Academic journal article The Middle East Journal

Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?

Academic journal article The Middle East Journal

Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?

Article excerpt

THE treatment of the marital relationship in contemporary personal status laws in North Africa, examined in this article, challenges stereotypical Western ideas about the peculiar problems of personal status law reform in Muslim countries. The degree to which Islam accounts for discriminatory features in family law tends to be exaggerated. This, in turn, leads to the incorrect assumption that the evolution of family laws in Muslim countries cannot follow the same path as legal evolution in the West. The degree to which contemporary legal systems in Muslim countries have already assimilated many features of Western legal systems tends to be minimized or disregarded. Westerners also fail to realize that aspects of family laws in Muslim countries that strike them as archaic had, until recently, counterparts in Western laws. In addition, the impact of what the distinguished Moroccan jurist Moulay R'chid Abderrazak calls "the universal secular ideal" of non-discrimination against women is often overlooked.(1) This ideal is best embodied in the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which entered into force in 1981. As of mid-1995, it had been ratified by 139 countries, including Morocco and Tunisia, but not so far by Algeria.

Here, it is argued that French and Maghribi laws have had similar definitions of marriage and the rights of husband and wife, and that their civil codes have similar evolutionary patterns. The international legal principle of male-female equality has also recently affected both. Legal modernization of family laws in Maghribi countries is best understood within a framework of comparative legal history, rather than as belonging to a separate legal universe. The assumption that a big gulf separates problems of family law reform in North Africa, where Islamic law still plays a role, from family law reform on the northern shore of the Mediterranean is unfounded.

BACKGROUND

Morocco, Algeria, and Tunisia share a common legacy of Islamic jurisprudence of the Maliki school and French legal culture. On achieving independence from France, these countries had among their initial options to follow either the French model of codified law enacted by the state or the system of decentralized jurists' law that characterized the pre-colonial period. Under the latter, control over the formulation of laws would have reverted to religious scholars. All three Maghribi states selected the French model, a choice that maximized the possibility of centralized state control over the legal system.(2) In the area of personal status, state control was extended to areas that had previously been governed according to customary practices or private arrangements. In general, compliance with state-mandated bureaucratic procedures became required.(3)

To have a modern legal system, a state needs laws that can be uniformly applied to everyone in its territory. Wanting such uniformity, all three states rejected the traditional Islamic model of separate, confessionally based family laws, adjusting their personal status laws to enable them to apply to non-Muslims,(4) but the laws continued to be interpreted by reference to Islamic jurisprudence. Even the Tunisian code, which, unlike the other two, does not specifically state that laws are to be interpreted by reference to Islamic jurisprudence, is construed in the light of Islamic principles.(5) Thus, although they have been systemically Westernized in terms of their content, these personal status laws are not fully secular.

The personal status laws vary in the Maghrib in terms of the degree of deference they show to shari'a (Islamic law) rules affecting women and the family. The civil codes of all three Maghribi states reject the practice of forced marriage, jabr, an institution firmly entrenched in Maliki jurisprudence.(6) The abolition of jabr is a step toward accepting the philosophy of the modern family model that marriage is valid only when entered into with the free consent of both spouses. …

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