Marriage, divorce and inheritance

Who should reform Egypt's personal status law, and how?

"Personal status" is a modern category of Middle Eastern law grounded in Islamic religious teaching. Legislative authorities dip into centuries of religious scholarship to decide which interpretations of Sharia will be enforced by the state. Understandably, how it is done is as important as who does it. By Nathan J. Brown

In Egypt today there is little room for politics on issues in which the regime has staked out clear positions or that are deemed to be connected to security. But there is still room for vigorous debate over matters that might seem mundane, but are still consequential for Egyptians, such as personal status law.

When it comes to marriage, divorce and inheritance, there has been a steady discussion connected to Egypt’s high divorce rate, women’s rights and the role of Islamic law. A number of reform proposals have been floated and parliament is poised to take them up. Those engaged in the debate are not only individuals, but also state institutions.

Al-Azhar, a vast complex of Muslim religious and educational institutions that is part of the Egyptian state, is attempting to assert its primacy, transforming a debate over substance to one over legal, religious, and political authority. The result is not only that the personal is political; the procedural has become political as well.

"Personal status" is a modern category of law in Middle Eastern states. It is generally codified and legislated by state bodies, but grounded in religious teachings. For Muslims, that means that parliaments or other legislative authorities dip into centuries of religious scholarship to decide which interpretations of Sharia, or Islamic law, will be enforced by the state. The personal stakes many have in how this is done are therefore quite high. But just as high are the political stakes about whom should be doing the interpreting.

Minor changes can have a major impact

The process of turning religious teachings into state law often sets off debates that have wide resonance. Even seemingly small or technical changes in provisions for custody, material obligations between husband and wife, rights to inheritance, or grounds for divorce potentially affect all members of society.

Muslims break their fast during Ramadan at Al Azhar mosque in Cairo, 12 May 2019 (photo: Reuters/Mohamed Abd El Ghany)
A subtle, but profound controversy over procedure: the question is whose interpretations of Islamic law should be written into law and whose views matter. After all, even seemingly small or technical changes to personal status law, such as provisions for custody, material obligations between husband and wife, rights to inheritance, or grounds for divorce have the potential to affect every member of society

Even a proposal to have the state discourage divorce by insisting that it take place before a state official – rather than simply be declared orally by the husband – can and has provoked complaints that the provisions for oral divorce are too firmly grounded in Islamic sources for states to ignore.

The more traditionally-minded argue that those who wish to discourage divorce or strengthen the position of women have valid tools, but that tinkering with oral divorce is not one of them. Thus it is not unusual for noisy exchanges, engaging many actors, to focus on the substance of the law.

In Egypt in 2003, for instance, a protracted national discussion centred around an ultimately successful proposal to allow women the right to demand a divorce with few restrictions, as long as they abandoned most material claims on their husbands. This was a step that had a huge impact on the nature of marriage and divorce in Egypt.

What is unfolding today, however, is a more subtle, yet more profound controversy over procedure, which addresses whose interpretations of Islamic law should be written into law and whose views matter.

Al-Azhar battling to retain its autonomy

In a strict legal and constitutional sense, the answer is quite clear: any changes have to be passed by parliament. A provision in Egypt’s short-lived constitution of 2012 required that Al-Azhar be consulted in matters related to Islamic law.

This was a provision the leaders of Al-Azhar did not want, as they prefer to speak with religious and moral force, but wished to avoid definitive constitutional authority. They got what they wanted when the country’s current constitution, promulgated in 2014, promised Al-Azhar autonomy, but described the institution vaguely as the basic reference point (Al-marja‘ al-asasi) "in religious sciences and Islamic affairs", without awarding its guidance any formal or binding role.

Al Azhar's Sheikh Ahmed el-Tayeb and Egyptian President Abdul Fattah al-Sisi (photo: picture-alliance/ZumaPress)
"Having traded political authority for moral standing, Al-Azhar’s leadership now has no mechanism to pursue its hope that parliament will adopt its proposal," writes Brown. "It would seem politically difficult for legislators to say that the collective wisdom of the most respected mainstream scholars interpret Islamic law one way, but that parliamentary deputies interpret it another. But that is what some have suggested, publicly arguing that Al-Azhar cannot instruct or replace parliament"

As President Abdul al-Fattah al-Sisi and sometimes the military and security services have asserted control over almost all state institutions, Al-Azhar has battled to retain its autonomy. Therefore, when the president attempted to lecture the institution’s leadership, it set off a public clash with Grand Imam Ahmad al-Tayeb, specifically on the issue of divorce.

And indeed that argument is partly at the root of the current controversy and helps explain why it is who interprets Islamic law – more than what the law should say – that is at issue. As it observed the discussion about personal status law and worried that interpretations of Islamic teachings were too freewheeling and amateurish, Al-Azhar’s Council of Senior Scholars – a self-perpetuating body that sits atop of the institution and has stringent conditions of seniority and expertise for membership – decided to develop its own proposal. This decision essentially forced members of parliament to wait until Al-Azhar had weighed in.

The choice to assign the task to the Council of Senior Scholars was significant, as there are individual scholars and a research centre in Al-Azhar that could have played that role. But by assigning the role to the council, Al-Azhar’s leadership likely wished to bring the full moral and scholarly weight of the institution to the issue.

Religious expertise must prevail

And that is precisely what it did. In treating the matter largely as one of specialist knowledge, the scholars deliberated among themselves. While acknowledging that they received various proposals, they also insisted that their expertise should prevail on matters of Islamic law.

As opposed to other efforts to reform personal status law, Al-Azhar’s proposal carries the full prestige of the institution, but little else in terms of popular mobilisation or political coalition building. The areas with which it tinkered – guardianship, visitation rights, and even claims over material gifts offered by a prospective groom if an engagement is made and broken – are generally small and technical. Some proposals, such as allowing oral divorce, but legally requiring a husband to inform his wife if he has divorced her, seemed designed to forestall more radical ones.

Having traded political authority for moral standing (and having earlier clashed with Sisi, therefore finding itself somewhat politically exposed), Al-Azhar’s leadership now has no mechanism to pursue its hope that parliament will adopt its proposal. It would seem politically difficult for legislators to say that the collective wisdom of the most respected mainstream scholars interpret Islamic law one way but that parliamentary deputies interpret it another. But that is what some have suggested, publicly arguing that Al-Azhar cannot instruct or replace parliament.

Having come into authority by ousting an Islamist movement, but hardly promising a secular replacement, Egypt’s current leadership is now being pressed to define precisely who speaks for the Egyptian state in matters of Islam.

Nathan J. Brown

© sada | Carnegie Endowment for International Peace 2019

Nathan J. Brown is a professor of political science and international affairs at George Washington University.

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