2008

Feminist Activism and Reform of Muslim Personal Status Laws
A look at Egypt and Morocco (*)

I approach my subject as a historian and gender studies specialist. I am interested in the story of feminist activism aimed at reform of Muslim personal status law. I look mainly at feminist activism in Egypt, a country with the longest history of independent organized feminist activism in the Arab world stretching back to the early in the 20^th century. Egypt was in the vanguard of progressive gender thinking and the site of many landmark advances in the public arena in the Arab and Muslim worlds and maintained a preeminent position for most of the 20^th century.

In the area of the reform of the Muslim Personal Status Code, however, Egypt has lagged behind. Looking back from our vantage point in 2008 we see that changes in the Muslim Personal Status Code in Egypt have been paltry: an example of too little, too late. This is especially strikingly when we note the major overhaul of the Moroccan personal status, or family law, the Mudawwana effected in 2004. The new Mudawwana jettisoned the patriarchal model of the family, alleged to be the authentic Islamic model of the family, in favor of an egalitarian family model based upon the shar'iah. Moroccan feminists, and other reformers, had fought the battle for the reform of their family law in the latter decades of the 20^th century, and in relatively short time could claim a victory in the form of a major transformation of family law. This was a victory that Egyptians could not achieve after a century of demands and activist efforts.

While I focus on the Egyptian case and evoke its feminist history, many of the same cultural, religious, political, and legal issues-similar challenges and conundrums-have been found in other Arab, Middle East, and Muslim societies, but always in specific social and political contexts.

Brief historical background

I would like to provide some historical context concerning the Egyptian experience. Modernization--social, economic, and technological transformation--during the 19^th century and continuing into the 20^th century, altered the ways Egyptians, men and women, and different classes, lived their lives. It was in the midst of such change in the late 19^th century that women of the social and educated elite in Egypt developed a "feminist consciousness" as they saw ways they as women were held back from enjoying new experiences that modernity held out which men of their families and circumstances were free to access.

Simultaneously, a movement for Islamic reform (or Islamic modernism) was underway, spearheaded by Shaikh Muhammad 'Abduh of the prestigious Al Azhar religious establishment and university, and later Mufti of Egypt (official who dispenses religious readings called fatwas). 'Abduh resurrected the practice of ijtihad, or independent intellectual investigation of religious sources, as a tool for enabling the faithful to calibrate being Muslim and modern, that is, to find fresh inspiration for their everyday lives in the midst of flux from a renewed understanding of Islam. Included in his calls for renewal and reform were appeals to men to follow the principles of Islam in their exercise of talaq (repudiation of a wife or "divorce"), ta'adud al-zawjat or polygamy, responsibilities to support of wives and children (nafaqa), etc. The issues of wife and child support have been perennial problems that feminists and the legal authorities of the state have grappled with and that decades and decades of court records confirm.

Meanwhile, secularization processes in 19^th century Egypt led to the transfer of law-commercial, criminal, etc. from the jurisdiction of religion to the jurisdiction of the state; the exception was personal status law, also commonly referred to as family law, which remained under the aegis of the religious authorities. In the public or secular sphere, an egalitarian model in constructing citizenship operated with the equality of male and female citizens becoming the declared ideal. In the private or family sphere ruled by religiously inspired law, a patriarchal model of the family was sustained, upholding gender complementarity (also called equity)-not gender equality--with rights, duties, and obligations differentially distributed to women and men. The model of the patriarchal family re-enforced by the Muslim Personal Status Code has prevailed to this day. This is not to say that there have been no modifications but these changes-and they have been limited--have occurred within the framework of the patriarchal construction of the family.

Rise of feminist activism

From the rise of organized feminist activism in the early 1920s, legal reform in general was a central concern to women and especially reform of the Muslim Personal Status Code. While headway has been achieved in other areas of the law, forward movement on the Muslim Personal Status Code has been minimal, as just noted and the urgency for reform persists to this day.

In the aftermath of achieving partial independence from British colonial rule (1922) Egyptian women as feminist and nationalist activists, who had played vital roles in the national liberation movement, distributed a pamphlet called The Demands of Egyptian Women-"a nationalist cum feminist map for restructuring the Egyptian state and society" to members of parliament and to government officials on the occasion of the inauguration of the new, post-independence Parliament, from which they had been barred as members and even as guests at the inaugural celebration. Following (quasi) independence from colonial rule, the legal structure of state had to be recast As women had played major roles in the struggle for national independence they also insisted upon being active participants in creating a modern, independent, democratic polity wherein all citizens were equal under the law.

The new 1923 Constitution affirmed the equality of all Egyptians irrespective of race, creed, and gender. However, many laws governing the public arena or the lives of Egyptians as citizens did not express this equality, and many even if they did, were not applied. The most glaring example of inequality expressed in statutory law that negated the Constitution as the supreme law of the land was the Electoral Law of 1924 that withheld electoral rights from women. The Egyptian Feminist Union (EFU) which had formed the year before (in 1923) had worked alongside male nationalist activists as citizens of the newly independent Egypt as they had done in the fight for independence but in 1924 upon this exclusion from formal political rights, the EFU severed relations with male groups and began to operate fully independently of men's political parties and groups. Restricting electoral rights to men demonstrated the inequities of secular law or, to put it another way, it reflected the power of secular patriarchy.

Let me pause to define Egyptian feminism. It has been often referred to as "secular feminism" connoting a feminism that was not formulated exclusively within a religious framework but within the secular framework of the nation-state and which, like the state, accorded space for religion. It was a feminism that Muslim and Christian together as Egyptian citizens created-a feminism that reflected the Egyptian polity wherein all citizens irrespective of religion were equal. Secular feminism is a composite of three discourses: secular nationalist, Islamic modernist, and humanitarian (later called human rights). Secular feminism has prevailed as a force from the early 20^th century to this day.

Alongside secular feminism, a new feminist paradigm began to emerge in the 1990s in several parts of the Muslim world, grounding an egalitarian gender discourse in new interpretation (tafsir) of the Qur'an as the central source of inspiration as well as in other religious texts. Muslim secular feminists who observed this new phenomenon named it "Islamic feminism."

Pioneering Egyptian feminists made demands for legal reform cutting across the public-private spectrum. They made demands for revision of secular laws governing state and society such as the electoral law, labor law, etc. and for revision of the religious or shar'iah-backed Muslim Personal Status Law governing individuals within the context of the family. Revising the Personal Status Code was an urgent concern of Muslim activist women as it had implications that touched the core of their everyday existence.

The feminists understood the confluence between women's lives as family members and public citizens and the tension, and contradictions between family patriarchy and the egalitarian model of the democratic state. However, secular feminists did not challenge the patriarchal paradigm of the family but operated within it, calling for reform of the patriarchal family in legal and behavior terms. It appears that the pioneering feminists believed the patriarchal or complimentarian, model of the family to be Islamicly ordained. Later, a new generation of women, better equipped through advanced education to study the Qur'an and other religious texts, would come to the realization that an egalitarian model of the family reflected the fundamental principles embedded in the Qur'an.

The long feminist struggle to reform family law

If women as feminists grasped that the that the lynchpin of patriarchy in Egypt was the family and that the Muslim Personal Status Code shored up the patriarchal family, men across the spectrum from secular and religious conservatives to liberals understood this equally well and put up resistence. Feminists wanted to put curbs and limits on men's patriarchal privileges and power while men resisted any incursions upon their freedom. Feminists demanded that men-husbands and fathers fulfill their expected roles and act as the protectors of women by providing for them and their children. A measure of men's failure to live up to their obligations as ordained under patriarchy is seen in the vast numbers of cases women have perennially filed for support in the Egyptian courts.

Feminists eager to see changes in men's performances as husbands and fathers placed their major efforts in the legal reform. They marshaled Islamic reformist arguments, in the spirit of Shaikh Muhammad 'Abduh, to argue for legal constraints to be placed upon two male prerogatives: (1) talaq or repudiation of a wife often referred to as "divorce" and (2) ta'adud al-zawjat, literally "plurality of wives" or polygamy, that were often used irresponsibly or brandished as threats (as 'Abduh himself has written drawing upon his mother's experience). According to personal testimony conveyed to me by first wave feminist informants, failure to achieve legal reform in these two areas was the greatest disappointment to pioneering feminists. The feminist demand for the extension of hadana or custody of children was won-and with it more responsibility for women, which men did not appear loathe to concede. There was a slight extension of women's ability to obtain a legal end to a marriage, for example, women were able to have a marriage declared null and void by a court if a husband had disappeared for a period of four years, if the husband was insane, or if he had leprosy.

The lack of significant change Muslim Personal Status Code in the 20^th century, and considerable resistance to attempts to effect change, reveal that this bastion of patriarchy would not be demolished by men in power. The socialist state in the 1950s and 60s headed by President Nasser which made massive transformations dismantling the class system and integrating women of all classes more into the educational and economic sectors, and which granted suffrage to women (in 1965, three decades after feminists had first demanded it)--and which did not shrink from impinging upon the religious establishment--did not instigate any changes in the Muslim Personal Status Code. Under President Sadat, with pressure from his wife, some headway was achieved when Sadat issued a decree law in 1979 revising the Muslim Personal Status Code which included expansions of women's ability to initiate divorce, placed some controls on the practice of polygamy, and expanded entitlements to women as divorcees. After Sadat's assassination at the hands of Islamists and growing fundamentalist opposition to the law (referred to as "Jehan's Law" after President Sadat's wife and her role in pushing for it) the revised law was rescinded in 1985 (on the grounds of procedural irregularities). Only after vociferous feminist protest in the run-up to Conference at the end of the UN Decade of Women in Nairobi, where Egyptian activists were showing up in full force, did the government of Egypt, not wanting to risk adverse publicity abroad, re-instate the law but in a watered-down version.

Feminists and Islam

The story of feminist activism and ongoing quest for legal reform in Egypt entered a new phase at the end of the 20^th century. The new discourse of Islamic feminism, that I alluded to earlier, appeared in different parts of the Muslim world in the form of books and articles produced by women intellectuals and scholars who were engaged in meticulous rereading of the Qur'an and other religious texts. The fruits of their work rapidly circulated via Internet as their articulations of an egalitarian Islam resonated with women and with the rising generations.

The new Islamic feminist discourse advanced a compelling articulation of gender equality and social justice as Qur'anic principles that of moral necessity must be put into practice. Patriarchal thinking and practice (with its inequalities and injustices) had intruded into Islam making it appear to be patriarchal when the religion had come to eradicate the inequalities and injustices of patriarchy. Fiqh or Islamic jurisprudence, consolidated by four major schools by the 10^th century CE constructed a patriarchal conception of the family reflecting the mindset and social institutions and practices of the time. (Interestingly in the realm of hudud or criminal offenses and punishment fiqh displayed a more gender egalitarian model).

With the rise of political Islam in the 1970s (after the end of the Socialist state) and its spread in the 1980s, patriarchal Islamists (also called fundamentalists) tried to roll back gains that women had made on many fronts as seen in their call for the rescinding of the revised Muslim Personal Status Law of 1979 and in their insistent calls for women to retreat from the public sphere-however, they later reversed this position for strategic reasons. In 1988, a group of lawyers and other professional women issued a booklet titled The Legal Rights of the Egyptian Woman: Theory and Practice reminding women of rights accorded them in the Constitution and in a host of laws and protesting infractions of the law to the detriment of women. They wrote: "We have observed a retreat from the principle of equality regarding women at work ..."

Two forces characterized the final decade of the 20^th century: (1) Islamic feminism was ascendant in various parts of the Muslim world, and (2) gender-conservative Islamists were bearing down on society in Egypt and elsewhere. Meanwhile, by the 1990s in Egypt a good number of women religious scholars or 'alimat among the ranks of the (male) ulema were teaching religious sciences at Al-Azhar University, including scholars who were distinguished in fiqh. In the early 1960s when President Nasser forced Al-Azhar to introduce secular subjects and accept women students in an attempt to make inroads into this revered Islamic institution, he unwittingly inaugurated the preparation of women religious scholars who, by the 1980s and 90s were respected authorities and professors with this premier religious institution.

Egyptian secular feminists and religious scholars collaborated in pushing for reforms pooling their respective resources in organizing and campaigning, and in advancing stringent arguments solidly grounded in fiqh. Some of the activists and scholars were members of the National Council of Women and as such were bridges between state and society.

After decades of demands by feminists to extend the ability of women of to initiate a divorce and that women be appointed judges, finally early in the 21^st century two important gains were achieved: (1) in 2004, a law was enacted allowing khull', a procedure by which a woman could request a court to initiate procedures to end her marriage through which she would relinquish any remainder of the dower promised to her at the time of marriage and all financial claims on her husband. This law modest step forward for women elicited considerable outrage on the part of society, and (2) in 2002, women became eligible to be judges with a woman was appointed as a judge to the Supreme Constitutional Court. Both actions were firmly grounded in Islamic religious sources and held to be compatible with the shariah.

When asked the reasons for these delayed gains and about their timing, analysts and informants explained that it was a politically auspicious moment for the state: the Islamist forces had been contained as a political threat in the wake of post 9/11 crackdowns and the state wished to send a signal of its power and resolve to the Islamists. Meanwhile, the ground had been well prepared by (secular) feminist activists who included a variety of professionals including many lawyers and by women religious scholars. The arguments against women performing as judges were threadbare and this was becoming widely understood. Khull' as a lawful way to end of divorce within the framework of fiqh could be amply demonstrated and was known to be in effect elsewhere.

In the midst of democratization-real or feigned-it is increasingly hard to sustain inequalities among citizens. The weakest points in the democratic fabric, and certainly the most highly glaring, concern gender and inequalities and injustices, as Islamic feminists and women religious scholars point out can no longer be sustained in the name of Islam.

Family law in Egypt and Morocco in the 21^st century

I end with a brief comparative look at Egypt and Morocco. Two events in the push for reform of family law occurred in 2004. In Egypt the just-mentioned law allowing khull' khull' was enacted. In Morocco a major transformation of its family law, the Mudawana was effected. Both laws are grounded in the shar'iah, that is, particular readings of the shar'iah. The revised Moroccan family law is based upon an egalitarian Islam, strikingly displayed in the affirmation of the dual headship of the family by the male and female spouse. The Egyptian Personal Status Law perpetuates a patriarchal model of the family.

Why, despite the new readings of the Qur'an and other religious sources that amply demonstrate and eloquently articulate the principle of gender equality inextricable from the principle of justice, do patriarchal glosses of Islam and the legal and behavioral structures they enable still persist in most Muslim societies? Why transformational change in Morocco's family law and not in Egypt's family law?

Analysts point to political circumstances. In Morocco the revision of the Mudawwana appeared with the advent of the new king who was promoting massive reform. It also came in the aftermath of the Casablanca bombings at the hands of Islamic extremists and sent a strong signal to religious extremists. The King of Morocco as Amir al-Mu'minin (Commander of the Faithful), who is a descendant of the Prophet Muhammad, is the at once the highest religious authority and political ruler and has demonstrated his resolve to reform.

In Egypt, a republic, the political authority and the religious authority are separate entities. There is no major movement of Islamic reform underway and without this there will be no overhaul of the Muslim family law as found in Morocco.

As I conclude this presentation I would like to make a general observation. The question is not if Islam is ready but if political authorities and religious establishments are ready for implementation of the Qur'anic message of equality and justice. In the push for greater democratization, non-religious patriarchy or patriarchy masquerading as Islam remains an obstacle. In the reformation of Islamic thinking and practice, non-religious patriarchy must be excised. This is what Muslim women as feminists have been trying to achieve. The breakthroughs of Islamic feminism have been monumental, enacting a shift by Muslim women as feminists, secular and Islamic feminists alike, from working within a patriarchal family model to working within an egalitarian family model. Islamic feminism has produced a discourse of full gender equality across the public/private spectrum and demands the laws and practices that enable the practice of equality and its corollary justice. Islam is a template for equality. It can no longer be used an excuse for patriarchy. The discourse of Islamic feminism articulates this well while the revised Mudawwana sets the example for an egalitarian shariah-backed family law.

*. Text of a presentation given at a panel discussion on family law sponsored by the United States and Egypt Friendship Society (USEF) and the American Bar Association at the ABA headquarters in Washington on January 7, 2008.