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Relevant reading

Lots of room for interpretation

by Martina Sabra
Current penal and trade law in most countries in the Middle East and North Africa (MENA region) is based on Western models and hardly, if at all, influenced by religion. In contrast, civil law pertaining to issues as marriage, divorce, child care and inheritance is shaped by Islam. Researchers, think tanks and social activists are assessing the consequences. [ By Martina Sabra ]

That religious Islamic law (sharia) is largely held to be directly derived from the Qu’ran contributes to making family and marital law a religious affair. This approach legitimises detrimental effects on the legal and societal freedom of women and girls. In many Arab countries, for instance, men are the only ones who can file for divorce, and women sometimes only have a right to half of the inheritance.

Nonetheless, a lot of discriminating laws and traditions in the Arab world do not actually stem from the Qu’ran. Rather, they reflect patriarchal power structures that have long been incompatible with social reality. Various social groups – including some religious women – are increasingly calling such practices into question.

To make sure that measures meant to strengthen women’s rights in Arab countries are effective in the long run, one needs to understand the history and the developmental potential of Islamic law. In 2008, Mathias Rohe published an easy-to-read, clearly structured and detailed introduction in German: “Das Islami­sche Recht in Geschichte und Gegenwart” (Islamic Law Past and Present).

Historical roots

What does "sharia" mean? What about "fatwa"? Can there be equal rights between men and women in Islam? Rohe discusses these questions and others with detailed references to source texts in Islamic law such as the Qu’ran and the Sunnah – the corpus of information handed down about the Prophet Mohammed, which Muslims view as examples of how to lead an ethical life close to God.

A professor of Islamic law at the University of Erlangen, Rohe first describes the main milestones in the creation of Islamic law and the development of various schools of law in the Middle Ages. He takes various trends in Sunnite and Shiite Islam into account. In the process, the strong civilising force of Islam over centuries becomes evident.

In the second part of the book, Rohe describes the emergence of modern Islamic family and marital law in detail. He shows that Islamic law was never static; rather, it repeatedly interacted with other, non-religious and universal value systems in history.

In the third part, Rohe discusses the shifting concepts of sharia against the backdrop of globalisation and increasing worldwide migration. He concludes that, while Islamic marital and family law leaves a lot of room for interpretation, it nonetheless does not conform to universal concepts of human rights. Rohe therefore believes that Islamic theology has a role to play. According to him, Muslim theologians and religious teachers should contribute to reconciling Islamic religious identity with the principles of the rule of law, democracy and gender equality.

Recent trends

Rohe’s book is full of interesting information, but it is basically a reference work. Anyone who would prefer a more readable but still thorough introduction to the topic, should take a look at the INAMO issue 57/2008, which focuses on current discussions about historical and current-day sharia. INAMO is a German project to dis­tribute information about the Middle East. Its series of publications is in German. The issue mentioned here contains articles on up-to-date opinions about the foundations of Islamic law in general and family/marital law as practiced in Afghanistan and Egypt in particular.

Germany's Goethe Institute recently tackled the topic in its cultural journal Fikrun Wa Fann (Art and Thought), which is funded by Germany’s Federal Government and published in English, Arabic, French and German. With the title “Sharia, Justice and Law”, the first biannual issue for 2009 included a number of articles covering basic matters. For instance, Ahmed Poya, a Freiburg-based Islam scholar, assesses how Muslim law has undergone historic change and was time and again adapted to meet ever-changing societal conditions. Poya insists on the Muslim tradition of Ijtihad – interpreting the words that are considered divine in a way that suits contemporary society. He wants this tradition to gain more force again.

Anyone interested in questions of family law (especially marital law) in various predominantly Muslim countries, can also turn to the GTZ’s three-part brochure series, which contains a lot of interesting information and a good bibliography. The brochures can be downloaded from the Internet in German and English. The third volume is also available in French, and an Arabic version is being prepared. The brochures are also available as hard copies from the GTZ in Eschborn (contact: [email protected]).

The first volume of the series shows how the understanding of Islamic law diverges from country to country by assessing the rules that govern marriage and divorce in Egypt and Yemen. Volume two assesses the complex interaction of codified law, customary law and day-to-day practice. Volume three elaborates on strategies and best practices to enable Arab women to actually make use of the rights they have been granted or that they won in social struggles.

North African developments

One of the most interesting projects in recent years in the field of Islamic family law in the Arab world was participative monitoring of Egypt’s divorce-law reform. Relevant representatives of government agencies, the judiciary and civil-society organisations were trained to jointly assess the impact of new legislation on women’s lives. On behalf of the Germany’s Ministry for Economic Cooperation and Development (BMZ), the GTZ cooperated the Egyptian women’s organisation ADEW in this process, and also supported a publication in Arabic (Badr et al., 2006).

In 2004, Morocco passed the most comprehensive reforms of family law in the entire MENA region. King Mohammed VI was under pressure from numerous women’s and human rights organisations both at home and abroad. In an attempt to bring Morocco closer to Europe and the USA, he had numerous misogynist passages deleted from the law, following recommendations of a committee of experts. Divorce, for instance, has thus become a matter for courts in Morocco. In the journal Orient, law professor Hans-Georg Ebert published a very insightful analysis of the conditions that fostered this reform and of its prospects.

Affiliates of Germany’s political parties

In Germany, the think tanks which are called “political foundations” and closely associated with individual political parties are also looking into Muslim law. They know that the forces of radical fundamentalism are making use of these matters to mobilise people. In Morocco, the Friedrich Ebert Foundation, which is close to the Social Democrats, commissioned a number of studies on public support for and general perceptions of the reform. Some of these insights could proof fruitful in other Arab countries as well. The results of these studies were published collectively in French in early 2007. The book is available as a PDF download on the Internet and can also be ordered from the Foundation’s office in Rabat.

Furthermore, the same Foundation supported the Collectif 95 Maghreb Egalité in the 1990s. This initiative was started ahead of the UN summit on gender issues in Beijing and promotes reform throughout the Maghreb, insisting on modernising law that affects women. One of the Collectif’s achievements was a comparative study of family and personal law in Morocco, Algeria and Tunisia. The reforms in Morocco were inspired by this publication, which has been made available online in English in 2006 and in Farsi in 2007.

In 2008, the Konrad Adenauer Foundation (KAS), which is close to the Christian Democrats, published documents from its conference Islam and the Rule of Law – Between Sharia and Secularisation. Alongside several excellent theoretical essays, the texts include a highly informative article by Malaysian sociologist and women’s rights activist Norani Othman. This sociology professor and cofounder of the women's rights organisation Sisters in Islam is deeply worried because the ever more rigid interpretation of family and personal law in Malaysia goes hand in hand with the restriction of civil liberties in general.

Furthermore, the Cairo office of KAS has organised dialogue events on family and inheritance law in various regions of Egypt. These events are well documented on the websites of the KAS office in Cairo. (Soleimankehl, 2009).

During the campaigns for the recent communal elections in Iraq, the Heinrich Böll Foundation, a think tank close to the Germany’s Greens, presented an excellent study on the family law debate there. The study shows that gender equality is indispensable for democracy; in turn, the extent to which such reforms have taken place shows how effectively authoritarian rule has been done away with. The assessment of Iraq is rather skeptical. The author was Layla Al-Zubaidi who directs the Foundation’s Middle East office in Beirut.

Those interested in the design of Islamic family and marital law in various Islamic countries should regularly visit the website of the Max Planck Institute for International Private Law in Hamburg. From 2009 to 2014, the Institute is conducting comparative research on family and inheritance law in Islamic countries. Back in 2005, the MPI Hamburg conducted field research on family structures and family law in Afghanistan. Entitled “Family Structures and Family Law in Afghanistan”, the report is available in English as download from MPI Hamburg's website.