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Family law remains the main legal arena where non-state actors, such as religious groups and scholars, have partial autonomy in interpreting and applying religious tenets and rules as state law.

Particularly religious groups in multi-religious states have maintained autonomy in regulating family law. In Lebanon and Syria, for instance, the ‘legal link’ between the Constitution and religious law occurs through assertions that the state shall respect the

‘religious rites’ of religious communities.⁹² In both states, more than 15 religious groups are recognized.⁹³ The powers of clerical authority in Syria and Lebanon have distinctive historical backgrounds intimately linked to the historical legacy of the Ottoman millet-system whereby

92 Article 35 of the Syrian constitution states that “[t]he state guarantees the freedom to hold any religious rites, provided they do not disturb the public order.” Article 9 of the 1926 Lebanese constitution asserts that

“[t]he State […] shall respect all religions and creeds and guarantees, under its protection, the free exercise of all religious rites provided that public order is not disturbed. It also guarantees that the personal status and religious interests of the population, to whatever religious sect they belong, is respected.” Art. 19 reads: “The officially recognized heads of religious communities have the right to consult [the Constitutional Council] only on laws relating to personal status, the freedom of belief and religious practice, and the freedom of religious education.”

(http://www.nowlebanon.com/Library/Files/EnglishDocumentation/Official%20Documents/Lebanese%20Cons titution.pdf). Art. 9 and 19 of the Lebanese Constitution are read as safeguarding the authority in personal status laws to heads of the officially recognized religious communities.

93 There are five Muslim denominations in both states (Sunni, Shi’a, Druze, Ismaelite and Alawite), a small Jewish community and a plethora smaller and bigger Christian denominations (12 in Lebanon and 10 in Syria):

Greek Orthodox, Syriac Orthodox, Armenian Orthodox, Oriental Nestorian (known previously as ‘Assyrian Chaldean Nestorian’), Greek Catholics (also called ‘Melchites’), Armenian Catholics, Syriac Catholic, Maronite and Latins. In Lebanon, Protestants and Copts are two officially recognized Christian denominations. Akram Yaghi, qawanin ahwal ash-shakhsiyya lada tawa'if islamiyya wmasihiyya. (Beirut: manshurat zein al-huquqiyya, 2008), 59-60. The size of the different religious groups in both states is not officially known.

Lebanon has not had an official census since 1932 and Syria stopped releasing statistics on the distribution of the population according to ethnic and religious identity in 1956. Rough estimates indicate that Christians in Lebanon comprise 40 % and Muslims 60 % of the population, while the Syrian population comprises of 74%

Sunni Muslims, 16% Alawite, Druze and other Muslim sects, and 10% various Christian denominations (CIA Factbook 2011, https://www.cia.gov/library/publications/the-world-factbook/geos/sy.html), accessed 15 March 2011.

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religious groups maintained autonomy with regards to regulating internal affairs. Today, this historical legacy is safeguarded through state measures that seek to preserve the communal rights of groups by ensuring autonomy in the domains of family law and education.⁹⁴

Control over family law is thus only partly under state authorities who thereby accommodate religious groups in maintaining certain social arenas under the jurisdiction of the religious groups. By ‘accommodation’ I refer to the delegation of certain social spheres, such as education and family law, which religious groups perceive as vital for their

constitution and perpetuation as an identity group that share a distinct culture, history or world view. Shachar terms identity groups as ‘nomoi communities’ referring to “religiously defined groups of people that ‘share a comprehensive world view that extends to creating a law for the community’”.⁹⁵ The autonomy of these identity groups is usually facilitated by a state or a political regime through accommodating multireligious or multicultural policies that enable the identity group to be governed by its own institutions and according to its own traditions.

The maintenance of group-based membership in religious groups is less visible, but no less significant in states where Islam is dominant religion with regards to its impact on the distribution of rights in the polity through state power. An implicit membership in religious groups is related to the influence of religious law on the state’s family law which impacts on the civil legal status of all citizens in the MENA region. This condition is not unique to Arab states. Family laws are based on religious law in about 1/3 of contemporary states (the majority member states of the Islamic conference, India and Israel).⁹⁶ These states are characterized by the clerical imprint on the state’s family law, dual court systems, state-mandated registration of religious identity, and - in Arab states - the ‘shar’i postulate’⁹⁷ in

94 Ayelet Shachar, Multicultural jurisdictions: cultural differences and women's rights (Cambridge: Cambridge University Press, 2001), 17.

95 Ibid., 2.

96 On Israel, see page 280 in A. & Shmueli Blecher-Prigat, B., "The interplay between tort law and religious family law: The Israeli Case," Arizona Journal of International & Comparative Law 26, no. 2 (2009),

http://www.law.arizona.edu/Journals/AJICL/AJICL2009/BlecherPrigatShmueli.pdf; Shachar, "Should church and state be joined at the altar? Women's rights and the multicultural dilemma," 215-26. On Muslim dominated states in Africa and South Asia, see B. Krawietz, Reifelt, H. (ed.), "Islam and the rule of law: between shari’a and secularization." (Berlin: Konrad Adenauer Stiftung, 2008),

http://www.kas.de//db_files/dokumente/7_dokument_dok_pdf_13008_2.pdf?080214130352., accessed 18 June 2008. See also Sindre Bangstad, Sekularismens ansikter. [The faces of secularism]. (Oslo:

Universitetsforlaget, 2009).

97 Welchman, Women and Muslim family laws in Arab states: a comparative overview of textual development and advocacy: 16.

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the Constitution which asserts that Islamic jurisprudence shall inform the application of state laws. In many of these states, non-voluntary registration of every citizen’s religious identity is significant for three reasons: First, without registration, state authorities are unable to ordain the rules necessary to regulate a citizen’s legal affairs with regards to family law.

Second, mandated registration structures group-based citizenship rights, bolstering the understanding that a citizen’s membership in an identity group is a primal identity not subject to negotiation.⁹⁸ Third, a citizen’s choice of membership in a religious group, including conversion, is constrained and susceptible to allegations of apostasy by fellow citizens or by the state apparatus.⁹⁹

One of the politically significant consequences of the non-secularization of the legal and judicial systems is that citizens are categorized qua members of a religious group.

American anthropologist Suad Joseph argues rightly that an implication of the inclusion of religious law as part of state law is the “elevation of religious identity to civil status” which certifies religious law as the state’s public law.¹⁰⁰

98 Compulsory membership in religious groups is state policy in Syria, Lebanon, Israel and Jordan. Among the salient state-mandated policies are Regulation 2851 of 2 December 1924, issued during the French Mandate rule, which made the registration of the confessional personal status of each citizen compulsive. In 1951, the authority of Christian clerics was significantly strengthened through Law of 2 April 1951 which widened the autonomy of churches in matters related to marriage and divorce. Aref Zeid Az-Zein, ed. qawanin wa qararat al-ahwal as-shakhsiyya lil-tawa'if al-masihiyya fi lubnan [Laws and regulations on personal status for Christian confessional groups in Lebanon] (Beirut: manshurat al-halabi al-huquqiyya, 2003), 45, 53. While Muslim and Christian clerics strongly supported the introduction of the 1951 law, members of the Order of Lawyers reacted by organizing an 84-day strike arguing that the delegation of judicial powers from civil courts to religious courts weakened the state’s authority. Sherifa Zuhur, "Empowering women or dislodging sectarianism? Civil marriage in Lebanon," Yale Journal of Law and Feminism 14, no. 1 (2002): 178; Yaghi, qawanin al-ahwal ash-shakhsiyya lada al-tawa'if al-islamiyya wal-masihiyya.: 55.

99 As witnessed, for instance, through the Egyptian state ruling in 1995 and legal proceedings against Professor in Islamic thought Nasr Hamid Abou Zeid (1943 – 2010) who was forced to divorce his wife. The divorce ruling came about when an Egyptian citizen with fundamentalist political leanings filed a suit against Abou Zeid by raising a hisba-case, i.e. allegations of insulting God as deity, activating thereby articles 89 and 110 of the Egyptian regulations that govern courts. These laws were amended in Egypt in 1998. However, allegations of apostasy arise recurrently in different Arab states, and can be seen as powerful instruments of social and political control over individuals’ religious belief systems. In Syria, attempts at reforming the 1953 Syrian family law by inferring clauses that open up for cases of apostasy leaked through the press in May 2009 and caused an uproar among intellectuals as well as religious clerics. See Rania Maktabi, "Female Citizenship in Syria: Framing the 2009 controversy over the draft laws on personal status," in paper presented in the conference "Bashar Al-Asad’s first decade: A Period of Transition", 7 - 9 October 2010 (The Center for Middle Eastern Studies (CMES), Lund University: forthcoming in a book edited by Raymond A. Hinnebusch and Tina Zintl).

100 Joseph, "Gendering Citizenship in the Middle East," 11, 19.

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2.4.3 The individual level: Distinguishing between hala shakhsiyya and hala madaniyya