No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
The Reform of the Moroccan Family Law and Women’s Daily Lives: Navigating Between Structural Constraints and Personal Agency
Abstract
In the aftermath of the Arab spring, the expected positive impulse for gender equality seems rather the reverse. In Morocco however, women’s organizations have been fighting for decades for gender equality, with as a highpoint: the reform of the Mudawana (Morocco’s Family Law) in 2004. The reforms were preceded by vociferous debates between modernists and religious conservatives. Although the revisions of family law in 2004 accomplished the goal of greater legal equity between men and women in several areas of civil society, many Moroccans harbor serious reservations about the legal changes. Based on anthropological research conducted in the Netherlands and North-eastern Morocco, we propose a paper onthis chapter discusses how and why the reforms of the Mudawana were accomplished in Morocco and how these changes are implemented in the practices of daily life. The principal focus is on the Mudawana reforms that affect the options for women in divorce proceedings. Through an analysis of the revisions of Moroccan family law pertaining to marriage and divorce, the authors challenge the common portrayal of Muslim women as merely passive victims of their religion and culture. Instead, they argue that Moroccan women navigate between a range of structural constraints in order to claim an effective form of personal agency, enabling them to defend their own interests, which is not always making use of the “new” rights given.
... While for some interlocutors religion was an important part of their everyday life, with some impact on how they dealt with the legal aspects of their family relationships, religious accommodation was hardly raised as an issue by respondents. Rather than expecting the law to accommodate their religious wishes, the informants tried to solve normative issues in pragmatic ways, navigating multiple legal systems, social networks, and practical concerns (Kulk, 2013;Storms and Bartels, 2017;Vigh, 2009). Just like transnational ties, religiosity cannot be presupposed based on the ethnic background of the partners. ...
... In Islamic family law studies, women tend to be the main focus. This applies both to studies which focus on family law systems in Muslim-majority countries and those that focus on Muslim minorities living in the Global North (Al-Sharmani 2008Ali 2000;Bano 2012a, b, Benradi 2004Caroll 1997; El Fadl 2014; Esposito and DeLong-Bas 2001;Jansen 2007;Khir 2006;Mashhour 2005;Mir-Hosseini 2006;Nasir 2009;Shah-Kazemi 2001;Storms 2017;van Huis 2015;Voorhoeve 2012;Welchman 2004;Zoglin 2009). While not all studies on Islamic family law have such a strong focus on gender, those that deal with gender in any way almost exclusively deal with women. ...
Life events such as marriage, divorce or the birth of children are not just intimate family matters but also legal matters. For transnational families, such life events are influenced by multiple overlapping nation-state orders, each with its own set of laws and institutions. This contribution builds on the concept of transnational legal space to study the social workings of law across borders from a bottom-up perspective of transnational family members’ lives. Linking two strands of literature – the literature on transnational legal space and that on transnational social space – it moves away from more top-down approaches centring on transnational processes of legal norm-making and, instead, uses a bottom-up approach focusing on family members who mobilize law in transnational social space and who thus create and apply new norms in response to the interaction – or, at times, collision – of different legal systems. The usefulness of this approach is illustrated by empirical evidence from two research projects on family law and dual citizenship. It contributes to research on transnational migration by demonstrating that, in transnational legal space, it is not the law that is transnational, given that the nation-state and national laws continue to remain highly relevant, and similarly that it is not just mobility and migration regimes but also a variety of different areas of law that impact the everyday lives of transnational families. How these families navigate transnational legal space differs, depending on the intersection of race, gender and class.
Ever since its inception in the mid-forties of the last century, the Moroccan feminist movement has evolved around the family law Code. The post-independence family law denied women basic rights and thus fueled the disappointment and anger of the female intellectual elite (journalists, writers, politicians and activists). Legal rights have always constituted a priority in Moroccan women's struggle for dignity in and outside the home. These rights became central with women's increasing access to education and the job market. Today, women's legal rights are associated with democratization and political openness. This paper addresses these issues and underlines the impact of the family law in generating and accelerating feminist ideas in Morocco.
In what ways has Islamic law discriminated against women and privileged men? What rights and power have been accorded to Muslim women, and how have they used the legal system to enhance their social and economic position? In an analysis of Islamic law through the prism of gender, Judith Tucker tackles these complex questions relating to the position of women in Islamic society, and to the ways in which the legal system impacted on the family, property rights, space and sexuality, from classical and medieval times to the present. Working with concepts drawn from feminist legal theory and by using particular cases to illustrate her arguments, the author systematically addresses questions of discrimination and expectation - what did men expect of their womenfolk - and of how the language of the law contributed to that discrimination, infecting the system and all those who participated in it.
Serving as a metaphor for practice, the concept of navigation has become increasingly popular in anthropological theory. The concept seems to have almost sneaked its way into our analytical vocabulary; it is used when referring to how people act in difficult or uncertain circumstances and in describing how they disentangle themselves from confining structures, plot their escape and move towards better positions. Yet, despite its increasing popularity, the concept is most often used in an unspecified or misunderstood manner — it is generally not well defined! Building on prolonged fieldwork in Bissau, West Africa, and with West African migrants in Lisbon, Portugal, I take a second look at the concept of social navigation, clarifying the notion as an analytical optic, discarding the most unfortunate misconceptualizations of the term and elucidating the contribution that the concept can make to our understanding of the way people act in their social worlds.
There is no doubt that one of the most contentious terrains of contestation in the supposed clash of values between Islamism and western values is the role of women in society. Thus, the issue of women's rights has become the litmus test for Arab societies with respect to the current zeitgeist of human rights in the age of democracy and liberalism. There is today a stereotypical view of debates surrounding women's rights in the Arab world where two distinct camps are in conflict with each other. On the one hand there are ‘globalised’ liberal and secular actors that strive for women's rights and therefore democracy, while on the other are obscurantist movements that are anchored in religious tradition, resist globalisation and are therefore autocratic by assumption. This article challenges this view and through an empirical study of the changes to the Code of Personal Status in Tunisia and Morocco it demonstrates that the issue of women's rights is far more complex and, in particular, it finds that there is a very significant decoupling between women's rights and democracy in the region, despite a progressive liberal shift in the gender equality agenda.
The relationship between society and law is dynamic and complex, as laws are both the reflection of the society that creates them and the sculptor of the society over which they rule. These two forces exert constant pressure on one another, and if law and society do not adequately mirror each other, tension is likely to result. Law is not a static entity, but rather must adapt itself to society as changes occur within that society; similarly, as law changes, society too will evolve. This process can be seen in Morocco, where the Moudawana, or Personal Status Code, viewed by many as an inherently discriminatory text, has been undergoing a process of reform. The reforms in January of 2004 were both an attempt to increase women's rights and participation in society and a result of women's increased economic and political participation.
In 1957-1958 Moroccan family law was codified in the Mudawwana, a text known for its close adherence to the classical Maliki tradition. Since the early 1980s the debate about reform has become more intense and widespread. The relatively limited reform of the Mudawwana in 1993 was closely linked to the beginnings of a process of cautious democratization. Since then the discussions have become more vehement, especially since the coming to power of a new government in 1998 consisting of former opposition parties. A year later this government presented a plan for extensive family law reforms. The plan has provoked considerable public debate over key concepts such as democracy, development, human rights, civil society, and ijtihd. Upon closer inspection, larger issues are at stake: Who may speak out in public and participate in politics? This new turn in the discussions is related to the emergence of a public sphere.
The daring reforms of the 2004 family law in Morocco were heralded as a watershed in the contemporary status of gender relations. Making the institution of the tutor optional, raising the age of marriage to be equal between men and women and granting rights of custody to the mother in cases of divorce or re-marriage were seen as valorizing to women. However, and despite this progressive thrust, there remain some murky areas pertaining to the question of birth outside wedlock. This article weaves its argument around the structural impossibility of establishing legal rights to unmarried mothers given that such a phenomenon symbolizes deep existential anxieties about changes occurring within hitherto controlled and taboo domains of sexuality and the right to sexuality. The crisis facing traditional forms of solidarity and the indeterminacy of the Mudawana's clauses invoke an embattled social space where women's "illegal" sexuality continues to be the vexing nexus.
This paper shows how Koranic Law was enshrined in the Moroccan Family Code (the Mudawwana) in its first draft between the years 1957 and 1958. The changes that were included in 1993 and especially in 2004 partially modify the philosophy of Islamic resources and give more freedom of action to women. At present, the Mudawwana Code – as well as the Tunisian Madjala Code from 1956 – displays a substantially different content from the rest of the family codes of the Muslim-Arab World. Morocco appears to have taken a clear position regarding the duty of the modern state to uphold equal citizenship, but nonetheless maintains – with rather weak arguments – a polygamous marriage that perpetuates women's subordination to men.
This article analyzes the situation of women in Moroccan society. From the viewpoint of social change as a multidimensional process, the main socio-demographic variables are discussed and the course of the pro-rights movement of women and the Family Code reform are examined. The authors find that although real progress has been made over the last 50 years, there is still much more to be achieved. Furthermore, there are indications that the incipient participation by women in the public sphere too often continues to reproduce schemes of subordination.
Mudawana: Marokkaanse Familiewet (nieuwe wet van 2004). (Mudawana: Moroccan Family Code
- M S Berger
The history and significance of the new Moroccan family code.” Institute for the Study of Islamic Thought in Africa (ISITA) Working Paper Series
- F Harrak
Sharia en nationaal recht in Marokko.” (Sharia and national law in Morocco) In Sharia en nationaal recht in twaalf moslimlanden. (Sharia and national law in twelve Muslim countries)
- L L J Buskens
‘Aspecten van de Marokkaanse familiewet
- L Jordens-Cotran
Family law & reform in Morocco - The Mudawana: Modernist Islam and women’s rights in the code of personal status
- L A Weingartner
- LA Weingartner
Marokko achter de schermen:De wedloop voor een betere toekomst.” (Morocco behind the scenes:The race for a better future)
- S Adolf
Muslim brides and the ghost of the Shari’a: Have the recent law reforms in Egypt, Tunisia and Morocco improved women’s position in marriage and divorce, and can religious moderates bring reform and make it stick
- Y Jansen
‘Eén dochter is beter dan duizend zonen
- E Bartels
“’Echtscheiding bij personen van Turkse en Marokkaanse herkomst.’ (Divorce among people of Turkish and Moroccan origin)
- S Koelet
- P Hermans
- N Torfs
- K Vanvoorden
Statistiques des sections de la Justice de la famille. Année Rabat: Ministère de la Justice et des Libertés, Royaume du Maroc
- La Ministère De
- Justice
- Des Libertés
The challenge of implementing Morocco’s new personal status law
- Willman Bordat
- S Kouzzi
Sharia en nationaal recht in Marokko.” (Sharia and national law in Morocco)
- L Buskens
’Echtscheiding bij personen van Turkse en Marokkaanse herkomst.’ (Divorce among people of Turkish and Moroccan origin).” Steunpunt Gelijkekansenbeleid
- S Koelet
- P Hermans
- N Torfs
- K Vanvoorden
Statistiques des sections de la Justice de la famille
- Ministère De La Justice
- Des Libertés