A Dispute over the Good for Women. And who decides it

Last update: 2022-04-22 09:23:55

The complex path of drafting the Personal Status Code in Morocco and the different ways in which ulemas, Islamists and modernists have addressed the issue of “women’s liberation” reveal how the secular and the religious have shared out the space in Moroccan society, a case in point for understanding the dynamics established between Islam and modernity in Muslim-majority countries.

Starting from the colonial period (1912), the Moroccan legal system redrafted the religious dimension in favour of positive law, while the legal field became increasingly complex and diversified. To delve into this complexity, we will consider the different concepts of the relationship between law and religion not so much in terms of regulations, but in relation to some concrete social processes that allow us to identify the actors and their use of religion and law. The process chosen for this study is the social conflict that resulted in the drafting of the Family Code in 2004.

 

The Case of Women’s Emancipation

Shortly after Morocco gained its independence, the drafting of the Personal Status Code (PSC) was entrusted to a committee of ulema in 1957. At the time, legal and political reforms were being carried out in an age of nationalist euphoria. The old colonial legal system had to be dispensed with and the PSC was used to reaffirm Morocco’s national and Muslim identity. But from being a symbol of religious and national identity, for some actors the PSC became an obstacle to “women’s liberation” and in the 1980s many intellectuals raised the question of the status of women. In 1982, Zakya Daoud published an article in the journal Lamalif entitled “The Lesser Woman,” in reaction to a text written in 1981 by some sociologists (Fatima Mernissi and Malika Belghiti) and lawyers (Ahmed Khamlichi and Abderrazak Moulay Rachid) in which they talked about reforming the PSC. From the 1990s onwards, the women’s movement regularly addressed the issue of women’s rights and in particular their personal status.

In 1992, the Union of Female Action (close to a left-wing party, the Organisation for Democratic and Popular Action) launched a petition to reform the PSC. In addition to women’s organisations, the petition was supported by two left-wing parties (the Party of Progress and Socialism and the Socialist Union of Popular Forces) and by the Moroccan Organisation for Human Rights. The movement achieved its objective of collecting one million signatures and the petition was sent to the Prime Minister. The fact that it was not sent to King Hassan II as Commander of the Faithful (Amîr al-Mu’minîn) meant that reform of the PSC was placed on a political rather than a religious platform. The Islamist group Reform and Renewal (Jamâ‘at Al-Islâh wal-Tajdîd) issued a fatwa that defined the campaign as an act of apostasy, thus bringing the issue to religious context.

In a speech on 20 August 1992, the King made it understood that changes to the PSC were his prerogative and that the women’s movement should have addressed him directly. He also asked them not to mix religious issues with civil and political issues. One month later, on 29 September, at his Palace, Hassan II received several women representing political parties and human rights organisations, with the exception of the Female Action Union, which had launched the petition, and announced the creation of a Commission charged with reforming the PSC, consisting of 20 ulema including one woman and one representative of the Court. In March 1993, the Commission delivered its report to Hassan II who, in turn, presented the reform plan to representatives of female organisations, asking them and the Commission members to reach an agreement. On 10 September 1993, the King passed the Dahir (decree, Ed.), reforming the PSC. However, the changes were considered merely superficial by feminist organisations and the debate on the PSC continued to rage during the 1990s, years marked by the consolidation of civil society and the opening up of the political regime. In 1998, this opening up led to an alternation government headed by a former opponent of the monarchy, Abderrahman Youssoufi.

Presenting his government plan to Parliament, the Prime Minister pointed to the drafting of a global strategy among his objectives, aimed at enhancing the position of women. In March 1998, Said Saadi, the Minister of Social Affairs and member of the Party of Progress and Socialism, the former Communist Party, presented the draft for a National Integration Plan for women in development (hereinafter referred to simply as “the Plan”).

The Minister of Habous and Islamic Affairs then formed an ulema committee, seeking their opinion on the Plan. The reaction of the ulema, set out in a forty page report in May 1999, was critical and negative. This was the spark that triggered an open and virulent conflict, which would divide Government, political organisations and society. The rejection of the Plan was proposed in a series of releases signed by some religious organisations, by the Ulema League of Morocco (27 May 1999), by the Unity and Reform Movement (28 June 1999) and by the Justice and Development Party. These releases insisted on the non-religious and anti-Islamic nature of the document.

 

Difficult Measures to Negotiate

The plan included over 200 measures for the most part aimed at improving the condition of women, such as literacy, economic development, skills enhancement etc. But the debate was focused on eight measures relating to PSC reform, including increasing the age of marriage to 18 years, the replacement of divorce by repudiation with judicial divorce, the abolition of polygamy (with some exceptions), the division of marital assets after divorce and matrimonial guardianship for adult women reduced to being optional.

For their part, in July 1999, the associations and independent figures in favour of the Plan mobilised to create the Network to Support the Implementation of the Plan. The response of those opposing the Plan was not long in coming, and on 7 November the National Body for the Protection of the Family was created. The Body, formed of several members of the Justice and Development Party, and the URM, the Ulema League, the Justice and Charity Movement and other associations, issued a manifesto condemning the Plan. For many months the two parties involved in the conflict resorted to all available means of communication: press releases, interviews, pamphlets, events, lectures etc.

The Prime Minister appealed to the King’s authority to end the conflict. On 5 March 2000, King Muhammad VI met with several female representatives of political parties and human rights organisations and announced the creation of a royal commission charged with preparing PSC reforms, the 16 members of which (including 3 women) were appointed by the King on 27 April 2000. The Committee’s work lasted several months. On 10 October 2003, a few months after the terrorist attacks in Casablanca, the King presented the new Family Code to Parliament, which was unanimously approved in January 2004.

A significant change can be detected within this overview: an increase in the number of actors involved in the legal field that had traditionally been a ulema monopoly. In other terms, the legal field became complex and diversified. It did not just involve ulema, but also legal and political specialists. In most secularised areas of public policy (finance, education, health, etc.) political figures were already dominating the process, according to an often implicit secular logic. Now however, the ulema monopoly on law was also called into question regarding religious issues.

 

The Ulema Monopoly

The Ulema Committee report[1] devoted dozens of pages to laying out the Islamic principles and noted that 1975, the international year of the woman, saw the beginning of the process of internationalising the women’s issue. The text also recalled other events, such as the Cairo Conference in 1984 and the Beijing Conference in 1995. This international movement, the usefulness of which was acknowledged by the Committee, intensified in the following decades until it became a political pressure tool. However, it defended a secular point of view (‘almânî) that, in a context of a clash of civilisations, opposed Islamic awakening. The first step, which is very recurrent in the cleric’s argument, is to demonstrate that the local conflict is nothing but the manifestation of a global conflict, which opposes Muslim civilisation and its secularist enemies on the international scene. This rather frequent method of invoking conspiracy theory puts Islam at the heart of the conflict, making it the target of internal and external enemies.

The Plan was also criticised for wishing to implement the recommendations of international conferences at the expense of Islamic sharia guaranteeing the rights of woman. The Plan wanted to make Muslim women into a simulacrum of Western women. Western society, described very negatively, was considered a society in which the values of religion, modesty and virtue have failed, giving way to the satisfaction of one’s instincts, to debauchery and to absolute freedom, seen as a prelude to the end of Western civilisation. The line of argument is also a classic one in this case.

However, the Commission raised two arguments that are not necessarily incompatible. The first, broadly developed by the pioneers of reformism (Jamâl al-Dîn al-Afghânî and Muhammad ‘Abduh), distinguished between the true Islam presented as a necessary condition for development and progress and the misinterpretation of Islam that was the cause of the backwardness of Muslims. Nevertheless, the appeal by the Salafis to return to the Islam of their ancestors was not necessarily commensurate with the total denigration of the West and its civilisation. However, the editors of the report needed an extreme devaluation of the West to delegimitise their opponents: the Committee therefore intended to show that the Western secular reference of the Plan was dangerous for the Moroccan and Islamic personality. Everything from the West was therefore demonised, and placed in the fight between civilisations with the aim of destroying Islam.

The idea of an Islam besieged by the depraved West has often been associated with the idea that real Islam is ignored and not applied. The backwardness of women and society in general was attributed to the non-application of Islam. The religious deficit as a cause of society’s ills has been a leitmotiv of the ulema. The family was thought to be suffering from a lack of knowledge that could not be reformed by reviewing laws, but only by restoring value to Islamic education, in families and in schools. If Islam were applied, the Muslim man would behave well towards his wife and the Muslim woman would be good and obedient. The idea was that, in relation to women, Islam should not be confused with the reality of Muslims, who may be unjust. Therefore, the solution did not lie in the revision of texts but in the good Islamic education of Muslims.

The Committee essentially appealed to a religious argument founded on the sanctity of Islamic legislation. The Committee responded to the defence strategy advocated by the Plan that stated that Islamic legislation should be adapted to socio-economic changes and the principles of democracy by maintaining that Islamic legislation is sacred and cannot be subject either to socio-economic changes or to the principles of democracy. The Committee invited to distinguish between what is contingent (zarfî) and can be changed to improve the conditions of women, and what is sacred (qudsî), which rests on the immutable foundations of the Qur’an and the hadîths. According to the Committee, issues regulated by a founding text such as the Qur’an or the hadîths could not be subject to revision (ijtihâd).

However, it did consider it possible to understand Islamic law in light of the achievement of objectives (maqâsid) of sharia, so as to simplify people’s lives and take into account the balances necessary for life in society. This is a position that was created in response to the accusation levelled against the ulema of being too literal and deaf to society’s problems. It was therefore possible for ulema and politicians to put conditions on what was made lawful by sharia based on their knowledge of the social context. In this way, it was acceptable to limit polygamous marriage if it could be proven that people abuse it. But only the ulema could make such an adjustment, as the only ones authorised to establish law on religious matters. For the Commission, however, only ulema specialised in sharia are authorised to amend the provisions relating to family law, since they concern a religious and cultural issue (amr dînî wa ta‘abbudî) that is governed by the Qur’an, by the tradition of the Prophet and by sharia. If this task was undertaken by others, it would mean straying from the right path. The first to defend this principle was the Minister of Islamic Affairs.

Having laid out the foundations of its argument, the Committee rejected the proposals of the Plan as it deemed them to be contrary to sharia. Let us consider the example of polygamy. The ulema demonstrated that it is founded on an explicit Qur’anic text (Qur. 4:3). The same verse also recommends only marrying just one woman when it is feared that the husband is unjust. It is not a condition for polygamous marriage, but an indication that monogamy is preferable if the husband cannot guarantee being just. But the justice in question concerns material rights. As regards complete justice and equality between the spouses in terms of the heart, this goes beyond human capacity.

The Committee also addressed the question on a social level, starting from two principles: on the one hand, the principle of fulfilling the interests of people avoiding evil, on the other hand the principle of the lesser evil. This is to say that the ulema recognised the disadvantages of polygamy, but also warned about the adverse impacts of its prohibition. In the absence of polygamy, men would commit sins, would have lovers or would divorce. It follows that the problems of divorce and adultery are more damaging than polygamy is for women and for society.

 

The Secular in the Service of a Religious Passion

The Uniqueness and Reform Movement (URM), an Islamist group, began its argument by highlighting that the old colonisation was characterised by the territorial occupation of Muslim countries and the plundering of their wealth, while neo-colonialism places the emphasis on political and economic dependence and, in the context of globalisation, seeks to destroy the last bastion of the Muslim family. The means used for this purpose include the recommendations that emerged from suspect conferences (Cairo 1984, Beijing 1995) and the financing of local associations on the pretext of guaranteeing women access to development. The alleged common denominator of the two conferences is the appeal for lifestyles that destroy morals and religious values, such as encouraging young people to have sexual relations outside marriage, concubinage, gay marriage, facilitating abortion in the name of the mother’s health etc. The Plan would therefore be nothing other than a reflection of the conferences that defend the defects of the West.

Even in this case, the argument centred on the idea of an Islam under siege was a prelude to the de-legitimisation of every modernist discourse. The language and topics changed, however. Unlike the ulema, the Islamists used terminology and ideas that went beyond traditional religious knowledge. For URM, the conflict opposed the supporters of the Western and irreligious (lâ-dînî) vision of society and those who treasure the Islamic reference. The qualifier lâ-dînî was often used to delegitimise the secular point of view and formed part of the new Islamic language, which the ulema rarely used.

However, unlike the Ulema Committee, the Islamist manifesto attempted to introduce nuances in qualifying the relationship with the West, noting that the problem does not arise when the international referent is at the service of justice, of equality and cooperation among nations. This reference was refused only in cases when it contradicted the Islamic referent and attempted to impose a materialist view of the family and society, which only produced social disintegration and the destruction of the family in the West. The Plan was considered an unconditional submission to the international referent. URM also denounced the imposition of an irreligious conception of society and especially the pressure for national law to conform with international conventions. In Morocco, this role was carried out by the associations that formed the Network of Support for the Plan and the Moroccan Women’s Front.[2]

Compared to the ulema, the Islamic militants were more familiar with the problems of the present. For URM, the conflict set apart those who wanted a global development that encompasses men and women together and those who started with a gender approach and situated development in the context of a struggle between man and woman. It was precisely this mixture of religious and political viewpoints, and the mixture of traditional religious vocabulary and modern terminology, that distinguished the militant Islamist from the traditional religious scholar.

In developing the Islamic concept of the family, the Movement associated a religious and traditional terminology (qiwâma, sadaqa) with a terminology close to the social sciences (functional complementarity, organisational leadership). It defined the family as an institution founded on functional complementarity (takâmul wazîfî) and on an allocation of gender roles that respected innate and biological characteristics. Conception, breastfeeding and the education of children were elements of strength and respect for women. God issued a command (qiwâma, ri’âsa) for every institution to have a leader, according to the rules of human groupings. This command, intended as protection and responsibility, is related to the obligations that God requires of husbands, and in particular the duty to provide for the needs of the family.[3] The command does not mean free will, is not in opposition to the agreement and does not exclude the voluntary and generous participation of woman in household expenses. The Islamic conception of the family is based on respect for the complementary nature of the male and female role, and not on their confusion.

On the other hand, adopting a gender-based approach, the Plan clearly opposed the Islamic concept of the family, which is based on love instead of struggle, justice and the complementary role of men and women rather than on the equality that cancels out the functional traits necessary for organising the family. The gender approach is rejected because it questions the distinction between male and female roles, claiming that these differences are not natural but social.[4]

The argument was not only religious. Unlike the religious scholar, whose role is rooted in an ancient tradition, the Islamist has greater freedom of movement among different strands of contemporary knowledge. The trajectory of the scholar in fact starts from childhood, while that of the Islamist is late and begins after conversion to Islam, which often happens during secondary socialisation (secondary school, university).

Like any ideologue, the Islamist intellectual is a bricoleur. His inclination towards bricolage is explained by his social standing (agricultural engineer, doctor, lawyer, teacher, psychologist), which allows him to be interested in both religious and non-religious literature. The Islamist does not necessarily have a mastery of religious knowledge equal to that of which a traditional scholar can boast. In fact, his curriculum vitae and work lead him towards different kinds of knowledge (the social sciences, the natural sciences), which nevertheless he does not master, either. It is this lack of mastery, accentuated by the diversity and complexity of problems which he must address, that pushes him towards bricolage.

In analysing the product of the bricolage, it is not enough to identify the mixture of religious and secular vocabulary. The dominant logic that dictates the ideologue’s choice of key components should also be identified. For the Islamist, it is the religious logic that dictates the choice of non-religious arguments, and not the other way round. Secular vocabulary serves a religious passion.

 

Religion in the Service of a Secular Passion

Proponents of the Plan were presented by their opponents as defenders of a secular, irreligious, and even heretical perspective. Taking into account the centrality of Islam in the Moroccan social and political context, it was easier to denigrate western secular ideologies than to criticise the Islamic referent. The proponents of modernist and secular ideas therefore found themselves having to come to terms with religious sentiment.

The most common idea among them consisted of demonstrating the compatibility between the Plan and a modernist view of Islam. The network that supported the Plan stated that proposals in the document had to be based on the core teachings of Islam and on the grounds of the country’s social progress. It emphasised the need to renew Muslim thought[5] and laid claim to an approach inspired by a tradition that focused on the objectives (maqâsid) of Islamic law, i.e. the realisation of the interest of human beings. Its approach was a dynamic one that took account of people’s lives, needs and changes, insisting on a direct relationship with the Qur’an and the hadîths. The modernists did not criticise Islam, but rather the human interpretations advanced in its name. The scope of women’s rights is an example of where the fiqh (jurisprudence) was limited to imitation, aborting that leap of liberation brought by the Qur’an.

The approach combined religious and sociological arguments. This amalgam is evident at the beginning of the various sections of the pamphlet produced by the Plan Support Network. Each section begins with a synoptic and didactic table that brings together the proposals of the Plan, the texts of the Personal Statute Code of 1993 and the religious and sociological arguments in support of the Plan. For example, with regard to the age of marriage for girls, a Qur’anic verse is cited (4:6) that states that puberty is not sufficient for entering into contracts, including the marriage contract in particular. It is necessary to have reached the age of responsibility for both men and women. On a sociological level, early marriage gives rise to poor relations between spouses and to harmful effects for the health of the mother and child. An official investigation is also quoted, that shows how the divorce rate is twice as high among women who married before the age of 15 compared to those who married aged between 15 and 19 (respectively 30.7% and 14.8%). On a psychological level, early marriage deprives the girl of the right to experience all the personality development phases during adolescence. In terms of health, the risk of infant mortality is higher among young mothers aged less than 20. By contrast, setting the minimum marriageable age at 18 encourages girls to pursue their studies.[6]

The leaders of the secular movement found themselves having to resort to a mixed discourse, supported by both religious and secular arguments. What can be seen is not the absence of the religious but a different use of it. It is still secular values that offer guides to interpreting Islamic tradition and direct religious justification a posteriori.

For secular actors, the use of religion is piecemeal, and often in reaction to Islamist discourse. Above all it is assumed in a secular, democratic and egalitarian logic. In a statement, the Network declared that the ulema do not exert a monopoly on truth and that no political or religious group has the right to behave like an authority claiming sole possession of it. It also recalled that some ulema, whose expertise and reputation were unquestionable, supported the Plan. What was being contested was not the legitimacy of the ulema expressing themselves on the basis of their competence, but the monopoly over legislation in complex social contexts that they claim in the name of religion. The creator of the Plan criticised the position of the ulema, placing it alongside the Shi‘ite notion of Wilâyat al-Faqîh[7] [the “the guardianship of the jurist,” on which the theocracy established by Khomeini in Iran is founded, Ed.].

Traditionally ulemas could intervene in all sectors of society, including those governed by custom.[8] This comprehensive vision was founded on the centrality of religion. The fact that the Ulema Committee commented only on a few aspects related to the field of sharia may already be considered an aspect of secularisation. The Committee’s position in fact ratifies the separation between political aspects, pertaining to politicians, and religious aspects, pertaining to the ulema and the King as Commander of the faithful. The opposing position would stipulate that sharia should apply to everything. In short, overcoming the comprehensive vision of religion by establishing the sectors to which sharia can be applied is another aspect of the secularisation of a society. This is certainly a process that the ulema do not consider in terms of secularisation, but which may be defined as such. Conversely, secularisation also applies to that process for which the religious specialists condemn political interference in their field.[9]

Even the Islamists, while far removed from any secularist ideology, contribute to the secularisation of society and politics. Their ideas and vocabulary blend the religious and secular. But, in the case studied, the dominant logic continues to be religious and this guides the choice of secular elements in their discourse.[10]

The modernists explicitly adopted the secular reference, based on secularist principles rather than on an ideology, in the sense of a system of ideas in support of political action. One of the principles consisted of separating religious authority, confined to revelation and prophetic tradition, from human authority. The objective was to have direct access to the sacred texts, by desacralising successive Islamic traditions as the result of human authority. Reducing the scope of religious authority was an aspect of ideological secularism. This enabled a greater freedom to criticise the traditions accused of obscuring the progressive side of Islam, especially those considered dogmatic. The modernists’ discourse and positions are therefore mixed. In this case however, it is the secular logic that guides the interpretation.

All our protagonists, finally, considered their approach in terms of objectives (maqâsid): the ulema and Islamists to show the pragmatic dimension of sharia, the modernists instead to support their progressive vision of progressive Islam and adding further weight to a sociological argument.

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of the Oasis International Foundation

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[1] Ministry of Habous and Islamic Affairs, “Report of the Scientific Commission regarding the so-called national plan for women's access to development” (in Arabic), Rabat, 15 May 1999.

[2] Harâkat al-Tawhîd wa-l-Islâh, Our position concerning the so-called draft of the national plan for women’s access to development (in Arabic), (Manshârât al-Furqân, Casablanca, 2000), pp. 8-14.

[3] Ibid., p. 18.

[4] Ibid., p. 20.

[5] Network for Support and Implementation of the Plan, “Our support for the Plan for women’s access to development” (in Arabic), 2000, p. 4.

[6] Ibid., pp. 15-31.

[7] Mohamed Said Saadi, L'expérience marocaine d'intégration de la femme au développement (2002). Available on www.codesria.org/IMG/pdf/SAADI.pdf.

[8] Léon Buskens, “Sharia and National Law in Morocco” in Jan Michiel Otto (ed.), Sharia Incorporated. A Comparative Overview of the Legal Systems of Twelve Muslim Countries in the Past and Present (Leiden University Press, Leiden, 2010, pp. 89-138).

[9] Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (Anchor Books, New York, 1990 [1967]), pp. 108-153.

[10] Hassan Rachik, “Where The Islamists Distinguish Politics from Preaching”, Oasis 18 (2013), pp. 39-44.

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