Family Futures

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Family law and Islam

Mounira M. Charrad, Associate Professor, Department of Sociology, University of Texas in Austin

dvancing

ocial

ntegration

and

ntergenerational

olidarity

n discussing family law in countries with Muslimmajor-

ity populations, a fundamental point to underscore is

that Islamic ideals and practices took different forms in

different places in the course of history despite a common

theology. I find it useful to think of Islam as an ‘umbrella

identity’, an idiom of cultural unity that goes together with

considerable variations according to time and place. Islam

has intermingled with many other factors such as local

customs, politics, socioeconomic structures and historical

conjuncture to shape the interpretation of family law in

various ways, depending on time and circumstances.

Islamic family law has been at the core of the Islamic tradi-

tion. Defining the rights and obligations of men and women in

the family and, by extension, in the community and society at

large, Islamic law regulates marriage, divorce, custody of chil-

dren and inheritance rights. These issues matter a great deal for

the stability of families and the well-being of individuals. They

have led to a wide range of legal interpretations and practices.

Origins and debates

The Shari’a, meaning ‘Islamic law’, specifies principles to be

followed in regard to the family, but it is not a legal manual

lending itself to a single interpretation or application. It is better

thought of as a set of ethical imperatives that can translate into

various rules and behaviours. It stems from the Qur’an and the

Sunna or model behaviour of the Prophet as recorded in compen-

dia called the Hadith. As such, it is open to different readings, as

is evinced by the range of existing interpretations throughout the

Muslim world. The Shari’a has interacted with ‘urf, or common

law, tribal law and secular law imported from European systems,

as well as community norms and behavioural codes, and thus

bears the mark of particular environments.

Historically, the Shari’a was not codified and was left to the

interpretation of judges or religious leaders in communities.

This sometimes resulted in a discrepancy between normative

law as presented in religious texts and lived experiences, as

people found ways to negotiate reality around the law and

to escape stringent regulations. For example, studying legal

practice, Peirce remarks that “law as a process was consider-

ably less sharply gendered than normative law.”

This was

especially the case when local communities had jurisdiction

over family law based on religious texts before the emergence

of sovereign nation-states from colonial rule. When national,

postcolonial states emerged following the wave of decoloni-

zation in the region in the twentieth century, most enacted

national bodies of legislation to apply to the citizens of the

country and promulgated codes of family law and personal

status. In several countries, this was the first time that texts

written in the form of legal codes defined family law.

As the most contested issues in family law, marriage,

divorce, custody of children and inheritance have received

most attention in the postcolonial codes. They have been

treated differently depending on the country, just as they

were in earlier history. In regard to marriage, one major issue

that has given rise to debate in recent times is polygamy. The

Qur’an states: “Marry other women who seem good to you:

two, three or four of them. But if you fear that you cannot

maintain equality among them, marry one only.”

On the

basis of that statement, some people have claimed that polyg-

amy should be allowed. Others argue that no man can be fair

and just to four women and that therefore polygamy should

be banned altogether or restricted. There have been numerous

opinions as to what kinds of restrictions should apply, such as

the requirement that the first wife give her consent to a second

marriage or be given a divorce if that is her choice.

With regard to divorce, the debates focus on whether unilat-

eral repudiation (or the husband’s ability to terminate the

marriage at will) should be allowed, whether the wife should

receive compensation, and the conditions under which a wife

can file for divorce. The most conservative interpretations

of Islamic family law make unilateral repudiation not only

possible but also easy for husbands. They tend to deprive

The painting, ‘The old wife and the new one’ depicts polygamy, a key subject

of debate in family law

Image: Azim Azimzade, 1935