Islamic law in contemporary North Africa: A study of the laws of divorce in the Maghreb

Wmn’s Printed

Studies Int. Forum, in Great Britain.

Vol. 5, No. 2, pp. 169-182,

0277-5395/82/0201~-1.so3.co/0 Pergamon Press Ltd.

1982.

ISLAMIC LAW IN CONTEMPORARY NORTH AFRICA: A STUDY OF THE LAWS OF DIVORCE IN THE MAGHREB KENNETH JAN DORPH

I

516 Oswego, Ann Arbor, MI 48104, U.S.A. Biographical rwte

Kenneth Dorph lived for more than 5 years in the Mediterranean basin primarily in the Arab world. He first came into contact with Arab civilization in Morocco as a student at the Mohammed V University. He then spent 2 years as a Peace Corps volunteer on the island of Kerkenna off the Tunisian coast, and a third one in the capital as a teacher of Special English and a program director with the Tunisian National Airline Co. Most recently he was a Fulbright grantee studying Arabic and Arab studies at the University of Damascus, Syria. He is presently enrolled in an interdisciplinary program combining economic, legal and historical studies of the Near East at the University of Michigan. Synopsis-At a time when the nations of Islam are being depicted as the new specter threatening the developed world’s horizons, it is crucial that informed Westerners re-examine the prejudices and misconceptions they have acquired over the years. Distorted perceptions will be dispelled not with violent emotions but rather by the chipping away of ignorance with meticulous study. This is certainly no less true in the emotionally charged field of women’s studies. The role of women in Islam is as poorly understood in the West as any aspect of Muslim culture and the responsible feminist is clearly confronted with a delicate dilemma; the extrication of the justified urge for universal female equality from self-seeking cultural intrusion. This is only possible through a rigorous understanding of Islam’s heritage, its context, and its own defined goals. The following paper is a contribution to this expanding body of knowledge in the West. It is an analysis of the Islamic laws of divorce as manifested in North Africa. The opinions of the prevalent Maliki school are presented with the analysis of their transformation under colonization and the present trends appearing in Tunisia, Algeria and Morocco.

Little remains of the vast bulk of Maliki law which formed the legal system of medieval North Africa. After years of domination by outside powers, as well as reform from within, Muslim jurisprudence has been pared down to primarily those laws that apply to personal status. In the first part of this paper, the historical climate leading to the contemporary situation of Islamic law in North Africa will be outlined. For the second part I have chosen to take a particular group of laws, aspects of marital status laws with an emphasis on divorce, and trace their development so as to clarify the transformation undergone by the sharl’a or Islamic law in the Maghreb. The laws will first be explained with respect to Maliki doctrine and then discussed in terms of current reforms. The Maghreb contains one of the most religiously homogeneous populations of the Arab world. The early Christian population assimilated completely into Islam, leaving no group of adherents comparable to the sizeable Coptic minority in Egypt. The Jewish population was divided into two groups : those ancient communities pre-dating Islam which were scattered over North Africa and those descended from the refugees of the Spanish Inquisition. These communities have survived into this century but since the creation of the state of Israel they have diminished considerably and appear to be on the point of disappearing. The remaining population is solidly Muslim and undisturbed by the sectarian rifts which have plagued certain nations of the Arab East. The school of jurisprudence suscribed to has traditionally 169

170

KENNETHJAN DORPH

been the Maliki. Under Ottoman influence, Hanafi law, in the form of the Mujallah, was instituted in parts of Algeria and Tunisia. Its influence was primarily felt in the urban centers of these countries and most profoundly affected contractual law. The Ottoman system was dismantled by the French, however, and has only left remnants in the courts of certain Tunisian cities such as Sfax and Tunis. It never, in any case, left much of an imprint on local personal law.’ The French domination of North Africa began with the occupation of Algeria in 1830 and spread to the rest of the Maghreb in the latter half of the century. In Tunisia, a protectorate was established by the treaties of 1881 and 1883. Morocco proved more difficult to subjugate and did not become a protectorate until 1912 (Liebesny, 1943; pp. 125-128). The mountainous, Berber-speaking regions of Morocco and parts of Algeria were never, in fact, completely ‘pacified’ by the French and remained semi-independent ‘throughout the French colonial period. Under the protectorate, Morocco and Tunisia retained their indigenous governments with the sultan and the bey, respectively, remaining in power. The commercial and legal infrastructures were, however, usurped by the French. A dual court system was set up whereby Moroccan and Tunisian nationals were subject to a Muslim, primarily Maliki, personal code while the European population fell under the jurisdiction of the French statut personnel. French law eventually supplanted all Muslim law outside of inheritance, personal status and some areas of real estate, a displacement justified by application of the ‘conflict of laws’ principle (Liebesny, 1943; p. 112). In Morocco, justice was rendered by inexperienced persons ultimately responsible to the central authority. The office of Cherifian Affairs controlled the Ministry of Justice and dictated directives to qadis on how to judge (Embassy of Morocco (U.S.), 1959; p. 2). The qadis were stripped ofjurisdiction in criminal matters, and were frequently replaced by a more ‘understanding’ compatriot. The Moroccan embassy contends that: ‘Justice was well-maintained, if all the disadvantages which such terms involve, particularly arbitrariness, are considered the ends of justice’ (Embassy of Morocco, 1959; p. 2). The central authority in Morocco fostered the growth of existing societal rifts. The distance between the urban and rural population was further widened by the governmental policy of creating tribunals restricted to selected urban centers while justice in the countryside was left in the hands of caids and local bureaucratic agents, consequently becoming a purely administrative matter. A mid, in a criminal matter, might arrest, judge and condemn. Appeal to Paris was reserved to French officials (Embassy of Morocco, 1959; p. 3). An important schism in Northwest Africa is the division between the Berber- and Arabicspeaking populations. The French government instituted a policy of distinguishing the two groups, justifying this division as a sort of musiilih dl-mursulah reflecting divergent Berber traditions. Muslims, however, held that this was a deliberate attempt at sowing dissension and as such the policy was-and still is-vehemently rejected by the North Africans.2 In 1 Muhammed Ahmed ‘Ali, Visiting Professor from ‘Abdul ‘Aziz University, Mecca, The Law School, University of Michigan, March 23, 1979. x This is mentioned in C. F. Gallagher’s treatise on the complex language problem in North Africa, ‘Language and Identity’, in State and Society in North .4frica, edited by L. C. Brown (The Middle East Institute, Washington, D.C., 1966) p. 81. Although it is true that French administrators normally preferred to isolate the Berber population in legal matters, several French scholars proposed the application of the shari’a to Berbers in questions or marital status. Morand argued that doing so would appreciably improve the extremely low status of Berber women, especially as concerns divorce; see M. Morand, Droit Musulman Agtien (Facultt de Droit de l’Universitt d’Alger, Algiers, 1916) p. 10.

Islamic Law in Contemporary

North Africa

171

1923, the French General Resident attempted to establish legal jemu’as charged with the abolition of Muslim law in the Berber regions of the Atlas. Seven years later a duhir was issued clearing the way for the elimination of the shari’a (Embassy of Morocco, 1959; p. 3). These incursions into Muslim jurisdiction lit the fires which would spawn the Moroccan nationalist movement (Brown, 1966; p. 105). As a protectorate, Tunisia had a colonial history in many ways parallel to that of Morocco, although the latter was clearly a more complicated nation with its Spanish north, international Tangiers and Berber Atlas. Tunisia shared none of this complexity and it appears that its relative homogeneity, as well as its tradition of being a ‘gateway to the West’, made it somewhat more amenable to the French presence. Consequently, the French system was more tightly interwoven into the Tunisian. Nonetheless Islam remained sacrosanct. The Zaytuna in Tunis continued as a gathering place for Muslim intellectuals and any French in-roads into personal law were viewed with hostile suspicion (Merad, 1969; p. 45). Once again the clash of French authority with Islam was to beget a nationalist movement. In 1932 an obscure Bizerte mufti ruled that a Tunisian national who had adopted French citizenship dould not be buried in a Muslim cemetery. The authorities proceeded with the burial despite his decision and the crowds that gathered to protest blossomed into the ‘naturalization’ crises of 1932 and 1933, from which Habib Bourguiba drew his first support (Brown, 1966; p. 105). Algeria was the crown jewel of the French colonial empire. No other country was subjected so thoroughly to the zeal of ‘la mission ciuilisutrice.’ The French in-roads into the Algerian cultural and legal systems were, from the inception of the colonial organization in 1830, profound and protracted. The southern, sparsely populated territories were placed under military dontrol whereas the three northern departments were kith and kin with France. All legislation enacted in France after 1834 was automatically extended to Algeria by virtue of annexation (Liebesny, 1975; p. 111). Initially, Muslim law was protected. Article 1 of the Senatus Consulate of July 14, 1865 stated that, ‘The Muslim native is French, nevertheless he will continue to be governed by Muslim law’ (Liebesny, 1943; p. 111). It furthermore reassured the population that, ‘the practice of the Muhammedan religion [sic] will remain free . . . and . . . their women will be respected.’ (Charnay, 1955; p. 290). Such reassurances did not endure, however, and these acts were abrogated by the law of 1889 (Liebesny, 1943; ,p. 111). At the time some legalists argued that such an abrogation did not conform to Article 5 of the convention which had been signed following the capitulation of Algiers on July 5, 1835, in which it had been stipulated that Islam was to be respected by the occupying power. Most French jurists, however, did not believe that a respect for Islam entailed, necessarily, a respect for Islamic law. It was furthermore contended that the convention had only been applicable to the city ofAlgiers. The majority opinion prevailed (Liebesny, 1943; p. 112). As a reaffirmation of this stand the chumbre de &vision musulmune of June 1931, of the Algerian Court of Appeals, noted that, ‘In Algeria, only the customs and not the texts of Muslim experts have the force of the law’ (Charnay, 1955; p. 290): a reliance on ‘umul (normative practice) never dreamed of by Maliki. Even in the inviolate sphere of personal law some formerly illegal acts became legitimate, such as Jewish and Christian inheritance from Muslims or the marriage of Muslim women to non-Muslim men. Furthermore, in a decree of November 23,1944, all Muslim law became subject to review by French legal experts, at least in, principle (Charnay, 1955; pp. 290-293). Preach attitude towards Muslim law can be summed up in the following statement regarding real estate law quoted from Marcel Morand, the celebrated law professor at the University of Algiers and codifier of Algerian law: ‘The security of transactions, the

172

KENNETH

JANDORPH

development of colonization, the very interest of the natives . . . demand that there soon be only one real estate law in Algeria, the French law’ (Morand, 1916; p. 13). Discrimination against Muslims on religious grounds was a major outgrowth of the Senatus Consulate of 1865. The non-European natives of Algeria were declared French subjects but mtotcitizens. They were free to become French citizens, but only under the condition that they abandon their personal law, which for a Muslim would be tantamount to renouncing his religion, and abide by the French Civil Code. The fact that only 2500 chose to do so attests to the strength of Islam in Algeria at that time.3 Traditionally the Muslim personal code was left in the hands of the indigenous population. This state of affairs was reaffirmed by Article 75 of the 1958 Constitution which stated that those citizens not subject to civil status, i.e. Muslims, had the right to retain ‘their personal status as long as they do not renounce it’ (Roussier, 1959; p. 26). It’has been, and is still, generally true that occupying governments ignore matters of personal status, at least during the initial period of assimilation. Often religious law is considered a quasi-legal institution more or less overlooked, provided that it does not conflict with the laws of the state, as is the case of Islamic law in the Soviet Union. The need to incorporate the subjugated society economically or politically does not initially justify the fervent reaction sparked by adulteration of personal codes. However, when the colonizing power envisions an eventual integration, as France did for Algeria, a contradiction looms. The French administrators recognized this gap early in the colonial period, especially in relation to the status of women. Reform in the laws governing marriage and divorce were encouraged, with the movements in the Arab East held as an example. Towards the end of the colonial period in Algeria, Jules Roussier stated that, ‘The regulations governing marriage and divorce, as thefiqaha [les docteurs] elaborated them from the holy texts, are less and less in conformity with the values introduced by the social and economic revolution we are experiencing and the resulting advancement of women’ (Jules Roussier, 1960; p. 5).

DIVORCE

IN MALIKI THEORY

Religious Muslims are deeply conscious of their covenants and contracts in general, and marriage-as the supreme contract touching the very basis of human existence-is certainly no exception. The prophet said, ‘He who marries perfects one half of his religion; let him therefore take care of the other half’ (Hoballah, 1953; p. 25). Divorce was denounced by the prophet as the most hateful of all lawful things as it ended marriage, an institution the lawgiver was meant to encourage, and tradition has it that ‘Ali, the prophet.‘s son-in-law, said ‘Marry and do not divorce your wives, for divorce causes God’s throne to tremble’ (Scemama, 1930; p. 122).4 Nevertheless, Islamic jurisprudence recognizes divorce as a necessary evil and much attention is given to it in the Qur’an and the @dith. Maliki divorce

3 Michael Brett, Northern Afiica: Islam and Modernization, (Frank Cass, London, 1973), pp. xvi-xvii. Likewise Muhammed Bedjaoui discussed the extreme lack of interest among the indigenous population in assuming French citizenship, Bedjaoui considers this as one of the few means of passive resistance open to the Algerian people; see M. Bedjaoui; Law and theAlgerian Revolution (International Association of Democratic Lawyers, Brussels, 1961) p. 35. 4 Robert !Icemama, Essai sur les contlits de lois en Tunisie, in Librairie G&&ale de Droit et Jurisprudence (Paris, 1930) p. 122. Includes commentary and conflicts attached to mixed marriages, i.e. a Muslim and a non-Muslim spouse from a legal standpoint.

0

Islamic Law in Contemporary North Africa

173

law is generally considered to be liberal in many ofits aspects and has therefore been adopted, at least in part, in many nations practicing Hanafi jurisprudence (Roussier, 1959; p. 25). An interesting explanation of this liberality is advanced by Ahmed Shukri: ‘It may be observed that the liberal interpretation of this branch of the law by the Malekites is largely due to the influence of the French in Northwest Africa who, with remarkable wisdom, have utilized the indigenous institutions to alleviate the position of the Mohammedan women’ (Shukri, 1966; p. 125). This championing of French ijtihad is curious in light of the fact that Maliki law was codified centuries before the French reached the shores of North Africa. Maliki jurists distinguish three types of divorce: taluq, or repudiation; khur, or wife initiated divorce; and tuluq &&n, or judicial divorce. The English word ‘divorce’ is normally translated as taluq, and vice versa. This relationship is not exact, however. While our word ‘divorce’ traces its origin back to the Latin ‘divertere’ and conjures up the splitting of a unity, the permanent physical separation of the spouses, the root taluqu means to ‘loosen’ or ‘untie’ and here refers to the marital bond. ‘Dissolution’ might be a more apt rendering. T&q can also be translated as ‘repudiation,’ namely of the wife by the husband in the first and best known form of Muslim divorce. A specific formula exists for this repudiation (‘you are divorced’) but any similar words recognized by tradition are understood to carry an equivalent force. The effect, moreover, can be postponed to a later point in time if a husband so desires and attaches the appropriate words to his repudiation (Morand, 1916; p. 81). The wife’s presence is not, in fact, mandatory for the repudiation to be valid; the husband may speak directly to the qudi, having an act drawn up and his wife notified (Dubout, 1901; p. 231). The husband is warned not to repudiate jokingly, for there is a &zdith which states three instances when jests are to be taken seriously; marriage, divorce, and the law of repayment (Garcia Barriuso, 1952; p. 308). Under the Hanafi school, a repudiation said in jest has full force of the law, although this doctrine has since been generally repealed (Anderson, 1973). The c&q form of divorce can be further classified into three main types: the first two are considered quite properly within Qur’anic injunction whereas the third is considerably more controversial. The first or preferred (a~sun) form has several stipulations attached. First of all the woman must be in a state of tuhr, or purity, meaning between menses (al-Maltawi, 1949; p. 40).’ Secondly, the man must not approach her, i.e. sexually, during the tuhr. Thirdly, the repudiation must be said only once, not two or three times, to avoid becoming definitive. Avoidance of repetition is maintained throughout the ‘iddu, or waiting period. This form of repudiation is revocable, or riJ*i,and hence would be parallel to a judicial separation before the close of the ‘iddu (Pesle, 1946; p. 117). During the waiting period the husband must support his wife as usual, which is particularly significant in view of the fact that the institution of alimony has no parallel in Islamic law. For this reason, in early Islam, ‘various ruses were used by women to conceal the fact of menstruation and thereby extend the period of maintenance, if possible to menopause.’ As a consequence, specific limits were put on the waiting period. The main objective of the ‘iddu was to prevent commixtio sanguinis in the event of the wife’s remarriage after either divorce or the death of a husband. The period is set ’ al-Maltawi, Fiqh al-mu’amal&‘ala madhhabal imamMalik, (High Council of Islamic Affairs, Cairo, 1949) p. 40. Most North African Maliki scholars who relied on direct sources relied most heavily on the Mukhtassarby ‘Sidi Khalil’ and the Tuhfaby Ibn Asem.

174

KENNETHJAN DORPH

at 3 months in the case of divorce, and 4 months and 10 days in the case of widowhood, whether the marriage has been consummated or not (Liebesny, 1975; p. 149). The husband has the right to resume cohabitation at any time during the ‘idda period, even against his wife’s wishes. He may communicate this desire either explicitly, by a declaration, or tacitly, by a deed such as kissing the repudiated wife (Shukri, 1966; p. 97). If either spouse should die during this period, the rights of inheritance remain unaffected. Should the husband allow the ‘idda period to elapse without reclaiming his wife, the repudiation becomes irrevocable, or ba’in, and hence a divorce in the Western sense. A repudiation may be considered ba’in for other reasons as well. If the husband chooses formulas carrying an irrevocable force when he repudiates his spouse, or if he repudiates her before the consummation of the marriage, the marital bond is officially ruptured (Pesle, 1946; p. 118). Another possible form of repudiation is the thalath (or talats and tzalatz in the French and Spanish rendering of Maghrebi Arabic), meaning ‘three’ and referring to the thrice repeated repudiation resulting in an irrevocable divorce. Ideally, the husband repeats the repudiation formula thrice over a period of 3 months, once each month during the period between menses, as in the preferred form of talaq divorce described above. Carried out in such a manner, the stipulations prevent one rash and regrettable outburst on the husband’s part from precluding eventual reconciliation. Such a divorce is considered normative (sunni) and is clearly not a far jump from the first, or preferred, form of repudiation (al-Maltawi, 1949; p. 40). It should be kept in mind, however, that repudiations professed and later retracted do not lose their effect and are hence cumulative (Morand, 1916; p. 87). A second, quite unusual form of divorce by thalath repudiation, referred to as bid’i (innovative, unorthodox) came also to be recognized as legitimate by Maliki scholars. Entirely ignoring the ‘idda period, a husband repeats the divorce formula three times with no specified intervals, although usually consecutively, or utters a formula having the value of three simple ones. The wife is then automatically and irretrievably divorced. Along with the veil, this innovative form of repudiation is perhaps the most widely held example to Western eyes of the lowly status enjoyed by Muslim women. Yet ironically, like the wearing of the veil, such a divorce method finds no support in the Qur’an. The prophet himself was said to have disparaged this sort of divorce. On hearing of such an incident he ‘stood up in anger on his carpet and declared that the man was making a plaything of the words of God.’ He then enjoined the man to take back his wife (Shukri, 1966; p. 98). Nonetheless, this unorthodox form somehow gained legality under the Umayyids and has remained lawful since. Ibn Taimiya, the thirteenth century theologian and jurist, raised a lone voice of dissent, noting the method’s lack of Qur’anic justification. He offers an interesting explanation for the origin of this practice, saying that during ‘Umar’s caliphate the Arabian Peninsula had an extraordinary surplus of women, due to the inflow of female captives from the early conquests. As a result, a certain nonchalance developed among many men in matters of divorce and women were divorced and remarried with abandon. ‘Umar, in order to put an end to this irresponsible practice, declared that any man who uttered the divorce formula thrice, even if said lightly, would legally divorce his wife. The Caliph was obviously hoping to eradicate a singular occurrence, while in fact his decree eventually had the opposite effect (Rahman, 1980; pp. 459-460). Under the thalath divorce procedure, a woman who has been repudiated three times, be it at once or over a length of time, is forbidden to remarry her divorcer unless she consummates a marriage with a second man. Undoubtedly a lengthy second marriage was envisioned by lawgivers but once again the law’s vagueness was exploited and the practice of brief

IslamicLaw in Contemporary North Africa

175

marriages with a second man, pejoratively referred to as the muhallil or ‘resolver’ (Bellefond, 1964; p. 436) became a widespread occurrence. A completely different form of divorce is the khuP or divorce initiated by the wife, but formalized by the husband, for which she must pay a compensation (‘iwad) (Kairwani, 1914; p. 123). This form of divorce is sanctioned by Sura IV, verse 127 of the Qur’an which states: ‘Give the women their dower freely, but if they remit of their own will any part of it, enjoy it with good grace and pleasure.’ Its origin traces back to an incident which occurred during the prophet’s lifetime. The wife of Thabit ibn Yeise approached Muhammed and told him that although she had no particular grievances against her husband she could not live with him as a woman. The prophet asked her if she would give Thabit back the orchard he had conferred upon her and she said she would. Thabit was called and the matter was settled (Hobballah, 1953 ; p. 29). In principle the amount given as compensation should be equal to the dower the women had received. However, in practice it is often less and may be substituted by an obligation, as in the form of a promise to raise whatever children had issued from the union independently (Pesle, 1946; p. 120). Unlike the other forms of divorce, a woman has no right to maintenance (w&ah) during the waiting period if she herself initiated the proceedings (Liebesny, 1975; p. 136). It is important to remember that although a wife may set the ball rolling, the husband must concur for the KhuP divorce to be valid without judicial intervention. The final divorce allowed by Maliki legal theorists is the judicial divorce (t&q h&m). A man may be called before the judge if a complaint is lodged that he, in some capacity, is either not fulfilling his marital duties or has been inordinately cruel to his wife. The husband’s prolonged and unwarranted absence is also grounds for a judicial divorce as is lack of sufficient support, or nufuquh. Maliki theorists hold that a woman must be maintained to a standard concommitant with her class previous to marriage, a view rejected by other schools (Shukri, 1966; p. 122). It will be noted that, logically, only a wife will seek a tuluq hakim in the above cases since a husband always has recourse to repudiation. The Maliki scholars have been quite explicit in outlining the circumstances entitling the wife to divorce by judge’s decree, more so than the other sunni schools. Unjustified absence for more than 4 years is grounds for divorce, although in contemporary Morocco a oneyear limit has been adopted (Rahman, 1980; p. 160). The question of cruelty is somewhat more complex, however, and must be studied in light of the established tenets regarding marital obligation. Concerning women, Sura II, verse 228 of the Qur’an notes that, ‘their rights are equal to their obligations in a just manner.’ A Muslim wife is expected to fulfil certain obligations assigned to her, as is her husband. The basic distinction between their respective obligations parallels the traditional Christian vows of the husband’s support and protection and the wife’s obedience. The Muslim husband has the legal right to chastise his wife if she disobeys him, even to the point of hitting her-although not beating her (Bellefond, 1964; p. 437). If a woman disobeys her husband (an kana yukunu an-nushuzu minha),6 he is expected first to reprimand her. If she persists, he is instructed to strike her in such a way as to cause her no harm (durbun ghuir mukhtij). If her recalcitrance can only be ended by a serious blow, a durb mukhfi$ he is counselled to divorce her rather than harm her (Pesle, 1946; p. 131). Of course, not all men restrain from exploiting physical power over women and in such cases a mistreated Muslim wife has legal recourse to escape her husband’s brutality. ’ Hans Wehr defines an-nushur as either recalcitrance on the woman’s part or cruelty, brutal treatment, on the man’s,

176

KENNETHJAN DORPH

Sura IV verse 127 states, ‘If a woman fears her husband’s violence, or his antipathy towards her, there is no wrong in coming to an agreement; peace is a great blessing.’ The first step is to seek the q&i’s intervention. He will reprimand a husband overly zealous in his husbandly right of chastisement. If the incident does not then clear up and the wife persists in her complaints of maltreatment, the judge will designate arbitrators, optimally one from each spouse’s family, to determine which of the two is at fault: Sura IV, verse 29, ‘If you fear a breach (shiqdq) between them, appoint two arbiters, one from his family and the other from hers-if they wish for an agreement, God will cause their reconciliation.’ It is they who must uphold the wife’s charge of cruelty and, if they decide in her favor, it is also they who dissolve the marriage (Hoballah, 1953; p. 25). This differs from the other sunni schools wherein the arbiters are merely advisors and the ultimate power of dissolution remains in the judge’s possession. Should the arbiters place the responsibility for the rift on the husband, the divorce declared is an irrevocable t&q and the wife is not liable to pay any compensation (Bellefond, 1964; p. 439). In the Hanbali and ShalYi schools, the wife has a greater array of specific complaints to cite against her husband. A woman subject to Malibi jurisprudence is left with a vaguer notion of ‘injury’ (darar) to which she may avail herself, which is not necessarily a disadvantage as it allows a judge greater latitude in determining the wife’s plight (Bellefond, 1964; p. 434). Some specific citations of a husband’s potential wrongs against his mate have been recorded, nevertheless. A man may forbid his wife from leaving home to go to the @nmam (public baths) or for a stroll yet he may not keep her from visiting her parents (Bellefond, 1964; p. 437). A woman may also lodge a complaint against her husband if he forces her to beg, introduces a concubine into the conjugal domicile (Shukri, 1966; p. 122), or marries a former prostitute (Siband, 1957; p. 180). She may do likewise for ‘acts against nature’ and insults on her ancestry-‘daughter of a dog’ being the classic affront (Bellefond, 1964; p. 437). Only one such incident is necessary to create a case. Divorce is also permitted in cases where the husband is afflicted with some disease or defect, assuming his wife had no knowledge of it at the time of marriage or that it was contracted subsequently (Anderson, 1976; p. 219). Refusal or inability to maintain sexual relations with the wife is also grounds for divorce. Finally, apostasy by either party suspends a marriage automatically. If, however, the renegade should come back to the fold, the marriage is revived (Shukri, 1966, p. 111). An unusual sort of divorce by judicial decree, called an ilu’ (al-Maltawi, 1949; p. 37), is initiated when the husband prohibits himself by oath from having relations with his spouse, for whatever reasons, for a period lasting 4 months or more. Once he has sworn thus, and consequently deprived his wife of her right to sexual activity, he has only two options: either he may keep his word and the wife will be granted a judicial divorce or he will break his vow and come back to her arms (Pesle, 1946; p. 122). If he does the latter, he is subject to atonement (ka@wah) and hence must either free a slave, feed 10 poor people or fast for a 3 day period (Qur’an: 5.89). A second, more curious, method of forswearing a wife is called a zihar. It is a pre-Islamic relic which consists of a man’s likening his wife to his mother (anti ‘alayya ka - zahri ummi), thereby intimating an incestual relationship and precluding further sexual contact. The prophet had attempted to rid Muslims of this tradition proclaiming, ‘God has not given a man two hearts within him; nor has he made your wives . . . your true mothers.’ But the practice somehow managed to survive into our day. Again, it is not a divorce in itself but lays the grounds for a judicial divorce if it is not withdrawn (Shukri, 1966; p. 119). The final form of judicial divorce occurs when a husband accuses his spouse, by oath, of

Islamic Law in Contemporary

North Africa

177

having been unfaithful to him. It is called Kan, from the root la’ana meaning to damn or to curse. The oath itself is specific and consists of the wronged husband repeating in front of four witnesses, ‘God is my witness that I surprised my wife in the act of adultery.’ He then adds, ‘May God curse me if I lie.’ (al-Maltawi, 1949; p. 40). Islamic law considers both fornication (zina’) and the false accusation of adultery (qadhf) serious matters indeed. Each falls into the category of h&d, or those laws specifically stipulated in the Qur’an and sunnah and therefore subject to severe punishment (al-Jurjani, 1938; p. 74). The former is a violation of the concepts of nusl (family), nufs (self), and ‘ird (individual honor) as well as the notion of responsibility in sexual acts, a much evolved concept in Islam. The latter is a transgression against ‘ird in the highest degree. Therefore in accusing his wife of adultery, a man is creating a situation in which at least one of them will be subject, in principle, to severe castigation. In order to free the couple from this conundrum, Maliki jurisprudence has created a kind of ‘hiyul’, or legal trick, in the form of li’un. If the wife is in fact adulterous and fears fire and brimstone more than she fears the taste of the lash, she may confess to her misdeed and receive a hundred strokes of the whip. However, if she is innocent, or sceptical of an afterlife, she may deny the chargeby oath. If she does so, she frees either spouse from the possibility of hudud punishments and causes the marriage to be declared dissolved, ipso facto. The remarriage of the same couple remains forever an impossibility (Pesle, 1946; p. 123). If in fact the woman was an adultress, her husband will, if a believer, derive great satisfaction in the conviction that she will bum in juhunnam forever. The great care with which a woman is protected from an untrue accusation of adultery is held to originate in an incident which occurred during the prophet’s lifetime. In 626 of the common era, Muhammed was in a caravan returning from a successful campaign against the Bani Mustalik, followed by the litters of two wives, Umm Salwa and the young favorite, ‘Aisha. One day it was discovered that ‘Aisha’s litter was empty and that she was nowhere to be found. She turned up a few days later at Safwan, saying that she had lost a necklace and had gone%ack for it. Scandals began to spread as at first even Muhammed had suspected her fidelity. But then the prophet fell into a trance from which he awoke to exclaim ‘Rejoice ‘Aisha! The Lord has revealed your innocence!’ As a result of this incident, Muhammed realized the evils inherent in a false accusation and therefore stipulated that, ‘If any of your wives be guilty of fornication, produce four witnesses from amongst you against them.’ (Shukri, 1966; p. 115). This stipulation still holds and makes it such that adultery, although it is severely punished, is in fact very difficult to prove.

LEGAL

R.EFORM

North Africa Now that we have reviewed the Muslim divorce laws as Maliki theorists have bequeathed them, let us turn to the transformation they have undergone in twentieth century North Africa. First we have the influence of the French. Many French intellectuals disdained Muslim divorce, as Jules Roussier evidenced above, and made minor attempts to influence Muslim legal thinking in this field. The evolution of Muslim society, the loss of a woman’s ancient support systems such as her family, and the loosening of social pressure were all cited as justifications for this intervention (Roussier, 1960; p. 30). Yet even during French occupation, impetus for reform was coming from another source: the Muslim East. The main point of transmission was the Zaytuna mosque and university in

178

KENNETHJAN DORPH

Tunis. There the ideas of such reformers as the Egyptians Ibn Taymiyya and Ibn Qayyim alGawziyya, already popularized by Muhammed ‘Abduh, were disseminated in Tunis and spread westward, reopening the door of ijtihud in light of contemporary circumstances (Merad, 1969; p. 102). The movement engendered a predilection towards a stricter and simpler early Islam and a rejection of the saint worship and maraboutism that had characterized North Africa. The ubiquitous Christian missionaries suffered from this return to fundamentalist zeal as the movement soon turned towards their ejection. Ibn Badis, a Zaytuna graduate at the center of reform in Algeria declared, ‘Islam is my religion, Arabic is my language, Algeria is my country,’ summing up the essentially pan-Arab nature of the movement (Brett, 1973; p. xvii). It was at this time that the concept of m&q was introduced to North African jurisprudence. Taljiq, from the root ‘luJizqa’,‘to patch’ or ‘fabricate’, signifies the utilization of legal elements drawn from all the Sunni schools rather than just one or, more precisely, ‘issuingfatwa or giving decision according to the provisions of other schools in cases of hardship’ (Rahman, 1969; p. 95). The Egyptian decree law no. 25 of 29 March notes that : ‘Nothing in Islamic Law prohibits the adoption of the opinion of jurists not belonging to one of the four rites, particularly if such adoption assures the public welfare or prevents public evil’ (Liebesny, 1975; p. 144). Marcel Morand, in writing his code of Algerian Muslim law, justified the substitution of Hanafi laws for Maliki laws thusly: ‘The resolutions [les dispositions] of the Hanafi rite are often more human, more open, more tolerant than those of the Maliki rite’ (Marcel Morand, 1916; p. 13). Tunisia Tunisia has a well deserved reputation as the Switzerland of Arab Africa; the eternally neutral small state dodging the whims of the giants surrounding it. The underlying attitude generated by this position is one of tolerance and openness to foreign ideas, although, of course, neighboring Libya would more likely name it laxness bordering on heresy. Tunisia has strayed the furthest of North African nations from the strict adherence to Muslim law. French courts were eliminated by the treaty of March 9, 1957, although French judges continued to play an important role in the judicial system. Only a half-hearted effort was made, however, to re-Arabize the legal system contrasting sharply with the rigorous measures taken by neighboring Algeria. (Liebesny, 1975 ; p. 113). The ascension to power of the markedly pro-Western Habib Bourguiba further opened Tunisian law to reform. In a speech of August 3, 1965, Bourguiba intimated his feelings towards Muslim law when he recalled that a friend had pointed out to him, during the ‘naturalization crises’ of 1932-1933 when the French were seeking new French citizens from among the Tunisians, that the French needed only to distribute citizenship papers outside the shari’a courts and exasperated Tunisians would renounce their own nationality in droves (Brown, 1966; p. 111). In regard to divorce law, the first major alteration in Tunisia was instituted by the decree no. 13 of Article 30, August 1956: ‘Divorce outside a court of law is without legal effect’ (Liebesny, 1975; p. 145). In one fell swoop it obliterated both khur and taluq divorces enacted outside of court. Nevertheless, an essentially khur divorce is still in effect: a Tunisian woman may obtain a divorce which is not justified by any clause within the Personal Status Code under the condition that she pay a compensation set by the court (Anderson, 1973; p. 77). During the colonial period khuP divorces had been heavily promoted by the French as a means to foster a mutual consent divorce along European lines, eventually paving the way for

Islamic Law in Contemporary

North Africa

179

the enactment of decree no.3 of Article 30 wherein it states that if the court has exhausted all possibilities of achieving a reconciliation, it will then determine ‘at the demand of either the husband or the wife’ which partner is responsible for the deterioration of the marital union. The guilty party will then owe indemnities (Liebesny, 1975; p. 145). The Tunisian jurist Mokhatar Ma’aref has suggested that this development is a reaction to the shari’a’s allowing a man to repudiate his wife at will with little protection for her in terms of compensation (Mokhtar Ma’aref, 1966; p. 206). In the area of stipulations inserted into the marriage contract the Tunisian law has also diverged from traditional shari’a opinion. Originally the Muslim marriage contract (nikah) was little more than an inscription of the agreement observed by witnesses. The witnesses had more significance than the paper itself, perhaps supporting the notion that early Arabs preferred the spoken to the written word. However as the nikah evolved conditions began to be inserted therein. Clauses which were already legally supported, such as a husband’s promise to live with his wife, were included with no effect on the contract. All other conditions were frowned upon. Those clauses which were of an illegal nature rendered a contract invalid if the marriage had not yet been consummated. Had it been consummated, legal opinion varied on what to do. A man was not legally bound by those contracts not merely reinforcing the law; he was only enjoined to respect them (Pesle, 1946; p. 134). (He would, of course, be legally bound if he had sworn by oath to do so, but more by the weight of the oath than the contract.) The above was not true in Hanafi legal theory (Anderson, 1976; p. 115), a fact which enabled the Tunisians to promulgate the following article by means of tuljiq: ‘Any clause or condition can be inserted into the marriage contract concerning goods or persons. In cases of non-realization of the condition or non-execution of the clause, the marriage can be dissolved by divorce’ (Tunisian Republic, 1966; p. 292). But by far the most sweeping reform in the domain of marriage is the prohibition, effected in 1956, of polygamy. Article 18 of the Tunisian Code of Personal Status states simply: ‘Polygamy is forbidden. Polygamy is punishable by imprisonment of 1 year or a fine of 240,ooO francs or both’ (Service de Legislation Etrangere, 1957; p. 111). Maliki law reflects the Qur’an in prohibiting a man’s marrying more than four women simultaneously, and only then if he can be equitable to all (min kullin luhu akthuru min wuhidutin wujubu ‘uluihi al-‘adlu buinahunnu). This latter condition was cited by Bourguiba in defense of his decision to outlaw polygamy. His reasoning was that being equitable towards four women would take an infallible man and only the prophet was infallible, thus polygamy should be restricted to the prophet. He furthermore advanced the argument that polygamy was a detestable anachronism that should be prohibited by analogy with the earlier prohibition of slavery in all Muslim nations. Immediately following the announcement of the new personal code including the article forbidding polygamy, afatwa was issued by Tunisian ‘ulama” in which the innovation was denounced (Brown, 1966; p. 111). Public reaction, however, was muted. It is interesting to note that Bourguiba did not fare so well in his attempt to banish Ramadan fasting from the personal lives of his countrymen. In this situation Bourguiba made the analogy of the contemporary struggle towards development as a sort of latter day jihc?d, thereby excusing the population from the fast. His argument was soundly rejected by the masses. But here we have an entirely different matter: the phenomenon of the shared fast, still popularly practised by most Tunisians, is an extraordinarily unifying experience. It is a tangible reaffirmation of a common bond, a common purpose. Tampering with it is tampering with the deepest chambers of sacred religious belief. Nevertheless the Westernizing element of tunisoise society will still occasionally churn out articles lamenting

180

KENNETHJAN DORPH

the decrease in workers efficiency, or some such, during the Ramadan feast; these are generally ignored by the bulk of the population. The attitude of fellow North African legal theorists’ towards the reforms in Tunisian law is reflected in Y. Linand de Bellefond’s thinly veiled attack in the Revue Marocaine de Droit. He contrasts Morocco’s ‘praiseworthy fidelity’ to the principles of shari’a with the liberties taken by another government : ‘The government in reference, while proclaiming the trend of its work barely strays from the spirit and even the letter of the most orthodox Muslim law . . . (has in fact had) . . . the bulk of the Islamic juristic system undergo such deformation as to make it scarcely possible, for the impartial observer, to recognize the traditional face of,fiqh’ (de Bellefond, 1964; p. 439). Algeria

The Algerian nation suffered most under French colonialism, perhaps to a greater extent than any other modern nation. Algeria was deprived of her language, her laws and her soul during colonial rule. The confused society that emerged from the revolution is seeking a cultural identity in its Arab-Islamic roots. It is ironic that Algeria, a nation that was once actually part of France, has retained a greater bulk of shari’a in its legal system than most Muslim countries. The split personality characterizing the nation certainly emerged in the practice of law, at least at the time of independence. The law no. 62-157 of December 1962, decreed the validity of French law in Algeria and .led to the confusing situation where Western-trained lawyers might interpret a case through French eyes whereas those schooled in the shari’a would understand the same state of affairs in terms of Maliki theory (Badr, 1970; p. 44). The situation has ameliorated considerably, however, since the installation of the Algerian Supreme Court in 1964 and today the clear tendency is to prefer Muslim law. This is especially so when a Muslim law was voided during the colonial period as is promulgated in law no. 62.157 of December 31, 1962, Article 2: ‘All texts and resolutions affronting domestic or foreign sovereignty of the State of Algeria or of a colonialist or discriminatory inspiration, all tests affronting the normal exercise of democratic freedoms are considered null and void’ (Badr, 1970; p. 45). With this weapon on its side the shari’a is experiencing a rebirth in Algeria, at the expense of both French and Berber laws. This is attested to by the recent rulings in several divorce cases. In December 1965 a case came before the Chambre de droit privi in which the appellant, a Mr A. K., had been ordered by a lower court to pay a 50 dinars a month indemnity, i.e. alimony, to his ex-wife, MS H. B., until instructed otherwise. Mr A. K. appealed to the Chambre. Their decision was as follows: ‘Being that in the matter of divorce Muslims are subject to the rules of the shari’a and that this cannot be estopped by the application of a law which infringes upon this principle . . . ‘Being that the dissolution of the marriage puts an end to obligations of the husband toward the wife. . . ‘It follows that, in decreeing as it did, the judge in question did not render a correct application of the law’ (Faculte de Droit et des Sciences Economiques, 1966; p. 112). MS H. B. was forced to repay the indemnity. This case is a clear-cut rejection of the Western concept of alimony (as distinguished from child support). This directly contradicts a decree enacted during the colonial period (number 335, December l&1956) by which a man was obliged to pay a ‘gift of consolation’ (mut ‘a) if he repudiated his wife (Roussier, 1960; p. 31).

Islamic Law in Contemporary North Africa

181

Another case relates a situation in which a woman successfully won a divorce based on shari’u. In this case when Mr 0. M. married for a second time, his first wife, MS B. F.,

complained that she had been relegated to the back shelf and ‘treated like a servant’ (Faculte de droit et des Sciences Economiques, 1966. Vol. 1, no. 4, p. 873). MS B. F. introduced witnesses to the court to substantiate her claims by oath. The judge decided that Mr 0. M.‘s behavior constituted a serious injury to his first wife and her appeal for divorce was upheld (Ibid, 1966; p. 874). This was a classic sunni t&q &kim. An example of a khut divorce is one that came before the court in 1968. In this case MS F. E. had filed for divorce paying a compensation of 1000 dinars. She separated from her husband for a period of time during which he paid her 1200 dinars for child support. However he appealed the divorced, basing his argument on the fact that he had never accepted the khuf. The decision of the lower court had been that, although recognizing the impermissability of the khuP divorce without the husband’s consent, ‘according to modern concepts, it is acceptable to overrule the husband’s will.’ The higher court overturned this decision, judging that the k/d’ could not be imposed upon the man according to the shari’a. The situation then reverted to as it was before the initial judgement, i.e. no divorce granted (Ibid, 1966; Vol. 6, no. 1, p. 297). These and other cases testify to the trend in Algerian personal law to restoration of the original shuri’u. This, along with the Algerian attempt at Arabization, indicates a serious governmental policy of reintegration into the Muslim Arab world, Morocco

The Westernmost nation of Islam, Morocco, seems to have chosen a middle ground between Arabizing Algeria and secularizing Tunisia. According to the Moroccan embassy: ‘The main ambition of the Moroccan government has been to establish a new legal system in harmony with the independence of the country-not only on civil and criminal orders, but also on matters of jurisdiction, taking into account the Muslim and Jewish personal codes.’ (Embassy of Morocco, 1959; p. 11). The Moroccans have reaffirmed that jqh stems from the Maliki school of jurisprudence, taking into account the tradition of relying as well upon the ‘umul, or normative practice, of Fez (‘umulfasi) (Bousquet, 1945; p. 18). Qadi tribunals were created by the dahir of August 26, 1956, replacing the ordinary tribunals. It is compulsory for these new tribunals to apply Muslim law in personal, inheritance and property matters. The Muslim legal code will establish ‘the traditional rules for the Muslim statutes, Islam being the state religion of Morocco.’ (Embassy of Morocco, 1959; p. 11). Although Moroccan jurists have instituted some reforms in the laws of personal status they have approached the matter much more gingerly than their Tunisian counterparts, employing tuljiq to reflect the principles of classical law. The most innovative adoption has been the borrowing of the Hanafi power to introduce conditions into the marriage contract. A Moroccan woman is free to stipulate that her husband may not take a second wife, according to Article 3 1 of the Personal Code, and has the right to a divorce if this undertaking is violated. A marriage dissolved in this manner is not considered a divorce but rather an annulment Vuskh) (Roussier; 1959). Furthermore, a marriage to a second woman cannot be concluded if that woman is unaware of the first wife’s existence (Liebesny, 1975; p. 153). The 1957-1958 elaboration of the Personal Code (Muduwwunuh) expanded the Maliki concept of marital cruelty. Article 56 detailed cruelty as sufferable only by the woman, conforming to the original Maliki ruling, however the conception of harm suffered was

182

KENNETHJAN DORPH

broadened to include injurious acts ‘of whatever nature’ (Bellefond, 1964; p. 153). Also included was the Egyptian formula of 1929 stipulating that the injury must make ‘the maintenance of life together impossible,’ both approaching the vague notion of ‘mental cruelty’ common in Western divorce law (Colomer, 1963; p. 232). Several Western scholars perceive the reform movement as pointing towards the eventual secularization of all aspects of law in the Maghreb. I feel, however, that it would be premature to toll the death knell for the shari’a in Northern Africa. The appearances of vigorous Muslim movements in the region, coupled with the birth of an Islamic state in Iran, should caution the observer to recognize the unpredictability of the role Islamic law is to play in the future, in North Africa as elsewhere. REFERENCES

al-Jurjani, ‘Ali. 1938. at-ta’arifat. Matba’ at al-Halabi, Cairo. al-Maltawi, Hassan Kamil. 1949. Fiqh a&mu’amaltit‘ala madhab al-lman Malik. The High Council of Islamic Affairs. Anderson, J. N. D. 1976. Law Reform in the Muslim World. The Athlone Press, London. -. 1973. Modernization in Islamic Law. In Brett, Michael, ed., Northern Africa: Islam and Modernizarion. Frank Cass, London. Badr, Garnmal Mourii. Jan.-Mar. 1970. La Relance du droit Islamique dans la Jurisprudence Algtrienne depuis 1962. Revue Internationale de droit comparh, Vol. 22. Bedjaoui, Mohammed. 1961. Law and the Algerian Revolution. International Association of Democratic Lawyers, Brussels. Bousquet, G. H. 1945. Du Droit Musubnan et son Application Efictive dans le Monde. Imprimerie Nord-Africaine, Algiers. 1947. Pr&is de Droit Musulman: Le Droit Musubnan par les Textes. Vol. 2. La Maison des Livres, Algiers. -. Brett, Michael, ed. 1973. Northern Africa: Islam and Modernization. Frank Cass, London. Brown, L. C. 1966. The Role of Islam in Modem North Africa. In Brown, L. C., ed., State and Society in lndependent North Africa. The Middle East Institute, Washington. Charnay, Jean Paul. 1955. La Vie Musubnane en Algdrie. Presses Universitaires de France, Paris. de Bellefond, Y. Linant. 1964. Le divorce pour prkjudice en droit marocain. Revue Marocaine de Droit. 10. Colomer, C. 1963. Manuel de droit et l’&onomie an Maroc. Droit Musulman, Vol. 1. Rabat. Dubout, Fernand. 1901. Trait6 de Droit Musulman et Algdrien Moderne, Vol. 2. La Maison des Livres, Algiers. Gallagher, Charles F. 1966. Language and Identity. In State and Society in Independent North Africa, op. cit. Garcia Barriouso. P. Patrocinio. 1952. Derecho Matrimonial Isldmico y Matrimonios de Musulmanos en Marruecos. Istituto de Eitudios Africanos, Madrid. Hoballah, Mahmoud. 1953-1954. Marriage, Divorce and Inheritance in Islamic Law. The George Washington Law Review. 22.

Kairwani, Ibn Abou Zeyd. 1914. Risdla. (Transl. by E. Fagnan). Librairie Paul Geuthner, Pgris/Algiers. Liebesnv. Herbert. J. 1943. The Government of FrenchNorth Africa. Univ. of Pennsylvania Press, Philadelphia. -. 19;s. The Law of the Near and Middle-East. State Univ.“of New York Press, Albany. Merad, Ali. 1969. Le Reformisme Musulman en Alg6rie. Mouton, Paris/Haye. Mokhtar Ma’aref, (1966-1967). Revue Tunisienne de Droit. Morand, Marcel. 1916. Dorit Musulman AlgBien. Facultt de Droit de I’Universitb d’Alger, Algiers. Morocco Sifarah (U.S.). 1958. The Legal System of Morocco. Vol. 1. Embassy of Morocco. Pesle, 0. 1946. La Femme Musulmane dans le Droit, la Religion et les Moeurs. Les Editions de la Porte, Rabat. Rahman, F. 1980. A Survey of Modernization of Muslim Family Law. Int. J. Middle East Studies. 2 (4). Rahman, F. 1969. Symposium on Changes in Muslim Personal Law. The Znternational Congress of Orientalists, Vol. 1. New Delhi. Facultb de Droit et des Sciences Economiques d’Alger. 1966. Revue Algtienne des Sciences Juridiques, Politiques et Economiaues, Vols. 1 and 2. Roussier, Jul&. 1959. L’application du chra’ au Maghreb en 1959. Die Welt des Islams.VI (l).. 1960. Le Mariaae et sa Dissolution dans le Stamt Civil Local Algerien: Ordonnance number 59-274, Algiers. -. Scemama, Raymond. i930. Essai sur les conflits de lois en Tunisie. Librairie GPnPralede Droit et Jurisprudence. Paris. Service. de Legislation Etrangere. 1959. Textes L&slatifs Etrangers. 4 (3). Shukri, Ahmed. 1966. Muhammedan Law of Marriage and Divorce. AMS Press, New York. Siband, George. 1957. Repertoire Alphabdtique de Jurisprudence Musulmane. Librairie Ferraris, Algiers. Tunisian Republic. 1966. La Justice: Dix Ans Apt-t%.Secrktaire d’Etate B la Justice, Tunis.