The hadith relates the following scenario: owing to perceived defects in her husband's character, a woman was fearful that she would behave in an un-Islamic manner if she remained with him. When she told the Prophet of her wish to dissolve the marriage, Muhammad asked if she would be willing to return the garden that her husband had given her. When she agreed, the Prophet told the husband to agree to the divorce.

Central significance of family law

Just as in the case of the Tunisian family law of 1957, Egypt now also issued a new reading of a well-known textual source: whereas, from the point of view of Islamic legal scholars, the individuals in the hadith dissolved the marriage in mutual agreement, it was now emphasised that the husband was only induced to divorce his wife through the intervention of the Prophet.

Since 2000, in this nation on the Nile the role of mediator has been played by the courts which, if the wife relinquishes claims to all assets, can dissolve a marriage even against the husband's will – following a mandatory attempt at reconciliation.

Hadith literature was also used in 2004 in reforms to Moroccan family law (Mudawana) specifically in abolishing the subordination of a wife to her husband. The hadith passage in question praises as honourable the husband who appreciates his wife and castigates as a rogue the man who degrades her. Another quoted hadith serves as a reminder that men and women are born as equals.

Research is also being carried out in Germany on how this recourse to Islamic written sources is influencing current legal discourse in Muslim countries. As part of the international research project "Understanding Sharia: Past Perfect, Imperfect Present", the scholar of Islamic studies Irene Schneider is leading a research group with a special focus on gender issues in Israel and the Palestinian territories.

Drawing on Islamic traditions

In the introduction to her anthology, co-published with Nijmi Edres and titled "Uses of the Past: Sharia and Gender in Legal Theory and Practice in Palestine and Israel" (Harrassowitz, Wiesbaden 2018), the two academics demonstrate similar findings to those of their American colleagues, namely that legislative reforms thus far in the Muslim world that affect the relationship between the genders have not referred back to the western discourse, but rather to Islamic tradition.

This trend also characterises the debate over the creation of a Palestinian family code intended to replace family law packages in force to this day – the Egyptian from 1954 in the Gaza Strip and the Jordanian from 1976 in the West Bank.

As reported by Lara-Lauren Goudarzi-Gereke in her contribution to the volume, attempts to do this have so far failed due to internal rivalry between Fatah and Hamas as well as the divergent views of women's organisations and the religious Palestinian establishment.

In the most recent draft law from 2013, it may well be the case that women are given greater scope to end their marriage through khul'. But while the authors of this bill justify this reform by innovatively combining the views of different Islamic schools of legal thought, they adhere to the conservative Islamic legal maxim that allows the husband – with only a few associated requirements - to unilaterally end the marriage without recourse to a court.

Just as elsewhere in the Islamic world, Goudarzi-Gereke says that in the Palestinian case, there can be no progress for reformers without recourse to genuine Sharia traditions. Particularly in the case of the Palestinians, who have repeatedly had the legal systems of foreign powers forced upon them, the institution of the family – and thereby, also, of family law – is of central significance for the collective identity.

Joseph Croitoru

© Qantara.de 2019

Translated from the German by Nina Coon

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