John Hursh, Advancing Women’s Rights Through Islamic Law: The Example of Morocco, 27 Berkeley J. Gender L. & Just. 252 (2012).
John Hursh’s recent article addresses reform of Islamic family law. This is an area of law that has long been constitutionalized in the Muslim world just as it has in the U.S.–most recently through the same-sex marriage decisions. Hursh explores how changes to family law in Muslim-majority contexts come about through “internal reforms” that may ameliorate certain gender disparities. Hursh is concerned with what we might call “evolving standards” of religion, an understanding of which would facilitate contextually salient, and therefore legitimate, reforms to Islamic family law codes. In other words, internal reforms to Islamic family law arise through shifting social-religious mores–which may, in legal terms, be thought of as an analog to American Eighth Amendment jurisprudence’s “evolving standards of decency.” ((The U.S. Supreme Court first elaborated the “evolving standards of decency” framework in its U.S. Eighth Amendment jurisprudence in Trop v. Dulles, 356 U.S. 86, 101 (1958), to define and narrow the scope of “cruel and unusual punishment”; it most recently applied that standard to limit capital punishment and life sentencing of juveniles, respectively, in Roper v. Simmons, 543 U.S. 551, 571 (2005), and Graham v. Florida, 560 U.S. __, 130 S. Ct. 2011, 2017 (2010). “Evolving standards of religion” refers to a consistent theme in the author’s article that core Islamic standards persist, but their range of application may also expand and contract in reform that involves interpretation rather than replacement of foundational norms and language.))
His study comes at important time, when Egypt, Tunisia, and other post-uprising countries seek to create or reform family law and other state laws on the basis of Islamic law. Hursh emphasizes that, based on recent reform efforts elsewhere in the region, such religiously inflected legal systems need not be static or closed to reform. Namely, Hursh highlights possibilities and limitations for religiously informed law reform based on recent changes to the family law code in Morocco.
Joining other scholars and many policy organizations, Hursh describes the 2004 reforms to the Moroccan Personal Status Law (Mudawwana) as a successful case study of the use of Islamic law to advance international law and women’s rights norms. Indeed, the 2004 reforms were roundly hailed as meeting the highest standards of both sets of norms. The reforms were notable for meeting the highest standards of Islamic law as well.
In other words, the 2004 reforms were a specimen of progressive laws on both international and Islamic standards. How so? And can meeting international and Islamic standards be replicable? Hursh answers these questions by challenging three major assumptions that these results were neither possible nor replicable and by describing the mechanisms of the 2004 reforms.
Hursh first challenges the assumption that Islamic law is incompatible with international law when it comes to women’s rights. Of course, he acknowledges, women face discrimination all around the world despite international declarations against it (most notably, UDHR and CEDAW). Yet several women’s rights supporters view the status of women’s liberties in Muslim-majority states as especially precarious. For them, Islamic law itself is patriarchal and prevents any sort of reform that would advance women’s rights. But for Hursh, the Moroccan experience proves that conclusion unwarranted. “[N]either Islam nor Shari’a is a monolithic entity,” he says, drawing on Goran Therborn’s observations from his decade-long world study of family: that patriarchy’s persistence is culturally Arab rather than Islamic and results from the failure of secular forces to challenge it. Hursh also references Nusrat Choudhury’s contention that Islamic law can be used to challenge patriarchy rather than reinforce it. ((P. 258 (citing Goran Therborn, Between Sex and Power: Family in the World, 1900-2000, 116 (2004); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale J. L. & Feminism 155 (2007)). )) The crux of these discussions is that Islamic law is contested rather than categorical, and accommodates change through evolving standards of cultural-religious mores and legal thought. Hursh’s argument here is analogous to American doctrines like equal protection–where the same institution that read the Constitution to permit a separate-but-equal doctrine (Plessy v. Ferguson) later declared separate to be inherently unequal (Brown v. Board). This reversal occurred not through a change in the legal texts or the court, but through a change in personnel and interpretation in tandem with changed social, cultural and political developments that rendered the old regime untenable. Comparably, for Hursh, reinterpretation of medieval Islamic legal texts regulating sex and gender can support women’s rights just as old interpretations may have undermined them to modern sensibilities. He is careful to provide a caveat: Western-style progressive laws in Muslim-majority countries are by no means inevitable, nor are they always desirable. Rather, one must attend to cultural and religious mores in seeking to make lasting and legitimate changes to existing legal regimes. This, Hursh argues, is exactly what happened in Morocco.
Hursh next challenges the assumption that women lack agency in Muslim contexts. This assumption leads many international actors and commentators to advocate for imposing family law reforms externally through international human rights instruments, without respect to local women’s input. Countering that tendency, Hursh describes women as integral to bringing about Morocco’s 2004 reforms—albeit with the support of the king. Like most post-colonial Muslim countries, Moroccan family law was specifically identified as one of few domains for a significant presence of Islamic law. (Most of Morocco’s other laws were based on the French Civil Code or British laws, or some hybrid of the two.) Following its independence from France and Spain in 1956, the newly installed King Mohammad V codified family law, calling it the Mudawwana (named after the famous legal “Compilation” of Islamic law written in the 8th century by Mālik, eponym of the Mālikī school that Muslims in Morocco largely follow today). Though there have been several attempts to reform the Code, only the last round—the 2004 reforms under King Mohammad VI—made any lasting changes. Notably, Muslim women were a major component of popular agitation leading to reforms, against conservative Islamists who wished to keep the traditional code. In the end, the King convened a commission comprising members of Muslim women’s rights organizations alongside Muslim jurists and secular parliamentarians—instructing the commission to ground any reform on Islamic law justifications. After a lengthy process of negotiations and debate within the commission, the reforms passed. It would not have been possible, Hursh emphasizes, without the role played by women: “[W]hile the Mudawana reforms would not have succeeded without strong support from the king, the work of women’s rights organizations was also imperative to realizing this reform. Combined with the king’s top-down political support, women’s rights organizations created a bottom-up grassroots campaign that laid the foundation for this reform.” ((P. 262 (citations omitted.) ))
The third challenged assumption has to do with pragmatics: Whereas many international commentators presume the desirability of pursuing reforms without appeal to Islamic law, Hursh suggests that reforms can only happen with appeal to Islamic law. For him, the Moroccan case demonstrates that law reform in Muslim-majority countries must typically appeal to Islamic law to be acceptable, legitimate, and effective. With a reinterpretation of Islamic law in light of liberal norms of equity, the 2004 reforms included progressive changes in 5 major areas of family law: (1) marriage: whereby the Code removes the traditional guardianship requirement for women to get married, equalizes minimum-marriage ages for men and women, and establishes reciprocal rights and duties for both partners; (2) polygamy: whereby the Code restricts men’s ability to enter into polygamous marriages to instances of necessity, the first wife’s consent, and judicial approval; (3) divorce: whereby the Code restricts men’s unilateral prerogative to divorce, expands women’s ability to expedite divorce in cases of abuse, and affirms the violation of marital contractual conditions as grounds for divorce; (4) child custody: whereby the Code allows women to retain custody of children even when they remarry, reforms child support provisions, and provides for fast-track resolution of child support issues; and (5) inheritance: whereby the Code allows grandchildren to inherit, establishes legal recognition for children born out of wedlock, and provides for the use of DNA evidence to resolve paternity disputes. All of these adjustments, says Hursh, relied not on international law primarily, but on revised readings of precedents in Islamic law in light of both evolving local norms and international law. Morocco had long been a member of the most protective women’s and children’s rights covenants in international law—ICCPR, ICESCR, CRC, CEDAW, and DEVAW—but it entered reservations for each, stating that provisions of those covenants could not conflict with the provisions of Islamic law or the Mudawwana. After it reformed the Mudawwana, however, Morocco withdrew its reservations to the international treaties, as the reservations had ceased to have meaning or to present a conflict.
By contrast to the reforms driven by reinterpretation of Islamic law, Hursh identifies purely secular reform—that is, legal change without reference to Islamic law—as unlikely to succeed given the extent to which Islam serves as a marker of cultural identity, national pride, and legitimacy. Pragmatically too, Islamic law justifications are popularly acceptable and often democratically desired, and the legislative process is dependent on the king, who has already announced support for sharīʿa.
All in all, Hursh has written a useful contribution to the study of contemporary Islamic family law well worth reading. His study tracks relevant changes in an important episode of modern family law in the Muslim world. It is an example of what M. Qasim Zaman has presented as methods of Islamic “internal critique” in his book Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge University Press, 2012). Moreover, it joins a growing chorus of other scholars and lawyers arguing for culturally and religious relevant reform efforts of Islamic family law—including, for instance, Madhavi Sunder ((Piercing the Veil, 112 Yale L. J. 1399-14722 (2003) (on Muslim women using Islam-based reform strategies in India).)) and Nusrat Choudhury. ((Constrained Spaces for Islamic Feminism, 19 Yale J. L. & Feminism 155-200 (2007) (on using Islamic law to advocate for reform in Afghanistan).)) By challenging assumptions about Islamic law vis-à-vis international law, and possibilities for using each as an effective vehicle for reform, Hursh makes compelling arguments about how the starting point for legal analysis of family law may closely inform legal outcomes and possibilities for legal change.