Introduction

Lynn Welchman

§ THE papers presented in this volume were produced as part of the project Islamic Family Law: Possibilities of Reform through Internal Initiatives, directed by Professor Abdullahi An-Na'im at the Law and Religion Programme of Emory University.

In many settings, Islamic family law is the contested ground between con­servative and fundamentalist forces, on the one hand, and modernist and liberal trends, on the other. Unfortunately, the cause of genuine and legitimate reform is often lost in such rhetorical absolutist confrontation. [... ] To be effective in practice, reform proposals must not only be conceived and framed in realistic terms, but should also be advocated in ways that motivate and empower actual or potential supporters working within their own communities.

The papers presented in this volume reflect these statements in different ways. The focus is not the ‘compatibility’ of ⁱshari'a^, with ‘universal human rights norms’ or vice versa, a debate much covered in the literature and given historical and political context in Lisa Hajjar’s contribution. Rather, the authors examine the specifics of the ‘contested ground’ of Islamic family law: at what different levels, why, how and by whom this ground is contested in the particular contexts they examine. These examinations are presented with a view to considering and serving as a resource for internal initiatives aimed at expanding and protecting women’s rights in the family as articulated in human rights norms.

Of the case studies, those on Egypt and Palestine include and analyse the results of opinion surveys on critical and contested points of family law, as well as more contextual social questions. In Egypt (Part I), Essam Fawzy provides three different sets of data, the Hrst a public opinion survey eliciting expectations and understandings of different elements of marriage among male and female respondents (for example, what is the real point of dower? What is the ideal age of marriage?). The study then moves on to examine attitudes of the respondents to key issues in Law no. ι of 2000, often referred to as ‘the law of khuF in reference to its establishment of a woman’s right to secure a khut divorce from the court (a ‘judicial khut^,, in the event that her husband is refusing to agree to divorce her) by returning her dower and waiving any remaining Hnancial rights. These data are complemented by a further survey of opinions on key provisions of Law no. 1 of 2000 using a sample selected from among more elite social sectors - opinion-makers, the judiciary, civil society activists and so on.

The Palestine case study (Part II) examines the debates around Muslim family law in the West Bank and Gaza Strip in the ‘transitional’ period following the conclusion of the Oslo Accords and until the end of 2001. This study is presented as a series of papers by members of the research team from the Institute of Women’s Studies at Birzeit University, including Rema Hammami, PennyJohnson and Fadwa Labadi, a team I was honoured to join. In its consideration of societal opinions on issues related to women’s rights in the family, this paper compares the results of previous surveys of public opinion with the survey undertaken for this study, indicating the impact of public debates on these opinions and per­ceptions in the intervening years. The study situates the debates and issues into both ‘the processes of state formation and social dynamics within Palestinian society’. It thus examines the workings of the Palestinian Authority and the role of civil society groups in Palestine (especially the women’s movement) to deter­mine factors of relevance for advocacy and strategies for reform, set out at the end. Annexed to the study is an examination of the ways in which bereaved families ‘mobilized several legal systems and systems of rule to seek justice and compensation, utilizing both the public channels of law and government and the processes of customary law’ revolving around the traditional (and ^ς√zαr'ι^,) in­stitution of diya, following a tragic factory Hre in Hebron in which fourteen female workers burned to death.

The third country study in this volume, by Asifa Quraishi and Najeeba Syeed- Miller (Part III), considers the role of Islamic family law for Muslims in the United States, identifying the actors who invoke or recognize the rules, and the processes by which they do so, and analysing the application of those rules with or without the intervention of the formal US legal system.

Part IY by Lisa Hajjar, is a broader thematic consideration of family law and intra-family violence, which identifies the ‘challenges of contesting and altering’ inequalities and hierarchies within family roles and relations where the assertion of ''shari'a' as the authority for these hierarchies may complicate advocacy efforts for changes to the regulatory framework (including issues of male ‘guardianship’ or ‘authority’ over women, women’s divorce rights and other matters). Given that domestic violence is a truly global phenomenon, she seeks to provide resource tools for advocacy by reviewing the actions of states in specific contexts. She examines, inter alia, different interpretations of Sura 4: 34 of the Qur'an, ranging from views in ‘classical’ jurisprudence that permitted ‘light physical discipline’ of the wife by her husband in certain circumstances, to more recent interpretations (citing scholars in the USA and in Iran) disallowing any use of force and the juxtaposition of other Qur'anic verses enjoining good relations and mutual kind­ness between spouses. This examination is undertaken since ‘although the prob­lem of domestic violence and efforts to deter and combat it are global in scope, any possibility for success must involve strategies and analyses that resonate with cultural and religious norms and values’.

A consideration of themes recurring in the four papers follows below. It remains to be noted that the papers were researched and written independently by the authors and vary in their approaches and analyses. Accordingly, no one paper necessarily reflects the views of the other authors, or indeed of myself as editor of this volume.

The case studies summarized above tell different stories about the ways in which ‘Islamic family law’ is understood, presented and applied by states, judiciaries, scholars, politicians, activists and lay Muslims in particular national and socio­economic contexts, and discuss the multiple and divergent implications for pro­tecting and strengthening women’s rights in the family. The complex, multiple and shifting dynamics of the debates on family law are matched by a recognition of the varying needs and priorities of women positioned differently in the various contexts. The ground is contested not only at the ideological/political level: what Lila Abu-Lughod (1998: 243) calls ‘that familiar dynamic of postcolonial politics in which “the woman question” animates political and ideological contests couched in the language of cultural authenticity versus foreign influence’. It is also contested at the pragmatic level of reform strategies. The relationship of ‘Islamic family law’ to identity - national, communal, cultural and individual — and thus to the politics of identity is a particular factor for consideration by those seeking change in existing regulatory regimes — as for that matter is the nature of the state or political authority, and the notion of ‘citizenship’ in relation to ‘the family’.

In the Muslim countries considered in this volume, Muslim family law is governed by ‘Islamic family law’ as codified by the state. Suggestions for even an optional civil law for those wishing to marry outside a religious jurisdiction are currently resisted in Palestine, as discussed in the study, and a similar proposal in Lebanon was shelved. In the USA, the case study examines the practice of Muslims choosing to regulate their family life under principles of Islamic family law within the official civil legal system of the USA. Thus, the reform strategies considered here might often be understood as a contest of ‘Islamic norms’, provided one follows Dupret’s distinction (1999: 32, following Lochack 1993: 393) of justificatory normativity or normality (‘the usual condition, encountered in most cases’) and prescriptive normativity (‘the abstract formulation of what ought to be’). If the ‘actors in the legal sphere’ often tend ‘to make justificatory norma­tivity and prescriptive normativity coincide’ (Dupret 1999: 32), the approach of reform-minded activists is rather the opposite: just because that’s how it is, it doesn’t mean that’s how it has to be. In many ways, the term ‘reform’ in this context might be substituted with ‘reformulation’.

As brief background, particular areas of Islamic family law that preoccupied Muslim states issuing codifications of ‘Islamic family law’ as part of nation- and state-building projects in the twentieth century included polygyny and the hus­band’s power of unilateral repudiation (talaφ, both of which have been constrained to varying extents; child custody, where efforts have been made to extend the period of custody assigned to the mother following termination of a marriage; the age of marriage, and the constraint of the authority of the male guardian in the marriage of females; widening a wife’s access to divorce; extending an ex­husband’s financial obligations towards a wife ‘unjustly’ or ‘arbitrarily’ divorced; constraining the wife’s duty of ‘obedience’, particularly in regard to waged labour outside the home and an end to forcible implementation of court rulings requiring a ‘disobedient’ wife to return to the marital home. Many states have also legislated for the enforcement of stipulations that may be included in the marriage contract by the spouses, holding the potential to alter certain aspects of the otherwise ‘standard’ regulatory regime within the marriage. While the gender-specific in­heritance portions of the ‘classical’ rules have largely been maintained, ‘[t]he special position of agnates in inheritance law has been restricted, and measures have been taken to favour the basic family unit at the expense of patrilineal heirs’ (Moors 1999: 142).

As the articles in this volume show, many of these issues remain — again, to varying extents depending on the particular context — a focus for the efforts of those wishing to see further protection and expansion of women’s rights in the family, including, in many countries and communities, women’s movements, human rights movements and social reform movements. Individuals and groups engaged in these efforts work from a variety of perspectives and in complex and specific socio-economic and political contexts. The question of voice and authority in prescriptive normativity remains an issue in the US Muslim communities as well in Egypt and Palestine. The fact that ‘Islamic family law’ is asserted, expressed and lived at different levels, many beyond the reach of the state, is a feature of all the studies, and, if not a particularly surprising one in itself, invites specific consideration. Although the state (in all its heterogeneous make-up) is recognized as a (sometimes the) key actor, normative pluralism (or legal pluralism; Griffiths 1999: viii) that denies the state monopoly as the originator or Iegitimizer of ‘law’ has critical significance for the reform strategies discussed.

In his exposition of a three-level interacting structure of law consisting of official law, unofficial law and legal postulates, Masaji Chiba (1986: 5) includes Islamic law among his examples of religious laws that might be termed ‘official law’ although not entirely ‘state law’: ‘religious law may be partially included in or accommodated by state law, but partially functioning out of the jurisdiction of the latter, thus forming its own system different from state law’. Arabi’s (2001: 193) references to ‘state Islamic law’ in modern Muslim states may coincide with Berger’s (1999: 113) description of ‘formal shari'a^, in Syria as being those parts of shari'a incorporated into the legislation of the state, while ‘informal shari'a" is ‘all shari'a which is being applied, but which is not promulgated as law by the legis­lator’. The reference to ‘informal shari'a" serves to remind us of the reach of shari'a beyond subjects addressed in state law (Berger’s examples are pilgrimage and alms giving). The ‘voluntarism’ that characterizes compliance with ‘informal shari'a" in Muslim states applies also to the application of Islamic family law by Muslims in the United States, where Islamic law is best described in Chiba’s scheme as unofficial law, underpinned by a basic legal postulate among those Muslims who choose to regulate their family relations in accordance therewith. Chiba’s explanation of a legal postulate is a ‘value principle or value system, specifically connected with a particular official or unofficial law, which acts to found, justify, and orient the latter’ (Chiba 1986: 6). In Egypt and Palestine, ‘state Islamic law’ governs family law for Muslims; as Arabi (2001: 190) puts it: ‘Islamic family law still occupies pride of place in the jurisdictional system of modern Muslim states as the only domain of shari'a to have successfully resisted western­isation.’ Chiba’s definition of official law may cover ‘Islamic law’ in general, given constitutional recognition of the shari'a (although with differences) in both. Nevertheless, the assertion of 'shar'i norms’ in opposition to the particular pro­visions of state Islamic law is described in both case studies, illustrating Dupret’s (1999: 39) description of ‘each actor’s relationship with the norm’ as ‘highly strategic in nature’ and constituting a significant factor in reform strategies on the ground.

Thus, to the ‘outright normative pluralism’ of pre-nineteenth-century shari'a (Arabi 2001: 194), with its diversity of rulings and norms, have been added the developing norms of ‘positivized’ state Islamic law. Arabi considers the develop­ments as follows:

This major reconstruction of Islamic law, both in substance and procedure, is issuing in what might be termed a new shari'a [...] Modern Islamic law is better viewed as what present-day Muslim jurists, legislators, judges and theo­logians take to be Islamic provisions and rulings in the altered, complex world of today, rather than an a priori-constituted corpus that is conserved, albeit in an astoundingly rich variety, in classical legal manuals, (ibid., p. 18)

In this vein, Arabi (ibid., p. 188) considers as a ‘radical break with extant Islamic family law’ the promulgation of the provision on judicial khul' in Egypt whereby a wife may obtain a divorce from the court if she returns the dower and waives her other shar'i financial rights. Under the ‘classical’ rulings, this type of divorce involved the consent of the husband, since it was he, not a court, who issued the divorce. Arabi considers this to have given effect to the original intention of the source texts considered, and draws conclusions from this about the mechanisms through which the state is able to approach its ‘reconstruction’ of Islamic law. The idea of a (in this case) state law-led ‘new shari'a^, may take some support from the fact that in Jordan, on the last day of 2001, King Abdullah II issued a temporary law in the absence of a sitting parliament amending the law of personal status (itself issued as a temporary law) including the establishment of judicial khul in a provision very similar (though not identical) to the Egyptian precedent.

However, the manner of promulgation of the Jordanian law is also quite telling. In this volume, Fawzy points up the opposition voiced to the Egyptian provision Onjudicial khul' inter alia on the grounds of qiwama, the shar'i principle considered in dominant interpretations as according authority to males over females in family relations and frequently articulated in the manner of a basic value principle or postulate. From Fawzy’s account, those defending the provision asserted their reading of the specific source texts in support of a provision that on a practical level fitted the needs of contemporary Egyjjtian society, rather than taking up directly the concept of qiwama. In the public opinion survey, while 6o per cent of the ‘elite’ sample questioned declared support for the provision (Table 1.22), slightly fewer of the respondents in the general public opinion sample were in favour than were opposed, with more women than men in support (Table 1.29). In Hammami’s data from Palestine, around a third of respondents in the sample stated they would support the enactment of a similar law in Palestine, with slightly more women than men in support, but with many of those opposed, particularly women, expressing reservations not because of an opposition to women’s right to divorce as such, but rather because ‘women should not lose their property rights’ in order to secure one (Table 11.13). This can be seen as an articulation of a general sense of ‘justice’ that a considerable constituency might expect to see represented in state-issued Islamic family law, a subject discussed further below.

The above material shows something of the workings of the ‘mechanisms of the Islamic reference’ (Dupret 1999: 40). The fact that something is legislated by the state as Islamic family law does not necessarily make it so to those outside the process. In the context of the 1979 personal status legislation in Egypt, Fawzy notes particular opposition to the law’s presumption of injury in the case of a man’s polygynous marriage, entitling the existing wife to a divorce; he cites Shmais (1994) on one judge stating that he had ‘refused to implement the law and had postponed all such cases referred to him’. Since the relevant Qur'anic verses are generally understood as permitting polygyny, albeit under certain constraints, the difficulty lay in the state law presuming an injury in situations contemplated as legitimate under dominant interpretations of the source texts. In this instance, the ‘radical break’ with the ‘classical’ rules was reversed by the state in deference to the opposition when the 1979 law was repealed and replacement legislation issued in 1985 required the wife to establish such injury should she wish to seek a divorce as a result of her husband’s marriage.

On the other hand, the Egyptian law maintained its notification requirements, requiring that the existing wife and the new wife both be made aware of the husband’s polygynous status. These requirements have been adopted in many Muslim states, with the stated objective of protecting the rights of the women involved. As well as the protection objective, such state law requirements open the space for intervention by other potential sources of constraint upon the husband’s conduct; the women, particularly perhaps the first wife, and their families. In his consideration of ‘ambulant marriage’ in Saudi Arabia, Arabi (2001: 160) notes that secrecy is a ‘frequent concomitant of polygamous marriage in general’, and considers as follows the objections to ambulant marriage on grounds of its secret character: ‘the proclamation of the second marriage and thus its disclosure to the first wife is a tactical move aimed to implicate the husband in the inevitable unhappy conflict with his first wife, umm al- 'iyal, the mother of the children, consequent upon her knowledge of his second marriage’ (p. 161).

In Egypt, Fawzy notes that one of the motivating factors for men to conclude 'urfι marriages (‘customary’ marriage, discussed further below) is to conceal the fact of the second marriage from the first wife, who would be notified of it if he complied with the registration requirements of state law. In the public opinion survey, Fawzy reports that a large number of male respondents objected to the requirements that their marital status be disclosed, while all the women respon­dents approved; surely a validation of the expectation that, such procedures effect a change in the balance of power through the likely mobilization of effective intervention by non-state actors.

The diverse attitudes of Muslims in the USA towards polygyny are discussed by Quraishi and Syeed-Miller in this volume. Here, those Muslim men not only asserting but acting on what they consider to be a right under Islamic law to marry polygynously illustrate the ‘relation of conflict’ described by Woodman (1999: 17) in a situation of normative pluralism. On the other hand, some of the arguments being made from within the Islamic law framework for the acceptance of the secular prohibition are indicative of attempts at ‘integration’ of norms: thus, for example, the argument that ‘because the subsequent wives are not legally married under the laws [of the USA] then by definition they are not treated equally, a requirement of Islamic law in polygynous marriages’. Another example given by Quraishi and Syeed-Miller is ‘the simple jurisprudential principle that one must obey the laws of the land where one chooses to live, as long as they do not prevent one from performing one’s religious obligations’. Polygyny being by no means an obligation, the argument is made that the US law should be respected.

In Palestine, the Jordanian and Egyptian legislation governing Muslim personal status in the West Bank and Gaza Strip respectively does not contain the notifica­tion requirements legislated in more recent years by Jordan and Egypt, nor yet specific provision for the wife to seek to establish injury in pursuit of a judicial divorce in the event that her husband marries another wife. In light of this, Hammami notes that 20 per cent of respondents in the sample cited a polygynous marriage as an acceptable reason for divorce: ‘it is significant that there is even this amount of support for divorce on grounds not recognized as such by prevail­ing personal status law’. Of equal significance is her finding that ‘a “nationalist” justification, the husband being a “political collaborator”, came out as the ‘number one acceptable reason’ for women to seek divorce (Table π.ιo). Nationalist postu­lates born of a specific political experience and community response thus produce the specifics of a vision of a Palestinian personal status law that the significant majority of respondents in the sample consider should be governed ‘by shari'a^,. As Dupret observes:

Pjhe invocation of ‘Islam’ or ^lshari'd^, as a legal repertoire does not mean that we are dealing with Islamic law in its classical and technical sense. From a sociological perspective, ‘Islam’ is what Muslims claim that Islam is and ‘Islamic law’ is what Muslim people characterize as Islamic law. The fact that people utter the word ^lfiqK or ‘shari'a,’ or use a lexicon which I call the ‘Islamic repertoire’ [...] does not mean that there is a necessary connection between present and past uses of the terms of this lexicon. (Dupret 2001: 44)

Nor should it be assumed that those invoking ⁱshari'a^, themselves assume such a connection, at least on the level of detailed rules; the strategic articulation of such a connection by politically engaged advocates or opponents of change (state law reform being an inescapably political process) is to be differentiated from the ‘legal postulate’ or, as discussed further below, the ‘doxa’ of shari^,a and its connec­tion with Muslim personal status law.

One area of the relationship between state authority and the normative authority assigned to ‘the shari'a^, that arises in the three country studies in this volume is the bureaucratic requirements imposed by states on matters of marriage and divorce. Registration with some ‘official’ or ‘central’ authority serves a number of purposes, including information on and a degree of control over the ‘private’ affairs of citizens, and the possibility of Iexying fees or taxes, but also the potential for ensuring that other laws laid down by the state are in fact being observed and upheld: those on the minimum age of marriage, and the consent of parties to the contract, for example. The ‘classical’ rules of Islamic law did not make the validity of a marriage or a divorce conditional upon any form of written documentation, let alone registration with a central authority. Formal procedures of registration have generally been legislated in Muslim states, but do not necessarily affect the validity of a marriage or divorce not so registered, in deference to the continuing currency of the ‘classical’ rules. In Egypt, the debate over 'urfi marriage described by Fawzy in this volume illustrates the resulting tension. He describes 'uιfi marriage as ‘the most popular means of getting around the constraints imposed by law on marriage and divorce in Egypt’. Egyptian law requires registration and denies jurisdiction to the courts to hear claims arising from unregistered marriages in the event one of the parties denies the union. The new Egyptian Law no. 1 of 2000 includes a provision allowing a party possessing written evidence (such as the customary ^,wfi document) establishing an unregistered marriage to apply for a divorce from the court, although still not to realize any other rights from the marriage through the court process. Provided an unregistered marriage complied with the shar^,i requirements, it is still valid, and the attempt to encourage registra­tion through judicial non-enforcement of the shar^,i rights and duties arising accordingly had, judging from Fawzy’s discussion, in many cases badly disad­vantaged the female party to such a marriage. In the event of a non-amicable breakdown or desertion, for example, she would not only be unable to seek to enforce maintenance and dower rights through the courts but also be unable to obtain a divorce, leaving her, in Fawzy’s words, ‘suspended’. As further back­ground, Fawzy also notes some of the motivations for entering into an 'urfi marriage, including as noted above keeping the fact of a polygynous union from an existing wife, but also ‘a woman who does not want to lose her entitlement to her former husband’s pension, or a widow seeking to keep her son exempted from military service as her only son and sole provider’ — women who would not therefore wish their new marriage to come to the attention of the state authorities and whose desire to marry under the shari'a is satisfied by the 'urfi institution. Of possibly more political significance, Fawzy also notes the support given to the institution of 'urfi marriage by ‘the religious tendency in the universities’, an assertion of legitimacy beyond state control coinciding with the interests of those feeling burdened by the state-imposed rules.

In Palestine, the institution of 'urfi marriage was referred to as harming the rights of wives in a fatwa from the Supreme Fatwa Council supporting existing registration requirements and an increase in the criminal sanction for failure to comply. Registration procedures were presented as legitimate requirements by the state in order to protect society and in particular the rights of the wife. Although a criminal offence, failure to register does not affect the validity of a marriage, nor is recourse denied at court if the marriage can be established to have been valid under shar'i rules. A few years later, however, the Council issued another fatwa, this time on the question of a minimum age for marriage, where the reference was to ‘classical’ rules without reference to the minimum ages of capacity (of fifteen and sixteen) under Jordanian law applied in the West Bank and below which marriage is a criminal offence and could not of course be registered under the terms of existing law. Johnson puts the later fatwa in the context of the extensive and heated public debates on family law, including considerable public and establishment support for the age of capacity for marriage to be raised (Table 11.9), which had occurred in the years following the fatwa in support of increased state intervention in the matter of registration requirements. At the same time, the head of the shari'a courts issued administrative directives to the court personnel tightening procedures of registration, having previously expressed concern at instances of parents trying to marry off underage daughters. The Council’s reference only to ‘classical’ rules thus avoids the norms both of codified law and of a significant section of Pales­tinian society, while presumably finding a resonance with certain others.

In the USA, Quraishi and Syeed-Miller explore Muslim marriage practices ranging from concluding a Muslim marriage contract without complying with state licence and registration requirements, to having two separate events (‘a Muslim ceremony as well as a civil ceremony through state channels’), to a Muslim marriage ceremony conducted by an officiant licensed by the state which ensures simultaneous validity under US law. An interesting point of resonance with the Egyptian case study is provided by the authors’ discussion of the increasing attention being given by US Muslims to the insertion of special stipulations in the marriage contract. The Egyptian case study examines the new marriage contract document issued after Law no. 1 of 2000 with space for such stipulations, and provides a list of conditions that respondents in the sample held to be of priority. Fawzy sees great potential value for the protection and expansion of women’s rights in the family in this development, and on asking female respondents in the public opinion survey to rank in order of priority stipulations that might be included in a marriage contract finds that top of the list was the wife’s power of delegated talaq, followed (with urban/rural differences) by the wife’s right to go out to work, and then the completion of her education. It remains to be seen whether these opinions translate into practice; of all possible stipulations, it is perhaps delegated divorce that has the potential to affect most fundamentally the ‘power balance’ within the marital relationship, and accordingly may prove dif­ficult to negotiate. Examinations of marriage contracts in the Palestinian West Bank have variously found the most common stipulation to concern the location of the marital home or the fact that it should be in ‘independent accommodation’ (Welchman 1999: 72; 2000: 166), with fewer rather than more contracts including a general delegation of talaq to the wife in the later years.

Behind the Egyptian marriage document lies a project initiated in the non­governmental sector with the idea of including in the state-issued marriage contract document a list of stipulations which would form part of the agreed rules governing the marriage unless the parties struck them out. The effect would have been to address the general lack of awareness of the possibility of such protective stipulations and problems in phrasing them in such a way as to give them legal value should it be needed. Crucially, it would reverse the burden during the negotiating process, away from the party seeking to have stipulations inserted and on to the party resisting their terms; the proposed list included, for example, the wife’s right to delegated divorce, to continue her education, to go out to work and to travel abroad, as well as an agreement that the spouses would cooperate in work, looking after the family and the house and bringing up children, and a limit on the amount of time that either spouse might work outside the country.

Commenting on these proposals, Zulfikar and al-Sadda (1996: 251) presented the project as an effort ‘to encourage frankness, mutual understanding and dia­logue’ between the spouses, reduce the need to have recourse to the courts in difficult and bitter litigation procedures, and ‘raise awareness of legal and shar'i rights and encourage people to exercise them’. In Part III of this volume, Quraishi and Syeed-Miller report that Muslim women’s organizations and activists in the USA ‘see the use of additional stipulations as a tool for women’s empowerment’ but also that ‘far from considering it a new, reformist tool many see the proactive use of the Islamic marriage contract as a way of protecting their basic Islamic rights’ in the sense of a means ‘for both spouses to proactively express partnership in their new, unique union’. These and other motivations are discussed by the authors as underlying the insertion of different stipulations, ‘despite a realization by the couple that a US court will likely not enforce such terms’.

Whether or not such stipulations are enforceable in court, their assertion as norms governing a particular marriage is, in these contexts, voluntary. The choice of stipulations, and the ability to insert them, depends on the particular circum­stances and aspirations of the parties involved. The ‘normalization’ of stipulations somewhat different to the examples given above is described by Arabi (2001: 147- 67) as ‘grass roots law-making’ — the development in Saudi Arabia of ‘ambulant marriage’ as a ‘highly specific legal structure possessing features of religiously lawful marriage [...] in a strikingly novel configuration’. This reformulation includes the wife’s consent to stay at her parents’ house and therefore the lapsing of the obligation of the husband to provide her with accommodation, and the lack of cohabitation, with the husband ‘visiting [...] his wife’s residence during certain hours’. Under ‘classical’ rules, stipulations that a husband would not pay maintenance or cohabit with his wife would not have been valid, impacting as they do on rights arising directly from the contract. Arabi observes that such stipulations would impact on the ‘gender power structure at the base of Muslim marriage’, since the Qur'anic norm of qiwama linking male material support of women with their authority over them is in the dominant interpretations treated as prescriptive, not justificatory. Arabi emphasizes the ‘expansive use of the principle of mutual consent [...] as a cornerstone for the validity of the contract’ and that, for those arranging such marriages, ‘what carried weight was the future partners’ mutual consent to the specific financial, cohabitation and secrecy stipula­tions of their contract’. Opposition to the practice on the grounds of the rights of an existing wife has already been noted, and the Grand Mufti’s eventual endorsement of such contracts was conditioned on the requirement that the marriage be made public, rather than kept secret.

Arabi’s analysis is focused on the development of norms among non-state and non-establishment lay actors, culminating in their formal endorsement as shaτ'i by authority Hgures, an endorsement apparently not critical before the fact to the participants’ own perception of their arrangements as shar'i. Wdiere the use of special stipulations is included in strategies of reform (or reformulation), pro­active and conscious efforts are made to emphasize the shar'i validity of consensual arrangements expressing the nature of the partnership, as described in the USA and in Egypt. Similarly, considerable effort is invested in articulating and seeking to normalize interpretations of the source texts that challenge dominant in­terpretations which, it is argued, owe more to an underlying postulate of patriarchy than to inherent ‘meanings’ of the texts. Thus Quraishi and Syeed-Miller describe the work of al-Hibri in the USA as ‘emphasizing the ways that Islamic principles promote women’s liberty in a way contrary to how these principles were applied and interpreted in patriarchal Muslim societies, ultimately leading to biases in the law itself’. Particular attention is paid to the interpretations of the texts on male superiority/authority/guardianship, challenging understandings of a prescriptive norm underlying specific rules on, for example, male guardianship at marriage, the wife’s duty of obedience, divorce, child custody and polygyny. They also include the issue of domestic violence: Quraishi and Syeed-Miller report that ‘the idea of male superiority sometimes is used to justify physical and mental abuse of other family members, especially women and children, presented as somehow endorsed by the shari'a^, and describe current moves in the US Muslim communities to ‘take proactive steps inspired by Islamic principles to respond to the situation’.

Hajjar similarly reviews interpretative work on the source texts by scholars based in the L SA and in Iran, as part of the challenge ‘to cultivate a persuasive distinction between “culture” and violence against women’. With an eye on the state as key to the protection of women from domestic violence, she examines how various failings on the state level inflate ‘the importance of family and kinship relations for social survival’. This in turn complicates demands for the empowe­rment of women as a ‘threat’ to family stability, a theme reported by Fawzy in the Egyptian debates over expanding women’s divorce rights and by Johnson in regard to the debates provoked by the model parliament. The challenges faced by activists fighting domestic violence are, as Hajjar explains, critically com­pounded by the choices made by states in their regulation of family relations, and a state may endorse conservative interpretations of Islamic family law ‘as a means of shifting critical attention from its own failings on to the putative dangers posed by advocates of women’s rights’.

While recognizing different understandings, expectations and applications of ‘Islamic family law’, it is official law, in the sense of state-issued ‘Islamic family law’, that was the focus of the particular reform initiatives considered in the Egyptian and Palestinian case studies in this volume. Fawzy’s conclusion, having analysed the substance and context of the new Egyptian Law no. ι of 2000, is that perhaps more important than the particular provisions of the law was the fact that ‘the new law was a product of battles and balances between dynamic groups in society’. He continues: ‘This was the first time that this principle became clear for all to see [.. J The widespread understanding - through direct experience - that it is possible to change the law through such pressure, and that the law itself is neither sacrosanct nor impossible to change opens the possibility for women to organize themselves for advocacy towards new gains.’

The legal postulate of shari'a is thus accompanied by intensely political debates over the way in which that postulate is expressed in legislation. In Palestine, Hammami finds the relationship between personal status law for Muslims and shari'a to be a ‘doxa’, where (following Bourdieu 1979) ‘doxa stands for aspects of tradition and culture which are so internalized that they exist as unquestionable common sense beliefs and dispositions’. This is based on the results of the public opinion survey carried out for the purposes of this study, which revealed a ‘pro­found commitment to shari'a as the basis for family law by both [men and women] but especially by women’. Probing further at the practical implications of the ‘doxa of shari'a^,, however, the survey showed, inter alia, a gender gap in the level of satisfaction with the day-to-day operation of the courts, for example with the premise that as implemented the law supported men’s rights over those of women, being the opinion of more women than men (Table II.7). Comparing the results of this survey with earlier polls, Hammami finds a growth in support for the principle of reform of shari^,a-based personal status law, suggesting the impact of the model parliament campaign discussed in the case study. Here again, the survey showed (Table II. 12.) that some 20 per cent more women than men wanted more rights to be given to women in family law as and when reformed by a Palestinian legislature. For those respondents desiring change, it is not the legal postulate but the official law that is at issue. At the same time, the contents of the official law, and therefore particular legislative expression of the legal postulate, is subject to other underlying value systems as well as contending political constituencies: when considering the results of the survey as to who should be responsible for the reform of personal status law, Hammami finds that ‘democratic and inclusive decision-making is an orthodoxy within Palestinian society’ and thus sees ‘an opportunity for the development of a unified Palestinian personal status law through a process which is based on public debate and inclusion’.

In the USA, with ‘Islamic family law’ in the status of an unofficial law in interaction with other legal postulates in US official law, Quraishi and Syeed- Miller emphasize the diversity of the Muslim community and individual Muslim practice, and the activism-focused efforts of many US Muslims who ‘find the impetus to form social change movements inherent in the fact that they are Muslim, and hope to find a space that exists between the realm of an Islamic belief system and their US cultural milieu’. Among the challenges to ‘significant trends of reform and activism in addressing Islamic family law’ they note ‘on­going internal debates in the United States Muslim community’ as to who should be in charge or involved in formulation of community-wide agendas’. The issue of voice in articulating the norms is contested in ‘unofficial law’ as it is in the Muslim states considered in this volume where shari'a is ‘official law’.

The papers in this volume provide insights into the interaction of coexisting legal postulates and norms, including the equality paradigm, and the manner in which specific political and socio-economic contexts affect not only what is pres­ented by establishment authorities as ‘Islamic family law’ but also how it is understood by different non-establishment actors. Addressing the contest over this ground in the specific contexts addressed, the papers in the volume shed light on the diversities and complexities of reform strategies aimed at protecting and expanding women’s rights in the family.