Changing God’s Law: The dynamics of Middle Eastern family law

303 Pages·2016·1.909 MB·English

by  Nadjma Yassari

Changing God’s Law
This volume identifies and elaborates on the significance and functions of the
various actors involved in the development of family law in the Middle East.
Besides the importance of family law regulations for each individual, family law
has become the battleground of political and social contestation. Divided into
four parts, the collection presents a general overview and analysis of the develop-
ment of family law in the region and provides insights into the broader context
of family law reform, before offering examples of legal development realised by
codification drawn from a selection of Gulf states, Iran, and Egypt. It then goes
on to present a thorough analysis of the role of the judiciary in the process of
lawmaking, before discussing ways the parties themselves may have shaped and
do shape the law.
Including contributions from leading authors of Middle Eastern law, this timely
volume brings together many isolated aspects of legal development and offers a
comprehensive picture on this topical subject. It will be of interest to scholars and
academics of family law and religion.
Nadjma Yassari is a senior research fellow at the Max Planck Institute for
Comparative and International Private Law in Hamburg where she heads the
Department for the Laws of Islamic Countries. In April 2009, Nadjma Yassari
established the Max Planck Research Group ‘Changes in God’s Law: An Inner
Islamic Comparison of Family and Succession Laws’, which she has been lead-
ing since. Her main fields of research are national and private international law
of Islamic countries, in particular the Arab Middle East, Iran, Afghanistan, and
Pakistan with a special focus on family and successions law.
Islamic Law in Context
Series Editor:
Javaid Rehman, Brunel University, UK
The Islamic Law in Context series addresses key contemporary issues and
theoretical debates related to the Sharia and Islamic law. The series focuses on
research into the theory and practice of the law, and draws attention to the ways
in which the law is operational within modern State practices. The volumes in this
series are written for an international academic audience and are sensitive to the
diversity of contexts in which Islamic law is taught and researched across vari-
ous jurisdictions as well as to the ways it is perceived and applied within general
international law.
Woman’s Identity and Rethinking the Hadith
Nimat Hafez Barazangi
Changing God’s Law
The dynamics of Middle Eastern family law
Edited by Nadjma Yassari
Changing God’s Law
The dynamics of Middle Eastern
family law
Edited by Nadjma Yassari
First published 2016
by Routledge
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and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 selection and editorial matter, Nadjma Yassari; individual chapters,
the contributors
The right of Nadjma Yassari to be identified as the author of the editorial
material, and of the authors for their individual chapters, has been asserted
in accordance with sections 77 and 78 of the Copyright, Designs and
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Yassari, Nadjma, 1971- author.
Title: Changing God’s law : the dynamics of Middle Eastern family law / by
Nadjma Yassari.
Description: Farnham, Surrey, UK England ; Burlington, VT, USA :
Ashgate, 2016. | Series: Islamic law in context | Includes bibliographical
references and index. | Description based on print version record and
CIP data provided by publisher; resource not viewed.
Subjects: LCSH: Domestic relations—Middle East. | Law—Middle East—
Islamic influences.
Classification: LCC KMC156 (print) | LCC KMC156 .C473 2016 (ebook) |
DDC 346.5601/5—dc23
LC record available at http://lccn.loc.gov/2015043628
ISBN: 978-1-4724-6495-8 (hbk)
ISBN: 978-1-315-57123-2 (ebk)
Typeset in Times New Roman
by Swales & Willis Ltd, Exeter, Devon, UK
Contents
Notes on contributors vii
Preface xi
Introduction: new family law codes in Middle Eastern countries:
reforms that are faithful to Islamic tradition? 1
MARIE-CLAIRE FOBLETS
PART I
Breaks and continuities in Middle Eastern law 15
1 Breaks and continuities in Middle Eastern law:
women after the 2011 revolutions 17
CHIBLI MALLAT
2 Contextualizing family law reform and plural legalities
in postcolonial Pakistan 34
SHAHEEN SARDAR ALI
3 Family law, fundamental human rights, and political
transition in Tunisia 68
MONIA BEN JÉMIA
PART II
Legislation 81
4 Struggling for a modern family law: a Khaleeji perspective 83
LENA-MARIA MÖLLER
vi Contents
5 Between procedure and substance: a review of law
making in Egypt 113
NORA ALIM AND NADJMA YASSARI
 6  The financial relationship between spouses under Iranian 
law: a never-ending story of guilt and atonement? 131
NADJMA YASSARI
PART III
Judiciary 151
7 Les pouvoirs du juge tunisien en droit de la famille 153
SALMA ABIDA
8 Divorce in Egypt: between law in the books and law in
action 181
NATHALIE BERNARD-MAUGIRON
9 Personal status law in Israel: disputes between religious
and secular courts 204
IMEN GALLALA-ARNDT
PART IV
Party autonomy 223
10 Marriage contracts in Islamic history 225
AMIRA SONBOL
11 Our marriage, your property? Renegotiating Islamic
matrimonial property regimes 245
M. SIRAJ SAIT
Index 287
Contributors
Salma Abida served as a judge at the court of first instance in Tunis from
2001–2009. In 2009, she joined the Center of Legal and Judicial Studies where
she conducts studies on the development of current legislation in force and its
adaption to changing socioeconomic circumstances. In April 2015, she joined
the Minister of Justice’s office as an advisor to the Minister. Salma Abida’s
work focuses on the possibilities of transforming national law to meet relevant
international standards. She is a member of different ministerial commissions
for law reform, has presented at international conferences, and has published
numerous articles in different legal fields.
Shaheen Sardar Ali is Professor of Law at the University of Warwick, UK and former
Vice-Chair of the United Nations Working Group on Arbitrary Detention
(2008–2014) as well as a former member of the International Strategic
Advisory Board, Oslo University (2012–2014). She has served as Professor
II, University of Oslo, Norway, Professor of Law, University of Peshawar,
Pakistan, as well as Director of the Women’s Study Centre at the same uni-
versity. She has served as Cabinet Minister for Health, Population Welfare,
and Women Development, Government of the Khyber Pukhtunkhwa (for-
merly North West Frontier Province of Pakistan), and Chair of Pakistan’s
first National Commission on the Status of Women. She served on the Prime
Minister’s Consultative Committee for Women (Pakistan), and the Senate
National Commission of Enquiry on the Status of Women (Pakistan). Professor
Ali has published extensively on human rights; in particular, women and chil-
dren’s rights, Islamic law and jurisprudence, international law, and gender
studies.
Nora Alim is an independent researcher based in Cairo, Egypt. She is a doctoral can-
didate at the University of Hamburg and a former research associate at the Max
Planck Institute for Comparative and International Private Law (2009–2013). She
holds the Legal State Examination from Germany and a LLM. in International
and Comparative Law from the American University in Cairo, Egypt. Nora Alim
wrote her LLM. thesis on the future of the International Criminal Court in the
Arab world. In 2009, she joined the Max Planck Research Group on Family and
Succession Law in Islamic Countries. Her PhD dissertation discusses informal
viii Contributors
marriages in Egypt, Tunisia, and Jordan and examines the question of how
state law is to respond when individuals decide to establish family law relation-
ships outside the formal state framework. Currently, Nora Alim is working as
a legal consultant on the project ‘Supporting women as economic actors dur-
ing the transition period’, launched in 2013 by the MENA-OECD Investment
Programme. The project examines to what extent legal frameworks may nega-
tively impact women’s involvement in the economy in Algeria, Egypt, Jordan,
Libya, Morocco, and Tunisia.
Monia Ben Jémia is Professor of Law at University of Carthage, Tunis. She
holds a PhD from the University of Tunisia and wrote her thesis on public
policy and family international private law relationships. She teaches law at the
Faculty of Legal Sciences in Tunis, especially private international law, intel-
lectual property law, and criminal law. She also served as a visiting professor
and has taught at numerous universities such as Aix-en-Provence, Sorbonne/
Paris, and Lyon. Professor Ben Jémia has published on personal status law in
Tunisia, gender violence, and immigration issues. Her recent research is focus-
ing on the impact of the so-called Arab Spring on women’s rights.
Nathalie Bernard-Maugiron is a senior researcher at the French Institute
of Research for Development (IRD) in Paris. She holds a PhD in Public
Law from Paris University and wrote her thesis on the Egyptian Supreme
Constitutional Court and the protection of human rights (published in 2003).
Dr. Bernard-Maugiron works on personal status law, the judiciary, and the tran-
sition processes in Egypt and in the Arab World. She was a part-time faculty
member at the Political Science Department of the American University in
Cairo from 2001 to 2005 where she taught Egyptian constitutional law and
human rights courses. She was co-director of the Institut d’études de l’Islam
et des sociétés du monde musulman (IISMM) at the École des hautes études
en sciences sociales (EHESS) in Paris from 2010 to 2014. Since 2009, she has
taught a seminar on Contemporary Law in the Arab world at IISMM/EHESS.
Marie-Claire Foblets is Director at the Max Planck Institute for Social
Anthropology. She was trained in law at the universities of Antwerp (1977–1979)
and Leuven (1979–1982) in Belgium and received an education in Thomist
philosophy. For a decade, she practised law with a law firm that special-
ized in matters affecting migration and minority issues while simultaneously
receiving her PhD in social and cultural anthropology. For more than 20 years
Professor Foblets has taught social and cultural anthropology at the universi-
ties of Antwerp and Brussels. Before joining the Max Planck Society in March
2012, she was Ordinary Professor at the Catholic University of Leuven, where
she headed the Institute for Migration Law and Legal Anthropology. She is a
member of various networks of researchers, focusing either on the study of the
application of Islamic law in Europe, or on law and migration in Europe, includ-
ing the Association Française d’Anthropologie du droit, for which she served
as co-president for several years. In 2012, Professor Foblets accepted a position
Contributors ix
with the Max Planck Society, where she established a new Department of ‘Law
& Anthropology’ at the Max Planck Institute for Social Anthropology in Halle
a.d. Saale (Sachsen-Anhalt).
Imen Gallala-Arndt is a senior research fellow at the Max Planck Institute for
Comparative and International Private Law. She holds a DEA in Public Law
from the University of Tunis Carthage as well as an LLM and PhD in Law
from the University of Heidelberg. After having worked for the peace process
projects at the Max Planck Institute for Comparative and International Public
Law in Heidelberg, Imen Gallala-Arndt joined the Max Planck Institute in
Hamburg in 2006. Since April 2009, she has been a member of the Max Planck
Research Group on Family and Succession Law in Islamic Countries. In this
framework, she is currently writing a post-doctoral monograph on interfaith
marriages in Tunisia, Lebanon, and Israel. Imen Gallala-Arndt has published
on various legal issues relating to Islamic countries, especially constitutional
law as well as comparative and international family law.
Chibli Mallat is Presidential Professor of Middle Eastern Law and Politics,
University of Utah and EU Jean Monnet Professor of European Law, Saint
Joseph’s University, Lebanon. He has held research and teaching positions
at Princeton, Yale, Harvard, the School of Oriental and African Studies, the
École des hautes études en sciences sociales, and the Islamic University of
Lebanon. Amongst his publications are The Renewal of Islamic Law (1993),
Introduction to Middle Eastern Law (2007), and Philosophy of Nonviolence:
Revolution, Constitutionalism and Justice beyond the Middle East (2015).
Lena-Maria Möller is a senior research fellow at the Max Planck Institute for
Comparative and International Private Law. She holds an MA in Middle East
Studies and a PhD in Law. Her recently published doctoral dissertation exam-
ines the processes of family law codification in Bahrain, Qatar, and the UAE,
their outcomes as well as the judicial application of the new family codes
(Die Golfstaaten auf dem Weg zu einem modernen Recht für die Familie?,
published 2015). Lena-Maria Möller’s research and teaching experience is in
Muslim family law as well as in comparative and private international law
and she has held teaching positions at the University of Hamburg and the
University of Augsburg. Currently, Lena-Maria Möller is preparing a post-
doctoral research project which explores how contemporary Muslim jurisdic-
tions engage with and frame vague and still undefined legal concepts.
M. Siraj Sait is Professor of Law and Finance at the University of East London
and Director of the Centre of Islamic Finance, Law and Communities
(CIFLAC). He is a graduate of the Universities of Madras, Harvard, and
London and formerly worked with the United Nations and the Government
of Tamil Nadu, India as a public prosecutor. He has headed the UN Iraq
Evaluation Commission and chaired the Benadir Somalia legal drafting com-
mittee, and is a member of the UN Advisory Group on Gender Issues. Sait’s