Islamic Family Law: How Change is Advocated
Workshop at Harvard Law School
February 12-13, 2015
Organized by Professor Kristen Stilt and Visiting Fellow Dörthe Engelcke
Islamic family law underwent major reforms during the twentieth century. These changes were inseparably tied to the processes of nation and state building and led, in some cases, to the codification of family law during the 1950s when states acquired independence. The decades following these initial post-independence developments were characterised by an absence of reform. Since the 1990s, debates over family law have increased and countries undertook legal change during the 2000s in particular: Algeria (2005), Egypt (2000), Jordan (2001, 2010), Morocco (1993, 2004), and Syria (2003). Others codified their family laws for the first time: the United Arab Emirates (2005), Qatar (2006), and Bahrain (2009).
In order to legitimize family law reform, state officials have tended to frame the effort as an internal process,thereby denying any external non-Islamic, “non-authentic,” sources of the law. Strategies included exercising preference (takhayyur), patching (talfiq), and the promotion of public welfare (maṣlaḥa). In addition, procedural strategies were used, such as limiting the jurisdiction of national courts. The reform projects thereby allowed for the claim—which was challenged by some—that family law remained Islamic. While reforms achieved some improvements for women by restricting husbands’ prerogatives to polygamy and unilateral divorce while increasing women’s access to divorce and extending a mother’s right to child custody, none of the reforms has so far produced gender equality.
Approaches that advocate family law reform within an international human rights framework have become more widespread since the adoption of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1981. However, this reform strategy has been challenged by some local actors as contrary to Islamic law.
The recent reform efforts highlight the need to study how change actually occurs. What kinds of arguments do actors employ, which have been most successful, and how have those arguments changed over time? How far can reform go if an advocate feels constrained to rely on Islamic arguments? What is the range of such Islamic arguments, and can one be constructed in support of any proposed change? Related, who initiates change—advocates for women, religious leaders, presidents, monarchs—and how does that affect the type of change and the outcome?
The workshop aims to bring together academics and legal practitioners who study and work in Muslim societies and in the Middle East/North Africa in particular. By naming and defining strategies of change, we hope to facilitate discussion and research in this area among academics and those engaged in reform projects. Discussing international human rights approaches and internal strategies based on Islamic law on a case by case basis and as a whole will help establish the benefits and disadvantages of these diverse approaches to achieving legal improvement for women and children.