State, Law and Religion –
Gendered Debates on Family LawinSyria(and Lebanon)[1]
Rania Maktabi
Høgskolen i Østfold
Abstract:The article presents aspects of the current debate on family law in Syria and Lebanon. An insight into legal pluralism and the institutionalization of family law is rendered. Some of the participants in debates regarding family law are introduced by focusing on two dimensions: First, a ‘gender dimension’ which highlights internal forces such as civil society organisations and public institutions are addressing the legal empowerment of women through demands for social justice. Second, a ‘multireligious dimension’where minority Christian religious groups express concerns regarding family law issues. In conclusion, I present some tentative reflections regarding patriarchal bargains and alliance accommodation between the political regime and different social forces that partake in debates on family law.
Jeg gjør oppmerksom på at den opprinnelige planen var å sammenligne debatten omkring familieretten i Libanon og Syria, men jeg har ikke hatt mulighet til å gjøre det planlagte feltarbeidet i Libanon. Paper’et presenterer derfor i hovedsak debatten omkring familielovgivningen i Syria i påvente av sammenlignbar materiale i Libanon. Av praktiske hensyn har jeg valgt å beholde formuleringene om ”comparison” og henvisninger til Libanon.
Introduction
This study compares the existence and impact of legal pluralism in the judicial system in Syria and Lebanon, two multireligious states, by focusing on debates regarding potential changes in family law. Family laws regulate matters of personal status such as marriage, divorce, adoption, inheritance, maintenance and financial custodyof children (hadana, wilaya, wisaya),and alimony (nafaqa). In Syria and Lebanon, as in most states in the Middle East[2], the domain of family lawis formed and applied under the influence of religious laws such as the shari’a (Islamic jurisprudence) and different church laws. While all legal domains have been modernized in accordance to Western inspired civil and constitutional norms, family law remains under the influence of religious tenets and doctrines. Formed to different degrees under state auspices, religious leaders as well as ‘men of religion’[3] are influential when religious texts and doctrines are formed, interpreted and applied in the domain of family law.Family laws are thus formed and applied by both state and non-state actors[4]creating politically potent spheres of decision-making processes where religiously sanctioned tenets and arguments figure along non-religious /civil oriented arguments and positions(Dupret 1999).
The status and rights of women within family law constitute central points - many observers argue the focal points - of dissent in debates regarding the changing or maintainingof current family laws. De-Long Bas & Esposito indicate: “Reflecting the centrality of the family in Islam, family law has been the heart of the Shariah and the major area of Islamic law” (2001:xiv). Family laws regulate the private affairs of all citizens. However, these laws premise and affect women’s living conditions to a greater extent than men’s. Family laws are gendered in the sense that individuals are accorded with different rights and obligations according to their sex, and because some law segments empower males legally and financially more than women in matters of inheritance, custody of children, alimony and (in the case of Islam) divorce. Debates on family law reflect therefore the differing positions of actors towards maintaining or changing structural features of gender-based roles and rights within society.
The past decade has seen researchers as well as activists (secular feminists, Islamic revivalists, as well as human rights activists and lawyers) who have questioned the legitimacy of the gendered interpretation and application of religiously anchored family laws which set limits to women’s civil rights (Joseph 2000, Buskens 2003, Moors 2003, Welchman 2004, Rabo 2005). This debate has mainly focused on segments within family law that is seen as biased towards empowering men and curtailing women’s opportunities in participating in society on an equal footing with men. Proponents for changing the family law point that citizens are regarded as equal in the state’s constitution, but when family laws is given legal primacy by state authorities in defining women’s civil rights, constitutional rights are rendered obsolete. (Lazreg 2000:65).
In addition to gender-related issues that are embedded in family law debates in the Middle East, a multireligious dimension the debates on family laws in Syria and Lebanonis evident. Political considerations regarding the existence of religious pluralism and the accommodation of different religious communities are intrinsic, but multireligiousity takes different forms. Debates on family law in these states include thus both a ‘gender dimension’ as well as a ‘religious community dimension’ which set distinct characteristics to the claims for change and the kind of political deliberations involved compared to predominantly Muslim countries in the Arab world.
Twosets of questionsare addressed in this article:First, what characterises family law debates in each state? Who participates and what sort of objectives are posed with regards to family law and changes within these laws?How are these debates gendered, i.e. focused on issues that reflect norms and ideals regarding the distribution of rights and duties between men and women within society? Second, how does the multireligious identity of the state influence questions related to family law? In which ways do religious communities in each state relate to the debates on family law in general and on gender in particular?
This article aims at presenting perspectives regarding the debate on family law in Syria and Lebanon. An insight into legal pluralism and the institutionalization of family law is presented (part 2). The debate on family law in Syria is introduced, and two aspects regarding family law, namely the ‘gender dimension’ (part 4) and the ‘multireligious dimension’ (part 5) are then presented and discussed, before I conclude by reflecting on what I see as patriarchal bargains and alliance accommodation between the political regime and social forces that partake in debates on family law.
2.The state, family law and legal pluralism
Legal pluralism in Syria and Lebanon reflects the existence of multiple sources of legislative and judicial authority that regulate and implement family laws applied to citizens according to their religious affiliation. Eight religiously based family laws regulate the personal status affairs within 17 religious groups in Lebanon, and 15 religious groups in Syria.[5]
Modern Western legal systems do not distinguish between the legal status of a person in the public sphere (i.e. outside the realm of the family), and the legal status of a person in the private sphere, i.e. within the realm of the family.[6] In Arab legal systems, however, this distinction is central: While a person’s civil status (ahwal madaniyya) denotes an individual’s rights and obligations in the public sphere that are regulated within civil law (qawanin al-ahwal al-madaniyya), a person’s relationship within the family, i.e. the private sphere, is regulated by laws that govern his or her personal status (ahwal shakhsiyya) (al-Siba’i 2001:11). It is the latter set of laws that are called ‘family laws’.[7]
Legal pluralismis the institutional outcome of the state’s partial centralization of judicial authority which began with the reformation of the Ottoman legal system in late 19th century. In most states in the Middle East, religious texts and tenets are – in different forms and various degrees - expressed and applied by religious communities in partial cooperation with state authorities.The civil rights of the state’s citizens are thus regulated by two sets of laws: one formed by state legislation that is not religiously sanctioned (civil law), and the other sanctioned by religious groups.
2.1. Partial containment of state authority
The legislative and judicial autonomy of religious communities in forming and applying family law has resulted in the “containment” of state authority over the personal affairs of citizens (Vikør 2000:234). In the contemporary Middle East, state authorities cannot – or more precisely, do not have the necessary legitimate authority to - issue or change segments within family law without having the ‘blessings’ of substantial parts of the religious communities.
Although the state’s political manoeuvring space is contained, when it comes to issuing or changing segments within family law, it is nevertheless existent. In the course of the codification[8] process of family law, a range of decisions were made regarding who was to partake in forming the law and which sources were to be used, before each state formed its own legislation.[9] In other words, there does not exist“a unified shari’a law” which is applied as “Islamic law” in the different states: Each state has chosen a family code formed out of national and politically defined “mixtures” of Islamic jurisprudence as well as “non-religious” civil laws.[10] The shari’a is an example of an uncodified code, when it is codified and becomes part of a state’s family law, the process is an expression of the state-authority’s exercise of power within a territorially defined unit.
Debates regarding family law, and the process linked in maintaining or changing segments within, can thus be seen as political in the sense that they display and reflect the priorities of the ruling regime or power holders regarding the distribution of rights and duties within the familyamong the state’s citizens.[11]
2.2. The Syrian family law and court system
In Syria, the1917 Ottoman family law governed matters of personal status until 1953 when the Law of personal status (qanun al-ahwal ash-shakhsiyya) was issued. The draft proposal for the 1953 law was prepared by a government commission and formed principally in accordance with the Hanafi school of law.[12] The law was codified based on five sources: 1) the 1917 Ottoman family law, 2) the unofficial code prepared by the Egyptian jurist Qudri Pasha, 3) various Egyptian laws enacted between 1920 and 1946, 4) a treatise on personal status law drafted by the Damascene judge Ali al-Tantawi, based on his choices amongdifferent law schools (takhayyur) according to principles most suitable to changing conditions, and 5) the choice of the committee members of various Islamic jurisprudence regulations in accordance with the Hanafi school. (An-Naim 2002:138-139, Shafaqa 1972:15). The law applies to all Syrian citizens, but art. 307 and 308 grants the Druze, Christians and Jewsautonomy in matters related to marriage and divorce. In all other matters (such as inheritance, guardianship, and kinship) the Syrian (Islamic) family law applies (Berger 1997:127).[13]
The most marked difference between the Lebanese and the Syrian family law is that there does not exist a “semi-encompassing” family law in Lebanon that resembles the 1953 Syrian family law which applies to all citizens. Hence, the Lebanese family law is, in comparison to the Syrian family law, fragmented and plural both in legal terms and in terms of the judicial system that exists.
2.3. Two multireligious polities with different political structures
Lebanon and Syria are multireligiouspolities where the state officially recognizes more than 15 religious groups by accommodating them in a variety of ways: symbolically, by acknowledging religious pluralism in the constitution[14], and legally by granting autonomy in the field of family law.
The size of the different religious denominations in both states is not officially known. The last official census in Lebanon was held in 1932, and Syria stopped releasing statistics on the distribution of the population according to ethnic and religious identity in 1956. There are, however, rough estimates that the Christians in Lebanon comprise 40% and the Muslims appr. 60% of the population, while the Syrian population comprises of 74% Sunni Muslims, 16% Alawite, Druze and other Muslim sects, and 10% various Christian denominations. (CIA Factbook, 2006).
The state’s partial delegation of legislative and executive power to religious groups in family law takes different forms in Syria and Lebanon: In Syria, the centralist party system and Baathist secularist ideology set different limits and opportunities for the relationship between state authority and society than in Lebanon where the political system is decentralized and based on the confessional representation of the different communities.
The foundation of the current Syrian political regime was laid down with the take-over of the pan-Arab and socialist Ba’th party in 1963. An internal military coup led by Hafez al-Asad in 1970 heralded the building up of a robust military with sizeable armed forces units - as well as repressive internal security and intelligence agencies. The Baath rules, together with eight small nationalist parties that form the ruling National Progressive Front (PNF). The Frontpenetrates and controls the state apparatus and its bureaucracy, workers’ unions and major agricultural andindustrial institutions in society.The take-over of Bashar al-Asad in 2000 has opened up for a mild form of liberalization where the aim is to modernize the authoritarian system without dismantling it by introducing systemic changes.
The Lebanese political structure has embedded the principle of religious representation in its political system: members of parliament and government are distributed along a carefully balanced equilibrium where members belong to the different 17 officially religious groups on a 50/50 basis distributed between Christians and Muslims. Lebanon is still grappling with problems connected with what can be labelled as ‘less than independent statehood’ with no encompassing ideology that unites the different (and often changing) political alliances that are strongly based on the individual charisma of members of traditional elite families. Since independence in 1943, Lebanon has professed a laissez-faire economic policy which has resulted in a minimalist state which has delegated substantial parts of the state’s educational, infrastructural and media institutions to the private sector. A formula for political co-existence is still in the making, and the country has yet to overcome the repercussions of the civil war (1975-1989), and the war with Israel (July 2006).
3.Aspects of the gendered family law in Syria and Lebanon
The primacy of kinship-based social systems in the Middle East accentuates the importance of family laws in the everyday life of citizens in the Middle East because these laws regulate areas with a strong social and economic impact on the living conditions and life opportunities of family members. It is, however, female members, who bear the brunt of legal pluralism and religiously-sanctioned family laws. Seen from a gendered perspective, the debate about changes in current family laws is about whether these laws shall maintain a patriarchal family model which is ideologically intrinsic in classical Islamic jurisprudence as well as in some Christian religious family laws.[15] With reference to Lebanon, Joseph maintains that “[t]he legal pluralism in family law has led to absence of an “equality before the law” standard […]Women and children have been disproportionately disadvantaged by the delegation of family law to religious sects.” (2000: 131). To substantiate this statement: Which segments of the Syrian family law is gendered?
3.1. Gendered segments of the Syrian family law
The 1973 Syrian Constitution guarantees equal rights to both male and female citizens (art. 25, par. 3). Article45 specifies that: “The state guarantees women all opportunities enabling them to fully and effectively participate in the political, social, cultural, and economic life. The state removes the restrictions that prevent women's development and participation in building the socialist Arab society” (The Constitution of the SyrianArabRepublic, ICL). Furthermore, in civil law, women enjoy equal civil liberties as men at the age of full legal capacity (ahliyya qanuniyya kamila) at the age of 18 years according to the Syrian Constitution, and the witness of a woman is equal to a man’s. Likewise in trade law, women are granted the right to function as economically independent subjects. However, these rights are in reality partially abrogated by obstacles laid down in family law, as well as in criminal law and citizenship law.[16]
Among the gender-biased segments within the Syrian family law we find articles 20, 21 and 23 which state that women are required to have a male guardian (wali) when contracting their own marriage (usually their father or brother or another male family member). Art. 70 compels a wife to travel with her husband unless she states otherwise in her marriage contract or a judge approves of her unwillingness. Articles 206 and 207 granta husband the right to prevent his wife to move freely, including visiting religious cites (maharim) if he does not agree. Article 148 and 149 grants the husband the right to prevent a divorced wife to travel abroad with their children without the father’s permission (the article does not give the same right to divorced mothers). Article 117 guarantees the husband unilateral divorce, including repudiation.[17] A wife is required to raise a case in court if she demands divorce.Article 17 allows polygamy and grants men the right to have up to four wives. Art. 16 states that the legal marriage age to be 18 for a boy and 17 for a girl, but art. 18 allows youngsters to marry at the age of 15 for a boy and 13 for a girl provided that a male guardian agrees (father or grandfather). Article 146 grants a woman the right to have custody for her children (until the age of 13 for boys and 15 for girls) but does not guarantee the mother to live in the marital home during that period.[18] Article 170, 171 and 172 empower the patrilineal family to take charge of the financial rights of children if the father is dead (wilaya and wisaya), although the mother may have custody rights to the upbringing of her children (hadana). Article 12 stipulates that the testimony of a woman counts half that of a man’s. In matters of inheritance, females inherit less than male members (daughters half of sons)(‘Itri 2006).[19]