Deutsche Fassung

Preface

My lecture has four parts: The first part deals with jurisprudential questions. In the second  I compare the position of the woman in the three monotheistic religions. Then I discuss certain aspects of the position of woman in Tunisian and Egyptian Islamic family law. Finally in the fourth part I illustrate various points with two court decisions from Tunisia. What I hope comes across is the complexity of the position of woman in Islamic law.
 

Part I - Jurisprudential questions

From the start I want to make clear that I speak not as an historian, or a linguist, or a philosopher or theologian, rather as a sociological jurist and lawyer, with practical and academic experience. This means that I regard Islamic  law as I would any other legal system. A legal approach involves the following: It accords first of all primacy to the word of the text. The text serves as what is commonly called the source of the law that is pronounced in the form of a legislature enacted law or a  judgment. If as in many Islamicized countries the legislated law -- including the constitution -- has in its text a further reference to the Quranic text, then the Quran is also made part of the legal text which constitutes the basic tool of the lawyer and jurist.

The emphasis on the text serves one function. This is to detract from the personality of the person pronouncing a judgment as the source of the law. Hence, when in reality, however, different personalities  -- whether as academic jurists or as judges, as a university sheikh ul islam or government appointed mufti as in the case of Egypt -- pronounce different interpretations of the same text, then there is the possibility that the personality becomes the source of the law, and the text becomes secondary. This of course worries jurists because this can undermine the primacy of the text as the source of law. It is believed to be important to keep the primacy of the text to serve what is thought to be one of the functions of law, which is to avoid arbitrariness.

This concern is of equal importance in our European legal systems as in contemporary Islamic legal systems. So if there arises different interpretations of the text, jurists start searching for the source of this difference in the hope of eliminating it and thus eliminating the danger of arbitrariness. The difference they might find lies in the text itself. It is simply unclear, for example. The difference might in fact lie in the personality of the legislators or the judges. If the text is at fault, it will be changed. If the person is at fault, then the legislator or the judge will be substituted. At this point we see a divergence between the Islamic legal approach and the so-called secular Euro-approach. While the Islamic legislature can change the text of the legislated law, and this occurs in fact, such as amendments to family law codes in Tunisia, Egypt, Pakistan, etc., it cannot change the Quranic text which are named in the legislated law as supplementary text sources.

From a legal point of view this is not really a very serious problem. This is because no text that serves as a source of law is regarded by jurists as a self-contained text in itself. That is to say, that each text contains references in it to something else outside it. The reader of the text has to go outside the text to other sources of information in order to understand what the text means. These other sources are primarily what we call sociological norms or phenomena, public morality and the general sense of  what constitutes fairness. For example, when the German constitution refers to the protection of marriage, the courts have used the religious Christian norms to understand the phenomenon of marriage that exists outside the text. Marriage is a union rooted in the Christian norm of monogamy, although the word monogamy is not mentioned in the Constitution. Another example from British jurisprudence: As 7 sailors shipwrecked at sea and found themselves in a few days without provisions, they murdered one of their fellow sailors and ate him in order to stay alive. When rescued they were prosecuted for murder. The British courts found the sailors guilty. The reason was that this was morally so outrageous that it warranted punishment, even though the penal law regulating murder and self-defence had no reference to moral outrage.

Or when we examine the Quranic text regulating polygamy, we see that there is reference to a psychological phenomenon, namely, just treatment in relation to the ability of the man to act equally to all his four wives. On the basis of this reference to the psychology of husband/wife relationships, the Tunisian executive Bourguiba convinced the legislature to abolish polygamy. This has also served in other countries such as Egypt to justify a law whereby the husband is obliged by what is known as Jehan Sedat's reformist law to at least inform each of his wives that they have co-wives. Other contemporary jurists have emphasized the references in the same Quranic text to demographic phenomena, namely, if there are too many women because of war, for example, then men being in the minority should take on extra responsibility by marrying more than one wife, just as this was proposed by a Protestant pastor after the war here in Germany. This demographic reference in the Quran, as some contemporary jurists point out, can also be taken to imply that if there comes a time when there is a surplus of men, then the woman will have to care for more than one man. But if most of the time the demographics are balanced by and large equally between men and women, then polygamy does not have to be permitted. On this basis most Islamic countries where the demographics allow it could follow the example of Tunisia by suspending the man's right to polygamy until such time that the demographic conditions require otherwise. At this point I repeat, the above cited examples are given to show that the fact the Quranic text as a source of law - even when found to be a source of difference of opinion -- cannot be changed does not pose a legal problem per se.

Now to return to our point above, that when the source of the difference in opinion lies not in the text itself, but in the personality of the legislator or judge interpreting the text, then the person has to be removed and replaced by those who will conform to one authoritative interpretation of the text. Certainly this is a phenomenon that happens in any legal system. In the USA as in Germany, when there is a change of government and there is a vacancy in the constitutional court, the person selected will reflect the politics of the new government. In the contemporary Islamic world, I observe that the Islamic extremists are overemphasizing the difference in personality as the source of difference understandings of the unchangeable Quranic text even though it is said that they rest solidly on the foundation of the Quranic text.

A good example of this overemphasis on the personality of the judge can be found in Egypt. A few years ago judges under pressure from the Islamic extremists to prove their Muslim identity and faith were issuing criminal judgments ordering the cutting off of the hand of a theft on the basis of the Quranic text alone. They ignored the legislated penal law texts until the Egyptian government reprimanded them and brought them under control just as they are trying to contain the extremists. This, from a legal point of view that upholds the primacy of the text and the references to phenomena outside the text that are necessary to undertake the hermeneutics of the legal text, is particularly disturbing.

The Islamic extremists are imposing the infallibility of the basic Quranic text on interpretations of the text. In effect a human interpretation is being made infallible. This can be taken as a blasphemy. Only God's Word is infallible, not a human interpretation of it, as Ibn Malik, the founder the Maliki school of  law prevalent in North Africa, unsuccessfully tried to make clear to the political ruler at the time. This emphasis on the infallibility of the human interpretation is also undermining the uniqueness of the Islamic identity , which the extremists believe they are stressing. They could be said to be emulating the notion of infallibility propagated by the European Roman Catholic Pope.

Part II - The position of woman in the three monotheistic religions

Against this background on defining a legal approach as emphasis on the primacy of the text, I wish now to show how the woman has been treated in basic legal texts in the contexts of Islamic and Euro-Christian law. From the start of its very appearance the Quranic text has referred explicitly to women and men. While the fourth sura, al Nisa', is a special tribute to the existence of the particular rights and obligations of women, this explicit textual reference to women was not revolutionary. The preceding Judaic Mishnaic interpretations of the Old Testament text have very explicit references to a woman or a man, such as a woman having to undergo an ordeal to prove herself innocent of her husband's suspicions of adultery, so that she could claim compensation from her husband if he, driven by jealousy, had unreasonable suspicions of her adultery. A woman as well as a man could vow not to touch strong drink and never to cut their hair (Numbers). This is in contrast to the New Testament texts after Jesus' death, which are written more in the spirit of erasing separate sexual identities, e.g. „There is neither slave nor free, female nor male in Christ“ (Galatians).

This process of erasure was further enforced by the rise of the religious culture of celibacy that emphasized placing power and authority in priestly men who subsumed an asexual character, which in turn subsumed woman into man. Over time in Christianized Europe the lost identity of the woman came to be reflected also in the legal texts. For example, in British statutes, the married woman had no property rights of her own. Her property became that of her husband. This was thought to be compatible with the biblical text whereby man and woman joined together become one, and the one was the man.

By the time of the French Revolution's The Declaration of the Rights of Man, woman was excluded. She did not exist for purposes of the new human rights text. For this reason those contemporary Islamic jurists who are proud to point out the progressiveness of Islamic law vís à vís European law emphasize that the Quranic text and the juristic interpretations gave Muslim women in principle economic independence much earlier than the European legal systems by allowing her to own her property in her own name. Now that the European legal texts have caught up with the Islamic law on this point, there are now the issues of equality between men and women. The present legal endorsement of equality is a logical result of the French and American Revolution's abolition of discrimination on the basis of social and economic status. The prohibition of discrimination has been extended to the sexual and attempts to abolish it.

The law has not completely accepted this approach, especially in certain areas of family law. For example, the British and German legal systems accept a marriage in which the man and woman can agree to inequality, i.e. one can choose as an adult perfectly capable of earning one's own living, to be economically dependent on the other, the so-called housewife or househusband marriage. In such a case the law provides for a separation of the types of duties of each partner. Both are not under an equal obligation to make monetary contributions to the maintenance of the family. One makes a contribution in kind, that is, cooking, cleaning, rearing the children. The other makes a contribution in terms of money.

Although the law text does not explicitly attribute one kind of contribution to one sex, the legislative debate of the legal text shows that a deliberate choice was made not to require each partner to make the same kind of contribution in equal measure because the sociological norm for women had to be preserved. Sociologically it is mainly the woman who makes her contribution to the maintenance of the family in kind. This has further consequences for the woman on the larger job market. She is not taken seriously as a "homemaker" since she is not regarded as the main breadwinner. Indeed public morality tends to regard a double earner family with some disapproval.

Part III - Position of woman in Tunisia and Egypt

The Islamic law takes a somewhat different approach. The Quranic text explicitly separates the duties along sexual lines. The man is to give the woman a gift, categorized by the jurists as a dower, mahr. The mahr is in my opinion the basis of the entire Islamic family law. Once it is accepted by the woman, it is a sign of conclusion of the marriage contract. It gives her a property right in her own capital. If the actual payment is not deferred, she may use it any way she wishes, and if she uses it for making her own business, she may keep the profits for herself. She is not obliged to contribute to maintain the family. If of a certain social status, her husband is obliged to pay for a servant to help her. If the payment of the mahr is deferred, and the husband dies, the mahr is treated as a debt on the entire estate, so that if large enough it could eat up the estate and no one of the other heirs, including the children, could in principle inherit anything. The man by contrast is obliged to pay the woman the mahr, make a monetary contribution to the maintenance of the family. He is awarded for these one-sided obligations a double inheritance share -- assuming a dower has not eaten it up. The man as son or as surviving widower inherits twice that of the daughter or the surviving widow.

This edifice in which the rights and duties of the woman are distinguished from those of the man is not unshakable according to the Quranic text. The text provides not only that the husband is to make a gift to the wife, but that the wife may remit it if she wishes. It is referring to a situation that the wife may herself create. This implies that such a situation could in principle change the chain of complementary duties and rights based on sex. If she returns the dower to the man so that he may add it to his monetary contributions to the maintenance of the family, then she has chosen to place herself on an equal par with her husband, and so it could be argued that she has obliged herself to help maintain the family and is then entitled to an equal inheritance share.

Recent changes in the text of the family code in Tunisia are pointing in this direction. Previously the woman was not obliged to contribute monetarily to the maintenance of the family. Now with the reforms she is so obliged. The sociological reasons for this change were the protests of the men. They were fed up with the discrimination against them. They felt as inflation increases and salaries decrease that the demands of the working wife for new dresses and new shoes out of her husband's salary instead of her own were unfair. The slogan was that the Tunisian woman has not only equal rights with the man but also equal responsibilities in monetary terms. The resulting reforms of the law combined with the opinion of public morality that the mahr should be limited to a symbolic value have now fueled a debate on whether such a change in the obligations of the woman requires an interpretation of the inheritance laws that would conform to  the situation foreseen in the Quranic text of a woman foregoing a high mahr.

By way of contrast in Egypt, especially in Upper Egypt, the mahr is commonly given. It is of market value, more than symbolic value. It consists of gold, especially jewelry. But the juridical importance of it to the woman in terms of her right to control it is lost on her. For her what is to be emphasized in the Quranic text on making and receiving a gift or remitting a gift is the reference in the text to the act outside the text of receiving, especially the subjective feelings of the receiver. What has become important to the woman since the availability of money from migrants' jobs in the Gulf and Libya are the personal bridal gifts, namely lingerie, glass goblets, stainless steel trays. The possession of these goods is symbolic of the onset of womanhood and independence that permits ownership of  luxury goods. This dimension of marriage is relevant only to a completely feminine world. The trousseau embodies possessions which the woman can claim solely for herself. Her family and her husband may not take them away.

Gold jewelry is different. It is not as personal as china and clothes. Gold becomes family property in times of crisis -- to buy land for the husband, to finance the husband's trip to Saudia Arabia, to buy a water buffalo, to pay for unexpected medical expenses. Some women are known to refuse to part with the mahr of gold -- they are labeled those who refused to sell their gold. With the recent deregulation of land in Egpyt the pressure on women will grow to remit their gold. The deregulation will so increase land rents that men are exhausting all means to buy a small plot, only a fraction of the rented lands they now farm. Thus, the woman's remittance of her gift of gold to her husband as her contribution to the family maintenance is, juridically seen, voluntary. Because of its individual voluntary nature, the act of remittance in Egypt could mean that the family then is free to agree not to apply the strict inheritance rules and perhaps allow in individual cases the woman to receive a larger inheritance share recognizing her assuming an obligation that is ascribed normally exclusively to the husband.

The security of the Upper Egyptian woman thus lies elsewhere, not in her mahr. It lies rather in endogamous marriage within the family. A woman marries preferably her cousin. There is little security for a woman who marries a stranger. Only marriage within the family assures her fair treatment. The only way to secure relief from an abusive husband who is a stranger is through the court, but the woman tends to be reluctant to wash dirty linen in public with a stranger. When the husband is a stranger the fathers and kin of the woman do not rescue the woman; they feel they have no leverage with the stranger's family.

In Tunisia in this respect the situation differs. The Tunisian father's affection for his daughter is proverbial according to sociological and anthropological studies, regardless of whether she is married to a stranger or not. He gives more support to his daughter than his wife in terms of helping her find work whether she is married or divorced. Women do not have difficulties using the courts. They know they have the support of their families, and use of the courts is further reinforced in Tunisia, unlike in Egypt, with a legislated text that requires parties to register births -- which is important for school registration -- and marriages and gives to the court exclusive privilege to decide on divorce and custody. This different attitude -- different from Egypt -- towards the use of courts to get one's rights under a liberal legislature favouring women is rooted in the history of bureaucracy in Tunisia. Since Ottoman times Tunisia has enjoyed a well organized bureacracy which the French Protectorate allowed to further develop, unlike in Algeria or the British in Egypt. The Tunisian executive and legislature can guarantee a less restrictive interpretation of Islamic law regarding women -- such as abolishing polygamy -- because they know they can rely on the courts, the state prosecutors, and the juridical bureaucracy to uphold the legal text more or less (less in respect to the highest court because it is possessed by an older generation that tends to be restrictive in interpreting the legal text) and to have the judgment enforced as intended by the legislature and executive. A woman who knows that she too can rely on a liberal Islamic legal text and executive of the judgment is more likely not to resist the state obliging her to use courts, unlike her sister, for example, in Egypt.

Part IV - Cases from Tunisia

I have used the Tunisian and Egyptian examples to illustrate how the contemporary social and bureaucratic context affects the Islamic family law regarding women in different ways -- even though the basic Quranic text remains the same for both countries. Tunisia is a model of more liberal interpretations of the Islamic legal texts, while Egypt has more restrictive interpretations. Yet the Tunisian model, guaranteeing equal rights between women and men, has a uniformizing effect that can have unexpected consequences.

I illustrate the last point I want to make with two cases from the mid-90s from Tunisia. They have to do with women who had not entered into the marriage contract. In one case the woman had lived several years together with the man and had three children from him who at birth were registered as the children of the man. He had recognized them as his. The state prosecutor issued against them both a complaint on the basis of anonymous information that the woman and man were living together without having registered their union as a marriage. The Tunisian family code requires registration of marriage -- the state replaces the traditional two witnesses. The registration is also needed to uphold the prohibition on polygamy. The code penalizes anyone who enters into a union with an intent to marry and who does not register it.

The evidence given in court revealed that the woman was working as a prostitute. The court found for that reason that she was not under the authority of the man, meaning that he did not have exclusive conjugal rights over her, and that she accordingly could have no intent to marry. Only the man had the intent to marry. Yet they both intended that their children be treated as children of a marriage. There was no mention of whether the woman has an equal right to have authority over the sexual relations of her male partner. The family code's requirement of registration of a union as marriage was directed originally towards parties who intend to marry and marry under traditional circumstances but do not register the marriage. The court in the case at hand extended the scope of the penal provision of the family code to cover those who live together where it is difficult to determine if there be a mutual intent to marry.

In the second case I want to discuss the woman and man again were living together. They were trading partners, trading in animals (which is not clear). The man then used their common business profits to buy a plot of land. The woman thought that both would co-own the land. The man resold it and took all sale proceeds for himself. The woman sued for her share. She was in turn prosecuted the man for not registering her living together as marriage. The lower court ordered a fine from both the woman and the man. But it allowed the woman to get her share of the sale proceeds. The Ministry of Justice raised objection -- she should as a woman who was penalized for entering into an illegal "marriage" not benefit in regard to the land.

The results of these two cases would have been different in Iran. The woman would have had the chance to bring evidence of a temporary marriage contract. The customary mahr would have been fixed by the court and prosecution thus avoided. The temporary marriage contract is the means by which living together and marriage can be treated equally -- which is even more liberal than here in Germany. The point I want to make here is that while the Tunisian state is supporting the women's rights movement in family law it has introduced a uniformized system that does not have the flexibility for women who wish for whatever reasons to live together with the man they love. The traditional system such as in Iran -- while not as liberal as Tunisia -- offers this flexibility for women.

Conclusion

In conclusion I would like to leave you with the following proposition: It is possible to use Islamic law in the interests of women's rights. It is possible to combine the very best for women from all of the interpretations of the Quranic text. The decision to do this is political. We lawyers are not political scientists. But we can open new directions for political decisions.

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