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.