Generally, the codifications of family law explicitly invoke the ‘sharªipostu- late’ through directing the judge to a residual reference in the event of a spe- cific subject not being covered in the text. This comes in a variety of formulations, which themselves may indicate either legislative (and politi- cal) history or aspiration. In Egypt, Syria and Jordan, the laws maintain ref- erence to the dominant opinion of the Hanafi school, despite the inclusion
of a number of provisions with non-Hanafi origins.1Legislated in the same
decade as the Syrian and original Jordanian law, the Iraqi code of 1959 re- quires the application of the law itself to all questions dealt with ‘in letter or spirit’ (a phrasing taken up by Libya in 1984) and failing this, judgement is
to be made ‘according to those principles of the Islamicshariªamost appro-
priate to the provisions of the law’, thus allowing for reference to both Sunni and Shiªi jurisprudence (the code containing elements of both); as noted above in Chapter 2, the court is then directed to case law and comparative jurisprudence.2
Elsewhere, general residual reference is made to the ‘principles (or rules)
of the Islamic shariªamost appropriate to’ the provisions of the particular
law (Oman, Libya) or, in Algeria, simply ‘the rulings of the Islamicshariªa’.3
Yemen’s law of 1992 refers the court to ‘the strongest proofs in the Islamic
shariªa’ without suggesting guidance in this by the provisions of the codified law, while Kuwait and Mauritania require reference to the prevalent Maliki opinion or in default in the Kuwaiti case to the ‘general principles of the
school’.4Until its new law, Morocco also maintained reference to the domi-
nant Maliki position or to its ‘prevailing practice’; in the new formulation, in a reprise of the King’s discourse in the reform process, a general refer- ence to the Maliki school is supplemented by ‘ijtihadthat realises the values
of Islam in justice and equality and good relations’.5The 2005 UAE law in-
from and to be interpreted according to Islamic jurisprudence and its prin- ciples’, with interpretative recourse to the jurisprudential school to which any particular provision is sourced, and in the event of there being no text, ruling to be made in accordance with the prevailing opinion in the Sunni schools in the following hierarchy: Maliki, Hanbali, Shafiªi and Hanafi.6So-
malia’s 1975 code directed the court to the dominant opinions of the Shafiªi
school followed by ‘general principles of the Islamicshariªa and social jus-
tice’.7The Qatari law offers the first codification to have the dominant opin-
ion of the Hanbali school as the residual source, ‘unless the court decides to apply a different opinion for reasons set out in its ruling’.8
Tunisia and thesharcipostulate
The absence of any such provision in the Tunisian Law of Personal Status of 1956 evoked comment at the time; given that the law ended the previously separate Hanafi and Maliki jurisdictions, Anderson observed that ‘the only answer, presumably, is that the courts can draw from any school or from the dicta of any jurist – at their discretion’.9More recently, Tunisian schol-
ars focussing on women’s rights and the law have argued against the as- sumption thatfiqhshould be the exclusive residual reference for interpretation and application of the law by the courts, in a debate that provokes issues of the attitude of the judiciary, the intentions of the legislator, and the au- thority of international norms. A particular focus of the debate has been the marriage of Muslim women to non-Muslim men, considered invalid by a con- sensus of the traditional jurists, and explicitly prohibited in other state cod- ifications of family law. Socially, Ltaief observes that ‘[m]ixed marriage of a female Muslim to a male non-Muslim […] is seen as an offence to the identity and beliefs of the people’.10
In Tunisian law, no mention is made of the prohibition of this kind of marriage in the section setting out impediments to marriage, which Ander- son found ‘noteworthy’, while observing that an earlier general requirement that parties to a marriage must be free of lawful impediments ‘would no doubt be called in aid by those who wished to prevent such a marriage’. His feeling was that the Tunisian government felt it could not go further on this issue at that time and ‘was content to leave the solution of this problem to the courts and the future’.11As he predicted, the courts interpreted the list-
ing of impediments to marriage not to be exhaustive; and although this issue was not addressed in amendments to the family law promulgated in 1964, a press statement made at the time by the Minister of Justice referred to the place of the ‘sources of Islam and offiqh’ in the organization of marriage.12
In what Chekir describes as a ‘celebrated’ case in 1966, a Cassation Court rul- ing (the ‘Arret Hourya’) pronounced the marriage of a Muslim woman to a
non-Muslim man to be void:13 it was ‘incontestable that a Muslim woman
who marries a non-Muslim commits an unpardonable crime, and that Is-
lamic law holds such a marriage void and not recognised.’14In 1973 an ad-
ministrative circular from the Minister of Justice explicitly prohibited the registration of such marriages.15
More recently, Ltaief sees new ground being broken in Tunisia by a 1999 District Court judgment invoking international law in rejecting arguments against the validity of such a marriage, although the judge in the case was careful to note that there was nothing in the particular case that ‘proves that the husband is not a Muslim’. Ltaief may however be premature in her as- sessment that ‘this precedent puts an end to speculation on various possible
interpretations’.16 Even were this decision followed by precedents from
Tunisia’s superior courts, it could still be over-ridden, ignored or, alterna- tively, endorsed in long-expected amendments to Tunisia’s personal status law.
It is not only in Tunisia that this particular issue has become a subject of debate. Commentators in different countries note an increase in such mar- riages, due to a variety of factors that may include increased population mo-
bility, migration and tourism.17Besides arguments based on equality norms
and the principle of choice in marriage, it is pointed out that the recognition of such unions would consolidate the authority of national law and obviate the need for citizens of the country to travel abroad (if they are able) to con- clude such marriages. The jurisprudential consensus on prohibition, how- ever, continues to inform the legislatures. During the debate on a draft civil personal status code as an optional regulatory framework in Lebanon, al- Cheikh notes particular opposition (from both Sunni and Shiªi circles) to the draft’s omission of reference to the religion of parties to the marriage, read as an implicit sanctioning of the marriage of Muslim women to non-Muslim
men;18 here, it would indeed seem unlikely that, were such a law to be
passed, the civil courts empowered to apply it would interpret the lack of a specific permission for such a marriage in a deliberately secular text as en-
tailing a prohibition. In Tunisia, if the recourse by judges tofiqhrules in in- terpreting the legislator’s silence in the codified law was predictable for An- derson, it is contested on a number of grounds by those who seek full freedom for Muslim women in their choice of marriage partner. Chekir ar- gues that the fact that, unlike most other constitutional documents in the re-
gion, the Tunisian Constitution does not identify the shariªaas a source of
legislation implies the legislator’s desire to establish ‘the sovereignty of pos- itive law and its primacy over religious sources’; that judges should be guided by the general principles of interpretation articulated in the civil law;19and
that Tunisia’s responsibilities under international law in regard to women’s right to equality of choice in marriage should take priority over the provi- sions of the personal status code.20
Judicial interpretation and legislative direction
In other countries, as noted above, silence in the statute directs reference to a particular or the more general body of rules and principles of ‘the Islamic
shariªa’. Where the code’s silence has left gaps in what traditional law pro- vided, judges have sometimes used this to re-institute rules protective of women’s rights and choices in particular circumstances. Thus, when the 1992 Yemeni law invalidated a guardian’s marriage of his male or female wards be- fore the age of fifteen (also the age of legal majority),21 it also removed the
reference that had previously existed in the YAR law of 1978 to the right of a female married as a minor to choose to have the marriage dissolved on
reaching puberty.22Since the 1992 law provided no enforcement measures
for the provision on the minimum age of marriage, Wurth notes that judges relied on the residual reference of ‘the strongest proofs in the Islamic
shariªa’ to continue to allow the dissolution of marriages on the achievement
of puberty.23The rules of traditional law thus supplemented the statute law
when the state failed to follow through on its own legislation protecting young girls against coercion and early marriage.24In Egypt, some judges were
awarding compensation to women divorced abusively by their husbands long before this right was enshrined in statutory legislation.25
Judicial interpretation is also of course relevant to the application of par- ticular provisions of statutory law, and has sometimes frustrated the achieve- ment of the intentions of the legislator. Chamari for example notes the S H A RCI P O S T U L A T E S , S T A T U T O R Y L A W A N D T H E J U D I C I A R Y
problems encountered by women in accessing their right to compensation on
injurious divorce under the original terms of the Tunisian law.26Judges ap-
plying the Jordanian rules on stipulations in marriage contracts, notably those where the wife seeks to secure for herself the option of divorce, for an extended period took a rather narrowly literal approach to the phrasing of these stipulations that denied legal effect to those not sufficiently expertly drafted.27In Morocco, Loukili and Zirari-Devif report that notaries fail to in-
form intending spouses of the possibility of inserting stipulations in their marriage contract (for example against polygyny) or of concluding separate agreements on the management of property acquired during marriage, on grounds that ‘such deeds do not conform with Moroccan traditions and cus- toms’ or because ‘there is no time to inform the persons concerned during
the marriage celebrations.’28Widespread concern is voiced in the region as
to whether judges empowered to permit the marriage of parties below the minimum age of marriage are ready to exercise a proper degree of scrutiny in order to protect underage females at risk of a forced marriage; a recent ex- ample comes again from Morocco where it is reported that minors are still being given permission to marry by judges after a ‘visual assessment’ rather than following the more in-depth procedures required under the terms of
the 2004 law.29Antipathy towards particular legislative provisions can also
go further; in Egypt, Chemais found a majority of judges whom she inter- viewed to be explicitly opposed to the controversial provision in the 1979 law establishing a husband’s polygynous marriage without his wife’s con- sent as in and of itself an act of injury on the grounds of which she might obtain a judicial divorce, and one judge claimed that he was deferring all such cases that reached him because of his refusal to implement this part of the law.30
The latter case illustrates the tensions that can arise between the politi- cal authorities of a state taking upon themselves the task of legislating on the family, and the judges charged with applying it, these latter, on occasion, not only under-applying or subverting intended reforms, but holding them illegitimate under the wider framework of ‘traditional’shariªa. This position is also voiced by political opponents of certain family law reforms. On the other hand, the state may consciously choose to leave certain matters to be decided by the courts rather than take a political risk through legislation, as in the examples given above. Like their counterparts elsewhere, judges are likely to rule in accordance with their own educational and professional
training, social background and perspective on women’s roles and rights within the family and in society in the light of a complex range of context- specific social and political engagements and constraints. On the one hand, this can lead to protective interpretations of the statute, such as when judges
in Jordan established the principle that any unilateraltalaq was to be con-
sidered arbitrary unless the opposite were proven, since it was undertaken without the consent of the wife, and therefore the wife would be entitled to
seek compensation under the new rules established in the law of 1976.31This
approach was clearly driven by the court’s disapproval oftalaq, even while up- holding the validity of the husband’s exercise thereof, an approach that ac-
cords with the fiqh position. On the other hand, Wurth has shown the
different ways in which women from upper and lower social classes were treated in a Sanaªa court in regard to the level of injury and distress in the
marriage that would be regarded as cause for divorce.32
Another common practice is for the statutory law to instruct the appro- priate Minister orsharªiofficial (notably theQadi al-Qudah) to issue detailed di- rectives to the courts for the implementation of the spirit of a particular provision, such as in the case of the 2001 Jordanian amendments raising the
minimum age of capacity for marriage. The law instructed theQadi al-Qudah
to issue guidelines to cover the circumstances in which theqadimight per-
mit marriage below the new set ages; the way in which theQadi al-Qudah
maintained a broad scope of judicial discretion for his judges, and the re- sults of this on the application of the law, are discussed below (Chapter 6). In Palestine, in the absence of a statutory Palestinian law, successive heads
of thesharªi judiciary in Gaza and the West Bank have issued a series of di-
rectives to theshariªa courts which have inter aliaaffected the substantive
law as well as impacted on procedure.33
Another common feature of legislation, and one which illustrates again the interplay between legislative direction and judicial discretion, combines the desire of the state to direct with a particular reliance on the individual efforts of the judge. This is the incorporation, in different codifications around the region, and particularly with regard to divorce claims, of the re- quirement that the judge attempts to mediate between the spouses and to help them reconcile their differences, before proceeding with the claim. This
traditional mediating role of theqadimay continue in all manner of claims
off the official court record,34but its formalisation as a statutory require-
ment re-casts it as state-directed and arguably more bureaucratically ‘func- S H A RCI P O S T U L A T E S , S T A T U T O R Y L A W A N D T H E J U D I C I A R Y
tional’. Official explanations support the expansion of mediation efforts with a ‘pro-family’ discourse that emphasises the importance of maintaining es- tablished family ties and preventing any increase in the divorce rate or other manifestations perceived as indicating the weakening of ‘the family’ as the basic unit of society. In Egypt, the legislature significantly expanded the
mandatory requirements in the provision on judicialkhulªin the law of 2000
for reconciliation attempts by the judge before awarding such a divorce.35In
her consideration of the Egyptian rules, Bernard-Maugiron observes another aspiration, that of regulation by the state authorities of ‘private’ disputes and conflict resolution, a reference to the jealousy with which the state is wont to assert ‘the monopoly it exercises on the regulation of conflict’ in the face of the established and continuing parallel (not ‘alternative’) inter- vention and mediation efforts of relatives, neighbours and others.36In Pales-
tine, by comparison, Shehada reports theQadi al-Qudahas situating his recent (2004) institutionalisation of a court-related family counselling department under his direct supervision in the context of the competing norms of ‘cus- tomary law’ mechanisms and his desire to ‘minimize the influence of the tribes and tribal law’.37The official explanation on the other hand focuses on
the rising rate of court cases and of divorce, and the need to protect the Pales- tinian family against the predations of the current circumstances; an offi- cial report on the Department of Family Guidance and Conciliation included among the results of its first three months’ work a reduction in the divorce rate throughout Palestine, with one Gazan court reporting its divorce rate to
have dropped from 15% to 4%.38Aspirations of reducing the number of court
claims, resolving family disputes without adjudication and avoiding where possible the incidence of divorce may thus be accompanied by the assump- tion that the state, or the official legal system, is best placed to regulate con- flict even beyond the court room.
In the Gulf, whence the PalestinianQadi al-Qudah’sinitiative in this regard