Earlier this year, Tunisia lifted the 1973 ban on Muslim women marrying non-Muslim men and is considering equalizing inheritance laws for men and women, on arguments that the mixed marriage ban and inheritance disparity violates the post-Arab Spring 2014 constitution calling for gender equality. This development follows in a line of earlier precedent for personal status code reforms—began when Tunisia’s first president, Habib Bourguiba, announced a ban on polygamy in 1956. He appealed to Islamic law through modern readings of Islamic texts, rather than to traditional Islamic arguments or to comparative practice in the region and its associated Mālikī law. The recent actions beg the question about comparative practice and Mālikī law. For perspective on both, student editor Ari Schriber discusses Morocco’s 1957 Personal Status Code as the country’s first unified set of family law statutes. He address the provisions concerning polygamy in particular, and the government’s attempts to evoke an Islamic basis for legalizing polygamy while simultaneously appearing to limit it in the name of protecting women.
The 1957 Personal Status Code (Mudawwanat al-Aḥwāl al-Shakhṣiyya) of Morocco legislated the country’s first unified set of family law statutes. Its statutes stipulated legal matters relating to marriage, divorce, legal capacity, testament, and inheritance. The government proclaimed the Mudawwana as a sign of progress and modernity while simultaneously insisting on its adherence to traditional Mālikī law. A conspicuous family law issue like polygamy would seem to present a litmus test for the Mudawwana’s actual standing within these political discourses. However, the Mudawwana’s imprecise restrictions on polygamy instead demonstrate the government’s preference for broad political symbolism above clear legislation.
The Personal Status Code of 1957: Background and the Tensions of Official Discourse
Only one year after Moroccan independence, King Muhammad V inaugurated the Mudawwana project by declaring that “the greatest means to make our Moroccan society happy is to establish sharīʿa of justice among its people.”[1] He emphasized that the religious jurists (fuqahāʾ) of Morocco were at the “vanguard” (ṭalīʿa) of this task, taking a posture of deference to their authority.
At other times, Moroccan leaders emphasized different lines of reasoning. Crown Prince Hassan (later King Hassan II) remarked, “I personally do not consider the goal of this Mudawanna as either a religious or Islamic legal (sharʿī) goal. Rather, I consider it as supporting the social foundations in which Morocco lives in the twentieth century.”[2] The Minister of Justice Abdelkrim Benjelloun further viewed the Mudawwana as an opportunity for religious norms “to be applied by courts unified and coordinated in their guarantees of justice and charity for all people.”[3] Such a code would provide a symbolic pivot away from the fractured colonial past (as exemplified by the 1930 Berber Decree) toward modern legal unity. To this end, the government issued a Sharifian Decree in August 1957 that declared the future authoritative status of the forthcoming Mudawwana over any law or norm that contravenes its articles.[4]
Within this official discursive framework, the government promulgated the first two books of the Mudawwana in December 1957 (effective January 1, 1958). Book 1 set out forty-three articles pertaining to marriage, including issues such as the contract, dowry, and conditions that prohibit marriage (mawāniʿ). Book 2 contained eighty-two articles surrounding the dissolution of marriage.[5]
In his press conference introducing the document, Benjelloun emphasized the compatibility of Islamic norms with modern notions of the family. He declared that Book 1 based marriage on “true love” and “mutual respect” while providing the dignity to women that Islam has always sought.[6] These tropes at least tacitly emphasize the link between intimate family relationships and law that developed in the preceding half century.[7] In the imposition of colonial law, this focus contributed to the specific association of Islamic law with family law in the twentieth century.[8] Benjelloun publically rehearsed the meanings of modern family and love to bolster the modernist premise of Morocco’s Mudawwana project.
A number of scholars have remarked that the final version of the Mudawwana represented a conservative adherence to traditional Mālikī law.[9] This scholarly literature portrays the Mudawwana as a political step that brought little actual change to the adjudication of family law (particularly from the perspective of women’s rights).
However, the extent to which the 1957 Mudawwana actually changed jurisprudence of family law from the colonial period remains difficult to gauge. Until further research establishes these norms in the colonial period, we are left either with comparing the Mudawwana to prominent manuals of Mālikī fiqh or speculating based on anecdotal evidence. The potentially transformative effect of codifying sharīʿa norms into a state law further complicates this question. The appropriation of Islamic legal norms by state legislators indeed jeopardizes the status of Islamic jurisprudence and the fuqahāʾ who traditionally articulate it.[10]
In any case, the Mudawwana’s approach to polygamy provides a lens into the multiple political and social goals articulated by the state. A closer look at the language of its statutes will demonstrate the importance of the multivalent symbolism that the Mudawwana’s legislators intended it to carry.
Addressing Polygamy in the Mudawwana
The Mudawwana addresses issues of polygamy in three brief articles (Articles 29, 30, 31). All of the articles fall under Book 1’s fifth chapter entitled “Legal Barriers to Marriage (mawāniʿ al-zawāj).”[11] Article 29 states simply that a man is temporarily barred from marriage if taking more than the amount of wives allowed by classical Islamic law (four).[12] Article 30, Section 1 then addresses polygamy more directly, stating that “if a lack of justice among the wives is feared (khīf), then polygamy [lit., multiplicity (taʿaddud)] is not permitted.”[13] This stipulation refers implicitly to Qurʾān (4:3) and Qurʾān (4:129),[14] which the Moroccan legislators ostensibly understood to allow up to four wives provided that they are treated equally.[15] Still, the use of passive language to avoid naming the one “fearing” injustice sidesteps the question of who may claim such an injustice and what authority adjudicates it.
Article 30, Section 2 and Article 31 stipulate the only limitations on polygamy in the Mudawwana. The former confers the right of a married woman to bring the matter of additional wives to a judge (if the matter is not already contractually stipulated). The judge is to decide whether an additional wife constitutes “harm occurring to [the first wife],” and further ensure that the additional wife understands that the man already has a wife.[16] Article 31 gives women “the right to stipulate in the marriage contract that her husband not co-marry” and states that breaking this provision of the contract may annul the marriage.[17] This article presents perhaps the strongest protection for women against polygamy, as it gives them a formal vehicle to seek redress for undesired polygamous marriages. However, these articles provided only formal contours to a practice whose means of adjudication and enforcement remained undetermined.[18]
Assessing the Symbolic Value of the Mudawwana
The brief and imprecise provisions concerning polygamy well represent the Mudawwana’s roots in the political and social context of independent Morocco. That is, the government successfully evoked an Islamic basis for legalizing polygamy while appearing to limit it in the name of protecting women.
The Mudawwana’s legislators engaged in a creative process to produce this dual-purposed approach to answering the polygamy question. The Codification Commission borrowed heavily from the 1956 Tunisian family code (Majalla) on many issues.[19] However, the Commission diverged from the Tunisians’ decision to ban polygamy completely. ʿAllal al-Fasi, the reporter (muqarrir) of the Codification Commission, even explicitly opposed polygamy in his 1952 opus magnum, Self-Criticism (al-Naqd al-Dhātī) and in his report following the codification.[20] Nevertheless, the forces within the Commission—and/or forces pressuring them from outside—kept polygamy in place while deriving its limitations from elsewhere.
The Mudawwana’s statutes that purport to limit and regulate polygamy come from more ambiguous sources. Article 30, Section 2’s protection on the basis of “harm” to the first wife relies on an undefined concept of harm. As an imprecise compromise of traditional conceptions of Islamic law and emergent family norms, it indeed had “no precise parallel… in any other Arab country.”[21] Article 31’s pre-nuptial protection appears to have copied a nearly identical article from the 1917 Ottoman Law of Family Rights.[22]
The Mudawwana held significant national and religious symbolic value, which clearly shaped the polygamy stipulations. As the practice of polygamy had been declining anyway during this period,[23] ensuring its legality at least reiterated the Mudawwana’s Islamic, Mālikī roots. We cannot know the Mudawwana’s exact sources of legislation for the regulations other than the circumstantial evidence provided through comparison with classical Islamic law sources and other legal codes. However, the government’s intense social and political discourses formed the Mudawwana project’s raison d’être from the outset. In the end, the Mudawwana’s approach to polygamy lacked both a firm theoretical basis and a clear directive for application. This came from an unwillingness to muddy the project’s symbolic value, an unwillingness that remains contentious to this day.[24]
[1] King Muhammad V, Amām aʿḍāʾ Lajnat Tadwīn al-Sharʿ al-Islāmī, 2 Inbiʿāth al-Umma 231 (1957).
[2] Quoted in ʿAbbūd Rashīd ʿAbbūd, al-Aḥwāl al-shakhṣiyya: Qawāʿid wa-nuṣūṣ wa-shurūḥ 40 (1965).
[3] Id. at 75.
[4] [Sharifian Decree 1.57.343] 2354 al-Jarīda al-Rasmiyya 2632 (December 6, 1957).
[5] The government later issued three more books pertaining to capacity and legal representation (Book 3), testament (Book 4), and inheritance (Book 5).
[6] Quoted in ʿAbbūd, supra at 77.
[7] Speaking about Muhammad Abduh’s special attention to the role of Islam law vis-à-vis the notion of family, Talal Asad remarks: “For the family is not merely a conservative political symbol or a site of gender control. By virtue of being a legal category it is an object of administrative intervention, a part of the management of the modern nation state…” Talal Asad, Formations of the Secular: Christianity, Islam, Modernity 230 (2003).
[8] This became particularly apparent in the writings of the influential Egyptian religious scholar Muhammad Abduh. Hussein Ali Agrama, Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or Religious State?, 52 Comp. Stud. Soc. Hist. 517 (2010).
[9] For instance, see: Mounira Charrad, State’s and Women’s Rights: The Making of Post-Colonial Tunisia, Algeria, and Morocco (2001) and Léon Buskens, Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere, 10 Islamic L. Soc. (2003).
[10] Aharon Layish emphasizes that religious-based family law codes are “first and foremost legislative acts of sovereign parliament,” while Wael Hallaq goes as far as to argue that codifying sharīʿa has led to the “infrastructural demolition of the traditional legal system.” Aharon Layish, The Transformation of the Sharīʿa from Jurists’ Law to Statutory Law in the Contemporary Muslim World, 44 Die Welt Des Islams (2004), at 92; Wael B Hallaq, Can the Shari’a Be Restored?, in 23 Islamic Law and the Challenges of Modernity (Yvonne Yazbeck Haddad & Barbara Freyer Stowasser eds., 2004).
[11] The Mudawwana, reflecting classical fiqh, differentiates between temporary barriers (muwāniʿ muwaqqita) and permanent barriers (muwāniʿ muʾabbada) to marriage. The barriers represent either temporary or permanent conditions that must not exist in order to have a valid marriage. Issues pertaining to multiple spouses fall under temporary conditions. Yvon Linant de Bellefonds, Traité de droit musulman comparé 105, 134 (1965).
[12] [The Mudawwana: Law of Personal Status] 2354 al-Jarīda al-Rasmiyya 2634 (December 6, 1957).
[13] Id. at 2635.
[14] Qurʾān (4:3): “If you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four; but if you fear you will not be equitable, then only one, or what your right hands own; so it is likelier you will not be partial.” A.J. Arberry, The Koran Interpreted 100 (1955). Qurʾān (4:129): “You will not be able to be equitable between your wives, be you ever so eager; yet do not be altogether partial so that you leave her as it were suspended. If you set things right, and are godfearing, God is All-forgiving, All-compassionate.” Id. at 119.
[15] Fatima Mernissi, Beyond the Veil 47 (2003).
[16] [The Mudawwana], supra at 2635.
[17] Id.
[18] Mounira Charrad points out that these regulations additionally required that a woman be “willing to bring the matter to a judge’s attention,” which presented a significant hurdle on multiple fronts. Charrad, supra at166.
[19] Buskens notes that the Commission appeared to borrow heavily from the Majalla, yet only to the extent that it did not appear to impinge on its Maliki roots. Buskens, supra at 74.
[20] Maurice Borrmans, Statut personnel et famille au Maghreb: de 1940 à nos jours 204 (1977).
[21] Id. at 153.
[22] J.N.D. Anderson, Reforms in Family Law in Morocco, 2 J. African L. 151 (1958).
[23] Linant de Bellefonds, supra at 137.
[24] The 1993 Mudawwana reforms kept polygamy legal but added the requirement of a judge’s approval beforehand. The 2004 Mudawwana reforms reinforced this point and required a judge to determine that the requesting man provide reason for his request and prove financial means to support multiple wives.