Islamic Family Law:
Possibilities of Reform Through Internal Initiatives

Proposal as submitted to
the Ford Foundation
by the Law and Religion Program
Emory University, Atlanta, GA
January 7, 1998

Introduction

Islamic Family Law (IFL), which includes all matters of inheritance for Muslims, is an integral part of a rich, complex and highly sophisticated system of Islamic jurisprudence (commonly known as Shari'a) that can be traced back to the 8th and 9th centuries C.E. Significant theological and jurisprudential differences existed from the very beginning not only between Sunni and Shi'a Muslim jurists, but also among the different schools of thought of each tradition, and indeed within the same school of thought (Madhahib, sing. Madhhab). The early jurists not only accepted serious disagreement and difference of opinion, but in fact expressly described them as a sign of the grace of God. It is true that those jurists probably assumed that there ought to be one valid interpretation of Qur'an and Sunna (traditions of the Prophet) leading to the formulation of body of Shari'a principles. But it is also true that they could never agree on what those principles were, or accept a single set of criteria and institutionalized mechanism for the formal determination of Shari'a principles. In this light, I maintain that the notion of an immutable body of principles of Shari'a as universally binding on all Muslims for eternity was utterly inconceivable to the early jurists, notwithstanding subsequent claims that such a body of principles exists. This appreciation of traditional Shari'a as a historically conditioned interpretation and understanding of Islam is crucial for the possibilities of alternative modern formulations of IFL that would be fully consistent with modern international standards of human rights, and the rights of women in particular.

Since that formative stage, Islam gradually spread throughout the world, with different schools and jurists alternating in influence among Islamic communities. For example, the Shafi'i School might displace the Maliki School in one region, and be displaced by it or by the Hanafi School in another. The fact that the same school prevails in several communities does not mean that they all follow the same specific lines of juridical thinking within that school. Factors that contribute to the diversity and complexity of the theory and practice of IFL in Islamic countries and communities include: The timing and manner of the spread of Islam to different regions, and how it evolved there over time; the degree to which Shari'a was traditionally applied, and how and when was it displaced by European codes during colonial rule; disparities in levels of social and economic development of various Islamic communities.

Generally speaking, IFL is applied today in almost all predominately Islamic countries, as well as among Islamic communities in secular states like India. Even where IFL is not enforced by official state courts, its principles are informally observed by Muslims as a matter of religious obligation and vital concern. By determining the validity of marriage, for example, IFL decides whether a man and woman are living in lawful wedlock or committing zina, a most serious sin and capital offense. Children of a void marriage are "illegitimate," and as such disqualified from inheriting from their parents or other relative. Whether formally or informally, IFL governs matters of marriage, matrimonial relations and maintenance, divorce, paternity and custody of children, inheritance and related matters for more than a billion Muslims throughout the world. In this sense, one can say that the broad principles of IFL, and their basic assumptions and rationale, constitute the most widely applied system of family law in the world today.

But that does not mean, however, that the same IFL principles apply everywhere. As already noted, there are significant differences among the various schools of Islamic jurisprudence which prevail in different Islamic countries. Besides the obvious differences between Sunni and Shi'a communities which sometimes co­exist within the same country (as in Iraq, Lebanon, Saudi Arabia, Syria and Pakistan), different schools and opinions may be followed the Muslim public within the same country (though probably not formally applied by the courts.) Moreover, judicial practice may not necessarily be in accordance with the school observed by the majority of the Muslim population in the country (as in North African countries which inherited official Ottoman preference for the Hanafi school while popular practice is according to the Shafi'i or Maliki schools.) One would also expect significant variations in the theory and practice of IFL due to such variables as differences among Islamic countries and communities in terms of cultural patterns, sociological trends, demographic factors, economic development and political stability.

From a practical point of view, legislative and judicial application of IFL in Islamic countries has often been modified and adapted to fit official notions of social policy or local conditions. This is usually done by either statutory enactment, often drawing from different jurists and schools to form composite principles or rules that cannot be attributed to any specific scholar or school. These so-called reform techniques are known as takhaur (selectivity), which sometimes goes to the logical extreme of talfiq (patching up). Similar results are sometimes achieved through judicial circulars establishing certain principles or directing judges to use specific sources, or by administrative regulation of subject-matter jurisdiction, and so forth. The "administrative" requirement of registration of marriage and denial of judicial remedies for disputes relating to unregistered marriages, for example, has been used to regulate substantive aspects of Shari'a, such as minimum age of marriage, unilateral divorce by the husband and polygyny. That is, specific policy choices were made by state or other authorities at various times about which school of thought, and which views or jurists within a school, are to be followed by state courts and administrative agencies.

Moreover, a variety of social conditions or customary practices sometimes have the effect of modifying or mitigating the consequences of strictly legal enforcement of IFL in different countries and communities. For example, there are indications that the practice of unilateral divorce by the husband or polygyny tend to decline with higher levels of education and better standards of living. A stronger role for the waly (guardian) in the formation of marriage may persist because of popular following of the Maliki school in a country in contradiction to the dictates of the Hanafi school applied by the state courts. Distribution of shares in inheritance, especially for women, is sometimes indefinitely postponed to avoid fragmentation of the estate of the deceased, while an informal arrangement for sharing benefits is supposed to achieve similar results to those envisaged by Shari'a principles. Customary notions or social practice rather than Shari'a rules may apply to the consequences of divorce or custody of children in some settings.

Some of these practical modifications or adaptations of IFL may in fact be more beneficial or detrimental to women and children than strict application of the law. It is also possible that some of these practical features can justified or rationalized from a theological or legal point of view. But the problem is that the current state of knowledge in the field does not permit well-informed verification of such claims. We are also unable to predict which features are transitory or lasting and will be incorporated in the corpus of IFL over time. Moreover, it seems clear that ignorance, misunderstanding, bias, ulterior motives or wider political agendas by all sides are obstructing positive reform initiatives in many Islamic societies.

The politicization of IFL operates at different levels in various Islamic societies and communities. However, in most cases IFL is a proxy for political, ideological or cultural struggles, rather than an independent matter in its own right. For Muslim minorities within predominantly non-Muslim countries, for example, IFL becomes the boundary of self identity and gate-keeper of communal autonomy and cultural self-determination. This is clearly illustrated by the controversy over the Shah Bano case in India. In many Muslim majority situations, IFL was usually the only aspect of Shari'a that has successfully resisted displacement by European codes during the colonial period, and survived various degrees or forms of secularization of the state and its institutions since independence. As such, IFL has become the symbol of Islamic identity, the hard irreducible core of what it means to be a Muslim today precisely because it was always applied. Consequently, IFL has become the contested ground between conservative and fundamentalist groups, on the one hand, and modernist and liberal groups, on the other. While the former group seek to entrench IFL as the embodiment of Islam itself, the latter criticize it as archaic, rigid and discriminatory against women. Unfortunately, the cause of genuine and legitimate reform is lost in this rhetorical absolutist confrontation, with each side refusing to "concede" any validity to the other's point of view for fear of frustrating or jeopardizing their own broader political and social objectives.

This project will confront these and related issues in order to promote positive and sustainable IFL reform in different parts of the world. In particular, the project seeks to explore possibilities of generating internal theological, legal as well as political support for IFL reforms. To avoid misunderstanding, I should first emphasize that this project is not about repudiating the basic concepts and principles of IFL and their replacement by so-called "neutral" secular civil code. To the contrary, the question is how to best preserve IFL as a time-honored, sound, flexible and responsive system for the negotiation and regulation of social relationships. It is from this perspective that we expect that certain aspects of IFL have not kept pace with the development of the societies they are supposed to serve. Moreover, the object is not simply to identify such problems or criticize aspects of the theory and practice of IFL from the point of view of the human rights of women and children. Rather, the declared and explicit objective of this project is actual engagement in theological, legal and political debates about what IFL reforms need to be made and how they can be achieved in practice. We believe that the project can do this, and do it effectively and legitimately, because all its researchers and main participants (the project team as explained later,) will be Muslim jurists and activists working on their own societies and communities.

To this end, this project will utilize the "integrated model" method developed under our project on Cultural Transformation and Human Rights in Africa (generously funded by the Ford Foundation). As applied to the sub-project on Women and Land in Africa, the basic elements of that model are: First, a team of locally-based researchers conduct empirical and theoretical studies in carefully selected areas in order to develop concrete policy and law reform proposals. Second, the team of researchers will work with local non-governmental organizations, jurists, and activists in evaluating and disseminating emerging proposals among relevant constituencies in the region. Third, final proposals, as revised or reformulated, will be communicated to governmental and inter-governmental agencies and policy makers for possible implementation.

This model will of course be adapted for application to the present project, but the main and essential thrust of the model will remain: how to generate local proposals for reform, and develop the necessary support and acceptance for their implementation within the community in question. Part of the rationale of this approach is that it is more respectful of the human dignity and integrity of the communities in question, and seeks to empower people to take control of their own lives. Another part of the rationale is the fact that this approach is more likely to produce effective and lasting reforms. That is, we propose to adopt this approach to IFL reform simply because we expect it not only to achieve the desired reforms, but also to create and sustain the local capacity to engage in such processes in the future, whether regarding IFL or other matters of concern. Although I will not make further reference to this approach in the rest of this proposal, I wish to emphasize that it is in fact absolutely central to every aspect of the work proposed to be done under the present project.

Objectives and Concept

The first objective of the proposed project is to verify, understand and document the precise scope and nature of the application of IFL in a sample cross-section of Islamic countries and communities around the world. This "mapping process" will occur in two stages, an initial global survey during phase one of the project, coupled with in depth examination of three situations in the pilot study part of this first phase. The second phase (for which funding is not sought by this proposal) will consist of in depth examination of five countries and two communities in the second phase of the project.

The second objective of the project is to explore and substantiate possibilities of IFL reform within particular communities of Muslims in their specific cultural, theological, legal and institutional contexts. With due regard to professional and scholarly standards, the goal is to influence policy and law reform in Islamic counties and communities regarding the status and rights of women and children. Once clarified and tested through the two phases of this project, this approach to IFL reform can be applied in other situations. Before turning to the operational side of these two phases, here is some justification of the proposed scope, followed by further elaboration on the rationale of the objectives of the project.

What is basically proposed here is a global survey to chart the field, to know who is doing what, how and what are the conclusions or results of their work. Despite the obvious need for this as an essential prerequisite to intelligent critical examination of the theory and practice of IFL with a view to its reform and positive development, no such study has been done yet. But for such a survey to achieve its objectives, it has to go beyond a mere review of formal legislation or occasional judicial pronouncements in various countries. A comprehensive and insightful survey must penetrate the facade of official legality to the realities of actual daily life for individual people, their families and communities. IFL is clearly too important to the individual and collective self-identity of most Muslims around the world for its role and significance to be appreciated from a formalistic survey of the law as it "ought to be." That is why in depth studies of the type described below are necessary for truly understanding what is happening, in what respects it needs to be reformed and how to achieve that objective.

The proposed case studies are therefore integral to understanding the actual practice of IFL with a view to proposing and implementing effective reform as and when necessary. Only detailed and systematic study of how IFL affects the daily lives and social relationships of actual men, women and children, of how people adjust to and cope with the consequences of the application of the law will give us the insights we need for devising and implementing reform initiatives. Such studies are also necessary for testing the relevance and efficacy of reform initiatives already attempted in different parts of the world.

But since such studies cannot be undertaken all at once in every Muslim country and community, we have to begin with a select sample of situations. There is also the need to verify and refine the criteria of selection of appropriate situations, and to develop valid methodologies for the study of each type of situation. That is why this proposal suggests implementation of pilot studies in three situations during the first phase of the project. However, while three might be a manageable number of studies for a start, it is hardly sufficient for drawing legitimate conclusions for the wide variety of situations that exist on the ground. For that reason, we propose to add another seven detailed studies during phase two of the project. Though even a total of ten studies under this project will not cover the full range of possible situations, it will certainly give us better bases for understanding the nature and consequences of the implementation of IFL in Islamic communities around the world. Expanding the sample in this way will also enable us to develop and refine the methodology of research for similar studies in the future, to be undertaken by a larger number of researchers, each in her or his own setting.

This proposal is not premised on the claim that the theory and practice of IFL in various settings and contexts are not studied at all. On the contrary, this project presupposes the existence of such studies, and will draw upon their findings and recommendations, particularly those which have a similar or compatible orientation and methodology to what is proposed for this project. The proposal also assumes that there is a variety of reform initiatives undertaken in several Islamic countries and communities which should be examined in order to evaluate their efficacy and learn from their experiences. A close review of previously done work on both counts (studies and reform initiatives) in the field will be undertaken in the first phase of the project.

Pending further examination during phase one, the working hypothesis of this project may be summarized as follows:

These remarks are not, of course, intended as final criticism of existing studies in such a wholesale and generalized manner, or to dismiss them as totally lacking practical utility. Rather, these remarks are offered by way of hypothesis, subject to verification and clarification through the work of the proposed project. It is only reasonable to expect, for example, individual researchers to focus on their specific academic objectives which have to be achieved with very limited time and resources. Women and human rights organizations are also constrained by such factors as the mandate of their particular organization, and the expectations or orientation of their own immediate constituency regarding the priorities and/or strategies of the organization.

While this project has its specific objectives too, we believe that they are significantly different from those of purely academic efforts in that they seek to develop an integrated model of reform oriented research as explained below. This project also has its constraints, but we believe them to be sufficiently consistent with its objective as to enable it to make a valuable and unique contribution. That is, our claim is that the objectives and methodology of this project supplement the work being done by others in ways they are unable or unwilling to do. In particular, we believe that what we propose to achieve through this project is unlikely to even be attempted by international women's and human rights organizations for the following reasons.

It should be recalled here that the current model of women's and human rights organizations evolved in Western societies where such organizations tend to focus on generating political pressure for change, rather than themselves adopting specific reform proposals or solutions for political and legal problems. The latter role is normally played by political parties or other civil society organizations and the public at large. This is particularly true when such specific advocacy activities involve what and human rights organizations perceive to be delicate or complex theological considerations, as is the case with IFL. International women and human rights organizations, such as Women Living under Muslim Law, have emerged out of this Western model, and came to define their role in similar terms. Such organizations should be appreciated for what they do so well -- and they do play a vitally important role -- but they should not be expected to do what they are not equipped and inclined to do.

But why is this also true of local chapters based in Islamic countries and even indigenous organizations like the Pakistan Human Rights Commission? The reason for this is what I call "the dichotomy of secular versus religious discourse." Partly due to the Western model they adopt, but also because of their own experiences in the past, human rights advocates in Islamic societies insist on a strictly secular universalist approach for two main reasons: First, they are concerned that once they engage in a religious discourse about the rights of women or human rights in general, they will be drawn into a relativist paradigm that repudiates the foundations of the principle of universality of human rights itself. Secondly, rights advocates, who almost always have a secular education and liberal lifestyle, feel that they lack the conceptual and terminological tools, or personal orientation, for effectively engaging in an Islamic discourse.

Whatever may be the reasons for this reluctance, its clearly unfortunate consequence is that the Islamic public at large, and women as the beneficiaries of the advocacy of rights in particular, are faced with what appears to be a stark choice between Islam and internationally recognized human rights of women. Regarding the subject of this proposal in particular, instead of arguing for equality for women under IFL as a matter of Islamic principle, women's human rights are presented as the product of international treaties, whose implementation is demanded by international organizations based in the West, in opposition to Islamic norms and institutions, as articulated by conservative and fundamentalist forces in society.

In light of these remarks and earlier-mentioned tentative hypothesis, I would emphasize that the ultimate objective of this project is to generate and promote credible and sustainable internal possibilities of IFL reform in Islamic societies and communities. In seeking to do so through the efforts of local researchers and advocacy organizations in the situations it covers during its two phases, the project will also be developing a model for implementation in other situations. These objectives will be realized through the following process.

Methodology and Implementation

Subject to timely availability of funding, this project will be implemented in two phases over 4 to 5 years:

The first phase, to be implemented between June 1998 and circa May 2000 (two years) will consist of: (1) A global survey of the status of IFL around the world, including existing studies as well as reform initiatives and their outcomes. (2) Three pilot studies, as explained below, of one Islamic country and two Muslim minorities in predominantly non-Islamic countries.

The second phase, to be implemented between June 2000 and circa May 2002 (two years) applying the methodology of the three pilot studies of phase one, and testing their tentative conclusions, in an additional seven studies: five Islamic counties and two Muslim minorities in predominantly non-Islamic countries.

The global survey of phase one will be based on library research, interviews and discussions with judges and attorneys, concerned scholars, policy makers, social justice groups and women's and human rights activists. I (Abdullahi An-Na'im) will be responsible for this global survey, assisted by two or three research assistants. I will also coordinate the three pilot studies of phase one, but the primary work will be done by local researchers in each case, working with community-based organizations. These researchers will constitute the core of the project team, to be joined in due course by the lead researchers of phase two. The criteria of the selection of the project team will be explained below.

At this point, I should mention tentative plans for collaboration on the implementation of this project with Dr. Lynn Welchman, Lecturer in Law, and Director of the Centre for Islamic and Middle Eastern Law at the School of Oriental and African Studies (SOAS) of the University of London, U.K. Dr. Welchman is an expert in the theory and practice of Islamic Family Law. In fact, her study of the application of IFL in the West Bank and Gaza Strip (due to be published soon in English and Arabic) provided initial inspiration for the present project. I have discussed this proposal with her, and she promised full cooperation in its implementation once funding is secured. I am truly grateful for this offer of collaboration because the University of London, and SOAS in particular, will provide excellent human and material resources for the implementation of this project.

The choice of the one Islamic country and one Muslim minority in Africa or Asia for pilot studies of phase one will be decided after further consultations, but the Muslim minority in the West will be that of the United States (about six million people of different backgrounds and living in a variety of communities). The five countries and two Muslim minorities of phase two will be decided in light of the findings of both the global survey and pilot studies of phase one.

Subject to further consultations and testing through the pilot studies of phase one, the project team described below will conduct the following studies of the selected countries and communities:

1. Anthropological/sociological analysis to understand and document the actual practice of IFL, and its main consequences for the societies and communities. These studies will examine the dynamics of theory and practice of IFL in specific (social, cultural, economic and political) contexts. They will include, for example, examination of the role of women rights and social justice activists, formal institutions such as the judiciary and legal profession, as well as informal bodies like groups of community elders.

2. Assessment of reform possibilities and initiatives under two themes:

a) Examination of the origins and historical evolution of the current system of IFL in the selected societies to explore whether alternative formulations of the law might be based on the same sources. The idea of this sub­theme is to critically examine how legal choices were made, and can therefore be revised, within the same theological and legal tradition to minimize resistance to reform proposal and initiatives.

b) Elaboration and substantiation of new and creative approaches to IFL reform in theory and practice. The objective here will be to critique the present law and practice from human rights and social policy perspectives, develop alternative formulations of IFL and examine ways of promoting them in the specific political, cultural and legal contexts of the societies in question.

The precise scope and methodology for the pilot studies will be discussed and finalized at a small meeting of the core project team during the summer of 1998. At the end of phase one, we will convene a workshop of what by then will be the expanded project team, including a few resource persons, to discuss the findings of the first phase and clarify themes and methodologies for the sub-projects of phase two. The lead researcher(s) of each selected country or community will bring to the workshop their tentative proposal of the concept, methodology and budget of their respective studies. These proposals will be discussed at the workshop to assist the researchers responsible for implementation in finalizing their plans before embarking on local implementation. We also propose to convene one or two workshops of the project team during the implementation of these phase two studies to ensure that all activities remain focused on the objectives of the project as a whole, and to prepare for the wide dissemination and advocacy of conclusions and reform initiatives. Those workshops may also plan and pursue future activities following the termination of the present project.

As indicated earlier, this project will co­ordinate the work of a select team of scholars and activists in related fields from a representative sample of Islamic countries and communities around the world. Criteria for selection of team members include balance in gender and interdisciplinary, scholarly/activist approaches. For example, the team should not only include social scientists as well as lawyers, but the lawyers in the group should be able to work in an interdisciplinary manner. The team should also include members who have experience in community outreach, and political advocacy. A good example of the sort of team members we have in mind would be Salbiah Ahmad (lawyer) and Noani Othman (sociologist) who are the leading and most experienced members of "Sisters in Islam," a group of women activists working in Malaysia (and Southeast Asia in general) to promote the rights of women from an Islamic perspective.

The project team will also include scholars like Professor Amina Wadud (who has already tentatively agreed to participate in this project) who are developing innovative theological interpretations of the Qur'an that are conducive to achieving equality for women. Though a valuable theoretical resource, indeed essential for achieving lasting reform, the work of these scholars tend to remain unknown and unaccessible to the activists and policy makers who need it the most. The project will be striving for the mutual benefit of these two groups: community-based activists drawing on the insights of scholars, and the scholars having opportunities to test and refine their thinking in light of practical experiences of community-based activists.

As a practical matter, I should note here that English will be the main working language of the project as a whole. Yet, the project will lose capable researchers and vital resources if all aspects of the work are confined to researchers and other participants fluent in English. Many capable researchers and collaborators, especially in Indonesia, Central Asia and Francophone African countries will thereby be excluded. This problem can be resolved by having regional coordinators who are fluent in English to work with researchers and local collaborators in French, Russian or other relevant language. This factor should be noted now because of its budgetary implications for this proposal.

To summarize the proposed stages and activities of implementation:

(I) I will immediately begin (winter 1998) initial explorations of the situation in the U.S., Western Europe and Central Asia under a small research grant from Emory University under the auspices of the Faculty Seminar of the Halle Institute for Global Learning. If funding for the proposed major project is not granted in time, I can use the findings of my tentative research in writing an article on the subject, while continuing to seek funding for the project as a whole.

(ii) If funding for phase one is granted by May 1998, we will convene in June or July a planning meeting of all researchers of phase one (global survey and three pilot studies) with a couple of resource persons, to discuss and finalize plans for their respective studies.

(iii) The process of consultation about the selection of countries and communities to be studied during phase two of the project will begin at the June/July 1998 meeting and continue throughout phase one. I will also pursue funding possibilities for phase two during this period.

(iv) The global survey and three pilot studies will be presented to a workshop of the full project team (including resource persons, journalists and policy makers), expected to convene in an Islamic country circa December 1999. Given its projected composition and location, that meeting should provide a good opportunity for maximum publicity and exploration of possibilities of follow-up activities, regardless of the funding subsequent prospects of this project.

(v) If funding for phase two is secured by then, the December 1999 meeting will discuss and finalize plans for the additional studies of five Islamic countries and two Muslim minority situations. The remaining six months (up to May 2000) will be used for finalizing manuscripts for publication, and other follow up activities for this phase. However, if funding for phase two is not secured by then, this project will conclude with that meeting, except for remaining publication and other activities during the last six month of phase one.

In conclusion, I wish offer some reflections on why this project can be effectively implemented by the Law and Religion Program of Emory University. I propose the following response to the legitimate question: Why should such a major project on IFL be implemented by an American university, and the Law and Religion Program of Emory University in particular?

1. The researchers will be Muslim scholars/activists working on their own respective societies. Moreover, the above mentioned collaboration with Dr. Lynn Welchman of SOAS, London, will provide the project with excellent resources and possibilities of practical coordination.

2. Each team of researchers will devise their sub­project, to be revised in light of discussion at the planning workshop of all researchers and a few resource persons. The role of the Law and Religion Program as convener will therefore be confined to general coordination and technical support for implementation and follow up activities of the project as a whole.

3. In view of the high degree of political sensitivity around issues of IFL in Islamic societies, whether in majority or minority situations, it probably wiser that the primary coordinator of the project as a whole be based outside the region. Implementation of the project by a university located outside the region will probably provoke less suspicions of ulterior political motives, provided that the empirical and technical work is conceived and performed by Muslim scholars working on their own societies as envisaged by this proposal.

4. Emory University has the necessary scholarly and technical capacity for the implementation of the project. In addition to the Law and Religion Program, Emory University is strongly building up its scholarly and technical resources for the study of Islam and Islamic societies. For example, there is the Committee on the Study of Islam, headed by Professor Richard Martin, a leading specialist of Islamic studies and Chair of the Department of Religion. This Committee consists of ten professors from different departments (Middle Eastern Studies, Law, Anthropology, Religion, Art History and Political Science). Moreover, the Graduate Division of Religion has just initiated a Ph.D. program in West and South Asian Religions, including Islam. Emory is also part of a consortium in Islamic studies (with Duke University and University of North Carolina).

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