Mohammad Fadel (University of Toronto, Faculty of Law) takes a pragmatic approach that helps explain why Tunisian president Beji Caid Essebsi’s 2017 proposal to amend Tunisian inheritance laws has raised so much controversy: “While the new law, if implemented, may not make a substantial tangible difference in people’s lives – especially given the ease with which ordinary Tunisians can continue to adhere to the previous inheritance law, regardless of the final form of the legislation – it does raise thorny theoretical questions about the nature of the Tunisian state, and the meaning of Islamic law in the modern world.”
Tunisia’s proposal to reform its inheritance laws to promote gender equality has garnered both worldwide praise from the human rights community, and disdain from prominent voices in the Islamic world, such as Egypt’s center of Islamic learning, al-Azhar, which has condemned the proposal for contradicting explicit Qurʾānic legislation. The proposal does not, in fact, categorically displace Qurʾānic inheritance law; rather, it establishes two systems of inheritance, one that modifies the Qurʾānic system of mandatory inheritance rights to make it consistent with gender equality, and one that retains the Qurʾān’s gender-based distinctions, most prominently, in the case of the brother receiving twice the share of the sister. The point that divides the main political parties in Tunisia is not necessarily the reform legislation, but what system of inheritance should apply as a default matter. The current draft legislation places the onus on any citizen who wishes to have his or her estate divided in accordance with the gender-based distinctions in Qurʾānic legislation to file a declaration with a local official of his or her intent to do so, while the al-Nahda party and its allies argue that the default rule should remain the current law, with those wishing to take advantage of the new law being required to opt in by filing a declaration to that effect.
To an outside observer, it might be difficult to understand why this proposed legislation has received so much attention or raised so much controversy, given what appears to be a relatively minor change in inheritance law. While the new law, if implemented, may not make a substantial tangible difference in people’s lives – especially given the ease with which ordinary Tunisians can continue to adhere to the previous inheritance law, regardless of the final form of the legislation – it does raise thorny theoretical questions about the nature of the Tunisian state, and the meaning of Islamic law in the modern world.
Because calls for the reform of inheritance law are grounded in deontic discourses of equality, rather than an ad hoc response to a particular social problem, calls for gender-egalitarian law reform sound like overt challenges to God’s justice, and therefore predictably arouse theologically-grounded resistance. Inheritance law reform also challenges the modus vivendi between traditionalist Islamic forces and secular modernizers in the Muslim world insofar as traditionalists agreed to defer to the judgments of politicians with respect to public life, and politicians agreed to defer to religious scholars with respect to the private sphere, at least to the extent that express Qurʾānic legislation was relevant to such questions. Qurʾānic inheritance legislation is not only express, it appears in large part to be original, and not merely a meaningful reform of pre-Islamic Arab practices, as might be said with Qurʾānic rules regarding the husband’s unilateral right to terminate a marriage (ṭalāq). If secular reason intrudes into inheritance, one might ask whether any domain of Islamic law is safe from the state.
Finally, the Tunisian reform legislation is unlikely to represent a stable equilibrium. If the majority of Tunisians continue to follow historical Qurʾānic gender-based distinctions in inheritance, as very well might be the case given the significant popular opposition to the proposal, gender egalitarians will demand that the law be reformed such that gender equality becomes a mandatory feature in inheritance, and is not subject to an opt out. All of this, moreover, is taking place against the backdrop of a still highly-unstable young democracy that reasonably fears the negative effect that “culture wars” surrounding questions of identity could have on the stability of its nascent democracy.
There are other, less controversial strategies, that could be pursued at this time in Tunisia that would further substantive gender equality in property rights without reopening potentially destabilizing identity conflicts. All Tunisian political parties should be able to find common ground in securing already-established inheritance rights for Tunisian women that are often disregarded in the countryside. (Indeed, one wonders how, if current law is disregarded in the case of the most vulnerable women despite its conformity with religious teachings, the new law, if perceived to be contrary to religion, would be better received.) Because the current inheritance regime is defended on the grounds that men bear a disproportionate share of family expenses, and are financially responsible for their female dependents, all Tunisians should also be able to agree on strengthening the remedies available to Tunisian women to claim support from both their relatives and the state, including by virtue of introducing an estate tax that could provide immediate support to Tunisian women in need of support.
This gradualist support might not satisfy human rights activists, but in my opinion, it is better to secure more modest reform if it is more likely to garner the broad approval of society and lay the groundwork for further reforms in the future. A more complete reform might be more satisfying in the short-term, but if it deepens ideological cleavages in society with little tangible gain, its long-term negative consequences might outweigh any short-term benefits.
 “UN Human Rights Chief Warmly Welcomes Move Towards Equal Inheritance Rights for Women in Tunisia,” Office of the United Nations High Commissioner for Human Rights, November 27, 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23939&LangID=E [https://perma.cc/67LX-Q9Y5].
 “Debate Heats Up in Egypt over Women’s Inheritance Rights,” Arab Weekly, September 9, 2018, https://thearabweekly.com/debate-heats-egypt-over-womens-inheritance-rights [https://perma.cc/ZM5C-V7GM].
 Andrea Taylor and Elissa Miller, “How Legal Reform Can Drive Social Change for Women in Tunisia,” Atlantic Council, March 8, 2018, https://www.atlanticcouncil.org/blogs/menasource/how-legal-reform-can-drive-social-change-for-women-in-tunisia [https://perma.cc/F7DD-QRVT].
 Fabio Merone, “Inheritance Reform Could Threaten Tunisia’s Democratization Process,” Globe Post, September 16, 2018, https://theglobepost.com/2018/09/16/inheritance-reform-tunisia/ [https://perma.cc/G2YZ-F4XB].