Sharia in Flux: Islamic Divorce and the Modern State
Panel 030, 2015 Annual Meeting
On Sunday, November 22 at 8:30 am
Panel Description
When it comes to the study of Islam in the modern nation-state, Sharia law often serves as the focal point of the discussion. The law is alternately conceived of as the key to reform or a fixed and static barrier to change. Nowhere is this clearer than in discussions of personal status, where questions of the law's elasticity, boundaries, and authority are continually raised and challenged. Islamic legal norms governing gender vary considerably across time, place, and legal school and are in constant conversation with the social world. This reciprocal relationship between law and society -- its ability to both shape and be shaped by changing conditions --is particularly evident from the 20th Century onward, with the formation of the modern nation-state. The papers in this panel explore Sharia law in the modern state, by examining moments of transition. They take as their focus marriage and divorce, and look at the way that the law is animated in these instances, politicized, or changed. We find the law responding in a multiplicity of ways that complicate the simple distinction between law as either catalyst or obstruction to reform. For Palestinians remaining in the land that became Israel after 1948, the judicial system remained the only institutional link to a lost past. In the Israeli system of legal pluralism, Palestinian citizens of Israel who worked as qadis in the Israeli Sharia courts used Islamic law and their virtually unchecked judicial discretion to negotiate - sometimes even to circumvent - their minority position within the new Jewish state. In Morocco, reforms to the personal status code in 1993 and 2004 increasingly reflected tension between religious dogma and political economic liberalization, particularly with regard to the marital terms of shared property and income. In Jordan, competing claims of cultural authenticity and questions of religious and political legitimacy have made it difficult to guarantee women access to divorce and enact permanent personal status law reforms. In the United States, despite clear civil laws regulating marriage and divorce, we find the boundaries between Islamic and U.S. law, the religious and the secular, are complicated by Sharia's proceduralization in Muslim-majority countries. By presenting these papers, this panel hopes to challenge the understanding of Sharia as a fixed system of laws with a limited position on marriage and divorce and understand its complex role in the modern state.
Over the past two decades as the Muslim population in the United States has grown, Islamic law has become increasingly apparent in US courts of law. This is particularly true when it comes to questions of marriage and divorce, where civil law comes into contact with the edicts stipulated by Sharia that regulate these institutions for Muslims. Comparative law scholar Pascale Fournier employs the phrase “lost in transplantation” to describe these encounters, arguing that though we see nominal Sharia in US court rooms, it is not adopted without significant distortion. In this paper, I examine a number of instances where Islamic law is brought to bear in US court cases, asking how it is being applied and understood and whether the product is so at odds with its source as to be called “lost.” By focusing on the recent history of Islamic divorce in the US courts of Maryland and New York, I am able to explore the more nuanced dynamics of moments where Islamic law and US civil law meet. I find that the primary way Sharia is instantiated in US civil courts is through its consideration as international or foreign law. Rather than suggesting that this application is wholly divorced from its application in Muslim-majority countries, I argue that it reflects a larger dynamic shift in how Sharia is proceduralized and regulated in the modern state. The formalization of family law and the interaction between family law and international discourse on human rights facilitates its application in the cases I examine. Even as these instances represent sites of collision, places where two legal logics — religious and secular, foreign and domestic — meet, in addition to focusing on where they clash and oppose, I explore the equally revealing spaces where they coincide. I ultimately conclude that these encounters are neither unidirectional nor inherently adversarial.
Despite numerous attempts at reform over the past decade and a half, the Jordanian government has failed to permanently adopt a new personal status law (PSL). One of the most controversial issues standing in the way of reform is women’s right to divorce. In 2001, Jordan introduced a new PSL that included the khulʿ clause, which gave women the right to dissolve a marriage by waiving their marital rights and offering financial compensation to the husband. Under the modified law, the judge could grant a divorce, even if the husband did not agree—a law that broke from the traditional legal application of khulʿ. After the lower house of parliament rejected the law, Jordan revised its PSL again in 2010 by returning to a more sharīʿa-based definition of khulʿ while at the same time guaranteeing women access to divorce through other sharīʿa-sanctioned means. Despite this, the law did not pass and remains a temporary law.
This paper explores the reasons for Jordan's failure to enact a permanent, more progressive divorce law for women, as well as the contours of the debate over reform. PSL reform represents a departure from cultural and religious tradition and thus has become an arena for contestation over competing notions of cultural authenticity. The case of khulʿ in Jordan highlights tensions that exist regarding such competing claims of cultural authenticity, questions of religious and political legitimacy, and the authority of the state. I examine the ways in which the various actors involved in reform—the monarchy, women’s rights activists, Islamists, parliamentary representatives, international organizations, and the justice system—respond to and negotiate with one another on issues pertaining to women’s rights and the family. Focusing specifically on the issue of divorce for women and taking a closer look at how PSL reform in Jordan has been facilitated or obstructed at different times by the actors involved demonstrates how and why the interaction of these groups and their competing claims of cultural authenticity ultimately result in decreased gender justice for women in the law.
In Morocco, there have been two major waves of reform to the personal status code, first in 1993 and then in 2004. Among these reforms were the expansion for the grounds of divorce, stricter regulation on polygyny, and an increase in the minimum age requirement for marriage. While the legal content of Morocco's personal status code resonates with regional trends and has been the subject of important scholarly work, this paper turns its focus to the historical moments and social conditions that shaped these reforms. Taking theoretical cues from Pierre Bourdieu and David Harvey, this paper traces reforms to Morocco's personal status code through the lens of political economic history. The moments when the reforms took shape, in 1993 and 2004, also coincide with comprehensive economic liberalization, primarily following the 1981 structural adjustment program. These liberalization policies entailed a number of measures, including widespread privatization of state-owned enterprises and the implementation of free-trade agreements.
In embedding Morocco's personal status code reforms within the process of economic liberalization, this paper dispels any assumed teleology that suggests these changes are part of an inherent democratizing process. Instead, this paper argues that the Moroccan state uses the personal status code reforms as a discursive and legal mechanism for the creation of social conditions that are more amenable to economic liberalization while simultaneously upholding the monarchy's infallibility. Examples of this are articles in the personal status code reforms that lay out the legal parameters regarding property ownership and control over income within the family. Highly lauded in World Bank and International Monetary Fund reports, these articles are interpreted as empowering women by encouraging them to pursue employment and providing a religiously grounded legal framework that protects their property and income in marriage and divorce. In addition to critiquing these notions, this paper examines how the Moroccan state navigates through the tensions between the religious dogma of the personal status code and the neoliberal tenants of economic liberalization.
This paper examines the United Arab Emirates’ thirty year battle against citizen out-marriage. Though it has been an issue for all Arab Gulf states, the UAE is unique in terms of the intensity of the debates on out-marriage, the expansive role the Marriage Fund and women’s groups played in sketching the ideal of the national family, and the fact that out-marriage was never banned. Based on a survey of international and local newspaper articles from 1980 to 2012 and an examination of nationality and family laws, this paper demonstrates how the regulation of marriage is intimately tied to the Emirati state project. I consider how the problem of out-marriage was framed by state institutions and media, the ongoing battle against the rising cost of dowries and the many tactics the state pursued to control the practice. To discourage out-marriage among men, the financial burden of the mahr was eased through the establishment of the Marriage Fund, and a maximum for the mahr was set by law. Family Law was not used to limit men’s choices, though a total ban was socially debated and officially considered several times. Considering a three-decade long project of trying to reduce the number of citizen men marrying non-citizen women, why did the state never adopt legislation which could have ended the practice? I find the answer lays in the state’s identification of the Emirati nation as Islamic, and less overtly, as patriarchal. The Maliki tradition of Islamic law did not limit men’s choice, and thus such a ban found little basis and proposals were successfully rejected. Yet pursuant to the national project, women’s exogamous choices were limited by the state through nationality laws which were based on men’s nasab, and discretely through orders to the ministries. The intensity of the debates over out-marriage and the fervor with which the state tried to control it should be understood within the wider context of a goal to preserve the Emirati national identity in the face of a sharp demographic imbalance. Thus, Emirati women as reproducers of a nation threatened, became the target of a national project to conserve what was framed as the Emirati indigenous heritage.
