committee dismissed the Saudi report, saying it was "essentially
legalistic in nature and does not provide a self-critical evaluation of the
prevailing situation of the exercise of children's rights in the country."16
The committee rebuked Saudi Arabia for discriminating against women,
harassing and assaulting youths who violated dress codes, and imposing
"inhuman" punishments. I? The committee also pointed its finger at "nar-
row interpretations of Islamic texts" by Saudi authorities, blaming these
for Saudi violations of the Women's Convention. 18 That is, far from be-
ing deterred from criticizing rights violations that were attributed by

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ANN ELIZABETH MAYER

Saudi officialdom to the need to comply with Islamic law, the committee
was ready to attack the legitimacy of official Saudi interpretations of the
Islamic sources that correlated with such violations. In the course of the
colloquy, the Saudi delegation boldly asserted that "women enjoy the
same rights as men in Saudi Arabia," but the committee members noted
that Saudi women were not allowed to drive a car, travel abroad, or visit
a hospital without permission from a husband or other male relative. 19
These criticisms presaged trouble for Saudi Arabia in the CEDAW
Committee.
The predicament of the Algerian representative on the occasion of the
discussion of the 1999 Algerian CEDAW report illustrates how govern-
ments with records of denying women's human rights find, once they are
in the CEDAW system, that it is no easy matter to justifY the same dis-
criminatory policies that they impose in their own countries without con-
cern for women's reactions or for the harms that the policies may cause.
Algeria was not the only Arab country to be unsettled when confronting
Muslim women members of the CEDAW Committee who scathingly
dismissed official rationales for discrimination against women. As will be
shown, Algeria felt obliged to distance itself from its own laws, seeking to
disavow any intent to discriminate against women-a position that
strained credulity.
Since its 1962 victory in its war of liberation against French colonial-
ism, Algeria has presented itself as a revolutionary socialist society. In re-
ality, it has been governed by a corrupt and oppressive clique-known
domestically as "Ie pouvoir"-that has proven unresponsive to the needs
and wishes of its citizens. 2o Opposition forces among supporters of de-
mocratization, the Berber community, and powerful Islamist movements
have wrested occasional concessions from Algeria's rulers but have been
unable to open up the essentially dictatorial system.21
In 1984, the Algerian government enacted its Family Code, rejecting
the progressive Tunisian model in favor of reinstatement of rules taken
from medieval Islamic jurisprudence that effectively demoted Algerian
women to the status of minors and wards of men. It was officially repre-
sented as resulting from the regime's commitment to respect true Islamic
values. 22 This law was a top-down initiative imposed without consultation
with women's organizations and with disregard for women's protests. Al-
geria's determination to stand by the discriminatory features of its Family

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Code was demonstrated when it entered numerous reservations to

CEDAW on ratification in 1996 that were designed to accommodate
these features-as well as some discriminatory features of other laws.23
However, as I have pointed out, unlike some other Arab governments, Al-
geria deliberately chose to avoid any mention ofIslamic law as the justifi-
cation for its reservations. I have attributed this tactic to Algeria's
aspirations in the 1990s to win Western support for beating back the
threat from Islamist movements, which had reacted violently when a brief,
tentative democratic experiment was terminated in 1992.24 Because it
wanted to pose as the progressive, secular alternative to dangerous, terror-
ist Islamist forces, Algeria naturally preferred not to advertise in inter-
national forums that its own domestic policies on women were tied to ret-
rograde readings of Islamic law.
When addressing the CEDAW Committee and presenting Algeria's
report, Abdallah Baali, Algeria's permanent representative to the United
Nations, did not acknowledge the government's responsibility for its laws
affecting women. Instead, he spoke as if the government were fully in
sympathy with the CEDAW philosophy of equality for women and as if
external forces had obliged it to compromise its own commitment to
modernity and universality. The problems in the way of women enjoying
equality were represented as being attributable to centuries of backward-
ness, male domination exacerbated by illiteracy and ignorance, and terror-
ism (a coded reference to Algeria's Islamists) that threatened to take the
country back to arbitrary darkness. 25 One saw the Algerian regime speak-
ing as if it accepted CEDAW standards as normative and acting as if its
own domestic laws deviating from CEDAW standards were an embar-
rassment that it needed to blame on other forces. To explain its failure to
eliminate discrimination, Baali suggested that giving women full equality
would only provoke a backlash, warning ominously against issuing "abrupt
legal edicts that clashed so violently with social norms that they could not
be enforced" because these "could lead to mistrust and conflict between
the legislature and the citizenry, or even to open defiance of the public au-
thorities, under the pretext of obedience to divine law."26 This portrayal of
the government as being concerned to respect the popular will and to
avoid conflicts with the citizenry over questions ofIslamic law would seem
strange to anyone familiar with Algerian political realities. The undemo-
cratic political system had long disregarded the popular will. There was

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ANN ELIZABETH MAYER

certainly strong Islamist opposition to any reforms enhancing women's

rights, but it was peculiar to speak as if, by itself, this would inhibit Alge-
ria's ruling clique from ruthlessly pursuing its own priorities. After all, the
government's actual record included decades of brutal suppression of dis-
sent, including harsh repression of the Islamist opposition, which had
burgeoned since the 1980s.
In speaking as if the government was to deal with conservative men-
talities, Baali failed to acknowledge that there was an Algerian feminist
community committed to women's equality, an omission that was most
likely deliberate. To acknowledge the existence of Algerian supporters of
women's rights would have been to reveal that, far from having to contend
with a society that was uniformly backward and traditional or infected
with fundamentalism, the government had faced a society divided on
women's issues and had elected to side with foes of reform. However, the
committee experts knew of Algerian feminist groups to whose opinions
the government had turned a deaf ear. One expert who admonished Al-
geria to review its reservations and to consider the absence of reservations
by other Muslim countries expressed a wish to know why some of the
amendments to the Family Code proposed by Algerian women's non-
governmental organizations had not been accepted by the government. 27
The fact that the Algerian Family Code was not keeping abreast of evolv-
ing social norms was not missed by one of the experts, who pointed to as-
pects of the code elements that placed women in an inferior position,
asserting that these texts lagged behind the present situation in Algeria. 28
When Baali invoked the specter of arousing fundamentalist ire, as if
this excused the reservations that had accommodated retaining Islamic
family law, one of the experts objected that in societies where the chal-
lenge of retrograde fundamentalist movements existed, women's equality
needed to be in the forefront of political concerns. Another expert warned
Algeria that a spotlight was turned on its performance as a regime con-
fronting fundamentalism, admonishing,

Algeria was being watched by the world, and particularly by Muslim

women, with some anxiety.... Religion and tradition should not be al-
lowed to be used as an obstacle or excuse for limiting the Convention. The
Government's responsibility was to ensure that its citizens were enlight-
ened on the truly expansionist and compatible character ofIslam with the

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needs and standards of modern times, especially as it concerned women's

rights. Algeria was in a unique position to demonstrate its determination,
commitment and energy to implement the Women's Convention without
delay. That would not only ensure women's human rights, but also be a sig-
nificant step towards liberating the Muslim religion from its place as
hostage to the demands of deviant fundamentalists. 29

As one can see from the comments of the CEDAW experts, they dis-
missed what Algeria envisaged would be good pretexts for its retaining
discriminatory rules taken from medieval Islamic jurisprudence. Algeria
spoke as if retaining these rules was necessary to avoid inciting funda-
mentalist passions, only to be criticized by CEDAW experts, likewise foes
of fundamentalism, who insisted that moving ahead on Algeria's
CEDAW commitments would be the sounder strategy in the war against
fundamentalism.
Baali had trouble accounting for why a government as committed as
his supposedly was to seeing the goals of the Women's Convention im-
plemented would have entered such extensive reservations, as exemplified
in his less-than-coherent statements to the CEDAW Committee, where
he is reported as asserting that

Algerian ratification of the Convention fell within the context of the

gradual emancipation of women. Ratification had sparked discussion in
the society, causing the Government to put forward some reservations to
the Convention, none of which had really hampered the Convention.
Algeria's reservations did not fly in the face of women fully enjoying
their rights. 30

He thereby took the stance that Algeria's discriminatory laws affecting

women and the CEDAW reservations designed to accommodate these
were not contrary to women's "fully enjoying their rights."The incoherence
of Algeria's arguments did not escape the notice of the CEDAW Com-
mittee. Experts noted the inconsistency in the way Algeria represented its
relationship to international law, speaking as if international law had pri-
macy over domestic law, as one would expect, but then acting as though its
domestic laws justified noncompliance with international law, as was the
case when it insisted on standing by its reservations. 31 Experts expressed
their concern about Algeria's reservations, especially the reservation to the

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ANN ELIZABETH MAYER

central convention article, Article 2, which called for abolishing laws and
customs discriminating against women. One expert pointed out that it was
confusing to have Algeria enter reservations to Article 2 while it also as-
serted that it implemented the same article. 32
Algeria's report asserted that in Algeria, as in all Arab-Muslim soci-
eties, the legal status of women presented a dichotomy.33 According to the
report, Algeria's constitutional principle of gender equality was scrupu-
lously respected in the context of civil and political rights, where women
enjoyed the status of full citizens. It conceded that in the area of personal
status, women remained governed by the Family Code, which was based
in part on the shari'a. Responding to this point, one expert noted that un-
less the reservations accommodating shari'a provisions were removed, Al-
gerians would not be adhering to their own constitution. 34 Another expert
argued that failure to recognize equality in the family impacted on the
public life of women. 35
In its report, Algeria acknowledged that certain provisions of the
Family Code were seriously contested by human rights organizations, but
it did not candidly discuss all the problematic provisions, acting as if it
hoped to hide its more retrograde features. Problematic features men-
tioned in the report included a cursory reference to polygamy, a vague
concession about there being some inequality in divorce law, and what it
called "the formal nature of the daughter's obligation to seek permission
for her first marriage"36-when, in reality, Algerian law required that a
woman's marriage be contracted by a male marriage guardian in all cases.
This was far from a complete listing of provisions to which human rights
advocates had entered objections. In the sketchy list of discriminatory
family law provisions, probably the most serious omission was the failure
to acknowledge that Algerian law in Article 39 37 imposed on the wife a
duty of obedience to her husband-a legal duty that all too clearlyem-
bodied the philosophy of Algeria's law, according to which wives were ob-
ligated to treat their husbands as their masters. Pursuant to this article, a
woman could be prevented by her husband's whims from going out to
work or to pursue an education-or even from leaving the house. That is,
she could become a virtual prisoner.
Perhaps because of worries that even this sanitized version of Algeria's
Family Code could make the country look backward, the report sought to
minimize the significance of the code, proposing that its provisions

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needed to be regarded in the light of the extremely limited role ofIslamic

law in Algeria. 38 The report asserted that the role of religious law was di-
minishing in light of the sophistication of present-day problems, inter-
cultural influences, and the secularizing trends under way in Algerian so-
ciety. Only the Family Code made reference to the shari'a. The report
sought to convince the committee that, despite its literal adherence to cer-
tain provisions of the shari'a, the Family Code could be seen both in its
form and in certain rulings as an attempt to restrict the role of Islamic
law. 39 How governmental imposition of discriminatory shari'a rules-
rules that educated and progressive Algerians had denounced as unsuited
for use in contemporary society-could be a way of limiting the scope of
Islamic law was not explained. The report failed to offer a plausible expla-
nation for why a government that had abandoned Islamic law in almost all
areas would have elected to retain it in the area of family law, precisely
where it would shore up traditional male prerogatives. Furthermore, the
argument that the code sought to limit the scope ofIslamic law could not
be reconciled with Article 222 of the actual code, which specified that the
shari'a was the residual source oflaw, allowing Family Code provisions to
be amplified by references to any school ofIslamic law or from the Qyr'an
and Sunna-thereby opening the door wide to the influence of precepts
derived from Islamic law beyond those actually set forth in the text.
A Tunisian woman among the committee experts reacted with skep-
ticism. She pointed out that women had not been consulted regarding Al-
geria's Family Code, which had been adopted by a conservative male
parliament. She admonished that the Qyr'an should be reinterpreted; it
should no longer be used as an alibi to deny women their basic rights. Her
own country, Tunisia, had abolished polygamy in 1956 and had restored
women's rights. Indeed, the Qyr'an could be a catalyst in ensuring accept-
ance of the proposed amendments to the Family Code in Algeria. It could
also serve to change mind-sets and promote development. The issue was
whether there was the political will to promote women's rights in Alge-
ria. 4o That is, she shifted responsibility for the retention of discriminatory
laws back onto the shoulders of Algeria's male rulers, implying that they
lacked the will to promote women's rights.
Algeria also spoke as if the problems presented by the code might be
temporary, claiming that the government was drafting amendments to the
Family Code that would be submitted to the legislature. 41 However, over

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ANN ELIZABETH MAYER

two years later, there was no sign that such amendments had been
adopted, which suggests that the government may have been exaggerating
its degree of commitment to undertaking family law reform. The reform
proposals that have so far been tentatively put forward by the government
are in any case too limited to satisfY CEDAW requirements. 42
Algeria's failure to offer an accurate account of its domestic laws and
policies may have seemed expedient in the short term. However, in the
long term, the strategy of trying to disguise laws and policies that Algeria
regards as too shameful to present candidly to the CEDAW Committee
is not viable. There are too many forces at work to ensure that people in-
side and outside Algeria find out about the discrepancies between Alger-
ian law and CEDAW provisions and the lack of correspondence between
the way Algeria officially represents its positions to the CEDAW Com-
mittee and the reality of domestic government policies on women.
It is instructive to compare the presentations of Algeria and Morocco,
the latter being a monarchy headed by a ruler who claims descent from the
Prophet and who personally exercises authority over religious matters.
Morocco did refer to Islamic law more than Algeria did when speaking to
the committee, but it did not argue that the monarch had been entitled to
impose Islamic law on his subjects.
Until his death in 1999, the autocratic King Hassan II insisted on re-
maining in charge of matters involving Islamic law and Moroccan per-
sonal status law. King Hassan allowed women to participate with men on
an equal footing in many areas of life but rejected feminists' demands for
major revisions in the personal status code, the Mudawwana. In large
measure, the Mudawwana restated principles of medieval Maliki jurispru-
dence. In pronouncements aimed at the domestic audience, the king made
it clear that he personally controlled such matters in his capacity as Com-
mander of the Faithful and that he would not tolerate any personal status
reforms that would contravene Islamic principles. 43 As a token of the
regime's refusal to reform discriminatory features of the Mudawwana,
when Morocco ratified CEDAW in 1993, it did so with reservations to
Articles 2 and 16 (providing equal rights in the family), invoking Islamic
law and the idea of complementary gender roles as the reasons.
Facing mounting protests by feminists, Hassan II allowed a few mod-
est reforms in 1993.44 His successor, Muhammad VI, showed greater
openness to the idea of reforming the personal status code than his father

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had done, but tentative proposals for reforms in 2000, which included
raising the minimum age for marriage for women to eighteen and abol-
ishing polygamy, prompted mass protest demonstrations in Casablanca by
Moroccan conservatives and Islamists in addition to smaller demonstra-
tions in support by those in favor of reforms. Obliged to cope with daunt-
ing economic woes and social problems, the new monarch may not be
prepared to carry through reforms in women's status that threaten to pro-
voke a major backlash at a time when there are so many other causes of
popular discontent.
Speaking to the CEDAW Committee in 1997, when King Hassan
was still on the throne, Morocco's representative, Ahmed Snoussi, strug-
gled to defend Morocco's record on women's rights and its CEDAW
reservations. Revealing a mentality at odds with the CEDAW philosophy
of equality, he tried to deploy the complementarity thesis, according to
which unequal treatment of men and women was actually equitable be-
cause men and women were by nature so different that they needed to be
treated in ways that were specifically suited to them. He spoke of a need
to maintain the dignity of women and to preserve them from anything
contrary to the rules of morality. Thus, Islam allowed women to work only
within a framework of respect for morality, keeping them from work that
might damage society; prevent them from fulfilling their other obligations
to their husbands, children, and homes; or demand of them more than
they are able to give in accordance with the teachings of the Islamic
shari'a. That is, he spoke as ifboth natural differences between women and
men as well as Islamic law were related rationales justifYing deviations
from CEDAW.4S
Snoussi had to deal with sharp criticisms from the committee, whose
members charged that Morocco's reservations were striking at the very
heart of the convention. They raised repeated objections to Morocco's
reservations to CEDAW Articles 2 and 16. Unconvinced by Morocco's
appeal to Islam, one expert warned that the C2llr' an could not be used as a
pretext for not implementing the Women's Convention, noting that other
Muslim countries had made more progress than Morocco had in achiev-
ing equality between men and women. Another asserted that, coming
from a Muslim country, she was well aware that there was nothing in Is-
lamic teachings that stood in the way of fully implementing women's hu-
man rights. It was proposed that the Moroccan monarch had a special

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ANN ELIZABETH MAYER

standing in the Islamic world and that a compilation of women's rights in

Islamic law under his aegis could do a great deal to help save the next gen-
eration from a misinterpretation of the C2ltr'an. 46 That is, Morocco's ap-
peals to Islam as the justification for its discriminatory treatment of
women did not impress the committee's members, who insisted that Islam
did not require such discrimination and called for Morocco to reverse
course and undertake a leadership role in promoting an enlightened un-
derstanding of the C2ltr'an.
In at least one area, Morocco's strategy turned out to be similar to Al-
geria's, involving the government's disavowal of responsibility for its own
discriminatory laws. Not acknowledging how King Hassan had boldly as-
serted his personal control over the Mudawwana when speaking to Mo-
roccans, Snoussi deliberately sought to obscure the reality that Morocco's
discriminatory personal status code rested on the fiat of an autocratic
monarch. Seeking to absolve the Moroccan government from responsibil-
ity for the plight of Morocco's women, he presented the government as
being constrained by social, cultural, and political factors that stood in the
way of repealing discriminatory laws. He maintained that religious prac-
tice represented a lifestyle and integral part of Morocco's culture and tra-
ditions. It was also a rampart against fundamentalism and terrorism at a
time when Morocco was seeing a rise in fundamentalism in other coun-
tries. A basic concern of Morocco was religious fundamentalism. The gov-
ernment was not trying to avoid its obligations to implement the Women's
Convention, but it could not make a decision based solely on ideological
considerations. Morocco was a developing country with limited resources,
and it had to confront certain attitudesY That is, the government was
portrayed as being constrained by its limited resources, popular resistance
to change, and the menace of Islamic fundamentalism and by having to
deal with circumstances where reforms unsettling the traditional culture
would remove a bulwark against fundamentalism. One of the experts' re-
sponses was that religious fundamentalism was not restricted to Muslim
countries. 48 Via this observation, Morocco was put on notice that prob-
lems of coping with fundamentalism would not serve as an excuse for
noncompliance with CEDAW.
Snoussi also sought to absolve the government of responsibility for
the reservations that Morocco had entered. According to Snoussi, Mo-
rocco's reservations were the result of a national consensus and were not

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simply a decision of the government. Pressure on the government would

therefore not change that situation. 49 Unimpressed, one of the experts
asked how "a national consensus" could be reached on the reservations
when women did not participate fully in society and their illiteracy rate
was so high.sO For this as for some other critical questions, Snoussi had no
answer. Dissatisfied with some of Snoussi's responses, Salama Khan of
Bangladesh, the chairperson, noted his failure to reply to all the questions
and comments of the experts. S1
Obviously, Morocco had little success defending its discriminatory
laws and CEDAW reservations before the CEDAW Committee and was
unable to convince the members that it had legitimate reasons for failing
to grant Moroccan women their rights under CEDAW. Unless Muham-
mad VI succeeds in enacting reforms to improve women's rights, Morocco
will continue to be placed on the defensive in its dealings with the com-
mittee.
Libya's government has little in common with Morocco's, the country
having been ruled by Mu'ammar al-~dhafi's eccentric military dictatorship
since 1969. The regime tries to pose as a leader of progressive causes. Aspir-
ing to be regarded as a great revolutionary figure along the lines of Chairman
Mao Tse-tung, ~dhafi has promoted his own ideology, which is set forth in
his Green Book, in the tenets of which all Libyans are indoctrinated. Women's
treatment reflects ~dhafi's idiosyncratic blend of revolutionary style--he
often appears in public flanked by a coterie of gun -toting women
bodyguards-and his own prejudices and crude gender stereotypes, which
are articulated at length in the third part of his Green Book. From the Green
Book, one gathers that ~dhafi believes in separate, complementary roles for
men and women, imagining that these are an inevitable outcome of profound
biological differences and the fact that childbearing and menstruation are in-
capacitating experiences. The Green Book instructs Libyans that there are in-
nate characteristics that "form differences because of which man and woman
cannot be equal," these being realities that "assign to each of them a different
role or function in life."52 ''A woman is but a female," The Green Book ad-
vises. 53 Maternity is woman's "natural role in life."s4 "To demand equality be-
tween them [men and women] in any dirty work, which stains her beauty
and detracts from her femininity is unjust and cruel," as is education that
leads to work unsuitable for woman's nature. 55 Men are created to be strong
and tough, whereas women are created to be "beautiful and gentle."56

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Women are "exactly like blossoms which are created to attract pollen and to
produce seeds."57 "If a woman carries out man's work, she will be transformed
into a man abandoning her role and beauty."58 Men and women differ in "the
psyche, mood, nerves and physical appearance. A woman is tender. A woman
is pretty. A woman weeps easily. A woman is easily frightened."59 Mixing the
different roles of men and women is "absolutely uncivilized."60
Not surprisingly, under Qedhafi, Libya has emphasized women's ma-
ternal role and has been unwilling to adjust to the egalitarian model pro-
posed in CEDAW. Far from advocating the strengthening of women's
international human rights, in international forums like the Beijing + 561
meeting held in 2000, Libya figured among the countries most reluctant
to accept advances in women's human rights, ranking with countries such
as Algeria, Iran, Pakistan, and Sudan in that regard. 62
Libyas first CEDAW report was considered in 1994. 63 Significantly,
Libyan officialdom grasped that discussing Green Book teachings on how
women's maternal function and innate characteristics precluded their hav-
ing equality with men could only encumber its efforts to defend its poli-
cies. In the colloquy with the CEDAW Committee, Qedhafi's promotion
of gender stereotypes was not mentioned. In introducing Libya's
CEDAW report, the Libyan representative, Ibrahim Abdelaziz Omar, as-
serted that in his country there were no laws that were in any way dis-
criminatory against women. Libyan legislation contained the principle of
equality of women and men. The shari'a equally emphasized the impor-
tance of women in society.64 Women were considered as the cornerstone
of the society. They were equal to men before the law. 65 This was a re-
markable statement to make given that Libyas official ideology expressly
precluded women having equality. Libya's representative claimed that any
laws that discriminated against women had been abolished. 66 According
to him, the Islamic religion was designed to emancipate men and women
from all forms of slavery by prohibiting injustice, making the promotion
of women a precondition for the road to paradise and calling for equality
among all human beings. 67
Regarding CEDAW Article 2, Libya's representative claimed that the
principle of gender equality was clearly spelled out in Libyas constitution
and in the Great Green Charter of Human Rights. 68 In so doing, he pro-
vided an example of how the need to make a country's legal system look

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 INTERNATIONALIZING THE CONVERSATION ON WOMEN'S RIGHTS

respectable by international standards may prompt its representatives to

engage in outright lies; Libya has no constitution in force and has, a for-
tiori, no constitutional principle of gender equality. Instead, it has the
1977 Declaration of People's Power, which superseded the 1969 constitu-
tion and does not guarantee women equality but does affirm that the
Qyr'an is the source oflegislation and the shari'a of Libyan society.69 Qgd-
hafi's 1988 Great Green Charter of Human Rights does contain a state-
ment in Article 21 that men and women are equal in humanity and that
discrimination against them is an injustice-but it provides no guarantee
of equality in rights. 7o Given other provisions in the charter, such as the
Article 20 requirement that mothers breast-feed and care for their chil-
dren at home and the fact that various forms of de jure discrimination
against women persisted in the era after the charter was issued, in Libya
"discrimination" was obviously not being defined the way it was in
CEDAW.
Because Libya has retained discriminatory features of Islamic law in
the area of personal status, it was not surprising that on ratifYing CEDAW
in 1989, Libya made a reservation announcing that its accession was "sub-
ject to the general reservation that such accession cannot conflict with the
laws on personal status derived from the Islamic Shariah."71 It thereby in-
dicated that it would be standing by Islamic laws in the area of personal
status that conflicted with CEDAW, which was proof that Libya con-
ceived of Islamic law as being at odds with provisions in the Women's
Convention. Like other Arab countries that have entered Islamic reserva-
tions to CEDAW but that nonetheless insist that their Islamic laws do not
discriminate against women, Libya was hard-pressed to come up with a
logical explanation for its self-contradictory stances. Members of the
CEDAW Committee expressed serious concern about Libya's reservation
and about the fact that the reservation was not at all touched on in Libya's
report. Members asked whether the government had not taken into con-
sideration the objections to the reservation that had been raised by other
parties. Bearing in mind that the shari'a had given equality to women, as
was asserted in Libya's report, it did not seem clear why the reservation
was still maintained, particularly as it constrained the government's abil-
ity to comply with Article 2, the central article of the Women's Conven-
tion.72

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ANN ELIZABETH MAYER

The experts admonished that reservations that were incompatible

with the goals of the Women's Convention were not acceptable. They
opined that the Libyan reservation was very much related to the question
of interpreting the shari'a, indicating their disagreement with the propo-
sition that Islamic law provided a basis for CEDAW reservations.?3 Com-
mittee experts from Bangladesh, Egypt, and Tunisia lectured Libya about
Islamic law, maintaining that it granted women full equality.?4 However,
it had come into force 1,500 years ago and was not immutable. The shari'a
itself gave equality to women; the problem that had to be overcome was
that of interpretation. Religions should evolve over time, but the interpre-
tation of the shari'a had come to a standstill centuries ago. 75 Since the
Qyr'an permitted ijtihad for the interpretation of the Islamic religion, ef-
forts should be made to proceed to an interpretation of the shari'a that did
not block the advancement of women.?6
The experts called for Islamic laws to be properly interpreted so as not
to derogate from women's rights, maintaining that these laws were not im-
mutable and must be adopted within the context of the Women's Con-
vention. The interpretation of the Qyr'an had to be reviewed in the light
of the provisions of the convention and in the light of the current social
environment. 77 That is, they flady rejected Libya's rationale for discrimi-
nation and indicated that since the Woman's Convention was consonant
with a sound contemporary understanding of Islam, Libya's Islamic laws
should be rethought to conform to the convention.
They also pointed out that in some countries the shari'a had been
interpreted in a more progressive way as a result of the political will of
the government.?8 The Libyan government was urged to take a leading
role in its interpretation of the shari'a as a model for other Islamic
countries.?9 Here the committee touched on a sensitive issue for the
Libyan government, which prides itself on its revolutionary character;
~dhafi would be discomfited by suggestions that his regime had
shown itself less committed to advancing women's rights than some of
its neighbors.
In replying, the Libyan representative flailed about in an attempted
defense of the CEDAW reservations that it had entered, insisting that Is-
lamic law did not discriminate against women but without finding any
way to reconcile this claim with the fact that Libya's reservation indicated
that Islamic law was in conflict with CEDAW. He made the puzzling as-

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 INTERNATIONALIZING THE CONVERSATION ON WOMEN'S RIGHTS

sertion that reservations were entered by Islamic countries in order to

avoid embarrassment in view of the literal meaning oflegal texts. 80 He of-
fered no specific account of what the "legal texts" were whose "literal
meanings" caused "embarrassment" or what the nature of this "embarrass-
ment" would be.
Committee members also objected that it was not possible to speak of
equal rights of women and yet to maintain gender differentiation and sex-
ual stereotypes, such as insisting on the role of women as housekeepers. 81
Picking up on the fact that Libya relied on gender stereotypes, the mem-
bers requested clarification of the concept of "women's natural tasks," as
referred to in the report. 82 The members also noted with concern the con-
tradiction in Libya's claim to be introducing revolutionary measures for
the emancipation of women on the one hand while on the other hand it
was emphasizing their role as mothers and housewives, thus reinforcing
what was already stiff cultural resistance to substantial change. 83 The
Libyan representative claimed that any gender difference, if considered
objectively, did not constitute discrimination based on sex. 84 Thus, like
Morocco's representative, he seemed to be endorsing the popular comple-
mentarity thesis, according to which it is not discriminatory to afford
women different rights because of the natural differences between women
and men-a stance that, in the light of the general incoherence of its pre-
sentation, the Libyan government may not realize is at odds with the
CEDAW philosophy.
The committee members did not hesitate to comment on the in-
coherence of Libya's position, remarking that they were still unclear about
the reasons for the country's maintenance of its reservation to the
Women's Convention. Members advised that the implementation of an
antidiscrimination policy required that policies be coherent even though
they touched on religious and ideological issues. True gender equality did
not allow for varying interpretations of obligations under international le-
gal norms depending on internal religious rules, traditions, and customs. 85
In Libya's case, criticisms of its original reservation ultimately
prompted an attempt at obfuscation. Apparently worried about criticism
that could be leveled at it in the context of the 1995 Beijing Conference,
in that period Libya reformulated its first CEDAW reservation to elimi-
nate any language indicating that Libya's Islamic laws conflicted with
CEDAW. Instead, the wording of the second reservation implied that

153
ANN ELIZABETH MAYER

CEDAW threatened to dilute the superior rights that Libyan women en-
joyed, asserting with regard to subparagraphs c and d of Article 16 (guar-
anteeing women equal rights in marriage and divorce and equal rights as
parents) that their implementation "shall be without prejudice to any of
the rights guaranteed to women by the Islamic Shariah."86 Although the
second reservation on its face looks less objectionable than the first, Libya
wi11likely be disappointed if it hopes by this sleight of hand to conceal
over the long term its failure to upgrade its laws to meet CEDAW stan-
dards. The changed wording was not accompanied by reforms in laws af-
fecting women. Meanwhile, the embarrassment that Libya had
experienced at the hands of the CEDAW experts might lead to some re-
thinking in official quarters regarding its policies on women.

Conclusion
These assessments of selected excerpts from some colloquies involving
Arab countries and members of the CEDAW Committee reveal the
dilemma that Arab governments create for themselves when they decide
to ratifY CEDAW without undertaking the reforms needed to afford
women equality. They do not quarrel with the principle of equality for
women, and they want to maintain the pretense that they are in substan-
tial compliance with the Women's Convention. However, when they ad-
dress the skeptical members of the committee, they find themselves
unable to defend their actual policies on women and must resort to twisted
logic, obfuscations, and misrepresentations in their attempts to dodge crit-
icisms. They struggle futilely to reconcile their endorsements of equality
for women with the reservations that they have entered to CEDAW. At
moments, they imply that Islamic law conflicts with the convention, but,
heedless oflogic, they also try to maintain that, even while sticking by Is-
lamic law, they adhere to the convention. As all these reports and collo-
quies are documented, the inconsistent positions taken by Arab
governments could later come back to haunt them when domestic or in-
ternational critics try to hold them to account.
In the way that the Saudis sought to present their human rights prac-
tices relating to children before the Committee on the Rights of the
Child, one had a preview of how relatively poorly prepared the Saudis

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were to deal with independent critics in U.S. organs who were well in-
formed about the scope of their rights violations, critics whom they did
not have the power to censor or intimidate. Presaging troubles that they
may face when dealing with the CEDAW Committee, when facing the
Committee on the Rights of Child, the Saudis seriously miscalculated,
imagining that simply reiterating their own propaganda about their im-
peccable human rights performance along with a plethora of references to
the C21tr'an would suffice. Instead, they met with a critical reaction that
probably prompted some apprehension and anxiety about whether the
kingdom was equipped to handle challenges from the CEDAW Com-
mittee.
A more sophisticated approach, adopted by some Arab countries as
they faced the CEDAW Committee, was to make limited concessions to
the effect that their laws might not be perfectly congruent with CEDAW
but to rationalize the deviations, as happened when they invoked the need
to take into account women's natural differences, or to place the blame for
the deviations on forces beyond the control of governments, such as pop-
ular devotion to upholding rules of Islamic law or the menace of Islamic
fundamentalism. Governments' efforts to exonerate themselves from
blame for their own laws involved considerably hypocrisy, but, unlike the
Saudi approach, these efforts did betoken the onset of critical self-
awareness. Even though countries like Algeria, Libya, and Morocco had
not made the reforms needed to comply with CEDAW, they were at least
aware of the shortcomings in their laws, an awareness that prompted their
attempts at dissimulation and rationalization. In the ways that these gov-
ernments represented their positions before the committee, one also saw a
realization that the lines that these same governments espoused domesti-
cally were unsuited for use in the international arena. For example, it was
noteworthy that Morocco did not tell the CEDAW Committee that the
king, as Commander of the Faithful, was entitled to dictate to Moroccans
what Islamic law entailed and that Libya, whose citizens are all indoctri-
nated with Green Book gender stereotypes, did not lecture the women on
the committee that they were designed by nature to be tender and pretty
or that they were unsuited for the hard tasks naturally assigned to men
since they wept easily and were easily frightened.
The shifts from their domestic stances on women's rights to ones that
they could hope would have more credibility in the CEDAW Committee

155
ANN ELIZABETH MAYER

were emblematic of the adjustments that Arab countries were obliged to

make as they embarked on the painful process of rethinking their tradi-
tionally discriminatory treatment of women in relation to international
human rights law, a law the normative character of which they effectively
conceded in their conversations with CEDAW experts. Even as they
sought to explain away their retention of nonconforming domestic stan-
dards, they were engaged in a dialectic that was corroding the legitimacy
of their discriminatory domestic laws and that was likely to augment pres-
sures for reforms in the direction of affording women equality.

Notes
1. The severity of the damage caused to the international image of the
United States by the notoriety of its domestic policies on race in the Cold War
era is discussed in Mary L. Dudziak, Cold Wtzr Civil Rights: Race and the Image of
American Democracy (Princeton, N.].: Princeton University Press, 2000).
2. See Dudziak, Cold Wtzr Civil Rights, 91-110.
3. The U.S. estrangement from international human rights is evinced, among
other things, by its long delay in ratifYing many human rights conventions, its in-
sistence on imposing reservations to qualifY its adherence to those human rights
conventions that it does ratifY, and its refusal to ratifY important conventions like
the International Covenant on Economic, Social, and Cultural Rights; the Con-
vention on the Rights of the Child; and the Women's Convention.
4. It has relied in part on the intricacies of U.S. equal protection jurispru-
dence as a smokescreen to cloak the deficiencies of U.S. law. See Ann Elizabeth
Mayer, "Reflections on the Proposed United States Reservations to CEDAW:
Should the Constitution Be an Obstacle to Human Rights?," Hastings Constitu-
tional Law Quarterly 23, no. 3 (spring 1996): 789-92. One of the U.S representa-
tives even stooped to proffering a bald-faced lie, falsely asserting that the U.S.
Constitution "explicitly guarantees men and women equality" (794).
5. Texts of the reservations and objections to these can be found at http://
un treaty.un.org/EN G LI SHlbiblelenglishinternetbiblelpart IIchapterIVI treaty9I
asp (accessed February 3, 2001).
6. See the discussion in Ann Elizabeth Mayer, "Rhetorical Strategies and Of-
ficial Policies on Women's Rights: The Merits and Drawbacks of the New World
Hypocrisy," in Faith and Freedom: Women's Human Rights in the Muslim World, ed.
Mahnaz Afkhami (New York: 1. B. Tauris, 1995), 105-19.
7. On the difficulties of deciphering these reservations, see Ann Elizabeth
Mayer, "Religious Reservations to the Convention on the Elimination of All

156
 INTERNATIONALIZING THE CONVERSATION ON WOMEN'S RIGHTS

Forms of Discrimination against Women: What Do They Really Mean?," in Re-

ligious Fundamentalisms and the Human Rights of Women, ed. Courtney W. How-
land (New York: St. Martin's Press, 1999),105-16.
8. See Rapport Alternatif de la FIDH au Rapport initial Presente par
l'Algerie au Comite sur l'Elimination de la Discrimination a l'Egard des Femmes
1geme Session (January 19-February 5,1999).
9. See my discussion of why the Saudi treatment of women amounts to gen-
der apartheid in Ann Elizabeth Mayer, "A 'Benign' Apartheid: How Gender
Apartheid Has Been Rationalized," UCLAJournal ofInternational Law and For-
eign AJfoirs 5 (fall/winter 2000-2001): 252-56.
10. See Amnesty International, SaudiArabia:A Secret State ofSuffiring, report,
March 28, 2000.
11. See "UN Report Blasts Saudi Record on Children's Rights," Agence
France Presse,January 26,2001, available in LEXIS, World Mfairs Stories.
12. See the discussion in Ann Elizabeth Mayer, "Islamic Reservations to Hu-
man Rights Conventions," RIMO 15 (1998): 39-40.
13. See "Consideration of Reports Submitted by States Parties under Article 33
of the Convention," Initial Report of Saudi Arabia due in 1998, CRCIC/611Add.2
March 29, 2000.
14. "Consideration of Reports," 8.
15. "Consideration of Reports," 15.
16. "UN Report Blasts Saudi Record on Children's Rights." For a sanitized of-
ficial version of the exchange, see "Issues, Final Conclusions and Recommenda-
tions on Reports of Latvia, Liechtenstein, Ethiopia, Egypt, Lithuania, Lesotho,
Saudi Arabia, Palau and the Dominican Republic," UN press release, CRC 26th
Session,]anuary 26,2001, Round-Up.
17. "Saudi Arabia: News in Brief," Facts on File World News Digest,January 26,
2001, available in LEXIS, World Library, ALLWLD file.
18. "U.N. Panel Says Strict Saudi Laws Violate Rights," New York Times,Jan-
uary 27,2001, A3.
19. "In First, Saudis Defend Protection of Women's Rights before UN,"
Agence France Presse, January 24, 2001, available in LEXIS, World Affairs
Stories.
20. Jason Burke, "Algeria Tries to Forget Its Dark, Tortured Past: France's For-
mer North African Colony Is Racked by Violence, Brutality and Poverty. But
Some Believe Its Long Nightmare Could Soon End. Jason Burke Reports from
Algiers," The Observer, August 12,2001,18.
21. Giles Tremlett, "Death and Dissent as Algeria Goes to Polls: Mter a
Decade of Bloodshed, Few Bother Voting and Power Remains in Hands of a
Shadowy Clique," The Guardian, May 31, 2002,15.

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ANN ELIZABETH MAYER

22. See Mary Jane C. Parmentier, "Secularisation and Islamisation in Morocco

and Algeria," Journal ofNorth African Studies 4 (winter 1999): 44.
23. See the discussion in Mayer, "Islamic Reservations to Human Rights Con-
ventions," 33-34.
24. Mayer, "Islamic Reservations to Human Rights Conventions," 33-34.
25. ''Algeria to Adopt Progressive Approach to Women's Rights," Africa News,
January 22,1999, available in LEXIS, World Library, ALLWLD file.
26. ''Algeria to Adopt Progressive Approach to Women's Rights."
27. ''Algeria to Adopt Progressive Approach to Women's Rights."
28. "Algeria to Adopt Progressive Approach to Women's Rights."
29. "Algeria to Adopt Progressive Approach to Women's Rights."
30. ''Algeria to Adopt Progressive Approach to Women's Rights."
31. See "Rapport Alternatif."
32. "Progress for Women Is Linked to Qyestion of Democracy," Africa News,
January 22,1999, available in LEXIS, World Library, ALLWLD file.
33. See ''Algeria to Adopt Progressive Approach to Women's Rights."
34. ''Algeria to Adopt Progressive Approach to Women's Rights."
35. "Progress for Women Is Linked to Qyestion of Democracy."
36. "Algeria to Adopt Progressive Approach to Women's Rights."
37. Article 39 states that the wife is to obey her husband and to defer to him
in his capacity as head of the family.
38. Article 39.
39. Article 39.
40. "Progress for Women Is Linked to Qyestion of Democracy."
41. "Progress for Women Is Linked to Qyestion of Democracy."
42. See the discussion in "Rapport Alternatif."
43. See Ann Elizabeth Mayer, "Moroccans-Citizens or Subjects? A People
at the Crossroads," New York University Journal ofInternational Law and Politics
26 (1993): 63-105.
44. These meant that husbands lost their right to unilateral extrajudicial repu-
diation and had henceforth to go to court to terminate their marriages, wives were
given the right to terminate their marriages if their husbands took second wives,
and the requirement that brides consent to their marriages was reinforced. Ann
Elizabeth Mayer, "Reform of Personal Status Laws in North Mrica: A Problem
ofIslamic or Mediterranean Laws?" Middle EastJournal49 (summer 1995): 439.
45. "UN Committee on Elimination of Discrimination against Women Con-
cludes Consideration of Morocco's Report," M2 Presswire, January 22, 1997,
available in LEXIS, World Library, ALLWLD file.
46. "UN Committee."

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 INTERNATIONALIZING THE CONVERSATION ON WOMEN'S RIGHTS

47. "UN Committee."

48. "UN Committee."
49. "UN Committee."
50. "UN Committee."
51. "UN Committee."
52. The Green Book: Part Three, 28-29, available at www.greenbook.cjb.net (ac-
cessed February 10,2001). The pagination at the Internet site corresponds to the
pagination of the original hard-copy version of the book.
53. Green Book, 35.
54. Green Book, 39.
55. Green Book, 35.
56. Green Book, 36.
57. Green Book, 39.
58. Green Book, 40.
59. Green Book, 40.
60. Green Book, 40.
61. Beijing + 5 is an abbreviation for the session of the UN General Assembly
"Women 2000: Gender Equality, Development and Peace for the 21st Century,"
New York, June 5-10,2000.
62. See Barbara Crossette, "Rights Gains Are Preserved at U.N. Forum on
Women," New York Times, June 11, 2000.
63. See "Report of the Committee on the Elimination of Discrimination
Against Women, Thirteenth Session, General Assembly, Official Records-
Forty-Ninth Session, Supplement No. 38 (A/49/38) Libyan Arab Jamahiriya"
(hereinafter "Report of the Committee on Libya"). The material on Libya appears
in paragraphs 126-85 of the report, and paragraph numbers will be used in the
following references.
64. "Report of the Committee on Libya," para. 127.
65. "Report of the Committee on Libya," para. 129.
66. "Report of the Committee on Libya," para. 141.
67. "Report of the Committee on Libya," para. 131.
68. "Report of the Committee on Libya," para. 140.
69. See the discussion in Ann Elizabeth Mayer, "In Search of a Sacred Law:
The Meandering Course ofQedhafi's Legal Policy," in Qadhqft's Libya 1969-1994,
ed. Dirk Vanderwalle (New York: St. Martin's Press, 1995), 115, 126.
70. Mayer, "In Search of a Sacred Law," 126.
71. Mayer, "Islamic Reservations to Human Rights Conventions," 31.
72. "Report of the Committee on Libya," para. 130.
73. "Report of the Committee on Libya," para. 131.

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ANN ELIZABETH MAYER

74. "Friday Highlights," Federal News Service, January 24, 1994, available in
LEXIS, World Library, ALLWLD file.
75. "Report of the Committee on Libya," para. 131.
76. "Report of the Committee on Libya," para. 13l.
77. "Friday Highlights."
78. "Report of the Committee on Libya," para. 131.
79. "Report of the Committee on Libya," para. 132.
80. "Report of the Committee on Libya," para. 131.
81. "Report of the Committee on Libya," para. 130.
82. "Report of the Committee on Libya," para. 135.
83. "Report of the Committee on Libya," para. 180.
84. "Report of the Committee on Libya," para. 131.
85. "Report of the Committee on Libya," para. 135.
86. See my discussion in Mayer, "Islamic Reservations to Human Rights Con-
ventions," 32.

160
 CHAPTER SIX
TAHLIL MARRIAGE IN SHARI'A, LEGAL
CODES, AND THE CONTEMPORARY
FATWA LITERATURE
Barbara Freyer Stowasser and Zeinab Abul-Magd

ahlil is a legal notion that has to do with a couple's right to

T (re)marriage in a case in which the husband has (irrevocably) di-

vorced his wife three times. The traditional legal conditions stip-
ulated consequent to the husband's pronouncement of the triple-divorce
formula are that the wife has to observe the prescribed waiting period,
marry another man, and consummate the marriage with him. She is then
to be divorced by the second husband and complete the waiting period af-
ter the divorce before it becomes legal for her to remarry her former hus-
band. Tahlil is legislated in the Qy.r'an (Sura 2:230). In the classical legal
texts, tahli1 also refers to the more specific and more problematic practice
of marriage with intent to divorce as strategy to render the woman legally
fit to remarry her (first) husband.
Islamic law developed within a number of paradigmatic blueprints
that were later ascribed to the "founders" of "law schools" (madhahib, sing.
madhhab), of which eventually there were four in the Sunni tradition. The
"founders" belonged either to the "first generation" of scripturalist experts
who worked within a century and a half after the Prophet Muhammad's
death (Abu Hanifa, d. 767; Malik ibn Anas, d. 795) or to the "second
generation" that succeeded them (al-Shafi'i, d. 820; Ahmad ibn Hanbal,
d.855).1
Speaking mainly in the language of traditions, medieval scholars of
jurisprudence lfzqh) formulated legal rules variably based on communal
consensus. Many of the rules remained embedded in "examples," Hadith-
reported case studies, and/or Qy.r'anic exegesis, while elaboration of the

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

underlying principles formed an essential part of the developing legal

tradition. The fact that neither rules nor rulings were codified provided
the system with an inherent flexibility, enabling judges and juriconsults
to develop the law over a period of eleven or twelve centuries. The first
section of this chapter is a study of the ways in which the four classical
Sunni law schools dealt with the concept of tahlil marriage and how their
formulation of this legal notion represents an example of discrete princi-
ples and doctrines that were operative in the four legal traditions. 2 The
second section is a study of how tahlil marriage has fared in some mod-
ern Arab personal status codes and the contemporary fatwa literature (an
answer to a question, a formal legal opinion, a considered opinion em-
bodying an interpretation of the shari'a; pl.fatawa).3
During the late nineteenth and early twentieth centuries, socio-
economic changes in the Arab world provoked the emergence of two new
paradigms in the area of Islamic marriage law (even though they were in
some unequal measure based on the preceding four). On the one hand,
modernization policies as formulated and implemented by colonial bu-
reaucracies and local elites produced a sizable number of national status
codes that "patched" (taifiq, "patching") legal notions derived from the
classical Sunni tradition together with European concepts of family and
the family's role in society. Given the social and economic importance at-
tributed to nuclear family stability and permanence in the European legal
tradition, the Arab personal status codes largely refused to deal directly
with the Islamic concept of tahlil marriage. By contrast, scholars of shari'a
law, especially after many of them lost their positions as judges with their
countries' abolishment of shari'a courts, have struggled to retain authority
in the area of issuing fatwas as spokesmen of an alternate, more authentic
legal tradition. Their fatwas, however, tend to reflect a unified position of
categorical rejection of tahlil marriage, which is itself an innovation.

Variances on Tahlil among the Four Madhahib

Tahlil means "to expiate an oath, to sanction, to make lawful," and in this
case it is the second husband, the muhallil, who provides the woman with
tahlil, that is, makes her lawful for marriage with the first husband who
had thrice divorced her and who is therefore called al-muhallallahu. In all

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four madhahib, this legal item rests more or less uneasily on three sacred
texts: first, the Qyr'anic text of Sura 2:230, mentioned previously;4 second,
a hadith that stipulates that "the man and the woman must taste the sweet
honey of sexual pleasure" during the tahlil marriage (referred to in what
follows as hadith A);5 and, third, a hadith in which both "the muhallil and
the muhallallahu are cursed" (referred to in what follows as hadith B).6
Islamic scholars past and present have worked on listings of ikhtilcifat
(differences, disagreements) between classical law schools (and/or legal
experts). Interest in and information on ikhtilafat go back to early me-
dieval times, to which many fiqh books devoted special chapters.7The fol-
lowing discussion of variances on tahlil marriage is based on a modern
comparative textbook on fiqh published in 1938 by Abd al-Rahman
al-Jaziri, a shaykh of the Azhar, under the title Kitab al-Fiqh 'ala
al-Madhahib al-Arba'a. 8 The Azhari shaykh prefaces his chapter on tahlil
with a terse paragraph on the fact that this is a contested issue. This is then
followed by an exposition of the teachings of the four madhahib on the is-
sue in question. The main points in a tahlil marriage are, first, the mar-
riage contract; second, the issues of intercourse; and, third, the question of
whether the second husband may charge a fee for his service.

Variances in Legal Principles among the Four Madhahib

The Hanafi text lays emphasis on the validity of the tahlil contract as a
formal (abstract) entity, without consideration of the intentions of the
muhallil or any other of the partners who conclude it. To stipulate a fee is
reprehensible because it defies the hadith-based legal norm that "stud ser-
vices (of billy goats, donkeys, and other male animals) are free," but it does
not invalidate the marriage contract; for some Hanafi jurists, the conditions
are valid, while for the majority the conditions are void but the contract itself
remains valid. The contract creates and represents its own legal category
whence consummation of the marriage is lawful even if occurring in situa-
tions where the woman would otherwise be ritually "off limits," such as men-
struating, in a state of postpartem bleeding, or in the state of ritual
consecration (ihram). In addition, the Hanafi text focuses on establishing cat-
egories concerning what sort of males and what sort of sexual activities ful-
fill the conditions of effective tahlil. In this context, much of the speculation
about physical incapacity (in the man) and limits of consciousness (in either

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

of the two partners) represents a mode oflegal argumentation that proceeds

by qiyas (analogy). Mter the effective legal instruments of tahlil (a valid mar-
riage contract and consummation of the marriage) are established as the ju-
risprudential 'ilia (effective cause), all other potential variations to the
formula are subsumed under the rubrics of valid or invalid by processes of
analogy. 9
For the Malikis, the primary condition for the validity of the tahlil
marriage contract is that the muhallil be free of the stated or unstated in-
tention to divorce the woman; in addition, purpose of action, consent to
action, and awareness of action, as well as public acknowledgment of ac-
tion, must all be part of this legal construct. Consummation of the mar-
riage must occur within the boundaries of "lawful sex," that is, when the
woman is ritually lawful for intercourse (by any standards). Among the
four madhahib, the Malikis stand out by paying attention to the mental
(not just physical) involvement of the woman in the tahlil situation. lO
The Shafi'i school's conditions fall between Hanafi and Maliki
schools in its requirements for validity of contract between muhallil and
the woman. Ifhe stipulates in the contract that he intends to divorce her,
the contract is null and void; if such is his unexpressed intention, then
(though this represents reprehensible behavior on his part) the contract is
valid. Unlike the Hanafi, the Shafi'i stance progresses beyond the legal no-
tion of contract to ethical and psychological considerations regarding the
tahlil experience with the intent to emphasize its loathsome qualities (in-
cluding for the female partner); this reflects Prophetic hadiths such as that
"God hates divorce."ll This position underlies, for example, the school's
verdict that sexual pleasure is not a condition oflegally valid tahlil and that
intercourse must be effected by the muhallil even with prepubescent girls,
"as a device that makes divorce loathsome." In addition, the Shafi'i blue-
print includes some criticism regarding the doctrines of earlier schools,
such as the Hanafi, as well as the practice of law among the "common!
secular folk" (al-a'wamm),12 who lack awareness of the true Sunna. 13
For the Hanbalis, the whole category of tahlil marriage is suspect and
fraught with danger, and thus they try to limit its validity. Primary in the ar-
gumentation are the prophetic hadiths transmitted by Ibn Maja (and oth-
ers) according to which the Prophet likened the muhallil to the billy goat
(that one borrows for stud services) and put a curse on both the muhallil and
the muhallallahu (hadith B) as well as multiple traditions originating with

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the Prophet and also the second caliph Umar ibn al-Khattab that forbid
"temporary marriage" (mut'a)Y Only a valid marriage contract on the part
of the second husband will (possibly) fulfill the conditions of taWil, but for
this to happen, the second husband may not marry the woman with the
stated purpose of divorcing her, nor can he do so on the basis of an agree-
ment that he will divorce her, nor can he harbor the private intention that
he will divorce her because in all of these cases the marriage contract is void.
Even though the woman is due her dower and the legitimacy of any poten-
tial offspring is legally established, her reputation is tarnished, and the
union, based as it was on an invalid contract, does not effectively render her
halal (lawful) for marriage with her former husband. 15

What Goes (or Went) into a Legal Paradigm?

With one Qyr'an and one holy Sunna of the Prophet, why are there four
Sunni law schools and not just one? Or why are there not more than four
(which at one point in history there were)? And what exacdy is it that sets
them apart? The eminent Yemeni judge and scholar Isma'il al- Akwa' replied
to this question that "it is a matter of traditions."16 The traditions were func-
tions ofIslamic legal argumentation from the beginning. The "founders" of
the law schools and their followers all used traditions as their primary mode
of argumentation within different social and cultural settings. The Hadith
thus helped Islamicize local custom, which was essentially based on 'uif(le-
gal convention, customary law) while also profoundly influencing early
Qyr' anic exegesis. The "founders" performed their scripture-based ijtihad
(independent analysis or interpretation of sacred texts)17 in a world of oral
transmission where an authority on law and theology would not produce a
ready "handbook" to bequeath to posterity but where sometimes sons and!or
immediate students and sometimes students of students several generations
later would put the orally transmitted texts into some written form whose
larger paradigmatic focus would then also be ascribed to the first authority.
Therefore, it is more correct to speak in this context of Malikis instead of
Malik, Hanafis instead of Abu Hanifa, and Hanbalis instead of Ahmad ibn
Hanbal. This is even true of al-Shafi'i, at least some of whose works were
also compiled by his students and their students, with ample additions on
their part. Following the convention to "personalize" the paradigms of the

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

four law schools by ascribing them to their "founders," the issue of tahlil as
presented by al-Jaziri helps identify some of their differences, which can in
part be ascribed to differences in time, place, and context. Malik's paradigm
was Medinan in origin and context, where the Hijazi (and sti11largely Ara-
bian) traditional environment of the Prophet's city may have had to do with
the importance that the Malikis placed on the notion of "intention" in faith,
devotion, and especially contracts. For Abu Hanifa and his followers in in-
tercultural Iraq with its new boomtown places like Kufa and Basra, a con-
tract was valid per se if it was formally correct, that is, concluded according
to objective and abstract requirements that defined validity of contracts. For
al-Shafi'i, the positions of these two predecessors often de facto served as
parameters of his own paradigm, while theoretical interests and ambitions
underlay his efforts to design a more unified system of law finding. Insist-
ing on the superiority of the prophetic Hadith over doctrines derived from
local tradition and precedent, al-Shafi'i's school was in some measure anti-
Maliki, while by rejecting formalistic qiyas (analogy) unless verified by
scripture-based proof, it was anti-Hanafi. For Ahmad ibn Hanbal, prophetic
traditions, traditions related from and about the righteous forefathers as well
as the "consulta" (fatawa) of the Companions and their later successors, pre-
sented a massive reservoir of available data that he felt free to "interpret"
from the vantage point of doing so almost two hundred years later but
within a paradigm that attempted to preserve what he saw as "the original
spirit" of Islamic tradition. For this reason, his arguments were often more
literalist and more moralistic than those of his predecessors. Ibn Hanbal's
school, including such later followers as Ibn Taymiyya (d. 1328), Ibn
Qe.yyim al-Jawziyya (d. 1350), and Muhammad ibn Abd al-Wahhab
(d. 1792), largely understood the model of the righteous forefathers in ritu-
alistic and ethical terms, whence derives both the emphasis that Hanbalism
places on "intention" and also its moral scrupulousness that requires avoid-
ance of "dubious things" that lie between the permitted and the forbidden,
such as may be suspected in the tahlil situation.

Tahlil and Choice

Neither of the four classical schools wholeheartedly supported tahlil mar-
riage. Obliged to deal with the issue because it was based on a clear

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Qyr'anic text (Sura 2:230) but also clearly aware of social customs that to
their mind pushed its limits to the detriment of "regular" shari'a marriage
law, Islamic jurists largely subsumed the question of "legality" of tahlil
marriage under other, more mainstream rubrics of lawyerly construction,
such as validity of contracts.
There is presently no literature available to these writers that would
give indication of the frequency of tahlil marriages in premodern Muslim
societies. Anecdotes and rumors past and present appear to suggest that
they have occurred fairly frequently. Even if called on in only a small num-
ber of cases, as the legal literature hopefully surmises, tahlillaw provided
irrevocably divorced couples with access to madhhab-specific variations
among the four schools of law. Before the legal reforms that began in the
nineteenth century in most parts of the Arab world, to be discussed in
what follows, men and women of the Muslim community usually had ac-
cess to courts and judges, juriconsults, and lawyers of several madhahib si-
multaneously. This provided individuals in search of tahlil with a choice
based on their knowledge of each school's position on the issue.

The Modern Concept of "Family:' Legal Reform,

and National Status Law Codes
The term "family" (usra, or 'a'ila) that appears prominently in today's legal
literature signifies a brand-new concept in Muslim culture without prece-
dent in Qyr'an, Sunna, or classical fiqh. Scholars of the four classical Sunni
schools did not combine legal rules concerning wives and husbands with
rules regarding their offspring (ai-nasI) into one category. Rather, shari'a law
dealt with marriage, divorce, child custody, and the like under various sepa-
rate titles. 18 In addition, shari'a law defined the marriage contract as a fairly
flexible instrument that the spouses could enter and exit within reasonable
regulations. Both legal treatises and court records of the premodern period
indicate that, in juridic understanding, the marriage contract represented but
one example of the wider category of contractual law. An eighteenth-century
comparative textbook on the four legal schools compiled by the Syrian legal
authority Husayn ibn Muhammad al-Mahalli al-Shafi'i (d. 1757), for ex-
ample, reports consensus among the prominent members of the four Sunni
schools that marriage is a legal contract available to any person wishing to

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

satisfY his or her sexual desires in a lawful manner. Al-Mahalli indicates that
according to many authorities a valid marriage contract requires a written
form (sigha), two spouses, a guardian, two witnesses, and a dowry (sadaq),
but he adds that there is disagreement among the Sunni schools regarding
these requirements. 19 Nowhere, however, does he indicate that marriage as
an institution was, is, or should be based on permanence. Premodern Arab
court records in Egypt and Jordan reflect the same position. In terms ofle-
gal practice before codification, the Hanafi school was the official madhhab
of Ottoman state courts, but litigants also had the choice to plead their cases
in Shafi'i and Maliki courts. 20 The same holds true for Syria and Palestine;
especially when shari'a courts in seventeenth- and eighteenth-century Syria
and Palestine enjoyed greater autonomy because of a measure of decentral-
ization in the Ottoman legal system, their records on civil transactions indi-
cate that the institution of marriage was not at all rigidly defined and that
various divorce practices, including khul' (woman-instigated divorce), were
liberally used. 21
The new notion of "family" first appeared in the Arab-Islamic dis-
course on marriage and divorce during the second half of the nineteenth
century. Its initiators were mainly Egyptian reformist and/or nationalist
intellectuals, such as Rifa'a al-Tahtawi (d. 1873),22 Muhammad Abduh
(d. 1905),23 Qgsim Amin (d. 1908),24 and Malak Hifni Nasif (d. 1918),25
who had encountered European culture and adopted Western (French or
British) definitions of family and the family's role in the modern nation-
state. The European model emphasized "family stability" and limited di-
vorce rights, largely on the basis of Christian doctrine, in order to solidifY
citizen relations for the ultimate purpose of state control and planning in
the political and economic realms. 26 While their advocacy for adopting
the Western formula in an Arab context was based on motives ranging
from the desire for religious reform to that of rebuilding the Arab nation
and/or reflected a nascent Egyptian nationalism or feminism,27 these and
many other nineteenth-century voices were important in the processes
that eventually resulted in the promulgation of Egypt's first personal sta-
tus codes in 1920 and 1929.
In the nineteenth century, European pressure for reform by the Ot-
toman state led to the codification of shari'a law and the creation of personal
status codes that established new categories of gender relations, embraced
the new notion of the family, and also largely ended the flexibility of the Ot-

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toman legal system. 28 The Ottoman laws on marriage, divorce, and other
social transactions (muamalat) were codified in 1867-1877 as Majallat
al-Ahkam al-Adliyya (Turkish, Mere/Ie). This Ottoman civil code, put to-
gether by a committee of legal experts, adopted "the preferred" (al-rajih)
among existing Hanafi opinions and practices that were arranged according
to modern categories. 29 In addition, modern European codes, especially the
French and Belgian, left their mark on this and the later Ottoman legisla-
tive efforts of1916 and 1917, when European notions of marriage and fam-
ily were "patched together" with inherited shari'a law provisions derived
from more than one school. After the fall of the Ottoman Empire, most of
the Arab states based their personal status codes on the Ottoman civil code
of186 7-1877 and the Ottoman "Law of Family Rights" of 1917. 30 Because
of its long history of modernization under a nascent nation-state and colo-
nial administration, Egypt was the leading force in the trend toward
Western-oriented legal modernization in the Arab world. While on the
whole privileging the Hanafi schoo1,31 the early Egyptian codes of1920 and
1929 also showed the influence of selected doctrines and opinions of the
other schoo1s.32 Legal reforms in other Arab countries largely followed the
Egyptian model, and the civil codes ofSyria,]ordan, Palestine, and Iraq still
bear similarities to the Egyptian code regardless of national differences in
the dominant madhhab in each country.33 Traditional judges in Egypt as
elsewhere resisted the onset oflegal reform, which they correctly understood
as a harbinger of a gradual decline in their authority. The Azhar-educated
'ulama as a whole contested the validity of the new legal codes by objecting
to the novel methodology of "patching." In Egypt it was at first mainly the
Maliki and Shafi'i 'u1ama who felt threatened since the new legal system
somewhat privileged the Hanafi schooP4 Eventually all Egyptian tradi-
tional judges lost their official authority when the shari'a courts were abol-
ished in 1956, and the traditional jurists were replaced by graduates of
modern law schools teaching both European and shari'a law.

Tahlil Marriage in Arab Personal Status Codes

Arab legal codes largely exclude the issue of tahli1 marriage. Even though
the various national codes are said to rely heavily on one school of fiqh or
another, they commonly ignore the opinion on Tahli1 of the school that

169
BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

they claim as their basis and instead focus on the (novel) principles of per-
manence of marriage contract and family stability.35 In this manner, the
modern law codes have squeezed out the tahlil situation between the now
code-driven definition of marriage as a lasting contract and the prohibi-
tion of any kind of "temporary" marital arrangement. Issues of validity or
invalidity of the tahlil contract, which were the main focus of classical law
finding on this item and usually reflected each school's more general def-
inition of the relationship between action and intention, are now dealt
with by nationally issued fatawa for the recourse of judges and other legal
practitioners.

Egypt
The Egyptian personal status code, recendy amended as Law No.1 of
2000, assumes the permanence of the marriage contract by stipulating that
"the expressions in the contract should indicate permanence. This is re-
quired in view of the fact that the objectives of the contract are to make co-
habitation lawful on a stable basis, to establish family and to produce and
raise children."36 Any contract that would impose conditions on the dura-
tion of the marriage is invalid under Egyptian law. 37 This leaves a gray area
where the old paradigm (validity of tahlil contract) and the new (marriage
permanence) collide and do not seem to mesh. Nevertheless, tahlil mar-
riages still do occur. In such cases, the Egyptian courts as well as the Asso-
ciation of Marriage and Divorce Registrars (Jam'iyyat al-Ma'dhunin
al-Shar'iyyin) are to rely on official fatawa issued by the Dar al-Ifta'
al-Misriyya (The Egyptian Fatwa Bureaucracy), which applies the Hanafi
opinion. The Association of Registrars uses fatwa materials that indicate
that in cases of temporary and tahlil contracts, the registrar should validate
the contract but not the condition of time limitation, if any are spelled
out. 38 In terms of court decisions, Egyptian judges are required to follow
the Hanafi school in validating a written marriage contract of tahlil as long
as it does not include any stipulations on the duration of the marriage; the
judge, therefore, does not take the parties' intent into consideration. 39

Jordan
The notion of family permanence and stability is likewise essential in
the Jordanian personal status code. Based on the 1917 Ottoman Code of

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Family Law,40 Jordan's Law No. 61 of 1976 now stipulates in Article 2

that marriage is "a contract between a man and a woman who is lawful to
him with the objective of the forming of a family and producing chil-
dren."41 To be valid, the marriage contract must be free of any conditions
regarding duration. Article 34(b) states that "marriage shall be irregular in
the following cases: ... mut'a marriage and temporary marriage."42 Arti-
cle 100 specifically mentions tahlil marriage by stating that "absolute ir-
revocability [of divorce] shall be negated by the marriage of the
irrevocably divorced woman who has completed the waiting period to an-
other husband, without the intention of tahlil. This shall be on the condi-
tion that the marriage is consummated, and after she is divorced from the
second husband and has completed the waiting period she shall be lawful
to the first husband."43 It is noteworthy that by categorically denying per-
missibility of "intention" in a manner well beyond the classical Hanafi par-
adigm (on which it is supposedly constructed), the Jordanian law squeezes
tahlil marriage into the accepted rubric of marriage-in-general.

Syria
Like the Egyptian code from which it was essentially copied, Syrian
law considers marriage the pillar of the family and the family the main
building block of society.44 The Syrian family code, Law No. 34 of 1975,
was primarily based on the Hanafi school, but the opinions of other
schools were on occasion included by way of "patching."45 Article No.1 of
this code defines marriage as "a contract between a man and a woman who
is lawfully permitted to him, the aim of which contract is to establish a
bond for shared life and procreation."46 The authoritative Syrian lawyer
Mustafa al-Siba'i (d. 1964) interpreted this article to mean that the mar-
riage contract should be permanent (mu'abbad) and not temporary, in ac-
cordance with the opinion of most scholars (jumhur al-'ulama) that
temporality nullifies the marriage contract and that mut'a marriage is
therefore invalidY More surprising in this context is al-Siba'i's insistence
that in contracts-again, according to the majority of 'ulama
(al-jumhur)-it is the meaning that has to be taken into consideration
rather than the wording (al- 'ibra ji al- 'uqud lil-ma'ani la lil-alfaz); there-
fore, even if the contract of a temporary marriage does not include a stip-
ulation on the duration of the marriage, the "meaning" of the contract tilts

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

toward mut'a marriage, which is forbidden. 48 This legal stance is clearly

based on the Maliki school, even though al-Siba'i offered it in Hanafi
Syria by way of his authoritative interpretation of the Syrian personal sta-
tus code during the 1960s. Articles 47 and 48 of the Syrian code differ-
entiate between two types of marriage contracts: invalid (bali!) and
irregular lfasid). Prime example of the first category is the marriage of a
Muslim woman to a non-Muslim man. The second category includes "any
marriage in which the basic principles (of the contract) are completed, by
offer and acceptance, but in which some conditions are breached."49 The
tahlil contract falls under the second type, fasid. Al-Siba'i affirms that the
two spouses in an irregular marriage should be immediately separated. 50
However, it is still possible to authenticate irregular contracts by canceling
the invalid conditions included; therefore, it is still possible to validate a
tahlil contract by transforming it into a "permanent" marriage contract. 51

Yemen
Before codification of its personal status law in 1992, Yemen had ap-
plied the legal opinions of Zaydi Shi'ism and the (Sunni) Shafi'i school,
mainly according to regional differences in the majority religious profile of
the inhabitants of its provinces. The prominent premodern Yemeni Zaydi
scholar Muhammad ibn Ali al-Shawkani (d. 1839) endorsed the tahlil in-
stitution as a valid instrument for restoring the irrevocably divorced wife
to her former husband on condition that sexual intercourse (sexual plea-
sure, hadith A) occurred during this tahlil marriage; all other considera-
tions, such as whether "intent" to divorce was stipulated in the contract or
merely present in the [second] husband's mind, did not affect validity of
the tahlil marriage contract. 52
The Yemeni Unification Constitution (adopted in May 1991 and
amended in September 1994) in Article 26 stated that "the family is the
basis of society and its pillars are religion, custom and love of home-
land."53 Yemen's personal status code, issued as Law No. 20 of 1992, was
based on "patched" opinions selected from the Zaydi Shi'ite tradition as
well as all Sunni madhahib, that is, quite beyond the Shafi'i. 54 The new
Yemeni code neither raises the issue of "temporary" (mut'a) marriage nor
contains provisions on tahlil; according to Article 6 of Law No. 20 of
1992, "marriage is the joining of two spouses by a lawful pact which

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 TAHUL MARRIAGE

makes the woman lawful to the man, and whose object is the founding of
a family based on the community of husband and wife."55 These defini-
tions of the nature of family in Yemen's most recent foundational texts,
the constitution and the Personal Status Code, clearly privilege the Sunni
over the Zaydi (Shi'i) tradition; they also bear witness that Arab state-
sponsored reforms in the area of family law tend to enforce patriarchal
structures while generating increased state involvement in personal mat-
ters. 56 In addition, given the historical volume and weight of sectarian di-
vergence on the nation's cultural and religious map, Yemen's decisions on
how to deal with, especia11y, such issues as mut'a or tahlil marriages have
special paradigmatic import.
After the codification of the family law in 1992, the Yemeni Ministry
ofJustice approved two prominent books in Islamic fiqh as basic reference
works for the nation's jurists and lawyers. The first, Sharh al-Azhar, writ-
ten by the Zaydi authority Ahmad ibn Yahya al-Murtada (d. 1437), is a
comparative textbook that includes the opinions of all major schools of
fiqh, Shi'a as we11 as Sunna. The author states that any "temporary" mar-
riage is generically a110wed by those who do not forbid mut'a marriage
(the Shi'a), but not the Sunni schools. For the latter, he maintains validity
and legal efficacy of the tah1il contract even if the second husband enters
into it with the intent of divorce, as long as intercourse takes place and the
intention of divorce is not written into the contract as a precondition. 57
The second highly popular reference work is Ahkam al-Ahwal
al-Shakhsiyya by the contemporary Yemeni legal expert of Zaydi back-
ground Muhammad ibn Yahya ibn al-Mutahhar. While this book is also
laid out as a comparative study, the author nevertheless professes to em-
phasize the Zaydi and Shafi'i traditions as the privileged schools. 58 In the
end, he does neither. Reflecting a modern focus on social stability and na-
tional cohesion, Ibn al-Mutahhar places the purpose of marriage we11 be-
yond a11 classical definitions ("lawful fulfillment of the spouses' sexual
desires") into the realm of nation building where each marriage represents
one of the small entities bent on "permanence and stability" of which the
(nation's) greater family is comprised. 59 All marriage contracts that in-
clude a written time clause are invalid; but even when a contract is writ-
ten with the husband's (unstated) "intention" to terminate the marriage at
a later date, the contract is invalid; this position agrees with the Maliki
school rather than the Zaydi or Shafi'i. Ibn al-Mutahhar consequently

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BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

classifies tahlil marriage as a sort of "temporary" marriage and declares

that it is invalid. 60

Morocco
In 1957 and 1958, Moroccan personal status law was codified in six
books that together make up the Mudawwana. The law was based on the
"preferred"/most appropriate Maliki practices and opinions;61 just as in
Egypt and elsewhere, however, French law also had considerable influence
on both the process of codification and the body of the law, the latter es-
pecially as it concerned nature and role of the family in society. Article 1
of book 1 defines marriage as "a legal pact of association and solidarity
which is meant to last. Its objective is chastity, wedlock, and multiplying
the nation through the founding of family, under the patronage of the
husband, on solid ground."62 For the purpose of family stability, modern
Moroccan law has also substantially limited the right to initiate divorce. 63
All temporary marriages were outlawed. 64 But the issue of tahlillingered
on. According to Article 71 of book 2 of the Mudawwana, tahlil marriage
is "required, to restitute an irrevocably divorced wife to her former hus-
band but must be concluded without intent of time limitation, and must
be consummated."65 This clause in the Moroccan civil code clearly derives
from the Maliki school (historically, Morocco's own). By contrast, Article
38 of book 1 of the Mudawwana ("if a condition is attached to the con-
tract which conflicts with its lawful essence or its aims, the condition shall
be void and the contract valid")66 is clearly based on the Hanafi madhhab.
In the Moroccan national code, as in many others, some twentieth-
century "patchings" of discrete elements taken from different premodern
Islamic schools oflegal theory and practice have been meshed with Euro-
pean law. Regardless of whether tahlil contracts in Moroccan law, how-
ever, are now governed by residual legal principles of the Maliki or Hanafi
school, tahlil by any definition belongs in a different universe from the
(nineteenth-century, French-inspired) twentieth-century Moroccan view
of marriage as "chastity, wedlock, and multiplying the nation through the
founding of family, under the patronage of the husband, on solid
ground."67 In Morocco as elsewhere, the French concept of family intro-
duced a "new form of patriarchy" into Arab family law that also came with
increased state involvement in personal matters. 68 Against this modern

174
 li1HLIL MARRIAGE

backdrop, the gray area of tahlil marriage (lying as it does between "ordi-
nary marriage" and "not-so-ordinary marriage") presents an example of
the "bad fit" that can occur when the old paradigm runs into the new.

Contemporary Fatawa and Tahlil Marriage

In its traditional format, a fatwa usually presented the opinion of the legal
school of which the issuer (mzifti) was a member. Some fatawa included
the opinions of all four schools but usually did so by referencing the other
three to the mufti's own, which then acted as the standard. Even if a mufti
did not state which madhhab he followed, his name (and also the gist of
his fatwa) would make identification quite easy. Since fatwas were grave
affairs by being interpretations of the shari'a, their texts frequently in-
cluded citations of madhhab-specific sources. Perhaps the reason for this
"footnoting" was partly to legitimate specific fatwas by way of school con-
sensus, but surely the desire to solidifY the school's paradigm in the gen-
eral realm of "responsa" also played a role.
With the beginning of the processes oflegal reform that eventually led
to the promulgation of national personal status codes in the Arab world,
traditional scholars of shari'a law registered their objections to the reform-
ers' methodology of "mixing" (or "patching") opinions of the four schools
of shari'a law. 69 During and after many decades of large-scale 'ulama dis-
empowerment and marginalization, especially in countries that had abol-
ished shari'a courts by the middle of the twentieth century, legal specialists
of traditional educational backgrounds regrouped to work in the area of
ifta', the granting of fatwas that they presented as expressions of an alter-
native and more authentically Islamic position compared to that of the
modern civil codes. These contemporary fatwas, however, have also been
new creatures. For one, the Sunni mufti himself now (ironically) also
"patches together" the opinions of the four madhahib without stating his
own background or indicating which of his opinions is or was derived from
which school. Second, the contemporary thrust in fatwa issuance has been
toward advocation of the most restrictive stance among the four schools,
perhaps on the basis of equating greater authenticity with greater strictness;
in the present case (the controversial issue of tahlil marriage), this has been
the Hanbali. Third, the Hanafi stance (which presently underlies most

175
BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

Arab-world personal status codes) is consistently downplayed in this fatwa

literature. Finally, the muftis themselves have adopted the "modern" con-
cept of family by calling it al-usra al-muslima (the Muslim family), which
must be protected against Western colonialist or neocolonialist attack; con-
sequently, their fatwas paradigmatic ally resemble the modern national per-
sonal status codes in emphasizing that the Islamic marriage is built on
permanence.
Mahmud Shaltut, rector of al-Azhar University in the late 1950s and
early 1960s who had served as a symbol of Egyptian reformism and legal
modernization, relied on Hanbali sources such as Ibn Taymiyya, Ibn
al-Jawzi, and Ibn ~yyim al-Jawziyya to build a case that deemed tahlil
marriage illegal in twentieth-century Egypt. 70 Forty years later, his present-
day successor as the rector of al-Azhar, Sayyid Tantawi, is publishing sim-
ilar fatwas, likewise based on the Hanbali opinion ofIbn Taymiyya and
others. 71 Such has also been the position of the internationally renowned
Egyptian shari'a jurist and mufti Yusuf al-Qaradawi. The young Yusuf
al-~adawi was a member of the Muslim Brotherhood in Egypt in the
1950s, when he enrolled for study and later graduated from al-Azhar Uni-
versity in Cairo. Mter his move to ~tar in the 1960s, he founded and di-
rected the Faculty of Shari'a at the University of ~tar as well as the ~tar
Center of Sira and Sunna Research. At present he chairs a multi-million-
viewer weekly Al-Jazeera Satellite Channel shari'a law show (aI-Shari 'a
wal-Hayat, "Shari'a and Life"), and he has also been instrumental in the re-
cent creation of the ~tar-based Internet site "Islamonline," which hosts a
database of his and other scholars' fatwas on modern Muslim life questions.
Regarding family matters, the common tenor in al-~radawi's opinions
has been the modernist affirmation that marriage in Islam is based on sta-
bility, that God and his Prophet condemn divorce, and that the husband
should keep the wife even if he hates to do so.
On tahlil, al-~radawi's responsa have been consistently negative. He
considers tahlil marriage a form of adultery in which both (male) partners
are cursed (hadith B); this is because, according to shari'a law, marriages
must be concluded with the intent of permanence. Al-~radawi therefore
frequently urges his petitioners to investigate whether the triple, irrevoca-
ble divorce of the wife by the first husband was, indeed, fully valid, that is,
whether tahlil is truly required in their situation. While adopting the
strictest opinion on the issue of tahlil (the Hanbali), al-~radawi neither

176
 TAHUL MARRIAGE

declares his own madhhab nor quotes the opinions of past or present
scholars of any of the four schools; this represents a reduction of the law
to a single interpretation that is then advanced as equivalent to the law as
a whole.72 Traditional scholars in other Arab countries are taking similar
positions in both the methodology and the substance of their legal opin-
ions. The president of the Ifta' committee at the Islamic University in
Gaza, Yunus Muhyi aI-Din al-Astal, for example, received a question
about a wife who annoyed her second husband so that he would divorce
her, which would enable her to return to her first husband, who had di-
vorced her three times. The mufti replied that the Prophet forbids tahli1
marriage; therefore, this wife committed two sins, one by disobeying her
second husband and the other by agreeing with her first husband to an-
noy the second. 73
In the contemporary fatwa literature, it no longer matters which
school the mufti follows; what matters is the protection of the whole
body of shari'a law by way of comprehensive use of the four legal tradi-
tions. Whether affiliated with the state or in opposition to it, the mod-
ern mufti presents his legal opinions from a self-perceived position of
religious correctness and authenticity. Nevertheless, in the area of family
law, the modern national personal status codes and the modern fatwas
penned by traditionalist muftis have much in common. The main reason
for the resemblance may lie in the fact that the 'ulama, that fatwa-
wielding corps of shari'a specialists, have over many decades adopted (and
modified) the modernist position of twentieth-century Arab state legis-
latures that the family is the cornerstone of society. In this new legal uni-
verse, any internal or external attack on the existing personal status codes
calls forth the defense of traditionalist forces that include the very 'ulama,
who otherwise deem the modern legal codes as Western inspired and
therefore inauthentic.

Notes
1. By contrast, six Hadith experts of the "third and fourth generation" (Mus-
lim ibn Hajjaj, d. 875; al-Bukhari, d. 870; al-Tirmidhi, d. 892?; Abu Da'ud, d. 888;
Ibn Maja, d. 886; and al-Nasa'i, d. 915) came to be recognized in more general
terms as compilers of the six canonical collections of Sound (Sahih) Hadith but not
as founders oflaw schools.

177
BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

2. An earlier version of this section was published by Barbara Freyer

Stowasser under the title "What Goes into a Paradigm? Some Reflections on
Gender-Issue 'Differences' between Sunni Law Schools, and the Problematic of
Their Historical Attribution," Islam and Christian-Muslim Relations 9, no. 3
(1998): 269-83 (on the relationship of early fiqh with the Hadith, see 269-72,
278-81).
3. John L. Esposito, ed., The Oxford Encyclopedia of the Modern Islamic World,
vol. 2 (New York: Oxford University Press, 1995), 10.
4. "That a woman may not return to the husband from whom she was divorced
three times before she has had connection with a second husband" is also exempli-
fied in traditions recorded by al-Bukhari, Muslim, Abu Da'ud, al-Tirmidhi,
al-Nasa'i, Ibn Maja, al-Darimi, Malik ibn Anas, Ibn Sa'd, Ahmad ibn Hanbal, and
al-Tayalisi; see A.]. Wensinck, A Handbook ofEarly Muhammadan Tradition (Lei-
den: E.]. Brill, 1926),56.
5. This hadith is quoted, for example, by Malik ibn Anas, AI-Muwatta of
Imam Malik ibn Anas: The First Formulation of Islamic Law, trans. Aisha
Abdurrahman Bewley (Granada: Madina Press, 1992),212-13, and by al-Shafi'i,
Kitab al-Umm, vol. 5, ed. Muhammad Zuhri al-Najjar (Beirut: Dar al-Ma'rifa,
1973),79-80,248-50.
6. Curse on the practice of tahlil is found in traditions recorded by Abu
Da'ud, al-Tirmidhi, al-Nasa'i, Ibn Maja, al-Darimi, and especially Ibn Hanbal;
see Wensinck, A Handbook ofEarly Muhammadan Tradition, 56.
7. See, for example, Susan A. Spectorsky, Chapters on Marriage and Divorce:
Responses ofIbn Hanbal and Ibn Rawah (Austin: University of Texas Press, 1993),
4. Even in one of the "six books" (of Sahih tradition), the Jami' by al-Tirmidhi,
each tradition quoted is followed by a list of points of difference between the law
schools concerning the tradition.
8. Abd al-Rahman al-Jaziri, Kitab al-Fiqh 'ala al-Madhahib al-Arba'a, vol. 4,
Qism al-Ahwal al-Shakhsiyya (Cairo: Matba'at Dar al-Ma'mun, 1938).
9. Al-Jaziri, Kitab, 77-80.
10. Al-Jaziri, Kitab, 81-82.
11. Reported by Abu Da'ud and Ibn Maja; see Wensinck,A Handbook ofEarly
Muhammadan Tradition, 56.
12. On the concept of a'wamm, see The Encyclopedia of Islam, New Edition
(Leiden: E.]. Brill, 1995), 185.
13. Al-Jaziri, Kitab, 82-84.
14. See Wensinck, A Handbook ofEarly Muhammadan Tradition, 145.
15. Al-Jaziri, Kitab, 84.
16. Interview with Barbara Stowasser in San'aa, December 21, 1997.

178
 TAHUL MARRIAGE

17. See Fazlur Rahman, "Concepts Sunnah, Ijtihad, and Ijma' in the Early Pe-
riod," in Islamic Methodology in History (Karachi: Central Institute ofIslamic Re-
search, 1965), 1-26. Rahman defines ijtihad as "fresh thinking" (149).
18. Such as "rules on women" (ahkam al-nisa'), "rules on marriage" (ahkam
al-nikah), "rules on divorce" (ahkam al-talaq), "rules on breast-feeding" (ahkam
al-rida'), "rules on child custody" (ahkam al-hadana), and so on.
19. Husayn ibn Muhammad al-Mahalli al-Shafi'i, AI-Ifsah 'an :Aqd al-Nikah
'ala al-Madhahib al-Arba'a, ed. Ali Muhammad Mu'awwad and Adil Ahmad Abd
al-Jawwad (Aleppo: Dar al-Qelam aI-Arabi, 1995),24-29.
20. Abdal-Rehim Abdal-Rahman Abdal-Rehim, "The Family and Gender
Laws in Egypt during the Ottoman Period," in Women, the Family, and Divorce
Laws in Islamic History, ed. Amira El Azhari Sonbol (Syracuse, N.Y.: Syracuse
University Press, 1996), 97; Amira El-Azhary Sonbol, Women oJJordan: Islam,
Labor, and the Law (Syracuse, N.Y.: Syracuse University Press, 2003), 34.
21. Judith Tucker, In the House ojthe Law: Gender and Islamic Law in Ottoman
Syria and Palestine (Berkeley: University of California Press, 1998),37-112.
22. Rifa'a Rafi' al-Tahtawi, AI-A 'mal aI-Kamila, vol. 2, ed. Muhammad
Imarah (Beirut: Al-Mu'assasa al-'Arabiyya lil-Dirasat wal-Nashr, 1973),
563-645.
23. Muhammad Abduh, AI-A'mal aI-Kamila, vol. 2, ed. Muhammad Imarah
(Beirut: Al-Mu'assasa al-'Arabiyya lil-Dirasat wal-Nashr, 1972), 116-29.
24. Qesim Amin, Tahrir al-Mar'a wa-I-Mar'a al-Jadida (Cairo: Al-Markaz
al-'Arabi lil-Bahth wal-Nashr, 1984), 110-55.
25. Bahithat al-Badiya,AI-Nisa'iyyat (Cairo: Dar al-Huda lil-Tab' wal-Nashr,
n.d.),55-66.
26. Mary Lyndon Shanley, Feminism, Marriage and the Law in Victorian
England (Princeton, N.J.: Princeton University Press, 1989),3-21; Sayyid Abd
Allah Ali Hasan, Al-Muqaranat al-Tashri'iyya Bayna al-Qawanin al-Wad'iyya
wal-Tashri' al-Islami (Cairo: Dar aI-Salam, 2001),154-55.
27. See Omnia Shakry, "Schooled Mothers and Structured Play: Child Rear-
ing in Turn-of-Century Egypt," in Remaking Women: Feminism and Modernity in
the Middle East, ed. Lila Abu-Lughod (Princeton, N.J.: Princeton University
Press, 1998), 126-70.
28. Amira El Azhary Sonbol, "Law and Gender Violence in Ottoman and
Modern Egypt," in Sonbol, Women, the Family, and Divorce Laws in Islamic His-
tory, 277-80.
29. See Sonbol, Women oJJordan, 20, 36-38.
30. Dawoud Sudqi El Alami and Doreen Hinchcliffe, Islamic Marriage and
Divorce Laws oj the Arab World (London: Kluwer Law International, 1996),

179
BARBARA FREYER STOWASSER AND ZEINAB ABUL-MAGD

36-37; George N. Sfeir, Modernization oJthe Law in Arab States (San Francisco:
Austin and Winfield, 1998),27-28; Sonbo1, Women oJJordan, 36-38.
31. E1 Alami and Hinchcliffe, Islamic Marriage, 51.
32. E1 Alami and Hinchcliffe, Islamic Marriage, 51. See Ron Shaham, Family
and the Courts in Modern Egypt: A Study Based on Decisions by the Shari'a Courts
1900-1955 (Leiden: E.]. Brill, 1997), 11-15.
33. Sonbo1, Women oJJordan, 20.
34. Latifa Salim, Al-Nizam al-Qada'i al-Misri al-Hadith, vol. 2 (Cairo:
Markaz al-Dirasat a1-Siyasiyya wa1-Istratijiyya, 1984-1986),494, 528-30.
35. The Egyptian legal scholar Hasan al-Fakahani, for example, defines
"marriage" (in new Islamic language) as "the pillar of a stable family which
receives its rights and responsibilities by religious sacredness ... marriage is the
first pillar for the family and family is the first unit in building society ... a strong
society consists of strong families" (Hasan al-Fakahani, Mawsu'at al-Qada'
wal-Fiqh lil-Duwal al-:Arabiyya, vol. 3 [Cairo: Al-Dar al-'Arabiyya lil-Mawsu'at
al-Qenuniyya, 1975-1976], 17-19).
36. Dawoud Sudqi E1 Alami, The Marriage Contract in Islamic Law: The
Shari'ah and Personal Status Laws oj Egypt and Morocco (London: Graham and
Trotman, 1992),24.
37. Al-Fakahani, Mawsu'at, 34-36.
38. Muhammad Tahir Kharashi, Ahkam Qada'iyya ji Fiqh al-Ma'dhuniyya
(Cairo:]am'iyyat al-Ma'dhunin al-Shar'iyyin, 1985),49-51.
39. Communication with Egyptian attorney Ali Abul-Magd Ali in Aswan,
February 3, 2003.
40. Sonbo1, Women oJJordan, 20.
41. E1 Alami and Hinchcliffe, Islamic Marriage, 80.
42. E1 Alami and Hinchcliffe, Islamic Marriage, 87-88.
43. E1 Alami and Hinchcliffe, Islamic Marriage, 100.
44. Al-Fakahani, Mawsu'at, 62-63.
45. Al-Fakahani, Mawsu'at, 215.
46. Al-Fakahani, Mawsu'at, 215.
47. Mustafa al-Siba'i, Sharh Qanun al-Ahwal al-Shakhsiyya, vol. 1 (Damascus:
Matba'at] ami'at Dimashq, 1962), 80-81.
48. Al-Siba'i, Sharh Qanun, 88-89.
49. E1 Alami and Hinchcliffe, Islamic Marriage, 223.
50. Al-Siba'i, Sharh Qanun, 200.
51. Najat Qessab Hasan, Qanun al-Ahwal al-Shakhsiyya ma'a al-Ta'dilat
ai-Sadira ji 31/12/1975 (Damascus: Manshurat al-Muwatin wa1-Qenun, 1976),
46-47.

180
 'E1HLIL MARRIAGE

52. Muhammad ibn Ali al-Shawkani, AI-Darari al-Mudiyya: Sharh al-Durar

al-Bahiyya, vol. 1 (Cairo: Maktabat al-Turath al-Islami, 1986),275.
53. www.law.emory.edulIFLIlegallyemen.htm.
54. El Alami and Hinchcliffe, Islamic Marriage, 249.
55. Eugene Cotran, "Women's Rights in Yemen Today," in Yearbook ofIslamic
and Middle Eastern Law, vol. 6 (London: Kluwer Law International, 1999-2000),
83; El Alami and Hinchcliffe, Islamic Marriage, 250.
56. Sonbol, Women ofJordan, 38-39.
57. Ahmad ibn Yahya al-Murtada, Sharh al-Azhar, vol. 2 (San'aa: n, 1980),
238-39,460-61.
58. Muhammad ibn Yahya ibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyya
min Fiqh al-Shari'a al-Islamiyya (Cairo: Dar al-Kutub al-Islamiyya, 1985), 18.
59. Ibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyya, 22-23.
60. Ibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyya, 140-41.
61. El Alami and Hinchcliffe, Islamic Marriage, 197.
62. El Alami, The Marriage Contract in Islamic Law, 11-12.
63. Al-Fakahani, Mawsu'at, 56.
64. Al-Fakahani, Mawsu'at, 88.
65. Al-Fakahani, Mawsu'at, 78-79; el Alami, The Marriage Contract in Islamic
Law,26.
66. El Alami and Hinchcliffe, Islamic Marriage, 205.
67. Article 1 of book 1 of the Mudawwana; see el Alami, The Marriage Con-
tract in Islamic Law, 11-12.
68. Sonbol, Women ofJordan, 38-39.
69. The principle underlying 'ulama objection was phrased in terms of an
interschool consensus on the illegality of "patching": Al-Ta!fiq Batil bil-Ijma'
wa-fihi Ta'addin 'ala al-Shar' wa-Ifsad lil-Ahkam al-Shar'iyya (Latifa Salim,
Al-Nizam al-Qada'i al-Misri al-Hadith, vol. 2 [Cairo: Markaz al-Dirasat
al-Siyasiyya wal-Stratijiyya, 1984-1986],494).
70. Mahmud Shaltut, Al-Fatawa (Cairo: Dar al-Shuruq, 1986), 316-17.
71. See, for example, Al-Liwa' al-Islami, July 25,2002.
72. Yusuf al-Qeradawi, Hadi ai-Islam: Fatawa Mu'asira (Cairo: Dar Maq
al-Ghad, 1991), 462-63 (www.islamonline.netlfatwalarabiciFatwaDisplay.asp
?hFatwaID=1413).
73. www.islamonline.netifatwaiarabicIFatwaDisplay.asp?hFatwaID=18600.

181
 CHAPTER SEVEN
EGYPTIAN FEMINISM:
TRAPPED IN THE IDENTITY DEBATE
Lama Abu-Odeh

T
his chapter argues that if we wish to account for the limited gains
in reform of family law in Egypt throughout the twentieth cen-
tury, it is crucial for us to relate the debate on family law with an-
other debate, the one revolving around the identity of the Egyptian legal
system. Whereas the debate on reforming family law forced decisions on
gender and the family, the debate on identity centered around the on-
going and agonized struggle by Egyptians to define the nature of their
country's contemporary cultural identity. The "character" of Egypt's law
was one of the more important ways in which the question of identity was
posed, and contenders in this debate had to stake a position on the ques-
tion, Should law in Egypt be reconstructed to reacquire its lost Islamic
identity, or should it remain European/secular? That the debate on the na-
ture of Egypt's cultural identity would hinge on law, l specifically the ques-
tion of the origin of the law, is due to the fact that the transplantation of
the (secular) European civil law system into Egypt, over the course of a
century and a half, had the effect of displacing Egypt's historic (religious)
legal system based on Islamic law. The only exception to this phenome-
non of transplantation was family law (though it was formally codified in
a Western legal fashion), the substantive rules of which preserved their Is-
lamic origins. This had the effect of rendering the Egyptian legal system
into a secular system for the most part with the exception of family law,
understood to be derived from religious law. This historic process of the
displacement of the local (the Islamic) by the outsider (the European) in
the field of law came to symbolize, in a condensed form, the process of a

183
LAMA ABU-ODEH

more generalized form of cultural "displacement" that Egypt2 experienced

with the rise of European modernity and colonial advancement.
Specifically, I argue here that mainstream Egyptian feminists' attempt
to reform family law (incorporating such concepts as consent, autonomy,
and formal equality between the genders) was to a large degree undercut
by the constraints created by the debate on the identity of the legal sys-
tem. Liberal feminism was consistently compromised so that the relative
autonomy of religious law manifest in family law could be preserved, and
so, equally important, the secular nature of the rest of the legal system
could also be preserved. This position, in which liberal feminism was com-
promised to create an intricately balanced secular/religious space in the le-
gal system, was forced on the feminists by the allies they had sought to
help pass certain microreforms in family law throughout the twentieth
century. Those allies included the liberal enlightened 'ulama (religious
scholars) of Egypt and the secular nationalist elites controlling the legis-
lature and the judiciary. The adversary of this alliance was the conserva-
tive 'ulama and the religious right.
I conclude by arguing that there are signs of a new alliance emerging
in the attempt to avoid the trap of the previously mentioned compromise.
Instead of sacrificing liberal feminism for the sake of preserving a secular
legal space, the new alliance argues for a full-fledged liberal feminism, one
that is located in Islamic text(s), in conjunction with an agenda ofIslam-
icizing the rest of the legal system (albeit in a liberal fashion). This emer-
gent alliance consists of a new strand within Egyptian feminism as well as
a group of liberal modernizing Islamicizing male elites. In the new al-
liance, secularism is sacrificed for liberal feminism.
The first section of this chapter, "Gender and Identity: The Family
Drama," lays out a map of the competing positions on the debates of gen-
der and identity of the legal system. I hope to communicate to the reader
the level of ideological complexity and degree of entanglement that exists
between the two debates. The second section, "Egyptian Feminism:
Trapped in the Identity Debate," shows the specific ways in which Egypt-
ian feminists, debaters in family law reform, find themselves trapped in
and hostage to the way the debate on identity has been pitched in Egypt.
The third section, ''An Unholy Alliance?," lays out the terms of the com-
promise on the question of women that the entanglement between the
two debates has produced and the nature of the alliance involved in this

184
 EGYPTIAN FEMINISM

compromise. The fourth section, "The New Alliance," begins by offering

a description of an emergent alliance that advocates liberal reform in fam-
ily law in Egypt but that also advocates the Islamicization of the rest of
the legal system. The goal of this new alliance in pitching its reform
agenda in this combined manner is to avoid being undercut by the debate
on identity, as has historically happened in Egypt. I conclude this chapter
by providing my critique of this new alliance.

Gender and Identity:The Family Drama

I begin by providing a map of the contenders in the twin debates taking
place over the past one hundred years of Egypt's history: the one on gen-
der and the other on the identity of the Egyptian legal system. These de-
bates have occupied Egyptian elites and intelligentsia for the past hundred
years or so, dividing them into several social and political forces. Main-
stream Egyptian feminism is one of those various social forces, and its
destiny has been intricately related to the way these struggles have un-
folded.
On the issue of gender, the questions requiring responses are, What
kind of gendered relationship in the family should law regulate, and
should the law conceive of men and women as equal meaning the same,
equal but different, or unequal because different? On the issue of identity,
the question is, Should the ruling laws in Egypt be Islamically derived, or
is secular, European-derived legislation (as is the case in most of the post-
colonial Islamic world) acceptable in a country like Egypt that identifies
itself as Muslim?
Since the contemporary legal system in Egypt is a European trans-
plant, the answer to the second question seems to be conceptually related
to the following subquestion, namely, How should we conceive of the re-
lationship of the West to the Muslim East? Is it one of (fundamental) dif-
ference, incorporation (of the West), or resistance (to the power of the
West)?
It is important to note that each of these questions (concerning gender
and identity) divides the participants along a political spectrum ofleft, cen-
ter, and right. One may occupy a certain political position on one issue and
a diametrically opposite one on the other. For instance, to be a centrist on

185
LAMA ABU-ODEH

the question of family legal reform by no means implies that you are a cen-
trist on the question of the identity of the legal system as well.

Mapping the Siblings

On the question of reform of family law, one may describe the con-
tenders as divided in the following manner:
1. The rightist position is that transactional reciprocity in the family
is the ideal. The normative position that rightists advocate on the question
of the family can be reduced essentially to the "maxim" of what I call
"transactional reciprocity": husbands maintain, and wives obey. This
maxim has its origins in medieval Islamic jurisprudence, and it had been
passed on to the various family codes in the Islamic world in different for-
mulations. These formulations vary in their more specific content along a
political spectrum of liberal to conservative depending on how the specific
code defines the duty of obedience on the part of the wife (the less "obe-
dience" it involves, the more liberal the code) and the duty of maintenance
on the part of the husband (the more financial obligations it involves, the
more liberal the code). The 'ulama and the conservative religious intelli-
gentsia in Egypt typically hold this position and advocate an understand-
ing of the maxim that is more conservative than liberal:

[There is] a difference between women's freedom and women's libera-

tion. Islam gives women many rights, and more freedom and respect.
But it does not recognize the wave of liberation, which some ladies are
calling for. Islam protects the Muslim woman who is decent and who re-
spects her home, her husband and children. Islam does not give rights to
the woman who rebels and who is nashiz [one who leaves her husband's
house and refuses to return]. 3

Also included in this category is "Islamist feminism," the strand of

feminism that seems to uphold transactional reciprocity (husbands main-
tain, and wives obey) as the basis of healthy gender relations, provided that
men pursue both their powers over women and their responsibilities to-
ward them conscientiously and according to God's commands. The dan-
ger according to this strand lies not in the formal inequality structure
implicit in this arrangement, as liberal mainstream Egyptian feminism
claims, but both in the abuse by men of these religiously based powers and

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responsibilities and also and equally important by women trying to "cross

over" to the men's world to assume powers and responsibilities that are
rightly men's:

In the opinion of Islamist feminists, women are oppressed precisely be-

cause they try to be "equal" to men and are therefore being placed in un-
natural settings and unfair situations, which denigrate them and take
away their integrity and dignity as women. For example, women are
"forced" to go out and compete in the labor market-a task which means
that women may come into contact with men (as in public transport, for
example) in a humiliating and inappropriate way.4

2. The centrist position on the question of family law reform is di-

vided into two subpositions adopted by two different social/political forces
in Egypt. The first advocates were splitting the difference between the de-
mands of the religious right (discussed previously) and those of main-
stream feminists demanding equality. The national secular male elites of
Egypt have historically pursued this strategy both in legislation and in ad-
judication. The Supreme Constitutional Court of Egypt in particular is
committed to this strategy. Examples of such "splitting" in the decisions of
the Court include narrowly restricting polygamy (rather than abolishing
it), banning the veil while affirming modesty, restricting no-fault divorce
by men rather than giving an equal right to women, and so on. s The sec-
ond is promoted by liberal feminism based on adopting a particular
arrangement oflegal concepts (equality, autonomy, and consent) that are
unique to liberal feminism as such feminism is understood in the West.
Egyptian feminism over the past seventy years or so has been committed
to this discursive structure. 6
3. The leftist position is liberal feminism. As far as I can tell, there is
no "radical feminism" in Egypt (understood as a radical critique of the
tenets of "equality," "consent," and "autonomy" implicit in liberal femi-
nism). There is, however, a feminism if the left. It is a liberal feminism
that relies heavily on the secular discourse of "rights" both as constitution
based and as derived from the UN Charter on Human Rights.
Secular feminists firmly believe in grounding their discourse outside
the realm of any religions, whether Muslim or Christian, and placing
them instead within international human rights discourse. They do not

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LAMA ABU-ODEH

"waste their time" attempting to harmonize religious discourses with the

concept and declarations pertinent to human rights. To them, religion is
respected as a private matter for each individual, but it is totally rejected
as a basis from which to formulate any agenda on women's emancipation. 7
In this sense, the leftist and the centrist positions on the question of
gender are indistinguishable. Sometimes what distinguishes the liberal
feminism of the left from that of the center is the insistence by leftist
women that women's struggle is inseparable from other struggles in soci-
ety. The New Women Research Center, an organization in Egypt estab-
lished in 1984, describes its mission in the following way: "The Center
seeks to articulate an Arab and feminist vision of the social causes in gen-
eral and of women's causes in particular."g
The closest to a "radical feminism" I have been able to identify in
Egypt is the position of the famous feminist Nawal Saadawi. I describe
her as a radical feminist because she posits the thesis that sexual oppres-
sion of women is at the heart of Arab patriarchy (symbolized by the cul-
tural obsession with women's virginity): ''Arab society still considers that
the fine membrane which covers the aperture of the external genital or-
gans is the most cherished and most important part of a girl's body, and is
much more valuable than one of her eyes, or an arm, or a lower limb."9
Saadawi has been more daring than anyone else in promoting an agenda
of sexual liberation in the Arab world. She shares with other forces of the
left the idea that women's oppression functions and could only be ad-
dressed in conjunction with other forms of oppression.
That is why I firmly believe that the reasons for the lower status of
women in our societies and the lack of opportunities for progress afforded
to them are not due to Islam but rather to certain economic and political
forces, namely, those of foreign imperialism operating mainly from the
outside and of the reactionary classes operating from the inside. These two
forces cooperate closely and are making a concerted attempt to misinter-
pret religion and to utilize it as an instrument of fear, oppression, and ex-
ploitation. 1o However, when it comes to actual positions on reform of
family law, Saadawi adopts feminist views that are typical of the center
(liberal feminism).l1
On the question of the identity of the legal system in Egypt as a whole
(that is, "should it be Islamic or not?"),12 the positions have also varied be-
tween the rightists, the centrists, and the leftists. For the rightists, all laws

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should be Islamic. They argue that Islamic law is different from Western
law. The upholders of this position contend that the adoption, historically,
by the Egyptian political elites of the Western legal system has alienated
the Muslims of Egypt from their authentic traditions based on Islamic
law. According to them, what is secular about the legal system today
should be reconstructed and reconceived to become Islamic.
Even the nonreligious (Muslims) can appreciate the need for laws that
reflect the convictions of the people and engage their support. Islamic ju-
risprudence (fiqh) is one of the greatest achievements of Islamic civiliza-
tion, and many believe that Muslims may retain it and still find their own
way in the modern world. They can adopt from the West what is useful,
but not at the cost of their cultural identity.13
This view, which has been adopted by the 'ulama and the conservative
religious intelligentsia,14 holds that there is a radical cultural difference be-
tween the Muslim "East" and the non-Muslim "West." For example, the
West is Christian (while we are Muslim), it is materialist (while we are
spiritual), its family has disintegrated and its sexual prohibitions have col-
lapsed (while our family is tight and our women have honor), and so on.
The rightist position has produced a variety of stances and subposi-
tions on the question of identity according to the preferred methodology
of reconstruction of Islamic law. For some, Islamic law should be ideally
based on the historic system of Taqlid law, injected now and then with the
use of Usul al-Fiqh to come up with new rules whenever the need arises.
Taqlid law is a reference to the legal doctrine that was produced by Mus-
lims in the premodern era and during the reign of the various Islamic
caliphates. Taqlid, meaning "conformism" in Arabic, is a reference to the
historic legal era, spanning from the tenth century to the nineteenth cen-
tury, during which Muslim jurists and judges were understood to have
abandoned the religiolegal project of coming up with new rules oflaw di-
rectly inspired by the sources of the religion (ijtihad, that is, exerting one's
effort to find out God's law on a particular matter). Rather than pursuing
the project oflegal innovation, the jurists/judges of the taqlid era concen-
trated their legal activity on consolidating the legal doctrine of the school
of law to which they affiliated. Taqlid, one might say, is the era during
which the doctrines of the various schools displaced and overshadowed
the C21rr'an and prophetic traditions as the sources of the law. One fol-
lowed ("conformed to") the doctrine of one's school rather than attempt a

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LAMA ABU-ODEH

fresh reading of the word of God to come up with new rule. 1s Usul al-fiqh,
on the other hand, is a reference to the legal era of usul al-fiqh, meaning
the "sources of jurisprudence," the title given to the "legal theory" first in-
novated by the famous Muslim jurist Shafi'i in the ninth century.16 The
era of usul was one in which the schools of law started to innovate rules
inspired directly by the sources of the religion, that is, the <21Ir'an and Ha-
dithY
The specific proposed reconstructive methodology ofIslamic law that
I refer to here advocates respect for the doctrine of taqlid as an expression
of Islamic civilization while allowing for microchanges in taqlid law
through the return by Muslim jurists to the original sources of the religion
whenever the need for change in the law is pressing. This methodology
mimics or is nostalgic for the legal era that preceded westernization of the
legal system in Egypt. This position has been historically adopted by the
'ulama of Egypt's oldest center of religious learning, al-Azhar.
The second method proposed by the culturalist right advocates re-
constructing Islamic law through the use first of a legal realist critique of
usul that would "deconstruct" qiyas (analogy), the principal source of law
(after the text of the <21Ir'an and Hadith), as "incoherent" and that would
then proceed to reconstruct Islamic law through the use of the category of
maslaha (public good or welfare) as the alternative privileged source of the
law. Rashid Rida, the disciple of Mohammad Abduh, is known to have
advocated this position. Rida looked to the concept of maslaha as a source
of law. Because the <21Ir'an and the Sunnah (the words and deeds of the
Prophet Mohammad, as recorded in the Hadith, or reports), two primary
sources of Islamic law, have fallen short of providing all the answers to
problems related to civil transactions (as opposed to those questions re-
lated to worship and belief), it is necessary to consider worldly interests
(masalih dunyawiyya) to deal with such problems. In addition, Abduh ad-
vocated the methodology of supra-madhhab. This particular method con-
sisted of adopting rules from the doctrinal pools of the various Islamic
schools of law (madhhab) through a pick-and-choose legislative activity.
It is a supra-madhhab method oflegislation in the sense that the legislature
is understood to be without loyalty to a specific schooVmadhhab (as was
the case in the premodern era of Islamic history) but is approaching the
task with a sense of "floating" loyalty to all the schools, picking the most

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 EGYPTIAN FEMINISM

"eligible" rule wherever it may be found (thereby expressing a modern leg-

islative sensibility).18
The third method proposed by the cultural right argues that Islamic
law should be reconstructed through a realist analysis of the medieval
taqlid law (as opposed to usul, as the methodology explicated earlier pro-
poses), which is then treated as the "raw material" to be reconceived
against the grain of the main religious sources of the Qyr' an and the
prophetic tradition. According to this methodology, the modern scholar
approaches medieval taqlid law trying to find "various rational explana-
tions for [its] rules,"19 only to discover that whereas there was a "number
of intelligible principles that do appear to animate the law,"20 in fact none
of these principles seems to "explain all results."21 The modern scholar is
then forced to concede that, "as in many areas of law in any legal system,
outcomes do not follow from any single policy, but from many which, by
competition and cooperation, seem to give law its final shape."22 This re-
alization should then "liberate" the modern scholar and allow her to come
up with new doctrines that combine the medieval with a new reading of
the original sources.
The fourth method proposed by the cultural right argues that Islamic
law should be reconstructed through a reinterpretation of the Qyr'an and
Hadith that attempts to "strike a balance between authoritativeness and
authoritarianism." Khaled Abou El-Fadl, the advocate of this position, ar-
gues that

[because] religion, as doctrine and belief, must rely on human agency for
its mundane existence, one runs the risk that those human agents will ei-
ther render it entirely subjectively determined, or render it rigid and in-
flexible. In either case one risks that the Divine will be made subservient
to human comprehension and human will. [What needs to be explored
is] the inevitable negotiation that must occur between the author, text,
and the reader.23

Another attempt has been promoted by the Lebanese American Aziza

al-Hibri. This proposed method of reconstruction is based on a feminist
agenda. The proponents of this method argue that Islamic law should be first
reconstructed through a critique of the medieval taqlid law as patriarchal

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LAMA ABU-ODEH

(premodern Muslim jurists who interpreted the sources of the religion were
all really sexist) and then reconceived afresh on the basis of new interpreta-
tions of the Qyr'an and prophetic traditions on gender. This position specif-
ically argues that a serious reading of these sources reveals that God and his
prophet have always really supported a vision of gendered equality. Thus, Az-
iza al-Hibri advocates the idea that traditional jurists, who believed in the pa-
triarchal model, actively worked to make this model a universal reality by
passing conservative laws that were highly restrictive and harmful for
women. Relying on prevailing stereotypes about gender roles, they used their
legal power to assert the automatic qiwamah (guardianship over women) of
all men. According to al-Hibri, this defeated both the intention of Qur'anic
verses that sought to limit the scope of qiwamah as well as the Equality Prin-
ciple laid out in various verses of the Qur'an. Al-Hibri argues that "thought-
ful Muslims should no longer accept that interpretation; and Muslim women
must rediscover the truth of the Qyr'anic Equality Principle in order to
achieve liberation and freedom without guilt."To achieve this goal, Muslim
women must formulate a strategy for change that includes a dramatic in-
crease in the number of women seeking legal and religious education.24
I include Azizah al-Hibri in my typology although she is not Egypt-
ian because al-Hibri sees herself as involved in the project of reform of
Muslim family law in the Arab world, including Egypt. There are several
echoes to her project in Egypt, but she seems to be one of the most artic-
ulate on this brand of Islamic reconstruction. It is noteworthy that her
project places her easily in the camp of "liberal feminism," as the thrust of
her reconstructive argument seems to be "to do away" through reinterpre-
tation with all those Islamic textual references to formal inequality be-
tween the genders and to argue that formal equality, with its implicit
advocacy of choice, consent, and autonomy for women, is the defining
message of the Qyr'an on men and women.
The centrist position on the question of the identity of the legal sys-
tem as a whole is based on the implicit advocacy of legal hybridity. This
position argues that the contemporary identity of Egypt is hybrid, em-
bracing not only Islam but other sources of identity as well, such as Arab-
ness (conceived in modern times as a form of nationalist identity that
covers the Arabic-speaking world) and Egyptianness (conceived in mod-
ern times as a form of local nationalist identity peculiar to the Egyptians
themselves). The dominating concern of those who hold this position

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 EGYPTIAN FEMINISM

seems to be "modernity" rather than "authenticity," and if the concern for

the former has driven modern Egyptian elites to transplant Western law
in Egypt in order to modernize the legal system, so be it. According to the
contenders of this position, modern strategies of legal reform by local
elites should be treated as sources of modern identity that are at par with
the medieval Islamic law. The reconstructive methodology this position
supports includes the possibility of combining rules derived from Western
law with those derived from the historic legal system of Muslim taqlid
law, an approach that they do not regard as jeopardizing the identity of an
"authentic cultural self" as those of the right tend to think. 25
The advocates of this position seem to me to be wrought with deep
ambivalence on the question of the relationship between the Muslim
"East" and the non-Muslim "West." The West is both good and bad. It is
a source of identification but also injury. It is good because it is the site of
liberal humanism and legal liberalism, more specifically democracy and
human rights. It is bad because it is biased in relation to Islam and is guilty
of hostile and arrogant misrepresentation thereof; moreover, it does not
appear to appreciate the "greatness" of the Muslim Orient and its civiliza-
tion. 26
Instances of the centrist position on the question of identity include
the historic compromise struck between the secular nationalist male elites
of Egypt and the religious 'ulama based on Islamicizing family law and
Europeanizing the rest of the legal system is an instance of this centrist
position. Describing the historic process during which this compromise
was struck, Daniel Crecelius notes that the modern leaders of Egypt
found it impossible to impose reform on the 'ulama and therefore created
"entirely new institutions to duplicate the functions of the religious ones
still under the control of the conservatives."27 For instance, secular laws
were passed to coexist with shari'a law, and the number of secular courts
was increased. It was through this slow process of indirect change and
subversion that the system was slowly changed. Over the course of the
nineteenth century, these new secular institutions "gradually expanded
their functions at the expense of traditional institutions until the scope of
the Sharia was reduced to personal status law ... and the kuttab-madrasa
(religious schools) system had fallen to a secondary status behind the sec-
ular system of primary, secondary and university schools developed by the
state and the non-Muslim minorities."28

193
LAMA ABU-ODEH

Abd El-Razzak Sanhuri's reconstructive methodology,29 with its re-

liance on comparative law and various mediation strategies, also injects the
Western-transplanted law with taqlid law. For instance, the committee
charged with drafting the first Civil Code in postcolonial Egypt, which
was presided over by Sanhuri himself, considered for inspiration not only
the experience of the Egyptian judiciary since the changes of the nine-
teenth century, as well as modern codes in place in other civi1law coun-
tries (of Europe), but also Islamic law, or shari'a. 3o
A third example is the test developed by the Supreme Constitutional
Court of Egypt in its exercise of judicial review. This could also be seen as
exemplifYing this hybridity position. This test was developed by the Court
in order to determine the Islamicity of various pieces of contemporary leg-
islation on the request of (religious) litigants who demanded that the
Court strike down certain laws as un-Islamic and therefore in violation of
Article 2 of the constitution. 31 The Court's test asserted that legislation
that went "against the grain" of what the determinate rules included in the
Qyr'an and the Hadith would be treated as unconstitutional (because un-
Islamic); however, when there was no evidence that such determinate rules
were being violated by the modern legislation, such legislation would be
deemed constitutional even if its origins were secular or European. 32 In
other words, the Court's test seeks to preserve the contemporary hybrid
quality of the Egyptian legal system.
The leftist position on the question of the identity of the legal sys-
tem is not entirely clear. In general, the leftist position seems to be
based on the background political idea that the problem with the West
is not really its difference but its power. The West is colonialist, impe-
rialist, orientalist, disciplinary, and patriarchaP3 What puzzles, how-
ever, is that while the left tends to treat the historic event of the
introduction of the Western legal system into Egypt as an instance of
power (either in the mode of the exercise of Western power over the
Muslim East, in the adoption by local Eastern elites of Western styles
of power and discipline through law and regulation, or in the form of
collaboration between Western power and local patriarchy), the left,
nevertheless, does not seem to have a position on the question of the
identity of the legal system that could be understood as analytically re-
lated to its "power" theory.

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 EGYPTIAN FEMINISM

An emerging strand in Middle East historiography located in Amer-

ican academia would, to my mind, represent an instance of the leftist po-
sition on this issue. In describing the attempt to pass European-style
criminal codes in Egypt in the early part of the nineteenth century, Khaled
Fahmi used the Foucauldian concepts of discipline and power to describe
this new form of legality. He argued that the goal of the move from the
"rituals" of public punishment to the "routines" of a criminal legal code
was to represent the Pasha (ruler) in his absence, using the law as a pow-
erful symbol of his wishes and desires. According to Fahmi,

By defining offenses, fixing scales of punishments, identifYing who in

the bureaucratic-legal hierarchy is to execute the punishment, the legal
code instills in the minds of people the feeling of the inevitability of
punishment and its link to the crime being performed. Laws, civilian or
military, owing to their abstract codification of crimes and their corre-
sponding punishments, and to their association of the possible benefits
of crime with the greater disadvantages of punishment, function as an
effective deterrent to crime, and thus as a powerful means to impose disci-
pline. 34 (emphasis added)

The new historiography on women in the Islamic world with its view
that the codified reforms in family law carried out by the secular nation-
alist elites of the post-Ottoman era amounted to a form of state patriarchy
that these elites needed to enact as part of their alliance with European
imperial powers, combined with these historians' assertion that women in
the Ottoman era did indeed enjoy quite a bit of freedom, choice, and au-
tonomy if only the researcher looked hard enough, seems to me to be an
instance of this leftist position of "the West is power."
E1 Azhary Sonbo1 is an example of those promoting such a stance.
She argues that as modern nation-states in the Islamic world began to
make and arbitrate laws, their legal jurisdiction was extended to include
discourse on social issues. States thus become a major determinant of pa-
triarchal relations, which were molded along the lines of the discourse of
the ruling elites. E1 Azhary Sonbo1 refers to this phenomenon as "state pa-
triarchy," which differed from early forms of patriarchy in that instead of
the head of the family arbitrating power, as dictated by 'uif(tradition), the

195
LAMA ABU-ODEH

state became the "creator" of culture in addition to the drafter oflaws that
were enforced by a central government. E1 Azhary Sonbo1 further argues
that the new states and rulers, as the direct or indirect creations and allies
of imperial European powers, could not depend on traditional legitimacy
alone to defend their hegemonic rule. Thus, they led attempts at modern-
ization that included the education of women as well as their integration
into the workforce. These modernizing efforts did not, however, involve a
change in prevailing cultural norms that defined gender roles. 35
Because of the left's tendency to represent the modern/European as
bad (colonial, disciplinary), it seems open to and willing to accommodate
cultural reconstructive projects of Islamic law proposed by the right.

Egyptian Feminism:Trapped in the Identity Debate

When debating reform of family law throughout the twentieth century,
mainstream Egyptian feminist activists have often had to contend with
the fact that, quickly and without much ado, the discussion on the reform
always turned into an argument with their adversaries about Islamic law.
More often than not, the interlocutor adversary, resistant to the feminist
reform, hurled back in the direction of those feminists a Qyr'anic verse or
a prophetic tradition that feminist reformist goals were un-Islamic. 36 Nat-
urally, some of the feminists involved in the debate found themselves
drawn into the hermeneutic path as a response: reinterpret the verse and
the tradition to show that the reformist project was religiously based. 37
Adding to that the argument that most rules on the family were actually
conjured up in the past by jurists living in and influenced by a patriarchal
medieval culture often proved useful. 38 Other feminists, those of more
secular leaning, resorted to arguments of social science hoping that the re-
ligious adversary would be impressed by numbers and statistics about bro-
ken marriages and impoverished children of divorce. 39 The interlocutor's
argument, challenging the Is1amicity of the feminists' reforms, was a nor-
mative success, effectively locking the feminists into a discussion about
"Islam" as well as locking them out of a discussion on patriarchy.
The normative power of the adversary should not be underestimated.
Not only was it often experienced by those feminists as silencing, but,
more important, it seems to have historically succeeded in inhibiting the

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development of an elaborate cultural critique of the institution of patri-

archy in the family forcing mainstream Egyptian feminists to be content
with microlegal reforms that can pass the "Islamic" muster. As a result,
much of the Egyptian feminists' critique of family law throughout the
twentieth century could in retrospect be characterized as moderate: most
feminists did not challenge the notion of the family predicated on the dis-
tribution of what some scholars call complementary rights and responsi-
bilities to women and men (that is, transactional reciprocity). In essence,
they seem to have accepted the notion of different gender roles in the fam-
ily while insisting on equality in difference, adhering thereby to the main-
stream cultural view that women's and men's family roles and relations
were ordained by religion. Indeed, much of their attention was focused on
the abuse by Muslim men of what is recognized, according to the tradi-
tional interpretations of Islam by the scholars and jurists of al-Azhar, as
their lawfol rights and responsibilities. 4o In this respect, the difference be-
tween the position adopted by those mainstream Egyptian feminists on
the question of gender roles within the family and that of what I have de-
scribed in this chapter as "Islamist feminism" is that for the former the ad-
vocacy of "equality in difference" seems to be tactical and nonideological,
whereas for the latter "equality in difference" represents the normative
ideal that expresses the proper structure of gender relations. It is for this
reason that mainstream feminists have always engaged in and supported
their tactical agenda of reform advocacy with an elaborate discourse on
liberal feminism.
While its normative power is undeniable, there is nevertheless some-
thing odd about the Islamic argument in that it is taking place against the
background of an Egyptian legal system that has undergone, over the past
130 years, a serious and radical rupture from its Islamic legal past.
Throughout this period, the political elites of Egypt have for various po-
litical reasons progressively dismantled the Islamic legal system: they abol-
ished its rule structure, dismantled its courts, and disenfranchised both its
qadis Gudges) and its 'ulama. 41 No longer was the Egyptian state, though
identifYing itself constitutionally as Islamic, organized around the idea
that it derives its legitimacy from overseeing the application of God's law
(the shari'a), as had been the case in the Islamic world for centuries be-
fore. Indeed, everywhere in the contemporary Egyptian legal system, ap-
plied laws have European origins, courts are secular, and judges are trained

197
LAMA ABU-ODEH

in secular law schools and appointed by the centralized powers of the state
to interpret and implement laws in ways familiar to European civilian
lawyers. 42 Long gone are the days when the Islamic rulers were dependent
on the 'ulama for legitimacy.43
Moreover, the claim of the un-Islamicity of these feminists' demands
was, typically, nearly and convenienrly packaged by the same religious ad-
versary with another equally powerful claim, namely, that feminists were
agents of the West. The frequency and consistency of this twin package of
critique suggests that the two charges are often experienced by the propo-
nents of the critique, as implicit in each other. 44 Mainstream feminists
may be charged with advocacy of Western culture, of sexual promiscuity
that is uniquely Western, or of a Western style of feminist male hating, or
they may be charged with an intent to destroy the Muslim family just as
happened in the West, a blindness to the actual difference of the religious
East from the materialist West, or, paradoxically, an attempt to impose the
norms of the Christian West on those of the Muslim East.
Even more complexly, many Egyptian feminists, since the birth of the
Egyptian feminist movement in the early part of the twentieth century
until the present, invariably found themselves engaged in the project of
defending Islam against its Western detractors. As the position of women
in Islam has been the privileged site of interrogation and critique for both
the anti-Islamic West and the reformist local feminists agitating for re-
form of family law, the latter have from time to time found themselves in
"bed" with what they experienced as unattractive bedfellows. 45 Western
detractors of Islam often appeared to these feminists to be in "bad faith"
in their critique, using such critique to assert cultural superiority and to ra-
tionalize projects of unwanted intervention in the Islamic world. 46
Finally, legal concepts like equality, autonomy, and consent have his-
torically performed such a crucial role in the discourse of mainstream
Egyptian feminism in its response to patriarchy as to make it strongly
reminiscent of American feminism of the nineteenth century as the latter
struggled against the Blackstonian patriarchal legal regimeY Egyptian
feminists have historically identified a number oflegal institutions as both
premodern and bastions of male power that as such were the focus of their
political activism. These institutions included marriage of minors, no-fault
divorce for men, polygamy, the doctrine of obedience, improving the fi-
nancial well-being of divorced women, increasing the age of custody, and

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 EGYPTIAN FEMINISM

so on. Liberal feminism, as such feminism is known in the West, remains

to this day the most powerful ideological engine that informs and shapes
the nature of Egyptian feminist demands for reform of family laW. 48
Islam, the West, and patriarchy represent the defining ends of the tri-
angle within which Egyptian feminism finds itself trapped today. Toward
each, it has developed a response. In relation to the first (Islam), it is mod-
ernizing (when its interlocutor is a religious adversary). In relation to the
second (the West), it is an apologist (when its interlocutor is Western). In
relation to the third (patriarchy), it is liberal.
In fact, on a closer look, liberal feminism seems not only to inform the
response to patriarchy but also the response of modernization and apol-
ogy. The modernizing ofIslam, combined with apologizing for Islam, per
the arguments, relies strongly on the notion that a true reading ofIslamic
texts, a liberal feminist Islam is to be discovered.

An Unholy Alliance?
Historically, mainstream Egyptian feminism has had to rely on its allies
(mainly the national secular male elites and some modernizing 'ulama)49
to wage its struggles for family law reform against those opposing such re-
forms (the conservative ulema).50 According to my typology of positions
in the first section of this chapter, the feminists' allies were those (mostly
men) who adopted the centrist position both on the question of identity
and on the question of gender. Their adversaries, on the other hand, were
those (also mostly men) who adopted a combination of a rightist position
on the question of identity and an equally rightist position on the ques-
tion of gender.
But mainstream Egyptian feminism has also had to suffer repeated de-
feats because of its allies' compromising legal and judicial position. The
centrist secular male elites of Egypt control the legislature and the courts
and have consistently pursued the strategy of splitting the difference be-
tween the demands of mainstream feminism and that of the rightist con-
servative ulema. 51 An example of such a splitting would be for the
mainstream Egyptian feminists to demand that polygamy be abolished on
the one hand, while the conservative 'ulama argue that polygamy is a God-
given right. The secular courts then intervene by positing that polygamy,

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though a God-given right, is nevertheless one that is of a restricted nature.

Polygamy per se is not harmful to women, although women are allowed to
prove in court that in certain instances polygamy was indeed harmful to
them. It is then up to the court to determine whether, in this particular in-
stance, this was in fact the case. The compromise was neither abolishing
polygamy nor treating it as an absolute right but rather simply recognizing
that it is a right to be exercised by men, albeit in a restricted manner.
Splitting the difference on the substantive level, however, was not the
only compromising strategy that the feminists' centrist secular allies have
pursued. As a matter of fact, this strategy came at the heels of yet another
historic compromise that these same secular elites struck with the reli-
gious rightist 'ulama. In this case, the nature of the Egyptian legal system
itself was split, its very identity bifurcated: most Egyptian laws in place
were of European origin (understood to be secular), displacing the historic
Islamic legal system, with the exception of family law. The rules of the lat-
ter were derived from Islamic medieval jurisprudence (understood to be
religious).
It is in fact due to this compromising strategy of double splitting, I
would argue-first of the substantive doctrine on the family and then of
the identity of the legal system as a whole-that mainstream Egyptian
feminism came to be squeezed or, rather, trapped in this unyielding trian-
gle of Islam, the West, and patriarchy. The strategy of splitting the differ-
ence on the doctrinal level perpetuated these feminists' longing for liberal
feminism: complete, uncompromised, un split, and unadulterated equality,
autonomy, and consent.
In the meantime, the splitting of the identity of the legal system ex-
posed these mainstream feminists to the relentless attacks by the religious
'ulama every time they called for reform; as such, reforms were experienced
by these 'ulama as pushing that which was religious to become secular/Eu-
ropean. For these 'ulama, the historic compromise of splitting the identity
of the legal system was being destabilized by the feminists' calls for reform.

The New Alliance

Historically, while Egyptian feminism advocated liberal feminism as a re-
sponse to the particular taqlid-based organization of the family, it had to

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 EGYPTIAN FEMINISM

rely on its alliance with the secular male elites controlling the state to pro-
mote its agenda. However, because of those elites' pursuit of the strategy
of splitting the difference, liberal feminism has been a continuously frus-
trated project. It is for this reason perhaps that no internal critique oflib-
eral feminism seems to have been developed in Egypt. Concepts such as
equality, autonomy, and consent still have, seventy years or so after their
initial inception, such normative power for these feminists that they are
marshaled repeatedly, as if they had determinate and clear content.
The search for an alliance that will free liberal feminism from the
compromises imposed on it by the secular allies has brought certain main-
stream Egyptian feminists to consider a shift in strategy. The coming to-
gether of historians writing a new historiography on Muslim women in
area studies, mainstream Egyptian feminists, and those advocating the
project of cultural identity in the Islamic world at a conference titled "The
Islamic Marriage Contract"S2 may very well represent this shift.
A perusal of the literature presented at this conferences3 indicates that
liberal feminism has now become the call to arms of certain strands of the
religious intelligentsia who are rightist on the question of identity (advo-
cating the radical difference ofIslam from the West and the project ofIs-
lamicizing law), thereby strongly distinguishing themselves from the
conservative religious right, with whom they share the rightist agenda on
the question of identity. Contrary to the latter, these religious culturalists
see themselves as centrist (liberal) on the question of gender. For the most
part, they seem to be pursuing projects of reconstruction ofIslamic law to
arrive at a liberal feminist account of the law on the family.
What is attractive about these new modernizing religious culturalists
is that their advocacy of liberal feminism comes as part of a larger pack-
age of Islamicizing the legal system. Many of these factions are involved
in the reconstruction ofIslamic law as an alternative to the contemporary
secular legal system that is in place in Egypt today. Therefore, they seem
to be offering mainstream Egyptian feminists an attractive deal: no need
for splitting the difference, the price that the secular centrist male allies
extracted from the feminists. These modernizing reconstructivists of Is-
lamic law carry the stamp oflegitimacy in the eyes of the conservative re-
ligious right (the conservative 'ulama) because of their antisecular
culturalist project. Such a position would seem to spare them having to
pursue an agenda of splitting the difference in the manner pursued by the

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centrist secularists, the historic allies of mainstream Egyptian feminism.

Therefore, they may very well be better situated to push the agenda oflib-
eral feminism so dearly desired by Egyptian feminist activists. Certain fac-
tions of Egyptian feminism may now decide that it is far more profitable
and effective for them to enter into an alliance with a liberal feminist, cul-
turalist rightist, religious intelligentsia that is on the rise.
The shift may be represented in the following manner: in the old alliance
with the secular centrist male elites controlling the legislative and the judici-
ary, liberal feminism had to be sacrificed through splitting so that a secular
legislative space could be preserved. The conservative 'ulama, having been de-
prived of their historical domain of taqlid law and forced to be content with
family law as the remaining area of jurisdiction, experienced every reform of
family law as an attack on a God-given right. Incremental reform that pre-
served transactional reciprocity on the family but attempted to eliminate its
most brutal institutions seemed to be the only possible path to follow.
In the new alliance, the feminists' allies promote an Islamicizing proj-
ect and present themselves as hostile to secular legislation. Splitting as a
compromise/sacrifice of liberal feminism does not, therefore, seem neces-
sary. As long as it comes garbed with Islamic legal discourse, the new allies
promise it should be fine. The new feminists, in order to achieve the goals
of liberal feminism, seem to be willing to sacrifice secular legislative space.

Critique of the New Alliance

Implicit in the new alliance is a twofold danger for mainstream
Egyptian feminists. First, the sacrifice of secular space in exchange for lib-
eral feminism may be problematic. Women need secularism in the long
run. Any reforms that are pitched as God-ordained, even though they are
liberal feminist reforms, may prove hard to critique after a while. As we
have learned from the modern history of feminism in the Islamic world,
anything accepted as God-ordained is resistant to change. Were the liberal
feminists to achieve their agenda, thereby facing public criticism for short-
comings of their program (as happened in the American feminist move-
ment), the restrictive nature of their position could become problematic.
Second, liberal feminist reforms in the context of Islamic family law
have been interpreted by their advocates as requiring a major trade-off for
women: instead of the current transactional reciprocity in the family (hus-

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bands maintain and wives obey) as incorporated in contemporary Islamic

family codes, the liberal feminist argues that women should be released
from the duty of obedience in exchange for taking on the legal duty of
participating equally with the husband in the maintenance of the family.
Through such reform, the liberal feminist argues, women would begin to
achieve formal equality with men in the family. In other words, women
earn equality by participation in the workforce.
Tunisian family law presents an opportunity to exemplifY this situa-
tion. The incorporation of liberal feminist demands in the Tunisian Per-
sonal Status Majallah of 1956 represents for many Egyptian feminists
(and many other feminists in the Islamic world) the ideal that needs to be
pursued. However, there is a serious danger implicit in the liberal feminist
trade-off adopted by the Tunisian Majallah.
In 1993, the Tunisians amended Article 23 of their Personal Status
Majallah of 1956. The amendment seems like a radical departure from
its predecessor, a serious liberalizing move on the part of the Tunisian
legislature. What it signals is an elaborate effort to abolish the legal
command of obedience typical of the taqlid legal system, a desire for
equality between the spouses.The earlier version of Article 23 reads as
follows:

The husband has to treat his wife well and avoid inflicting any harm on
her. He also has to maintain her and the children according to his
ability and her social status in all things included under his duty of
maintenance.
The wife may contribute to the family's maintenance if she has any
money.
The wife must care for the husband as the head of the family and obey
him in all those matters that are considered his rights as such.
The wife carries out her spousal duties according to custom.

The amended version of Article 23 reads as follows:

No spouse should inflict any harm on the other and each spouse must
treat the other well.
Both spouses should carry out their spousal duties according to custom.
Both spouses cooperate in conducting the affairs of the family and in
raising the children well. They also cooperate in managing the

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LAMA ABU-ODEH

affairs of the children including their education, travel, and financial

affairs.
The husband, as head of the family, has to maintain the wife and chil-
dren according to his ability and their social status in all things in-
cluded under his duty of maintenance.
The wife must contribute to the family's maintenance if she has money.

The particular social/legal transaction required of Muslim women

who want to be part of a legal regime based on the formal equality oflib-
eral feminism, one that uses terms in its dicta such as "no spouse" or "both
spouses," is clear. Participate in maintaining the family if you no longer
want to obey the husband. 54 If your desire is to be equal to your husband,
your money will no longer be immune from his demands and those of the
children. This seems to be the way Tunisians have conceived of the legal
pathway to equality for women, when such equality is conceived of as re-
quiring an intervention in the taqlid legal conception of the family. The
Tunisian path to liberal feminism, by exposing women's purses to family
demands in exchange for equality, typifies the way liberal feminism has
come to be articulated as demand and goal not only by Egyptian feminists
but also by most Arab feminists demanding reform of their local Muslim
laws. 55
The political strategy adopted by these feminists is hostage to and ac-
cepts uncritically the transactional logic explicit in the contemporary cod-
ified legal regulation of the relationship between the spouses, itself the
legacy of the taqlid legal system. According to this transactional logic, the
wife owes her husband obedience by virtue of his offer to her of wifely
maintenance. Take one, and the other must go.
Proposing this particular form of trade-off as the liberal feminist re-
sponse to transactional reciprocity looks on its face to be ignoring a very
important social and economic fact in the Islamic world. Women in fact
"earn" their maintenance in a way that is not recognized by the particular
transactional legal formulation of Islamic jurisprudence (obedience for
maintenance). Women do housework, and in the vast majority of cases,
women undertake the arduous task of child care unaided by their spouses.
Submitting to the logic of the taqlid transaction in one's political strategy
to reform it, in this manner, risks reinforcing the invisibility of this fact. It

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 EGYPTIAN FEMINISM

is a formalist way of reforming that, if pursued, not only threatens to give

little gain to women but also exposes them to loss of their property and
earnings. It is unfortunate that the Tunisian formulation in its amended
form still insists that spouses have to do their spousal duties according to
custom. While exposing their money to the family's maintenance needs in
exchange for no-obedience, the law still requires them to carry out their
"spousal duty according to custom," which, let us make clear, for women
means doing housework and taking care of children.
This interpretation is hard to avoid if one keeps in mind that the
waged employment rate for women in the Arab world is no more than, in
the best of cases, 12 percent of the population. 56 Most women are simply
housewives or work as peasants, who also in this economy are expected to
do housework.
The social critique of the household division of labor between the
spouses does not seem to exist in a powerful way anywhere in the Islamic
world. This is not the case even among the elite or the intelligentsia. There
is no escaping the fact, it seems, that it is women who will be doing house-
work in Tunisia and that even under the amended law they will not be
compensated for it.
Substantive equality (as opposed to formal equality) should be the
self-conscious goal of feminist reform in the Islamic world. Substantive
equality in this sense would be preoccupied with improving the daily bar-
gaining power of women vis-a.-vis their spouses rather than be invested in
simply granting women the same powers and responsibilities understood
as the sole path to equality. It may very well be that sometimes the "same-
ness" of powers and responsibilities is indeed the way to improve women's
bargaining position. But this is not necessarily the case, and it is a position
that has to be interrogated by the feminists'interlocutors in a manner that
resists the magic and temptations of the discourse of sameness as equality.
One of the possible formulations to be pursued in legal reform and that
seeks to achieve substantive equality between the spouses would have to
be that men maintain and women do not obey. A way of getting away
with such a formulation may be by preserving the legal transactional logic
of "maintenance for obedience" but proceeding to define the obligation of
maintenance in a way that expands such an obligation on the part of the
husband. Such an expansive definition would seek to incorporate the idea

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LAMA ABU-ODEH

that men are compensating women for house labor. In the same manner,
the reform would redefine the duty of obedience on the part of the wife
in a way that severely limits the requirements of "obedience" so as to ren-
der the concept practically meaningless. Of course, other rules would also
have to change to allow this approach of substantive equality to be effec-
tive, particularly those regulating inheritance as well as those regulating
divorce and its financial consequences for women.

Notes
1. As was/is the case with the rest of the Islamic world.
2. As was/is the case with the rest of the Islamic world.
3. Nadia Hijab, Womanpower: The Arab Debate on Women at Work (Cam-
bridge: Cambridge University Press, 1988),33.
4. Azza Karam, Women, Islamisms, and the State (New York: St. Martin's Press,
1998),10.
5. Lama Abu-Odeh, "Modernizing Muslim Family Law: The Case of
Egypt," unpublished manuscript.
6. See Margot Badran, Feminists, Islam, and Nation: Gender and the Making of
Modern Egypt (Princeton, N.J.: Princeton University Press, 1995), 124-64.
7. What I call "the liberal feminism of the left," which is both self-consciously
secular but also espouses an agenda of women's rights that is reminiscent of the lib-
eral feminism of the center, Azza Karam calls "secular feminism"; see Karam,
Women, Islamisms, and the State, 13.
8. See cover of the new journal issued by the New Woman Research Center
titled Feminism and Identity, January 2002.
9. Nawal El Saadawi, The Hidden Face of Eve, trans. and ed. Sherif Hetata
(London: Zed Press, 1980), 26.
10. El Saadawi, The Hidden Face ofEve, 41.
11. "Many verses of the Qu-an refer to the fact that all people are equal before
Allah, and that he created males and females so that there could be mercy and love
between them. 'He it is who created out of you couples, so that you may live together,
and have mercy and love for one another' (Sura 30:21). This verse is interpreted as
bestowing upon a woman the right to choose her husband, and to be separated from
him if she no longer wishes to live with him, since love, mercy and cohabitation pre-
suppose free choice rather than compulsion. On the basis of this verse Muhammad
gave women the right to choose their husbands, as well as the right to be separated

206
 EGYPTIAN FEMINISM

from them. However, women were stripped of these rights at a later stage through
the statutes and laws promulgated on the basis of so-called Islamic jurisprudence."
The Nawal El Saadawi Reader (London: New York: Zed Books, 1997), 82.
12. As opposed to the current bifurcation in the system today between Islamic
rules on the family and secular rules on almost everything else.
13. See Frank Vogel, Islamic Law and Finance: Religion, Risk, and Return
(Boston: Kluwer Law International, 1998),20.
14. For an account of who in contemporary Egypt occupy this position, see
Tamir Moustafa, "Conflict and Cooperation between the State and Religious In-
stitutions in Contemporary Egypt," Internationaljournal ofMiddle East Studies 32
(2001): 3-22.
15. Sherman A. Jackson, Islamic Law and the State: The Constitutional Ju-
risprudence ofShihab ai-Din al-Qarafi (Leiden: E.]. Brill, 1996),69-184.
16. Shafi'i's theory was a powerful intervention in the legal culture of the time,
so much so that the era spanning the seventh to the tenth century came to be
named after the title of his theory.
17. See Majid Khadduri, Islamic Jurisprudence: Al-Shafii's Risala (Baltimore:
Johns Hopkins University Press, 1961); N. J. Coulson, A History of Islamic Law
(Edinburgh: Edinburgh University Press, 1971), 61; and Joseph Schacht, An In-
troduction to Islamic Law (Oxford: Clarendon Press, 1964),57-68.
18. See Norman Anderson, Law Reform in the Muslim World (London:
Athlone Press, 1976),35-85. For an elaborate discussion of Abduh's methodol-
ogy, see Biography ofMohammadAbduh, by Muhammad 'Imarah (in Arabic).
19. See, in general, Frank Vogel, Islamic Law and Finance, 19-69.
20. Vogel, Islamic Law and Finance, 78.
21. Vogel, Islamic Law and Finance, 78.
22. Vogel, Islamic Law and Finance, 78.
23. Khaled Abou El-Fadl, And God Knows the Soldiers (Lanham, Md.: Uni-
versity Press of America, 2001), 34.
24. Aziza al-Hibri, "Islam, Law and Custom: Redefining Muslim Women's
Rights," American University Journal of International Law and Policy 12, no. 1
(1997): 34.
25. Enid Hill, "Islamic Law as a Source for the Development of a Compara-
tive Jurisprudence," in Islamic Law: Social and Historical Contexts, ed. Aziz
Al-Azmeh (London: Routledge, 1988).
26. Hill, "Islamic Law."
27. See Daniel Crecelius, "The Course of Secularization in Modern Egypt,"
in Religion and Political Modernization, ed. Donald E. Smith (New Haven,
Conn.: Yale University Press, 1974), 79.

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LAMA ABU-ODEH

28. Crecelius, "The Course of Secularization in Modern Egypt," 79.

29. Abd EI-Razzak Sanhuri was the drafter of the Egyptian Civil Code of
1949.
30. Hill, "Islamic Law."
31. Article 2 of the Egyptian constitution was amended to read "Islamic law
is the primary source of legislation" in Egypt.
32. The Court's test proceeds like this: First, the Court searches for determi-
nate rules in the Qyr'an and sometimes in the prophetic traditions that might al-
Iowa reading of the legislation under its purview to be in violation thereo£ The
Court often finds that no such rules exist. It then proceeds to assert that what-
ever rules do in fact exist are jurist made and themselves the subject of contro-
versy among the various medieval schools of jurisprudence. This being the case,
the Court then takes one of two alternative steps. Either the Court asserts the
right of the legislative to legislate outside the domain of the determinate rules
taking public welfare into account, or the Court reads into the various determi-
nate but ambiguous rules a general principle that the legislation does not neces-
sarily violate and declares it constitutional as a result. The overall apparent
looseness of this test expresses, to my mind, the Court's commitment to the
preservation of the secular legislative domain as it exists today and to its desire to
deliver it from the encroaching reach of the interpretive arm of God's law. See
"Modernizing Family Law: The Case of Egypt" (unpublished manuscript with
author). For another view of the Court's test, see Clark Benner Lombardi, "Is-
lamic Law as a Source of Constitutional Law in Egypt: The Constitutionaliza-
tion of the Sharia in a Modern Arab State," Columbia Journal of Transnational
Law 81 (1998): 99-100.
33. Leila Ahmed, Women and Gender in Islam (New Haven, Conn.: Yale Uni-
versity Press, 1992), 151.
34. Khaled Fahmi, All the Pasha's Men (New York: Cambridge University
Press, 1997), 133-34.
35. El Azhary Sonbol, Women, the Family, and Divorce Laws in Islamic History
(Syracuse, N.Y.: Syracuse University Press, 1996), 8-9.
36. An example of the verses of the Qyr'an that figure prominently in debates
surrounding family law is Sura AI Nisa 34 (figures in discussions on the doctrine
of "wife's obedience"): "Men shall take full care of women with the bounties
which God has bestowed more abundantly on the former than on the latter, and
with what they may spend out of their possessions. And the righteous women are
the truly devout ones, who guard the intimacy which God has [ordained to be]
guarded. And as for those women whose ill-will you have reason to fear, admon-
ish them [first]; then leave them alone in bed; then beat them; and if thereupon

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 EGYPTIAN FEMINISM

they pay you heed, do not seek to harm them. Behold, God is indeed most high,
great." The Message of the Quran, translated and explained by Muhammad Asad
(Gibraltar: Dar al-Andalus, 1984). For an account of the arguments and counter-
arguments that are typically used in debating reform of family law in Egypt, along
with the various religious textual references that both sides of the debate have his-
torically used, see Badran, Feminists, Islam, and Nation, 124-64.
37. An example of such reinterpretation would be to consistently insist, as the
Tunisians have historically asserted and reflected in their own legal system, that
the <2!lr'anic verse permitting polygamy (up to four wives) has also made this
practice conditional on doing justice to these wives, such justice, according to the
reinterpretation of the verse, being impossible to achieve: Sura Al Nisa 3: "And if
you have reason to fear that you might not act equitably towards orphans, then
marry from among [other] women such as are lawful to you-[even] two, or
three, or four: but ifyou have reason to fiar that you might not be able to treat them
with equalfairness, then [only} on~or [from among] those whom you rightfully
possess. This will make it more likely that you will not deviate from the right
course. See Asad, The Message of the Quran.
38. For an example of both "moves"-the reinterpretive one and the cultural
one-see al-Hibri, "Islam, Law and Custom," 1-44. Although al-Hibri is a Mus-
lim American, her argumentative tropes are familiar and have historically been
used by Egyptian feminists as fully illustrated in Badran, Feminists, Islam, and Na-
tion.
39. Badran, Feminists, Islam, and Nation, 131; Ghada Hashem Talhami, The
Mobilization ofMuslim Women in Egypt (Gainsville: University Press of Florida,
1996),113.
40. Badran, Feminists, Islam, and Nation, 125. Limiting feminist critique to the
idea that men simply "abused" their religiously ordained rights and responsibili-
ties seems to me to be by definition a limited attempt at critiquing patriarchy. The
fact that those rights were understood on a mass level as "religiously" ordained
made the possibility of an elaborate critique difficult, if not altogether impossible.
This, I would argue, remains the case today.
41. For a full account of the transformation in the nature/identity of the legal
system in Egypt, see Herbert ]. Liebesny, The Law of the Near and Middle East
(Albany: State University of New York Press, 1975),258-67.
42. See Farhat J. Ziadeh, Lawyers, the Rule of Law and Liberalism in Modern
Egypt (Stanford, Cali£: Hoover Institution on War, Revolution, and Peace, 1968),
99-147.
43. For an account of the process of the disenfranchisement of the 'ulama in
Egypt, see, in general, Crecelius, "The Course of Secularization in Modern Egypt."

209
LAMA ABU-ODEH

44. This twin charge of un-Islamicity and West identification often propped
these feminists up into a reactive position of both assertion and dissociation. Yes,
they are Muslim, and, God forbid no, they are neither male hating nor West iden-
tified. They are modernizing Muslims proposing a real and authentic reading of
the original Islamic religious texts and critics of the legal rules inherited from the
medieval patriarchal culture of the Muslim jurists. Talhami, Mobilization, 115.
45. Badran, Feminists, Islam, and Nation, 25.
46. See Leila Ahmed, Women and Gender in Islam, 149, 151-52. While the
Ahmed text refers to European colonialism as the discourse that combines "con-
cern" for Muslim women and advocacy of intervention via colonialism, see "Is It
Possible to Produce a Film on Female Circumcision That Is Engaging while Be-
ing Neither Condescending nor Sensationalist? Mariz Tadros Views the Latest
Release" (http://web1.ahram.org.eg/weekly/1999/428/feat3.htm [accessed May
25, 2000], which provides an account of how Egyptians today think of inter-
national human rights movement as the new discourse that combines "concern"
for women and advocacy of intervention.
47. The majority of American feminists of the nineteenth century insisted that
all legal and social institutions that reinforced the power of men over women and
privileged the former over the latter should be removed, even as they for the most
part believed that women and men had different roles to play in the family context.
Their liberal feminism resides in their insistence on the removal of the hurdles of
formal inequality. See James Cooper and Sheila McIsaac, The Roots ofAmerican
Feminist Thought (Boston: Allyn and Bacon, 1973). For a historical account of the
American liberal feminism of the nineteenth century, see Reva B. Siegel, "Home as
Work," Yale Law Journal 103 (1994): 1073-217. See also Reva B. Siegel, "The
Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings,
1860-1930," Georgetown Law Journal 82 (1994): 2127-211.
48. See Badran, Feminists, Islam, and Nation, 127-35. Implicit in the previ-
ously described activist agenda is faith in the triple liberal concepts of equality
(women should be able to divorce too), consent (there should be a minimum age
for marriage to ensure women's consent as adults), and autonomy (the doctrine of
obedience should be abolished).
49. The most prominent example of such enlightened 'ulama would be
Muhammad Abduh, who was one of the proponents of the reform of family law
in Egypt.
50. For the latest of such political "rounds," see the debate on legislating Khul'
(no-fault divorce for women) in Egypt, in Al-Ahram Weekry, January 13-19, 2000;
February 3-9, 2000; March 1-7,2000; April 25-31, 2000; June 22-28, 2000.
51. See my "Modernizing Muslim Family Law: The Case of Egypt" (unpub-
lished manuscript with the author) for a list of compromises adopted by the (sec-

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 EGYPTIAN FEMINISM

ular) Supreme Constitutional Court in Egypt on the question of women. The

current 1985 law amending 1923 and 1929 laws on the family is itself a compro-
mise on Jihan's law of 1979, after the Court had struck down the latter as uncon-
stitutional.
52. The conference was sponsored by the Islamic Legal Studies Program at
Harvard Law School in January 1999.
53. See the Islamic Legal Studies Program of Harvard Law School's news-
letter, January 29-31,1999.
54. Ahmad 'Abd Allah, aI-Way al-Qanuni lil-Mar'ah al-Misriyyah (Cairo, It-
tihad al-'Arab, Amideast), 13.
55. El-Dinn, "The Status of Egyptian Women in Personal Status Law," 113.
56. For a more detailed account of Arab women's participation in the labor mar-
ket, see the report by the International Labor Organization on gender equality in
the Arab region at www.ilo.org/publidenglishlbureaulgenderlbeijing5/contribul
briefing/arab.htm.

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LAMA ABU-ODEH

212
 CHAPTER EIGHT
MUSLIM WOMEN AND LEGAL REFORM:
THE CASE OF JORDAN AND WOMEN'S WORK
Amira EI-Azhary Sonbol

T
his chapter focuses on the legal constraints faced by Jordanian
women in their efforts to enter the job market or to open their
own businesses. It is based on a larger research project on women
and work in Jordan. 1 While the intended focus of that project was Jor-
danian labor laws, it became clear that these laws were determined to a
great extent by gender and family relations and Jordanian personal status
laws supporting these relations. The penal codes of modern Jordan also
proved to be central to this research because they lie at the heart of gen-
der relations and the philosophy toward women's actions in both the pri-
vate and the public spheres, which ultimately determine the activities of
women and the extent to which they feel controlled by their families and
society.
A 1980 study concluded that because of the strong connection be-
tween the higher rates of literacy among women and their participation in
the economy, a greater emphasis on education for Arab women was es-
sential for their participation in economic development. 2 At the same
time, the study pointed to social attitudes toward Arab women as an im-
portant determinant in increasing their pursuit of higher education and
their participation in politics, business, or other professions. 3 It also noted
that it is often social attitudes that pose the greatest obstacles and chal-
lenges to the participation of women in the economy.
Given the high literacy rate (79.4 percent) among Jordanian women
(as compared to others from Arab states in the region), the conclusion of
the 1980 study regarding social attitudes seems highly appropriate. The

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AMlRA EL-AZHARY SONBOL

Kingdom of Jordan has been in the forefront regarding women's educa-

tion, taking major steps to extend equal access to education for men and
women at both the high school and the university level. Yet this high lit-
eracy rate and focus on equal education has not produced a significant in-
crease in women's participation in Jordan's economy or to any significant
success in their political participation. Thus, even though the participation
of women in the labor force in Jordan has grown significandy during the
past decade from 7.7 percent in 1979 to estimates of up to 16 percent in
1994,4 other Arab women are far ahead of Jordanian women with regard
to participation in the economy and careers even though their literacy
rates are lower. This is reflected in statistics regarding the wages Jordan-
ian women receive in manufacturing when compared to the wages re-
ceived by men. Figures from the United Nations show that Jordanian
women received 58 percent of the wages received by men in manufactur-
ing in the period from 1995 to 2001, demonstrating an insignificant in-
crease of no more than 1 percent from 1990 figures despite the efforts
exerted by the government to improve literacy rates and education among
women. This compares very poorly with Egyptian statistics, which show
that between 1995 and 2001, there was a significant increase in women's
wages, from 68 percent in 1990 to 75 percent of those of men. s
On the political front, unlike the women in Kuwait, who failed in
their efforts to gain the right to run for office, Jordanian women have this
right and have won elections. Three women sat in the seventy-five-
member National Consultative Council from 1978 to 1984 and four from
1980 to 1982. In 1989, twelve women ran unsuccessfully for elective of-
fice, but in 1993, Tujan Faisal managed to become a member of the Lower
House, an occasion met with great optimism for women's future partici-
pation in Jordanian and other Arab countries' politics. Jordanian women
also ran successfully in elections to municipal councils, nine women win-
ning such seats in 1995, with one elected mayor. In 1999, eight women
were elected to municipal seats. The government was active in pushing the
women's political agenda, assigning them to cabinet posts, particularly
that of minister of social development, a post generally assigned to women
in other Arab countries who want to appear as promoting gender equal-
ity. Jordan went beyond that by appointing women to head the Ministry
ofInformation in 1984, the Ministry of Trade and Industry in 1993 and
1994, and the Ministry of Planning in 1996. In 1999, Jordan was the first

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nation in the Arab world to appoint a woman as deputy prime minister.

The optimism regarding women's participation in politics, however, soon
died down under the impact of severe conservative pressure and opposi-
tion, so that while the Upper House of Parliament has had two appointed
women members over time, the seventeen women who ran for public of-
fice in 1997 all failed in their bid for a seat to the Lower House. The in-
timidations experienced by women leaders like Tujan Faisal from
conservative elements dampened women's enthusiasm to run for office
and the general optimistic expectations for future participation by Jordan's
women in their country's politics and economy.6 Both tribalism and con-
servatism have been faulted for the failure of women in elections. Since
women are not economically independent and accept the power of a male
provider, they tend not to question the political decisions of their family
or tribe. They generally vote for the nominee of the tribe rather than for
another woman.? An example is Samiha al-Tal, who ran for a parliamen-
tary seat in Irbid and was boycotted by her tribe in favor of their own male
nominee. Without her tribe's support, she had no chance ofwinning. 8
At the same time, Jordanian women have made great strides in com-
parison to other Arab women. Perhaps the most impressive accomplish-
ment is the assignment of women to the judiciary since May 1996. At
present, the number of women judges is growing; however, none have
been assigned to become members of the shari'a court. Furthermore, UN
statistics report that by 1977, Jordanian women constituted 6 percent of
top government positions, compared with 2 percent for the Arab World
and 7 percent for the world average. The contradictions facing Jordanian
women can be attributed to several factors, among them the efforts ex-
erted by the monarchy to expand opportunities for women in the admin-
istration as well as address income disparities that exist in Jordan. Middle-
and upper-middle-class women have greater potential to retain jobs and
to run businesses, while poorer women struggle to hold on to employment
and continue to receive treatment and salaries unequal to their male coun-
terparts.
At the same time, in the past couple of years there has been significant
success in changing Jordanian personal status laws, although those changes
were extended selectively and in a limited way. A proposed new personal
status law was stalled in parliamentary committees for many years while
protracted debates and discussions took place inside the parliament and

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among various civil groups. It took a royal initiative enacted while the par-
liament was not in session and acting through a human rights committee to
introduce any reforms in personal status laws. The laws are important in ad-
dressing some of the serious problems facing Jordanian women, including
their previous inability to divorce without their husband's agreement and
without going through shiqaq and niza' ("discord and conflict"; family dis-
pute court or irreconcilable differences court) court procedures that are ex-
pensive and time consuming and that usually end with the wife rescinding
all her financial rights. The new laws give women the right to khul' (divorce
at the insistence of a wife, repudiation of husband) without a husband's
agreement. Jordan's khul' laws grant a woman divorce within one month,
going beyond Egypt's precedent-making khul' laws enacted in 2000, which
call for a three-month waiting period before divorce is granted. 9 The new
Jordanian laws also restricted judges' ability to grant leniency in honor
crimes. IO It remains to be seen whether these laws will stand the test of time.
After a careful assessment of the connections between Jordanian soci-
ety, education, and law, it appears that without a palpable transformation
in social attitudes, accompanied by reform of Jordan's various legal codes
impacting gender, the investment in women's education or other forms of
development will have but little success. Tribalism and social conservatism
continue to dominate Jordanian culture, and this translates into male con-
trol of women through the family or the larger clan. It is therefore not sur-
prising that most lower-class women who start their own small businesses
are either older, married women with children, widows, or single mothers
who use their income to supplement the family's finances or save for a
rainy day. Some are the daughters of these women and are therefore oper-
ating within an accepted family structure. The principle evidenced is that
a woman should work only when her family is in need of her income. The
Jordanian Islamic scholar Ibrahim al-Qisi propagates the widely accepted
view among the fuqaha' that a woman's place is in the home raising her
children. ll She should work only if her family needs her income and only
in conditions acceptable to Islam:

A Muslim woman should prefer to bear children and raise them, and
watch out for her family's needs rather than work outside the home.
However, there is nothing against her going out to work if there is a need
as when there is no one to support her, but on condition that her work

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 MUSLIM WOMEN AND LEGAL REFORM

be according to conditions laid down by Islam, i.e. that this work be al-
lowable by the shari 'a, that said work does not take her away from her
husband or children and that it not be in a situation where she would
work with men. 12

The C2!tr'anic verse (Sura 33:33) that reads "wa-qarna.fi buyutikunnd" is

usually quoted to support the notion that female participation in public
enterprise, in office jobs, or in any position that requires interaction with
men is unacceptable, and it continues to be frowned on by both men and
women of the working classes. 13
Jordan's constitution gives women equal rights and opportunities for
employment, as is clearly stipulated in the constitution's14 declarations
that "Work is the right of all citizens (al- 'amal haqq Ii kull al-muwatinin)"
and "Jobs are based on capability ('ala asas al-kafa'at wal-mu'ahhilat)." Per-
sonal status laws, however, contradicted the constitution directly by mak-
ing it possible for a wife to take a job only if her husband approved of it.
(''A woman has the right to work with her husband's approva1.") The per-
sonal status laws draw on the historical social context of the Arab family,
where the power of a husband or father over his wife and daughters is ab-
solute. Feminist appeals to change these laws, combined with pressure
brought on the courts by the proliferation of divorce cases in which hus-
bands attempted to deny their financial duty to their wives based on her
employment status rights, caused amendments to be made to the law.
The amendments also addressed the ongoing debate on nafoqa, the
remuneration a wife expects to receive from her husband as part of the
marriage contract. Continued application of nafaqa has come under criti-
cism by those who see this as unfair to the men who support their wives
and children while the wife is allowed to keep the money she has earned
even though, practically speaking, the wife's money is almost always inte-
grated into the household expenses. Therefore amendments to the per-
sonal status law made it possible for a wife to get a job without her
husband's approval. In return, though, the husband is no longer responsi-
ble for financially supporting his wife. Given the fact that salaries received
by women are generally insufficient to support oneself, the amendments
have provided another form of social censure against a wife who works
without her husband's permission. The husband's superior position over
his wife is thereby undiminished.

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AMlRA EL-AZHARY SONBOL

As would be expected, judges in court have vacillated when it comes

to the question of a woman's right to work without her husband's permis-
sion. In 1998, a Jordanian judge found that "the work of a wife with or
without the husband's permission does not deny her a nafaqa." This rul-
ing was overturned by a shari'a court judge's determination that "that de-
cision is contrary to what article 68 of the law states."15 Jordanian judges
have also had difficulty with situations in which a husband reneged on his
prior approval of his wife's work and asked her to quit her job and in cases
where the wife was already employed at the time of marriage, something
to which the husband later voiced objections. 16 Matters are further com-
plicated by the tradition of oral contracts between the couple, forcing the
courts to take one party's word over the other. This frequently happens in
divorce cases where the husband uses his wife's employment as an excuse
to divorce her without meeting his financial obligations to her.17
The notion that the husband has the right to control whether his wife
will work is predicated on the belief that she owes him obedience in ex-
change for his financial support. Obedience according to the fuqaha'-the
basis used by shari'a courts in Jordan to establish gender rules-includes
his right to forbid her from leaving the marital home for any except the
most necessary purposes, such as going to the hospital or taking care of a
sick mother. Jordanian courts have ruled in favor of the husband in work
disputes between spouses based on this concept of obedience, even when
the case involved government policy and the armed forces. 18 In other
words, women who want to extend their years of study, who have the am-
bition to go to college, who want to get jobs, and who want to open their
own businesses are severely constrained by the Jordanian legal system,
which reflects and enforces the social traditions that limit women's rights
by placing them within the custody of male relatives.
Jordan's constitution declares that women are equal to men and have
equal rights, presumably including the right to work: "All Jordanians are
equal before the law. There will be no discrimination between [Jordani-
ans] regarding rights and duties based on race, language or religion."19
Islamic law is often the culprit used to undermine women's rights guaran-
teed by the constitution. The patriarchal tribal outlook that embraces the
shari'a subjugates Jordanian personal status law to the concept that women
need the protection of fathers or husbands, which gives husbands the right
to determine the degree of his wife's freedom, including her right to work.

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 MUSLIM WOMEN AND LEGAL REFORM

This is curious because Islamic principles laid down by the Qyr'an actu-
ally admonish that women have a right to a share of what they earned as
much as men have a right to a share of what they earned. 20 Furthermore,
the Qyr'an calls on the Prophet to "let go" of wives who want to live a life
of idleness and luxurfl and guarantees a woman's inheritance and her
right to own property. Islamic history tells us that the Prophet Muham-
mad's first wife, Khadija bint Khuwaylid, was at one time his employer. 22
Ibn Sa'd's biographical entry describing Khadija bint Khuwailid gives ev-
idence of the active role that women played in the market place: "Muham-
mad b. 'Umar informed us on the authority of Musa b. Shayba ... that
Khadija was a woman of substantial honor and wealth and a commerce
that traded with Syria, its value reaching the usual value of the goods of
Qyraysh. She hired men and speculated in value of goods (and men?)
(tatifa' ai-mal mudarab)."23
Another of the Prophet's wives, 'Aisha, daughter of Abu Bakr, was a
noted Islamic scholar, whose abilities as narrator of Hadith were recog-
nized and who, at one time, rode into battle on her camel leading the op-
position to the caliphate of 'Ali b. Abi Talib. The Prophet's wife Zaynab
bint Jahsh was skilled in handicrafts and fashioned leather items and sold
them. Throughout Islamic history, examples of women's participation in
the economy, owning property, and involvement in intellectual pursuits,
including interpretation of the Qyr'an and transmission ofHadith, can be
found. 24
Discussion in the early books offiqh Gurisprudence) supports the con-
clusion that Islam neither forbade women from working nor limited their
work to particular areas. Medieval fuqaha' did not debate women's partici-
pation in the economy; rather, the questions they discussed involved what
the meaning of obedience to the husband meant, the extent of that obedi-
ence, and the responsibilities of the husband toward his wife. Nafaqa
seemed to be the primary concern of the jurists who appraised the hus-
band's financial support as compensation for the wife's fulfillment of her
duties. What these duties were, however, was another matter. Fuqaha' were
concerned mainly with what constituted a good wife. ''A woman is a shep-
herd in her husband's home" ("al-mar'a ra'iyya fi bayt zawjiha") and "your
husband has a right over you" ("Ii-zawjik 'alayki haqrJ') are widely accepted
metaphors among the fuqaha' regarding marital relations. They are recip-
rocated by similar words defining the husband's responsibilities toward his

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AMlRA EL-AZHARY SONBOL

wife. 25 Wifely disobedience precipitating denial of nafaqa generally oc-

curred when she refused to live with her husband or to have sex with him.
There was no concern expressed regarding her pursuit of a trade or invest-
ing her wealth in a business venture, nor was it considered that her place
was limited to the home.
The popular prophetic hadith "A woman's work is in her husband's
home" is often interpreted to mean that the home is the only place where
a woman can work. Since this is the home provided by the husband, then
she can only work outside it with his permission. But that interpretation
is directly contradicted by other hadiths in which the Prophet points out
work that is not acceptable for women to perform and other forms of kasb
(earnings) that are legitimate" "Bin Ibrahim related to us on the authority
of ... that the Prophet forbade the wages (kasb) from [the prostitution of]
slave girls."26 There are related hadiths that confirm the type of work that
the Prophet pointed to as appropriate for women. "Hashim b. al-~sim
related to us ... Rafi' b. Rafi' related that the Prophet forbade us of ...
the kasb of slave girls except what she worked with her hands and pointed
his fingers to baking, weaving and carding."27
This does not necessarily restrict women's work to these skills.
Rather, the Prophet's point was that honest income comes from using
one's own hands, that is, producing it by oneself rather than through the
labor of another, evidenced in the prophetic hadith "the best income
(kasb) is an income earned by a worker's sincere hands."28 There are no
Qyr' anic references forbidding women to work; the Qyr' an forbids only
the income generated from "forcing" girls into prostitution: "do not force
your young women (fatayatukum) to become prostitutes when they would
rather be chaste, in order that you make a profit and enjoy your lives."29
Thus, it was not women's work per se that seemed to be the problem but
rather whether it was moral. Another hadith confirms the premises that
all work had to be moral and acceptable to God: '''Abd al-Sammad b.
al-Fadl related to us ... that the Prophet of God forbade earnings from
selling a dog, earnings from blood-letting, earnings from prostitution,
and earnings from bull stud fees."3o One can conclude from this that the
Islamic work ethic laid out by the Qyr'an stipulates that man will be
judged according to his moral or immoral acts in earning a living. There-
fore, making a living or earning money (kasb) from prostituting girls who

220
 MUSLIM WOMEN AND LEGAL REFORM

may be under one's guardianship (slaves or nonslaves) is considered an

immoral act, but working with one's hands in such crafts as baking or
spinning is moral.
Shari'a court records dating from the Ottoman period in modern
Palestine and Jordan show that Jordanian and Palestinian women have
traditionally acted as waqf (religious endowments) executors, owned
property and administered it, owned or been co-owners of factories ( in-
cluding soap production in Nablus and bakeries in Jerusalem), produced
farm products and sold them in the marketplace, and worked as dallalas
(women vendors). There are no disputes in these historical shari'a court
records between husbands and wives regarding her work. There are even
a few cases of women suing alone for unpaid day labor, including hard la-
bor in quarries. 31 If anything, a woman's "right" to work does not appear
to have become an issue in court or as a discourse until the modern pe-
riod. Its discussion has gained momentum recently and become quite im-
portant in contemporary debates in which traditionalists have
increasingly utilized Islam as a means to control women's participation in
the public sphere. This debate has been precipitated by the mass mobi-
lization of women in the government and business sectors, a condition
that did not exist prior to the modern period. In other words, new poli-
cies for utilization of women's work necessitated new legislation to ad-
dress the changing conditions. The resulting legal codes were an
amalgam of various types of laws and philosophies of law that became
characterized as shari'a because the basis of the modern personal status
laws is grounded in shari'a. Yet the selections from various sources of
shari'a law and the infusion of modern laws brought about different fam-
ily and gender relations than existed prior to modern reforms of the legal
system. 32
Three particular sources oflaw can be identified as having played an
important role in the formation of Jordan's contemporary gender laws.
These are the 1) Islamic shari'a (or its interpretation by modern state leg-
islators and court judges), 2) tribal laws once administered through a tribal
legal system (qada' 'asha'iri) and tribal traditions ('urj) that have been in-
tegrated into Jordan's laws directly and through legal practices including
police actions and executive authority, and 3) European laws that have
played an important role in the construction of modern personal status

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laws through legal diffusion and the application of an underlying gender

philosophy reflecting Victorianism and state-gender constructionism.

Shari'a
Today's Kingdom ofJordan was, until 1918, part of the Ottoman Em-
pire. Like other provinces of the empire, Jordan's legal system was formed
of shari'a courts that applied various madhahib (Islamic schools of law,
namely, Maliki, Shafi'i, Hanbali, and Hanafi) and whose interpretation of
the law was greatly influenced by local traditions. Because of the impor-
tance of the tribes inhabiting the area then known as East Jordan, tribal
law was also recognized, and tribes relied on their own legal traditions.
When the Ottoman Empire began to introduce its Tanzimat reforms dur-
ing the nineteenth century, its provinces were expected to follow suit. This
took place at differing degrees in the various provinces. In the case of East
Jordan, which was basically administered as part of Syria until 1920, this
meant the introduction of the Ottoman Meeelle, a compilation of laws in
effect in the empire that were organized and rationalized according to up-
dated modern categories and placed in one volume "containing shari'a
laws and adliyya (codes) laws corresponding (mutabiqa) to books of fiqh"
according to the madhhab of Abu Hanifa al-Nu'man and as chosen and
interpreted by the committees set up by the state to compile the Meedle.
A 1917 Ottoman Family Code was applied in Jordan and later became the
basis of modern Jordanian personal status laws.
In 1951, the first Jordanian law that sought to organize modern shari'a
courts was passed. Many amendments have been made to these laws since
then, but the declared source of the law continued to be the Hanafi mad-
hhab, which was the foundation of the Ottoman Meeelle and Family
Code. However, those who crafted the Jordanian legal system did not
strictly adhere to the Hanafi school of law in matters that pertain to
women. Rather, they appear to have resorted to Maliki law when greater
patriarchal control was deemed appropriate (as the Hanafi code allowed
for a relative loosening of gender controls in this particular instance). A
good example concerns guardianship (wilaya) , which allows fathers,
grandfathers, brothers, and even uncles to have direct control over a
woman's life before and even after she has reached majority and/or is mar-
ried. In constructing a law of guardianship, legislators mixed the Hanafi

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with the Maliki madhhab to compose a much tighter patriarchal law than
was applied by qadis in earlier Jordanian courts. Hanafi law requires ra-
tionality (aql) and puberty (bulugh) as a basis for reaching majority; until
then, a girl or a boy remains under the power of his or her waliyy
(guardian). Modern Jordanian personal status laws established the mini-
mum age for the marriage of girls to be fifteen and determined that to be
according to the Hanafi code since at fifteen a girl would have reached
both rationality and puberty. According to Hanafi law, on reaching ma-
jority, a person can contract his or her own marriage without parental ap-
proval. This applied to a girl whether she had been previously married or
not. 33 This particular aspect of the Hanafi law of guardianship was not
applied in Jordanian personal status law, however. Rather, in contra-
distinction to Hanafi requirements, modern Jordanian personal status laws
do not allow a girl who reaches majority to contract her own marriage but
stipulate that she has to receive her father's or guardian's approval before a
marriage of her choice can take place. If her guardian does not approve of
her choice, she may appear before the qadi and ask for permission to be
married. The qadi weighs the guardian's arguments and reasons for op-
posing the union and rules on their validity. In other words, there is no
freedom of choice given to the girl without a male's consent. This is fit-
ting with the Maliki requirement that a girl cannot be married without a
waliyy, be that the father, grandfather, tribal leader, or qadi. As long as she
has not been previously married, she cannot marry herself. In other words,
the need for a male waliyy remains a requirement for a girl's marriage even
if she has passed the age of legal competency or independence.
Furthermore, Maliki law demands the approval of a waliyy for the
marriage of any previously unmarried daughter notwithstanding her age at
the time of her betrothal. This is due to the belief that a girl cannot con-
tract her own marriage unless she is experienced, and experience is
achieved only through marriage. Therefore, Malikis allow a previously
married woman to marry herself without the approval or presence of a
waliyy. This is, however, not the way the law works in Jordan, where qadis
continue to require a previously married woman to have a waliyy with her
at the time she gets married even if it is a second or third marriage and so
on. Even a woman who desires a divorce and has yet to reach the age of
forty is still required to have her father's approval. Similarly, a girl who is
still considered a minor under eighteen years of age cannot ask her husband

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for a khul' divorce without the approval of her guardian. 34 Such control can
only be tribally based since there are no such divorce requirements in any
of the madhahib.
In short, Jordan's guardianship laws are a patchwork of Hanafi and
Maliki laws as well as tribal 'urf through which the more patriarchal as-
pects of the madhahib and traditions have been patched together, forming
a modern code that gives men control over women, including control of
their marriage, divorce, education, and work. These details are important
because they explain the genesis of personal status laws. Taljiq (patch-
work) was utilized to weave together laws from different sources and legal
philosophies, emphasizing more "controlling" attitudes toward gender;
they were then amalgamated to establish what became known as Personal
Status Law.

Tribal Law, or 'Urf 35

Perhaps the most important remnants of tribalism that have been in-
tegrated into Jordan's modern laws involve honor crimes and the payment
of diyya (blood money). This is not to say that honor crimes are the most
serious problem facing Jordanian women today. Lately, "honor crimes"
may have become an emblem on Jordan's shoulders, the two-Jordan and
honor crimes-being constantly linked in the media, at conferences, and
in diatribes against Islam's treatment of women. But, in fact, Egypt's offi-
cial figures for the year 2000 recognize nearly 1,000 honor crimes per year,
and Pakistan admits to many more. Even Italy suffered over thirty honor
crimes in 2000, while the Jordanian official figures were twenty-nine.
Still, it is a fact that there are laws in Jordan that allow a man to get
away with a minimum sentence, sometimes as little as three months, for
killing his sister, daughter, wife, or other close family member in the name
of family honor and under the excuse of "surprise" (yufaji'). The "surprise"
is the discovery of an illicit sexual act taking place that leads to "irrational
anger" on the part of the observer who acts under emotional stress caused
by the discovery. According to Jordanian law, such circumstances allow the
judge to reduce the sentence. Law 340a, b and law 98 of Jordan's penal
code provide an interesting combination of tribal law and French penal
law, allowing reduced sentencing based on intent. While French laws of
intent permit reduced sentencing in crimes of passion, they require strict

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rules of evidence to prove "surprise" and "intent"-or more properly the

lack of intent. The judges and the police in Jordan appear to require less
evidence. A plea based on "surprise" has been applied to cases where the
intent to commit the crime had been declared prior to the attack. Fur-
thermore, in most honor crimes brought in front of Jordanian courts, the
killer never saw the victim participating in an act of sexual intercourse as
required by the law. Rather, evidence almost always is ascribed to hearsay
or gossip or through family pressure.
In a previous report36 on the interconnectedness between labor laws,
criminal laws, and personal status laws and how together they impede the
participation of women in the country's development efforts, I pointed out
the serious need for a change in Jordanian criminal laws. My particular
concern was with the way the law interprets the word "yufaji'" since this is
the main loophole that allows judges to pronounce reduced sentences on
the perpetrators of honor crimes, thereby encouraging further honor
crimes. The report also questioned the inequality of Jordan's laws in al-
lowing leniency for a husband who commits an honor crime involving his
wife but denies the same leniency for a wife who commits an honor crime
concerning her husband. Since the publication of the study, a new tempo-
rary criminal law has been enacted by the Jordanian government. The
meaning of "yufaji'" has been reconsidered, and an interpretation making
such "surprise" to be "immediate surprise" has been included in the law.
The new law has also extended leniency in sentencing wives. This is a
move in the right direction and should withstand parliamentary scrutiny,
thereby becoming permanent.
In studying various honor crime cases reported during the past
decade, it became clear that many of the crimes committed in which per-
petrators received lenient sentences were not due to a dishonorable action
by the victim. For example, in 2001, a father killed his twelve-year-old
daughter with the help of his thirteen-year-old son because she was leav-
ing the home and going to visit neighbors. When asked why he commit-
ted the crime, the father explained that he did it to stop her before she
could dishonor him and the family. Furthermore, he explained that he was
administering God's law: "We are Muslims, and in our religion, she had
to be executed."37
In other words, not only was she murdered for a crime she did not
commit, but her murder was justified on the basis of Islamic law. The

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court must have agreed since the father benefited from the leniency pro-
vided by Jordanian laws and his sentence was only nine months in prison.
This situation is typical of how the state handles gender laws. Even
though the laws are not based on the shari'a and are in large measure based
on French criminal codes, still the shari'a is used as the justification for al-
lowing such findings by courts and acceptance by the public. Further, the
father's justification of the crime is misleading; there are clear require-
ments set out by the Qyr'an and Sunna regarding stringent evidence, con-
fession, and punishment in zina (sexual intercourse outside a legal
relationship) cases. Even when zina is proven, it is never the woman alone
who is punished but also the male. Yet in all these honor crimes, it is al-
ways the female who is punished, while the male with whom she is alleged
to have committed an honor crime goes unpunished. Furthermore, to
prove zina, the requirement of four male or eight female witnesses of the
actual act of fornication makes it practically impossible to prove without
the confession of the persons involved, confession being another require-
ment according to prophetic Sunna. This can be seen in the Qyr' anic
treatment of !i'an, in which an oath is administered to the wife accused by
her husband of giving birth to another man's child and in the hadiths of
zina in which the Prophet turned his face four times at four different en-
counters to a confessor of zina before finally telling those present to take
him and do to him what he requested, that is, stoning. It is also present in
the Prophet's question of whether a woman accused of zina had been
forced into the sexual act. It is her confession that she had been willing
that incriminated her.38 Whether these hadiths are valid or not, the im-
portant point here is that nowhere do we see the issue of "surprise" or "in-
tent" included in the Qyr'an, Sunna, or Fiqh in regard to zina, which is
the only sexual honor crime discussed by the shari'a.
Clearly, Jordan's handling of honor crimes has very little to do with
the Islamic shari'a, a fact that needs to be made very clear to the Jordan-
ian public. However, court judges continue to justifY drawing connections
between Jordanian laws and Islam even though they realize that the basis
for their rulings are founded on cultural traditions. As one high-court
judge in Jordan expressed to me, "Girls cannot be left to run around loose;
society demands that there be control of their actions." Yet Islam stands
very strictly against the type of honor crimes that take place in Jordan,
Iran, Pakistan, Egypt, and other Islamic countries. If you ask any Muslim

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 MUSLIM WOMEN AND LEGAL REFORM

girl, she will tell you that Islam came to honor women by putting an end
to pre-Islamic tribal practices like wa'd a/-banat (female genocide), by
which Arabs of the jahi/iyya (pre-Islamic period) killed their newborn
girls so as to preempt any sort of future dishonor that they might commit.
"When news is brought to one of them [pre-Islamic men] of the birth of
a female child, his face darkens and he is filled with inward grie£ With
shame does he hide himself from his people because of the bad news he
has had! Shall he retain her on contempt or bury her in the dust? Ah!
What an evil they decide on?" (Sura 16:59). The Qyr'an damns such men
in no uncertain terms, and yet fathers who do the same thing today are
given allowances by the legal system. Nothing could be more un-Islamic
than a pre-Islamic practice, and yet the current justification for commit-
ting such a crime is ascribed to Islam, and the courts seem to go along.
In contradistinction, a male's dishonorable act, for example, commit-
ting rape or murder, can be negotiated with the victim's clan, and a diyya
can be paid to end the matter. Diyya laws (blood-price as compensation
for harm caused to another) were codified into law in 1989 following the
cancellation of tribal courts in Jordan in 1976. According to these laws, if
a girl is raped and the rape is proven, it is not up to the state to prosecute;
rather, it is up to the family of the girl who is harmed. Often the victim or
her family will hide the crime and not inform the authorities out of fear
of facing "yufaji'" or dishonoring the family. In some cases, the perpetra-
tor may compensate for his act by offering to marry his victim, or his clan
may offer a substantial amount of money as diyya. This practice is very se-
rious since it appears to encourage rather than impede rape. This environ-
ment makes women less willing to venture out and participate in public
space for fear of what could happen and the repercussions she could face
within her own family and from society. Hence, a daughter's obedience
becomes entrenched as a tradition that is in turn supported by the law.
Ironically, the male perpetrator of rape, a zina honor crime according to
Islam, is not punished according to the requirements ofIslam. The perpe-
trator gets away with it according to modern Jordanian law.

European Codes
European laws made their way into the court and legal systems ofJor-
dan and other Arab countries in a variety of ways. The introduction was

227
AMlRA EL-AZHARY SONBOL

part of Ottoman nineteenth-century reforms that adopted European sys-

tems sometimes willingly and other times under duress. The Ottoman
Civil Code of 1867-1877, modeled after the French and Belgian Civil
Code, formed the basis of the Egyptian Civil Code, which was later
adopted by Syria and Jordan as the prototype for their civil codes. In this,
like in other concerns, the legal system departed from what had been prac-
ticed in Ottoman courts before. Where there were no reciprocal laws, Eu-
ropean codes were applied directly. Furthermore, European precedents
from European courts, particularly French courts, were used as precedents
for legal decisions in new Arab national courts. Records of civil cases seem
in front of Arab courts in countries that have applied the Civil Code for
their modern laws (for example, Egypt or Tunisia) will illustrate the refer-
ences made to different French collections oflaw.
European laws were also introduced indirectly into legislation regard-
ing matters of personal status. For example, the Ottoman Family Code
became the first step toward modern personal status laws that continue to
be applicable in Jordan today. The Ottoman Family Code brought a new
outlook toward gender with conceptualizations that reflected Europe's
new industrial society and its legal needs. The idea of "family" became the
central construct of the new society rather than the individual, clan, or
tribe as was previously the case. Family would consist of the nuclear fam-
ily, father, mother, and children, the father being the recognized head of
the group with powers to control and punish its other members. Clans
consist of the larger group, with grandparents, aunts, and uncles, while the
tribe goes to the level of the akhmas (fifths) and beyond, linking wide-
spread clans with lineage toward a common location or forefather. While
"family" plays no role in Islamic legal thought, modern laws conceptual-
ized society as a construct of family units in which various individuals play
clearly defined roles. The Hanafi code may have been the basis for new
personal status laws, but a new form of patriarchy based on the concept of
the "family" became the basis of the law, and the state became an effective
participant in enforcing personal matters that had not previously been its
business.
There are other repercussions to these laws that may not seem to
have a direct link to women's entry into the job market but that are quite
important in determining gender relations and the powerlessness that
women face because of social constraints and legal controls. Thus, laws

228
 MUSLIM WOMEN AND LEGAL REFORM

determining "family" and male legal supremacy within the family have a
direct link to "citizenship." They discriminate against the children of
Jordanian mothers married to non-Jordanians. According to an 1869
Ottomanfirman (decree) and following legal practices in Europe at that
time, a woman's nationality was defined as "following that of her hus-
band." Children from a mixed-nationality marriage were defined ac-
cordingly, that is, following the nationality of the father. In other words,
faced with new problems like how to define nationality-moot issues to
the Ottoman world as they were to Europe before the nineteenth
century-gender became the focus for defining nationality rather than
domicile, allegiance, interest, birth, or any other factor that could be
used to allow children to take their mother's nationality. Even while
states moved to allow women to hold their own nationality rather than
automatically losing it if they married a foreign citizen, a woman's right
to hold the citizenship into which she was born was not extended to her
children. Given the growth in rates of marriages between citizens of dif-
ferent countries, particularly Arab and Islamic countries, these laws
work in direct discrimination against women who cannot leave their
property to their children from fathers of a different nationality and who
cannot take their children home without first going through tiring,
time-consuming, and often failed efforts to have their home countries
accept their children. The same does not apply to the children of a male
resident in Arab countries still following these laws promulgated under
colonial rule. Children are welcome in their father's countries and can
inherit his property, settle down, hold jobs, and pass their nationality on
to their children. The discrimination here is clear, based on Ottoman de-
cisions and European laws, and yet they are always given credibility on
the basis of the shari'a.
To conclude, the combination of shari'a law, Western laws, and tribal
law in Jordan have created a patriarchal system that is tighter than what
was obtained prior to the modern period. This does not mean that
women did not live in a patriarchal order before modernity; to the con-
trary, the system was patriarchal, but the laws by which Jordanian (and
other Arab) women live today must be seen as a modern construct rather
than a simple continuation of what has been dictated by the shari'a or
how courts practiced shari'a law before the modernization oflaw. It is im-
portant that legal systems enforced in the Arab world today be deconstructed

229
AMlRA EL-AZHARY SONBOL

and their sources become known so as to facilitate change of both laws

and gender culture.

Notes
1. Amira Sonbol, Women of the Jordan: Islam, Labor and the Law (Syracuse,
N.Y.: Syracuse University Press, 2002).
2. Arab Women and Education (Beirut: Monographs of the Institute for
Women's Studies in the Arab World, Beirut University College, 1980).
3. Arab Women and Education, 13.
4. The 1994 Population Census placed the ratio of women in the workforce
at 16 percent.
5. The comparative figures of78 percent for France, 74 percent for Germany,
and 77 percent for England during 1995-2001 are worth noting. United Nations,
Statistical Division, "The World's Women 2000: Trends and Statistics,"
http://unstats.un.org/unsd/demographidww2000/table5g.htm.
6. Feminist News, November 4,1997, and Associated Press, November 3,1997,
"Woman Parliamentarian Call for More Women in Office," www.feminist.org/
news/newsbyte/november97/1104.html.
7. The tribe will almost always nominate males.
8. Raed Al Abed, "Lack of Awareness and Dull Campaign Tactics behind
Women's Failure to Reach the Dome," The Star (Jordan's online political, economic,
and cultural weekly), November 13, 1997, http://star.arabia.com/971113tj03.html.
9. ~bdal-Fattah Murad, Sharh Tashri'at al-Ahwal al-Shakhsiyya (Alexandria:
N.p., 2003),152.
10. For a discussion ofJordan's personal status laws, see Sonbol, Women ofJor-
dan.
11. Marwan Ibrahim al-Qisi, AI-Mar'a al-Muslima bayn Ijtihadat al-Fuqaha'
wa-Mumarasat aI-Muslim in (Rabat, Morocco: Al-Munazzama al-Islamiyya
lil-Tarbiya wal-'Ulum wal-Thaqafa, 1991), 9-25.
12. Al-Qisi, Al-Mar'a al-Muslima, 56.
13. I am dependent here on research in the records of the Women's Business
and Professional Women's Club ofJordan in Amman, particularly their hot line
and interviews with women involved in microfinance projects (here I am partic-
ularly indebted to Hind Abdel-Jaber and to ~b al-Khayyat).
14. Jordanian constitution of 1952.
15. Court decision quoted in Ahmad Salim Milhim, AI-Sharh al-Tatbiqi
li-Qanun al-Ahwal al-Shakhsiyya al-Urduni (Amman: Maktabat al-Risala
al-Haditha, 1998), 101.

230
 MUSLIM WOMEN AND LEGAL REFORM

16. Tamyiz court case 41157 dated March 9, 1996.

17. Tamyiz court case 20876 dated June 1979.
18. Tamyiz court case 248/92.
19. Article 6 of the constitution.
20. Qyr'an 4:32.
21. Qyr'an 33:28.
22. Ahmad Suwayyid, Nisa' Shahirat mm Tarikhina (Beirut: Mu' assasat
al-Ma'arif, 1990), 13.
23. Ibn Sa'd, al- Tabaqat al-Kubra, vo!' 8: Fil-nisa' (Beirut: Dar Sadir, n.d.), 16.
24. See "Becoming Visible: Medieval Islamic Women in Historiography and
History" and other articles in Women in the Medieval Islamic World, ed. Gavin
Hambly (New York: St. Martin's Press, 1998), 18. On women transmitters ofHa-
dith, see Ruth Roded, Women in Islamic Biographical Collections: Prom Ibn Sa'd to
Who's Who (Boulder, Colo.: Lynne Rienner, 1994); on women faqihat and teach-
ers during the medieval period, see Jonathan Berkey, The Transmission if Knowl-
edge in Medieval Cairo: A Social History if Islamic Education (Princeton, N.J.:
Princeton University Press, 1992).
25. Ahmad b. Hajar al-~sqalani, Path al-Bari bi-Sharh Sahih al-Bukhari, vol.
9 (Cairo: Dar al-Rayyan lil-Turath, 1987),210-11.
26. Sunan Ibn Dawud, Bab al-buyu', hadith 2973.
27. Musnad Ahmad, hadith 18228.
28. Musnad Ahmad, hadith 8060.
29. Surat al-Nur (24): 33.
30. Masnad Ahmad, Baqi Musnad al-Nukatharin, hadith 8039.
31. For a detailed description with examples of this subject, see Sonbol, Women
ifthe Jordan, chap. 3, "Women's History and Work."
32. I would like to add that these legal changes were not unique to Jordan. The
revision of various laws and legal codes was taking place globally as the movement
of people and goods allover the world grew and with it the need to homogenize
and standardize laws to facilitate trade and travel.
33. For a discussion of the laws of guardianship and laws regarding minor
women and reaching majority, see Amira Sonbol, '~dults and Minors in Ot-
toman Shari'a Courts and Modern Law," in Sonbol, ed., Women, the Family and
Divorce Laws in Islamic History (Syracuse, N.Y.: Syracuse University Press, 1996),
236-58.
34. Shari'a court case 24624 (dated during 1990s) published in Abdel-Fattah
~yish 'Umar, AI-Qararat al-Qada'iyya ji'l-Ahwal al-Shakhsiyya halta 'Am 1990
(Amman: Dar Yamman, 1990), 5.
35. See, for example, Kamal Abdallah al-Hilw and Said Mumtaz Darwish,
Customary Law in Northern Sinai (Cairo: Printshop of the American University

231
AMlRA EL-AZHARY SONBOL

in Cairo, 1989); Laila Sabagh, Al-Mar'a ji'l- Tarikh al-'Arabi Qabl alIslam (Dam-
ascus: Manshurat Wizarat al-Thaqafa wa'l-Irshad, 1975); Zafer al-~simi,
Al-Hayat al-Ijtima'iyya 'ind al-'Arab (Beirut: Dar al-Nafa'is, 1981); Muhammad
Farid Abu Hadid, Abu'l-Fawaris 'Antara b. Shadad (Cairo: Ministry of Education,
1979); and 'Isam el-Sioufi, Al-Mar'a ji'l-Adab al-Jahili (Beirut: Dar al-Fikr
al-Lubnani,1991).
36. Amira Sonbol, "Report on Women, Work and Legal Constraints," in Ac-
cess to Microjinance and Improved Implementation ofPolicy Reform: Women in Busi-
ness Constraints (Amman: AMIR Project, 2000), 31.
37. Douglas Jehl, "Arab Honor's Price: A Woman's Blood," New York Times,
June 20,1999,4.
38. http://hadith.al-islam.com/Bayan/Display.asp ?Lang=eng&ID=978 (ac-
cessed July 18, 2001).

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244
 GLOSSARY

:Ada Custom
:Adliyya Justice
Ahl ai-hall wa-I- 'aqd Members of the newly established Grand Council
of Tunisia
:A'ila Family
:Alayhi al- 'amal Practice
:Alayhi 'amal al-ummah Judicial practice of the community
:Alim (pI. 'ulama) Religious scholar
Alladhijara al- 'amal bi-hi ji hadhihi al-mas'ala The prevailing practice in
this matter
:Amal The procedure of the courts; work, practice
Aman Institution of protection like asylum
:Aql Rationality
Asahh More correct
:Asha'iri Tribal, Bedouin
Ashbah More similar
al-A'wamm Common/secular folk
Awjah More sound
Awqaf (sing. waqj) Religious endowments

Batil Invalid
Bey Ottoman title; ruler of Ottoman Tunisia
Bulugh Maturity, legal majority

245
GLOSSARY

Da'if Weak
Da'irat al-ifta' Department ofIslamic legal opinions
Dallalas Women vendors
Dar al-:Ahd Abode of treaty
Dar al-Harb Abode of war
Dar aI-Islam Abode of Islam
Dar al-Sulh Abode of truce
Darura Necessity
Dhimma Responsibility or obligation
Diyya Blood money

Faqih (pI.fuqaha') Jurist

Fasid Void
Fatawa (sing.fatwa) Opinions of a mufti that are not legally binding
Fatayat Young girls
Fatwa (pI.fatawa) Opinion of a mufti that is not legally binding
Fi balad kadha In such and such region
Fi-hi laft al-jatwa Fit for a legal opinion
Firman Ottoman decree
Fuqaha' (sing.faqih) Jurists
Furu' Branches

Gharib Unknown, strange

Halal Lawful
Haram Religious sanctuary; forbidden
Hijra Migration from one's home
Hudud Penal law

Ifta' Issuingfatawa
Ihram Ritual consecration
Ijaza License
Ijtihad The use of reason to deduce laws from the Qyr'an and the
Sunna
Ikhtilaf (pI. ikhtilafat) Juristic disagreement
11la Effective cause

246
 GLOSSARY

Istijara To seek refuge with

Istislah Preference for public interest
It/a! ma 'sum Destruction of that which is protected by law

Jihad Struggle, battle, fight

Jizya Poll tax paid by non-Muslims
Jumhur al- 'ulama Majority of scholars

Ka'ba Shrine in Makka and focal point of worship for Muslims

Kasb Earnings
Kharaj Land tax
Khilaf Juristic disagreement
Khul' Wife-instigated divorce
Kull mujtahid musib The doctrine that states that each and every muj-
tahid is correct
Kuttab-madrasa Religious schools

al-La'iha al-Asasiyya Fundamental ordinance

La yakun la-ha i'tibar Should not be taken into consideration

Mabsutat Comprehensive works

Madhaban wa-khilcifan To study a school and its disputations
Madhhab (pI. madhahib) School of classical Islamic jurisprudence
Mafti bi-hi Decided upon by formal opinion
Majalla Law code
Majlis al-Shura Consultative council
Malik King
Mamul bi-hi Commonly applied
Masalih dunyawiyya Worldly interests
Mashhur Widespread
Maslaha Public interest
Min al-akabir Distinguished
Mu'abbad Permanent
Muamalat Social interactions
Mudawwana Personal Status Code of Morocco
Mufti A legal scholar who issues fatawa

247
GLOSSARY

Muhallal lahu The husband who has divorced his wife In a tahlil
arrangement
Muhallil The second husband in a tah/il arrangement
Mujtahid Muslim jurist who engages in ijtihad
Mukhtar lil-Jatwa Chosen for fatawa
Mukhtasarat Abridgements
Mustafti A person seeking a mufti's opinion
Musta'min Subject of protection or aman
Muta Temporary marriage
Muta'akhkhirun Modern or recent jurists
Mutadawala Prevailing usage; regularly applied
Mutaqaddimun Early jurists

Nafaqa Expenses, financial support

Nashiz Adjective used for a disobedient wife
Nasi Offspring
Niqab Face veil

Qada' Justice, jurisprudence, administration of the law

Qadi Judge
Qanun (pI. qawanin) Positive law
Qanun al-dawla al-tunisiyya Law of the Tunisian state or dynasty
Qawa'id General principles
Qiwama Guardianship
Qiyas Analogical reasoning that seeks new rules based on commonalities
between original and new situations

Raayana Literally "our flock": subjects of a dynasty, general population

Rahma Blessing
Rajih Preferable
Riba Usury

Sadaq Dowry
Sahhahahu That which has been corrected
Sahih Correct
Sawab Proper, correct

248
 GLOSSARY

Shadhdh Irregular
Shari 'a God's law that humans attempt to deduce through various ju-
ridical methods
Shaykh al-Azhar Rector of al-Azhar University in Cairo, Egypt
Shaykh aI-Islam Grand Mufti of Istanbul and head of the Ottoman
'ulama establishment
Sigha Written form of a contract
Sihhatuhu (Its) correctness
Sunna Words and actions of the Prophet

Tabaqat Biographies of the 'ulama

Tacifa' aI-mal mudaraba Speculated in value of goods
Tafwidan ila aI-sultan Delegating to the governing authority
Tahlil A legal arrangement to allow a couple to remarry after divorce
Tahqiq Verification
Takhayyur Picking and choosing from different legal sources
Taifiq A modern process of "patching" together rules from different le-
gal schools of thought
Taqlid The principle of strict adherence to precedents established by the
classical schools of Islamic legal thought
Tarik al-salat One who refuses to pray
Tmjih The preference for one legal school over another
Tashhir To make established or canonical
Tashih To correct, legalize, or authenticate
Tashri' Basis of legislation

'U/ama (sing. 'alim) Collective term for Muslim religious scholars

Umma The worldwide community of Muslims
'Urf Social or tribal custom; customary law; legal convention
Usra Family
al-Usra al-Muslima The Muslim family
Usul al-jiqh Sources or roots of Islamic law as well as the methodology
of how to perform ijtihad

Waa al-banat Female infanticide

Wajh Opinion

249
GLOSSARY

Waliyy Guardian
Waqf(pl. awqaj) Religious endowment
Wilaya Guardianship

Yufaji' He/it surprises

Zakat Alms
Zani muhsan Married fornicator
Zina Illicit sexual relations

250
 INDEX

Ibn 'Abd aI-Barr, 37 Amnesty International, 138

Abduh, Muhammad, 2, 6, 92, 168, 190 Anas, Malik ibn, 161
Abidin, Muhammad Abu I-Yusr, 86 An-Na'im, Abdullahi, 9
Ibn 'Abidin, 32, 38 Arab constitutions: generality of, 62;
Abu Nur Mosque, 87 juristic paradox in, 55; shari'a in,
Abul-Fadl, Khaled, 191 55-75; writing of, 56-57
Academy of Islamic Research, 93 Arab Convention on Refugees, 105,
'ada, 32 106
al-Ahbash,91 Arab patriarchy, 174, 188, 194-200,
Ahkam af-Ahwaf af-Shakhsiyya (al- 209,228
Mutahhar),173 Arab women, employment rate of,
al-Ahzar, 197 205
'a'ila, 167 al-Asad, President Hafez, 90
'Aisha, 219 asahh,29,30,31,32
al-Akwa', Isma'il, 165 ashbah,34
al-la'iha al-asaiyya, 58 al-Astal, Yunis Muhyi al-Din, 177
Alaya,Muhammad,89 asylum, right of, 102-3
Algeria: CEDAW and, 140, 141, 142, asylum flows, tolfrom Middle East,
143,144,145,146; Family Code 121-23, 122
of, 140, 141, 142; women's rights asylum law, 12, 13, 99-123; through
in,140-46 constitutional provisions, 115-18;
'amal,39 domestic, 116-18; ofIraq, 118;
Aman, 108, 109, 110, 111, 112, 126, sanctuary and, 110. See also forced
127; limitations of, 111; sanctuary migrants; refugees; sanctuary
and,110 awaqaf, 84
Amin, Qgsim, 168 awjah,34

251
INDEX

Al-Azhar case, 74 Convention on Human Rights, 114

al-Azhar University, 176 Convention on the Elimination of All
Forms of Discrimination Against
Baali, Abdallah, 141, 142 Women (CEDAW), 13, 133, 134,
Baath Party, 85, 86, 87 136,137,138,139,140,141,142,
al-Baghdadi, Ibn Ghanim, 30 143,146,147,148,149,150,151,
Bakhit, Shaykh, 61 152, 153, 154, 155, 156; Algeria
Bottcher, Annabelle, 82, 86 and,140, 141, 143,144,145,146;
Brown v. Board ofEducation, 135 Arab ratification of, 137; Arab
Bush administration, 16 reservations to, 135, 136, 138;
Libya and, 149-54; Morocco and,
Cairo Declaration: on Human Rights 146,147,148,149; Saudi Arabia
in Islam, 113, 114; on the and,137-38
Protection of Refugees and corpus juris, 35
Displaced Persons in the Arab Court of Human Rights, of Europe,
World,105 114
CEDAW. See Convention on the Crecelius, Daniel, 193
Elimination of All Forms of cultural identity, of Egypt, 183
Discrimination Against Women customary practices, legal opinion
centralization of nation-state, 23 from, 32
Chartl, Mohamed, 9
Civil Code, of Egypt, 228 da'if,31
civil liberties, 1 Da'irat al-Ifta', 86
closed texts, 41 Damascus mufti, 84
codification of law model, 22-23 Dar al-Fatwa, 89, 91
Committee on the Rights of the dar al-harb, 112, 113
Child, 155; Saudi Arabia and, dar al-Islam, 112, 113
138-39 darura, 32, 38
constitution(s): Arab, 55-75; of dhimma, 109, 112
Egypt, 58, 61, 64, 72, 116; ofIraq, divorce, 168, 172, 174,216,218. See
61,116; of Jordan, 217; of Kuwait, also marriage termination; tahlil
62; of Lebanon, 88; of Morocco, contract; tah1il marriage
62; of Ottoman Empire, 59, 60; of diyya laws, 227
Syria, 63; of Yemen, 62,116,172 domestic asylum law, 116-18
constitutional provisions, for asylum, dominant practice, 40
115-18 dowry, 168
Consultative Council, of Egypt, 58
Controle General des Wakfs economic participation, literacy rates
Musulmans, 85 and,213-14

252
 INDEX

Egyptian Civil Code, 228 of, 186, 187, 196, 197; of Syria,
Egyptian constitution, 64, 72, 116; of 171; of Tunisia, 203
1882,58; of 1923,61; Article 2 of, faqih, 26, 37
67-68,68,69, 70, 71; as organic Ibn Farhun, 39
unit, 68-69 fasid,31
Egyptian family law, 183 Fatawa (al-Subki), 37
Egyptian feminism, 183-206; new al-Fatawa al-Khayriyya (al-Ramli), 33
alliance of, 200-206 fatwas, 7,28,39,81,83,175;
Egyptian legal system, 185 madhhab-opinion and, 35; role of,
Egyptian legislation, European law 84
codes and, 66-67 Faysal administration, 84
Egyptian muftis, 91-94; Ministry of female genocide, 227
Justice and, 92; role of, 92-93; feminism: in Egypt, 183-206; Islamic,
selection of, 92 186, 187,197;liberal, 187,188,
Egyptian personal status code, tahlil 197,199,201; radical, 188
contract and, 170 fi-hi lafz al-fatwa, 33
Egyptian society, religious nature of, fiqh, 4, 5, 8, 84, 161,219; definition
66-67 of, 5; shari'a and, 4
Egyptian Supreme Constitutional forced migrants, 99; number of
Court, 56 Middle Eastern, 101; protection
Elmadmad, Khadija, 104 bases for, 100-117. See also asylum
epistemic community, 41 law; refugees
Equal Rights Amendment, 135 French Mandate, 60, 83, 84, 85, 87
European Court of Human Rights, fuqaha, 6, 27
114 fum' al-fiqh, 6
European law codes: Egyptian
legislation and, 66-67; in Jordan, gender laws, 226, 227; of Jordan, 221
227-29 gender relations, 2, 3, 11, 185,228
extradition protection, for political gharib,31
refugees, 115-16 al-Ghazali, Muhammad, 10
globalization, 1
al-Fadl, Abd al-Sammad .b, 220 governmental systems, shari'a and, 56
Fahmi, Khaled, 195 Grand Council, of Tunisia, 57
family: modern concept of, 167-69; Great Green Charter of Human
Muslim, 176 Rights, of Libya, 150,151
family law, 2; of Algeria, 140, 141, Green Book (al-Qedhafi), 149, 150,
142; of Egypt, 183; of Jordan, 25; 155
Ottoman Family Code of 1917 guardianship laws, 222, 223, 224
and, 25,170-71,222,228; reform Gulf War of 1991,100

253
INDEX

hadiths, 5, 166 International Covenants of 1966, 105

al-Halabi, Nizar, 38, 91 Iranian Revolution, 43
halal,3 Iraq constitution, 61, 116
Hallaq, Wael, 10, 11 Islamic Council of Europe, 114
Hanafi mufti, 84 Islamic ethos, incompatibility with
Hanafi school, 6, 25, 39, 40, 169, 171, West and, 43,193,194
223; on tahlil contract, 163-64 Islamic feminism, 186, 187, 197; as
Hanbal, Ahmad ibn, 161, 166 agent of West, 198; substantive
Hanbali school, 30, 40, 166; tahlil equality in, 205
contract in, 164 Islamic law: definition of, 4;
Hanifa, Abu, 161, 166 disconnection to modern law and,
haram, 3, 108 42; dismantling of, 197; new theory
al-Haramayn, Imam, 30 of, 46; nonliteralist methodologies
al-Hariri, Prime Minister Rafiq, 91 of, 46; revival of, 47; social
Hassan II, king, 146 insensitivity of, 25; sovereignty, 3;
Hattab, 34, 35, 36 stability of, 25; v. Western law, 189;
al-Haytami, Ibn Hajar, 39 Western notion of, 1
al-Hibri, Aziza, 191, 192 "The Islamic Marriage Contract," 201
Higher Council ofIfta, 85, 86 Islamic resurgence, 3, 43
Higher Islamic Council, of Algeria, 62 Islamic University in Gaza, 177
Hijra, 108, 110 "Islamonline," 176
al-Homsi, Lina, 82,86,88
honor crimes, 224-26 Jahsh, Zaynab bint, 219
human rights, 1; enforcement of, 114; Jama'a Islamiya, 90
violations, 100 al-Jawzi, 176
al-Jawziyya, Ibn Qgyyim, 166, 176
'ibadat,6 AlJazeera Satellite Channel, 176
bin Ibrahim, 220 al-Jaziri, Abd al-Rahman, 163, 166
ifta', 12,32,38, 175 Jordanian constitution, 217, 218
ihram,163 Jordanian labor laws, 213
ijaza system, 41 Jordanian Law of Family Rights, 25
ijtihad, 5, 6, 7,40,62, 72, 152, 165, Jordanian legislators, 25, 222
189 Jordanian personal status code, 217,
ijtihadic pluralism, 28 222, 223, 228; tahlil contract and,
ikhtilaf, 27 170-71; women's rights and, 215-29
ikhtilafat, 163 JournalOfficiel, 137
individual opinion, 35 juristic disagreement, 27, 30, 40
International Covenant on Civil and jurist's law, 27
Political Rights, 135 Juwayni,31

254
 INDEX

Ka'ba, 107 liberal feminism, 187, 188, 197, 199,

al-Kasm, Muhammad, 84, 85, 87 201
KhalafAllah, Haifaa, 7 Libya: CEDAW and, 149-54;
Khalid, Hasan, 90, 91 women's rights in, 149-54
Khalid, Muhammad Tawfiq, 89, 90 license system, 41
Khan, Salama, 149 literacy rates: economic participation
khilaf, 27, 30, 37 and, 213-14; of Jordanian women,
khul, 168,216 213-14
Khuwaylid, Khadija bint, 219
Kitab al-Fiqh ala al-Madhahib al-Arba madhahib, 161
a (al-Jaziri), 163 madhhab,27,28,34,35,38,83,161
Koftaro, Shaykh Ahmad, 86, 87, 95 madhhab-opinion, 35, 36, 37, 39;
kull mujtahid musib, 27 fatwa and, 35
Kuwaiti constitution, 62, 63, 116 madras as, 24
mafti bi-hi, 34
labor laws, of Jordan , 213 maghrib,2
law, political independence and, 47 mahahib,5
Law of Family Rights, 169; in Jordan, al-Mahalli,168
25 Mahud II, sultan, 23
Law Regulating the Entry, Stay, and Majalla, Ottoman, 6
Exit of Foreigners, in Lebanon, Majma'l-Damanat (al-Bagdadi), 30
117 Majmu' (Nawawi), 30
League of Arab States, 102, 104, 105, Maliki school, 25, 38, 39, 166, 172,
115,118; 1952 Arab Convention 174,223; on tahlil contract, 164
on Extradition, 105 ma'mul bi-hi, 34, 39
Lebanese civil war, 91 marriage law, 14, 161, 162, 167, 173,
Lebanese constitution, of 1932,88 174,176, 180n35; Ottoman legal
Lebanese muftis, 88-91; election of, system on, 169
90; powers of, 89 marriage termination: women's rights
Lebanon, Sunnis in, 88, 89 and, 158n. See also divorce; tahlil
legal culture, 40 contract; tahlil marriage
legal equality, of non-Muslims, 59 mashhur, 29, 32, 35
legal opinion, 31; authorization of, Mashriq, 2, 3
29-30; consensus in, 34; from Mecelle, 222
customary practices, 32; subjectivity Medina, as sanctuary, 108
of, 28 Minhaj (Ramli), 39
legal pluralism, 28 Ministry of Awqaf, 85, 86, 87
legal theory, 28 Ministry ofImperial Pious
legislation, shari'a and, 63, 64, 65 Endowments, 23

255
INDEX

Ministry ofJustice, Egyptian muftis Ibn aI-Najjar, 40

and,n Naqshbandiya Sufi order, 87
modernity, 48; Muslim life and, 44, 45 Nasif, Malak Hifni, 168
Moroccan constitution, of 1962, 62 Nasser, Gamal, 65
Moroccan personal status code, tahlil nation-state creation, shari'a and, 22
contract and, 174-75 National Human Rights Commission v.
Morocco: CEDAW and, 146, 147, State ofArunachal Pradesh, 115
148,149; women's rights in, Nawawi,30,31,36,37
146-49 9/11,16
mu'amalat, 6 1951 Refugee Convention, 100, 103,
Mudawwana, 146, 148, 174 106,115,116,117,118,121;
muftis, 6, 12, 175; of Damascus, 84; of Eurocentrism of, 104; refugee status
Egypt, 91-94; Hanafi, 84; of protocol and, 103-5; scope of, 104
Istanbul, 83; of Lebanon, 88-91; 1917 Ottoman Family Code, 222
Ottoman, 83; state, 81-96; of 1977 Declaration of People's Power, 151
Syria, 84-88 1967 Protocol, 100, 104, 116
muhallil, 162, 163, 164 1967 war, 3
Muhammad, 107, 161,190,219 niqab case, 71
Muhammad VI, king, 146, 149 nomocracy, 42, 43
al-Muharrar (al-Subki), 33 nonrefoulement, 12
mujtahid, 27, 35
mukhtar,34 Omar, Ibrahim Abdelaiz, 150
Multaqa al-Abhur (Halabi), 38 operative terminology, in legal rules, 40
Muntaha al-Iradat (aI-Najjar), 40 Organization for Mrican Unity,
al-Murtada, Ahmad ibn Yahya, 173 Convention Governing the Specific
Muslim Brothers, 9, 176 Aspects of Refugee Problems in
Muslim family, 176 Mrica, 106
Muslim identity, 193 Organization of the Islamic
Muslim intelligentsia, 46, 47 Conference, 113
Muslim life, modernity and, 44, 45 Ottoman Civil Code of 1867-1877,
Muslim Marriages Act of 1939,25 228
Muslim women, 213 Ottoman Code of Family Law, 25,
Muslim World League, 93 170-71,222,228
mustamin, 109, 110 Ottoman constitution, of 1876,59,60
muta'akhkhirun, 36 Ottoman Empire, 83, 222; collapse of,
al-Mutahhar, Muhammad ibn Yahya 60
ibn, 173 Ottoman legal system, 2,168; on
mutaqaddimun, 36 marriage law, 169
Ottoman Majalla, 6, 26
nafaqa,217,219,220 Ottoman mufti, 83

256
 INDEX

Palestinians, in Jordan, 103 Rafi', b. Rafi', 220

patriarchy: Arab, 174, 188, 194-200, Rafi'i, 30, 33, 37
209,228; of state, 195 rahma,40
personal status codes, 11, 13, 14; of Rahman, Fazlur, 46
Egypt, 170; of Jordan, 217, 223, rajih,34
228; of Morocco, 174-75; of Syria, Ramli, 39
171-72; tahlil and, 169-75; in al-Ramli, Khayr al-Din, 33, 38
Yemen, 172-74 ratio legis, 33
Political Refugee Act of 1971, 117 refugee protection, 99, 102, 105; on
political refugees, 100; extradition ground, 118-21; Islamic tradition
protection for, 115-16 for, 107-13
politics, independence oflaw from, 47 refugee status protocol, 1951 Refugee
polygamy, 199-200 Convention and, 103-5
positive law, 41; shari'a law and, 61 refugees: definition of, 105;
preponderance, rule of, 29,33,34 extradition protection for, 115;
proto-fuqaha',27 resettlement of, 102; state
destabilization by, 103. See also
al-Qebbani, Muhammad Rashid, 90, asylum law; forced migrants
91 religious law, necessity of, 42
al-Qedhafi, Mu'ammar, 149, 150, 152 Religious Liberalists, 46
qadis, 6,22 Religious Utilitarianists, 46
qanum,5 resettlement, of refugees, 102
qanun al-dwla al-tunisiyya, 57 Rida, Rashid, 2, 190
qanun law, 59
al-Qeradawi, Yusuf, 10, 176 Saadawi, Nawal, 188
al-Qesim, Ibn, 39, 220 Ibn Sa'd, 219
Qetar Center of Sira and Sunna sadaq,168
Research, 176 sahhahahu, 33
al-Qisi, Ibrahim, 216 sahih, 29, 30, 31, 32, 33,34, 177n1
qiwamah, 192 sahih opinion, 35
Ibn Qidama, 30 Salafi modernism, 94
Qiraish,108 Ibn aI-Salah, 34
Qir'an, 107; women's rights and, 148 Salam, Saib, 90
Qir'anic Equality Principle, 192 sanctuary, 107-8; Arnan and, 110;
Qir'anic revelation, shari'a and, 4-5 asylum and, 110. See also asylum
Qitb, Sayyid, 9 Sanhuri, Abd el-Razzak, 194
Saudi Arabia: CEDAW and, 137-38;
racial discrimination, in U.S., 134, women's rights in, 137-40
135 Saudi Basic Law of 1992, 62, 63, 116
radical feminism, 188 sawab,34

257
INDEX

SCC. See Supreme Constitutional al-Subki, Taj al-Din, 33, 37, 38

Court Sudanese Republican Brothers
Schacht, Joseph, 25, 43, 44 movement, 9
The Second Message ofIslam (Taha), 9 Sunni law, 24
sexual oppression, 188 supra-madhhab, 190
sexuality, in taWil, 163, 164, 168 Supreme Constitutional Court (SCC),
shadhdh,31 of Egypt, 12,65,68,69,72, 73, 74,
al-Shafi'i, Husayn ibn Muhammad al- 187,194
Mahalli,27,33,166, 167 Supreme Legal Council, of Lebanon,
Shafi'i school, 37, 172, 173; on tahlil 89
contract, 164 Syrian constitution, of 1950, 63
Shahrur, Muhammad, 46 Syrian family code, 171
Shaltut, Mahmud, 176 Syrian muftis, 84-88
Sharh al-Azhar (al-Murtada), 173 Syrian personal status code, tahlil
shari'a, 1,3,4, 7, 8, 11,21,193,194, contract and, 171-72
222; in Arab constitutions, 55-75;
colleges of, 47; demise of, 22, 24; tabaqat,82
fiqh and, 4; governmental systems Taha, Shaykh Mahmoud Mohamed, 9
and, 55, 56; incomprehensibility of, tahlil contract, 163; in Egypt, 170;
26; legislation and, 63, 64, 65; Hanafi school on, 163-64; in
nation-state creation and, 22; Hanbali school, 164; Jordanian
normative power of, 9; positive law personal status code and, 170-71;
and, 61; Qyr'anic revelation and, Maliki school on, 164; Moroccan
4-5; sovereignty of, 9; as personal status code and, 174-75;
supraconstitutional order, 64; Syrian personal status code and,
traditional ruler and, 22; women's 171-72; Yemeni personal status
rights in, 152 code and, 172-74
Shariat Act of 1937,25 tahlil marriage, 13, 161, 162, 176, 177;
al-Shawkani, Muhammad ibn Ali, 172 in Arab personal status codes,
shaykh al-Islam, 83, 84, 92, 93 169-75; choice and, 166-67;
Shi'i law, 24 contemporary fatawa and, 175-77;
al-Siba'i, Mustafa, 171, 172 sexuality in, 163, 164, 168; variance
sihhatihi, 33, 38 in, 162-65
Sivan, Emmanuel, 15 tahqiq,30
Snoussi, Ahmed, 147, 148 al-Tahtawi, Rifa'a, 168
Sonbol, al-Azhary, 195, 196 takhayyur, 24
state muftis: definition of, 81; political talfiq, 25
utilization of, 81, 82; role of, 82; Talib, 'Ali b. Abi, 219
typology of, 81-96 Tantawi, Sayyid, 176
state patriarchy, 195 Tanzimat, 6, 222

258
 INDEX

taqlid, 26, 189, 190 'urf, 165, 224-26

tarjih, 29, 33 U.S. Supreme Court, 135
tashhir, 32, 33, 34, 35, 38, 39, 40 usra,167
tashih, 30, 32,33,34,35,38,40 al-usra al-muslima, 176
tashih la-hu, 33 al-Ustuwani, Muhammad Shukri, 85
tashri', 63 usul al-fiqh, 5, 44, 45,189,190
Ibn Taymiyya, 166, 176
terrorism, 16 Vogel, Frank, 3
torture, prohibition of, 114
tribal law, 224-26 al-Wahhab, Muhammad ibn Abd, 166
Tufi,39 wajh,31
Tunisian constitution, 57, 58 wajh-opinions, 36
Tunisian family law, 203 waqfs, 11, 12,23
Tunisian Personal Status Majalla of Weiner, Myron, 103
1956,203 Western law, v. Islamic law, 189
wilaya, 222, 223
'ulama, 22, 59,82,83,86,169,177 women's rights: in Algeria, 140-46; in
Ulama Front group, 15 Arab countries, 133-56; Jordanian
'Umar, Muhammad b., 219 personal status code and, 215-29;
umma, morality of, 5 in Libya, 149-54; marriage
ummah,l13 termination and, 158n; of mobility,
UN Charter on Human Rights, 187 15,140,218; in Morocco, 146-49;
UN Commission on Human Rights, Q1r'an and, 148; in Saudi Arabia,
138 137-40; in shari'a, 152; to work,
UN-HCR. See UN High 217,218,219,220,221
Commissioner for Refugees World Trade Organization, 137
UN High Commissioner for Refugees World War I, 60
(UN-HCR), 102, 103, 118, 119, Wujub Tatbiq a/-Shari aa/-Is/amiyya, 21
120, 121
UN Relief and Works Agency al-Yafi, Abd Allah, 90
(UNRWA), 104 Yemeni constitution, 62,116
UN Resolution 428, 119 Yemeni personal status code, tahlil
Universal Declaration Human Rights, contract and, 172-74
105,134 Yemeni Unification Constitution, 172
Universal Islamic Declaration of yufaji, 225, 227
Human Rights, 114
University of~tar, 176 zahir,34
UNRWA. See UN Relief and Works Zaydi Shi'ism, 172, 173
Agency zina,226

259
 ABOUT THE CONTRIBUTORS

Zeinab Abul-Magd is a graduate student in Middle East History at

Georgetown University. She received her B.S. in political science from
Cairo University in 1996. Her publications include "Women, Gender and
Waqf" in the Encyclopedia of Women in Islamic Cultures (2003) and "'Asbab
al-Nuzul wa-'Ahkam al-Nisa' fi al-Fiqh al-Shaf'i" (Challenging
Orthodoxies-'Asbab al Nuzul and the Misappropriation of the Text) in
Women and Civilization Journal 1, no. 3 (2002).

Lama Abu-Odeh is associate professor at the Georgetown University

Law Center. She received her S.J.D. from Harvard Law School in 1993
after having received degrees from the University of Bristol and the Uni-
versity of York in the United Kingdom and from the University ofJor-
dan. Professor Abu-Odeh has taught comparative family law, Islamic
law, and criminal law at Stanford Law School and has served as legal
counsel for the Middle East/North Africa division of the World Bank.
She has also been a legal adviser for the Jordan Electricity Authority and
the Central Bank of Jordan in Amman. Among her publications are
"Crimes of Honor and the Construction of Gender in Arab Societies"
in Mai Yamani, ed., Feminism and Islam: Legal and Literary Perspectives
(1996).

Nathan Brown is professor of political science and international affairs at

the George Washington University, where he has been a professor since
1987. He was director of the Middle East Studies program there from

261
ABOUT THE CONTRIBUTORS

1989 to 1994 and from 1996 to 1999. He is also scholar-in-residence at

the Middle East Institute in Washington, D.C. Brown received his higher
education from Princeton University, earning an M.A. in 1983 and a
Ph.D. in 1987. He has published The Rule ofLaw in the Arab World· Egypt
and the Arab States ofthe Gu![(1997), Peasant Politics in Modern Egypt: The
Struggle against the State (1990), Constitutions in a Non-Constitutional
World: Arab Basic Laws and Prospects for Accountable Government (2001), as
well as numerous articles and book review.

Yvonne Yazbeck Haddad is professor of history of Islam and

Christian-Muslim relations at the Center for Muslim-Christian Un-
derstanding at the Edmund Walsh School of Foreign Service at George-
town University. She has taught Middle East history and Islamic studies
at the University of Massachusetts, Amherst; Hartford Seminary; and
Colgate University. She is a past president of the Middle East Studies
Association. Haddad's research interest has focused on twentieth-
century Islamic thought and Muslims in the West. Her numerous pub-
lications include Contemporary Islam and the Challenge ofHistory, Muslim
Communities in North America, The Islamic Revival, The Muslims of
America, Women, Religion, and Social Change, Muslims on the American-
ization Path?, Muslims in the West: From Sojourners to Citizens, and Mus-
lim Minorities in the West: "Visible" and 'Invisible."

Wael Hallaq has been professor of Islamic law at the Institute of Islamic
Studies, McGill University, since 1994. He has also held professorships at
the University of Toronto and the State Institute of Islamic Studies in
Jakarta, Indonesia. He received his doctorate degree from the University
of Washington in 1983 for his dissertation titled "The Gate of Ijtihad: A
Study in the Legal History of Islam." One of the preeminent scholars in
the field of Islamic law, Hallaq has written numerous books and articles
on topics including Islamic legal theory, medieval Islamic philosophy, and
contemporary Arabic literature. In 1997, he authored A History oJIsfamic
Legal Theories: An Introduction to Sunni Usul al-Fiqh (1997). He is cur-
rently editing an eight-volume compendium titled Themes in Islamic Law
and wrote Authority, Continuity and Change in Islamic Law (2000). His
works have been translated into Arabic, Indonesian, Turkish, Japanese,
and Persian.

262
 ABOUTTHECONTIDBUTORS

Ann Mayer is associate professor of legal studies at the Wharton School,

University of Pennsylvania, where she has served since 1977. She received
a J.D. from the University of Pennsylvania Law School in 1975, a certifi-
cate in Islamic and comparative law from the University of London's
School of Oriental and African Studies in 1977, and a Ph.D. in Middle
Eastern history from the University of Michigan in 1978. Mayer has writ-
ten extensively on topics such as comparative law, Middle Eastern law, hu-
man rights law, international law, Islamic law, and law and international
business. Some of her publications include Islam and Human Rights
(1998), "Reflections on the U.S. Reservations to CEDAW: Should the
Constitution Be an Obstacle to Human Rights?" (Hastings Constitutional
Law Quarterly 23 [1996]), and "Universal versus Islamic Human Rights:
A Clash of Cultures or a Clash with a Construct?" (Michigan Journal of
International Law 15 [1994]).

Aimen Mir is currently an attorney in the Government and Regulatory

Affairs Department of the Washington, D.C., office of Hale and Dorr,
LLP. He received his J.D. degree from Georgetown University Law Cen-
ter, where he served as the managing editor of the Georgetown Immigra-
tion Law Journal. He also received his M.S. and B.S. degrees in
international affairs from Georgetown University. Aimen has represented
asylum applicants from the Middle East and other countries before the
Immigration and Naturalization Service and immigration courts.

Adel Omar Sherif is a vice president of the Supreme Constitutional

Court of Egypt. Justice Sherif was educated at 'Ayn Shams University,
where he completed his doctorate in the field oflaw. He has served on the
,Council of the State and as a visiting fellow at the Human Rights Law
Center of the College of Law, DePaul University, Chicago; the Human
Rights Centre of the University of Essex; and the Federal Judicial Center
in Washington, D.C., and as a visiting professor at the Faculty of Law,
McGill University. He is the author of Constitutional Acijudication in
Egypt (1988),judicial Independence, Requirements and Rewards (1996) and
the coeditor of the following texts from the Kluwer Law International se-
ries: Human Rights and Democracy: The Role of the Supreme Constitutional
Court ofEgypt, The Role of the Judiciary in the Protection ofHuman Rights,
and Democracy, the Rule ofLaw and Islam.

263
ABOUT THE CONTRIBUTORS

Jakob Skovgaard-Petersen is associate professor of Islamic studies and

head of the Academic Program at the Carsten Niebuhr Institute, Univer-
sity of Copenhagen. He received his M.A. in the history of religion in
1989. After studies in Damascus, Cairo, and Beirut, he received a doctor-
ate for his dissertation "Defining Islam for the Egyptian State: Muftis and
Fatwas of the Dar Al-Ifta" (1997). Skovgaard-Petersen's research interests
focus primarily on the transformations of religious institutions, thinking,
and debate in the Arab world in the twentieth century.

Barbara Freyer Stowasser is professor of Arabic in the Department of

Arabic Language, Literature, and Linguistics at Georgetown University.
She received her Ph.D. in Islamic studies and Semitic languages from the
University of Munster, Germany. Between 1993 and 2003, she served as
director of the Center for Contemporary Arab Studies at Georgetown
University. She served as the thirty-fourth president of the Middle East
Studies Association (1998-1999). Her publications include a book-length
study, Women in the Qur'an: Traditions and Interpretation (1994); an edited
volume titled The Islamic Impulse (1987); articles published in American,
German, Arabic, and Turkish journals and periodicals; and book chapters
in collected volumes. In 2000, The Center for Contemporary Arab Stud-
ies published Stowasser's booklet, A Time to Reap: Thoughts on Calendars
and Millen nialism , an exploration of how Islam, Christianity, and Judaism
have historically treated periods of apocalyptic imminence.

Nadia Yakoob is currently an attorney at the New York City office of

Fragomen, Del Rey, Bernsen & Loewy, P.C., which specializes in immi-
gration law. She received her J.D. from Georgetown University, where she
served as the editor in chief of the Georgetown Immigration Law Journal.
After graduating from law school, she spent a year at the European Court
of Human Rights in Strasbourg, France, as a Fulbright researcher, exam-
ining human rights prohibitions on the expulsion of aliens. Yakoob re-
ceived her M.Sc. in international relations from the London School of
Economics and her B.A. in political science from the University of Cali-
fornia, Los Angeles.

264