Personal Status Laws in Gulf StatesA Comparative Study into Guardianship

Laws in Marriage

Haya Al-Noaimi

2014

This copy of the thesis has been supplied oncondition that anyone who consults it is understoodto recognize that its copyright rests with its authorand that no quotation from the thesis and noinformation derived from it may be published withoutthe author’s prior consent.

© Copyright by Haya Al-Noaimi, 2012-2014

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Contents

1. Introduction: 4

2. The Development of Islamic Personal Status Laws in the Formative Period: 10

2.1 The Four Schools of Thought: 122.2 The Historical Role of Women in Sharia

Courts: 16

3. Codifying Dependency: Guardianship Laws in the Modern Gulf States: 20

3.1 Role of the Guardian in Capacity and Consent: 203.2 The Marital Relationship: Redefining the

Role and Responsibilities in Marriage: 27

4. Muslim Personal Status Laws in the InternationalLegal Arena: 36

4.1 Analysis of the Convention on the Elimination of All Forms of DiscriminationAgainst Women: 38

4.2 Islamic Sharia as the Last Bastion of Control? CEDAW Reservations Made by Gulf States: 48

5. Concluding Comments: 54

6. Glossary of Terms: 59

7. Bibliography: 60

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“Society, being codified by man, decrees that woman is inferior: she can do away with this inferiority only by destroying the male’s superiority. She sets about mutilating, dominating man, she contradicts him, she denies his truth and his values. But in doing this she is only defending herself; it was neither a changeless essence nor a mistaken choice that doomed her to immanence, to inferiority. They were imposed upon her. All oppression creates a state of war. And this is no exception. The existent who is regarded as inessential cannot fail to demand the re-establishment of her sovereignty.” – Simone De Beauvoir, The Second Sex

“Women’s rights are a problem for some modern Muslim men, it is neither because of the Koran nor the Prophet, nor the Islamic tradition, but simply because those rights conflict with the interests of a male elite” – Fatima Mernissi

1. Introduction:

Imagine this, a young woman steps inside a courtroom

in one of the Gulf States and requests to see a

judge. When asked about the reason of her visit she

states that it is concerning her wish for self-

guardianship over her marriage proceedings. The reply

is polite but abrupt; her male guardian is the sole

proprietor of such guardianship rights making the

women in question redundant to this whole legal

proceeding. No explanation or alternative options are

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provided in the case that the female’s guardian is

unavailable or insufficient. The obvious question

that presents itself here is; shouldn’t a legally

mature woman have the capacity to become her own

guardian? Sadly, this is not the case. As

guardianship grievance claims grow in numbers across

Gulf court systems, this thesis takes a look at

societies that have allowed guardianship systems to

become an integral part of their personal status

laws.

When Simone de Beauvoir wrote The Second Sex in

1949 the premise of the book presented the idea that

females were oppressed because women are constantly

being identified as the Other, whereas men are the

Object. Women’s classification as the “Other”

deprives them of the power to make choices or become

participatory individuals in society similar to their

male counterparts. By being classified as the “other”

women are often infantilized in a way that

continuously reiterates the need for a guardianship

system within an already patriarchal state. The

examples of historical and social subordination of

women that are highlighted by Beauvoir’s work are by

no means a new phenomenon, yet what is alarming is

the continued perpetuation of gender inequality found

in family laws across the Gulf States today. The

gender bias in the Gulf has affected legal systems

adversely, by not fully recognizing women’s rights

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when it comes to codifying law, under the guise that

Islamic Sharia imposes such restrictions.. In most

Arab Muslim countries, the perception of gender has

been heavily dominated by cultural restrictions

disguised in the form of religious teachings. This

perception has created a male chauvinistic rhetoric,

which permeated households, school systems and

eventually the court system where to this day, a

woman is an extension of her father, brother, uncle

or any male next of kin. A choice as simple as

entering a marriage contract is a much more

complicated process involving first and foremost, the

permission of the paternal guardian on the matter and

in the case that this option is not valid, then it

would be the opinion and ruling of a judge (who for

the purpose of Sharia law must be male). In this

thesis, I will focus on analyzing Islamic

interpretations concerning gender relations, and how

it gave rise to the phenomenon of paternal

guardianship in marriage law. The aim is to provide

an alternative reading to the Quran when it comes to

female self-governance and marriage laws in the

Islamic court system. At present the state of Islamic

law, in regards to personal status law, is looked at

from the viewpoint of two extremes. On one extreme,

legal modernists feel that the archaic system

requires an immediate change to the patriarchal

nature of laws and that an urgent need exists to put

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a stop to women’s rights violations that continue to

take place in the Muslim world every day.

Traditionalists, on the other extreme, believe that

the Western world’s interpretation of human rights

and gender issues have hindered the full application

of Sharia law, resulting over time in to the imminent

dilution of God’s law. At present, many family codes

in Arab and Gulf states are based on Islamic schools

of thought that rely on a 10th century interpretations

of the Quran and Hadith, whereas the claims presented

in court are modern-day issues often extraneous to

the sources of law that are being used. What can be

observed is that implementation and interpretation of

Sharia law has been rigid and unforgiving in regards

to rights of women under family law, and guardianship

in marriage in particular. The laws and norms that

apply to men and women are distinctly different and

biased in favor of men often justified by stating the

Quranic verse of “Men are the protectors and maintainers of

women because of what Allah has preferred one with over the other and

because of what they spend to support them from their wealth”1.

Based on this premise, we can make the following

hypothesis; if financial dependency is taken out of

the equation by virtue of women supporting themselves

then it can be held that men cease to be the

maintainers or protectors of women and thus, have no

rights over their guardianship. The question that

1 Surah-Al Nisa; 34

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arises is whether or not it is the duty of the legal

system to comprehend these societal changes and to

consequently alter the laws to fit changing

circumstances. Over time, many Arab Muslim states

have evolved ways and means to maintain this gender

inequality in their legal codes by preserving Sharia

law regardless of the corresponding socio-economic

changes that took place in their societies. This

particular top-down approach of the law is in discord

with modern life and citizens have no democratic

means of contributing to the law by petitioning to

change it. When new progressive interpretations of

the Quran arise oftentimes they are judged, because

of the sanctity of Sharia law, as blasphemous. Thus,

what can be observed is that the religious

sanctification of family law in this region has

halted any form of dialogue taking place, leaving

behind a legal arena that is unreflective of the

amount of change societies have gone through since

the times of the Prophet.

The first section of this thesis will recount

the history behind the development of Sharia law, to

gain a better understanding of the region’s legal

doctrine. The historical interpretation of Islamic

law in the formative period and the role women played

in Islamic courts during the Ottoman period all

reflect a more progressive view towards personal

status laws in comparison to modern day.

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Paradoxically, during the times of the Prophet and

shortly after his death, family laws were interpreted

much more progressively. It was understood that the

Quran was never meant to provide a legal system for

the Islamic Ummah and, in fact, relies heavily on

human endeavor to interpret the text based on the

relevant time and space. Moreover, contrary to common

belief, Sharia law is based on four sources of law,

which are: the Quran, Sunnah (Prophet’s behavior),

Qiyas (reasoning) and Ijma (consensus). The last two

sources depend entirely upon human interpretation and

are contingent to the societal circumstances at hand.

Another question that arises is; why is the

human component so absent from interpretations of

Sharia law and what is the reason behind this

regression? The lack of legal development after the

10th century and political fragmentation between the

different Islamic schools of thought has considerably

closed the door on the idea of legal reasoning.

Consequently, Islamic laws have remained stagnant and

unyielding to accommodate any change, even though

Muslim communities’ needs have dramatically changed

from the 10th century. Thus, a deeper understanding of

Islamic sources of law and how these laws have come

into place will hopefully make us realize the need to

eliminate inequalities found in family codes today.

On a more practical level, a study of Ottoman Family

Courts showcases the evolution of family law from

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Sharia courts in the Ottoman Empire to the

modernization of these laws in the present day. The

importance of such study serves, as proof that what

is practiced now in the form of “Islamic law” was not

always the case back in the day. Women were active

participants in court systems with the capacity to

conclude and end contracts as they saw fit. They were

also guardians not only over themselves, but also

over their minor children, thus demonstrating that

the gradual regression of women’s rights in the legal

sphere is a product of patriarchal decisions and by no

means divinely ordained.

The second section of this thesis will be

dedicated to analyzing the present family codes in

Gulf countries. Islamic law, in most cases, requires

a male wali (guardian) to give their consent before

marriage takes place and to execute the marriage

contract on behalf of their daughters. This consent

is necessary and cannot be bypassed except in limited

and rare circumstances. For the purpose of this

paper, an analysis of family codes will mostly be

focused on the countries of Bahrain and Qatar with

further elaboration being provided on other Gulf

countries. These codes will be juxtaposed by recent

amendments made in Algeria, Tunisia and Morocco that

have led to the creation of more gender equal family

codes. On the surface level, these two Gulf States

might seem legally indistinguishable from one another

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yet, upon closer analysis their family codes showcase

the effect different Islamic schools of thought have

had on their legal development. In the last eight

years, several Gulf States have undergone the process

of codification of their family laws after being

prompted to do so by the Gulf Cooperation Council.

The fundamental problem that exists in Gulf countries

today and several other Islamic countries is that

personal status laws are inseparable from Islamic

Sharia law. What can be understood from the recent

codifications family law has undergone, in the Gulf

region, is that it is a product of “state

patriarchy”2 meaning that the process of codification

is not indicative of any civil rights’ efforts or

current debate. Instead, family codes in the majority

of Gulf countries tend to be more repressive than the

Sharia law it advocates. The reason being is that

family codes have been developed, through customary

social practice, to take the form of codified

patriarchy, giving women very little legroom to

debate laws that directly affect them. These issues

often tend to be religiously sanctified by states

diminishing in the process any form of dialogue that

could arise leading to amendments in the law. As a

result, any form of debate regarding marriage or

divorce law initiated by women’s rights groups is

often faced with the utmost hostility, considering

2 Welchman, Lynn. Women and Muslim Family Laws in Arab States. Lexington: Amsterdam University Press , 23.

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that it directly challenges an unequal status quo,

and is ultimately quashed. Legal philosophy dictates

that reasoning is rarely ever black or white. By

making family law inseparable from Sharia law and

diminishing the human intellectual component has

attributed a sense of holiness to the legal system

that is unwarranted.

Moreover, considering that the right to marriage

is a fundamental human right decreed as such by the

Universal Declaration of Human Rights this paper

argues that the right of choice to enter into a marriage

contract is an obligation erga omnes on all states in

this day and age. To understand the relation of

international law to women’s rights issues one must

first understand the nature of the sources of law

available. For the purpose of this study, the most

significant source of international law will be the

UN Convention on the Elimination of all Forms of

Discrimination Against Women in the form of a non-

binding treaty. By the end of 2007, every Arab

country, with the exception of Sudan and Somalia were

signatories to the convention. Even though Arab

states are developing and taking the initiative to

address women’s rights issues by virtue of their

accession and ratification to CEDAW, the fact that

numerous reservations were made under the umbrella of

“being contrary to Sharia law” devalues the essence

of the treaty itself. I argue that these reservations

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have, to an extent, been accepted by the

international community mostly out of a combination

of “cultural sensitivity” and an ill knowledge of

what Sharia law essentially decrees. For the time

being, CEDAW offers a reporting procedure where

signatory states undertake to submit a report

detailing the legislative, judicial and

administrative measures that they have adopted to

give effect to the provisions outlined by the

Convention. The committee then may make suggestions

or recommendations based on these reports. CEDAW’s

enforcement procedures, in comparison to other human

rights treaties, tends to be weak, and the text

itself is quite ambiguous as to what is expected out

of state parties in ensuring the elimination of

discrimination between genders. I argue that the only

way honest debate can take place about the rights of

women under Islamic law is by pushing religious

sensitivities aside. Only then can Arab states, and

Gulf States in particular, start to genuinely reform

their family codes and begin to remedy the gender

inequality prevalent in their societies. Even though

there is, to an extent, discrimination amongst the

genders in Sharia law this paper aims to provide a

deeper knowledge into Islamic law, in combination

with an analysis of CEDAW, in the hopes that by

outlining the shortcomings of Gulf states’ legal

systems towards women, more realistic recommendations

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can be made to remedy the disorder of gender

inequality in Islamic law.

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2. The Development of Islamic Personal Status Laws in

the Formative Period

The Quran was never intended to be read as a

legal text. It is a divine book that transcends

evolving societies, shifting tribes and changing

times, a text that holds both metaphorical and

literal meanings. And as with any other fundamentally

philosophical and divine text, the intention was for

the text to be interpreted with the historical

relevance of its revelation in mind. Shortly after

the death of the Prophet and prior to the end of the

10th century human interpretation of the Quran was at

its peak, at which point different Islamic schools of

thought emerged as a result of the discontent that

was felt against the Ummayed court system at the

time. This was also coupled by a transition in

political power from the collapse of the Ummayeds to

the rise of the Abbasids in 750 AD. In his book

Women in Muslim Family Law John L. Esposito talks about

how the Quran never intended to provide a legal

system in the wake of its revelation, as the verses

within it rely heavily on human interpretation. Aside

from only 80 verses that delineate divine rules the

greater majority of the Quran remains general in its

recommendations to the Islamic Ummah. Consequently,

classical theory of Islamic law depends on four

pillars, which are: the Quran, Sunnah (prophetic

tradition), Qiyas (analytical reasoning) and finally,

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Ijma (consensus of religious scholars) to construct

Islamic jurisprudence. The Sunnah consists of the

Prophet’s behavior and opinion in regards to certain

issues. These have been chronicled in the form of

hadith, which is a compilation of sayings and actions,

recorded by those closest to the Prophet. Shortly

after the death of the Prophet, and in an effort to

chronicle the majority of his actions and deeds

monetary compensation was given to contributors of

new hadiths, which eventually led to the emergence of

vast inconsistencies and fabrications. Hadiths were

evaluated and judged by on the basis of their

trustworthiness and the “character” of the person

that was recounting them. Most importantly, hadith was

also judged based on whether it contradicted the

Quran’s content and ‘essence’. The strength that was

attributed to the variety of hadiths were: Sahih

(authentic), Hasan (Fair), Daif (Weak) and Munkar

(Rejected). The third pillar of Islamic sources of

law is Qiyas, which is considered to be reasoning with

analogy. This pillar was used mostly after the death

of the Prophet when Muslim societies had to deal with

issues and situations that were outside the scope of

the Quran. At times, such issues could be resolved

through Ijma, which is consensus of religious

scholars. However, what distinguishes Qiyas from the

rest of the pillars in Islam is the fact that it is a

form of independent interpretation that was not mentioned in

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the Quran. At the start of Islam, any qualified

Muslim jurist had the right to engage their personal

reasoning to solve worldly problems. However,

different legal schools of thought in Islam began to

surface and the practice of personal reasoning began

to diminish by the end of the 10th century3 eventually

leading to the point where independent original

thought was no longer permissible. At this point

Islamic scholars were forced to follow the method of

taqlid, which literally translates to imitation, where

they would follow the teachings of their predecessors

indisputably. This was essentially the end of

reasoning because of the counter-effect taqlid had on

legal methodology. In essence, what makes this issue

so problematic is that societies are almost never

stagnant and as a result, require reasoning that is

progressive and not regressive. Shiites Muslims for

instance, still practice Qiyas by allowing their

revered Muslim jurists to engage their personal

reasoning if necessary. As a consequence, Shiite law

tends to be much more flexible, especially in family

law issues such as marriage in comparison to Sunni

law. As for the fourth pillar of Islam, Ijmaa was

considered to be the unanimous agreement of jurists

on a specific issue. It was through ijmaa that the

body of Islamic law was created. If a problem arose

3 "Ijtihad (Islamic Law)." Encyclopedia Britannica. 2014. <http://www.britannica.com/EBchecked/topic/282550/ijtihad>.

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in the community with a solution did not exist in

Sunnah, the jurists would apply their own reasoning

to the issue, with the majority reaching a consensus.

Needless to say, women were completely exempt from

this process. Over time, certain interpretations

gained more recognition in the Islamic community,

which led to the separation of Islamic schools of

thought into four distinctive schools: Hanafi, Maliki,

Hanbali and Shafi’i. A more detailed analysis of each

school will be provided in the next section.

The Four Islamic Schools of thought

In her article The Background and Formation of The Four

Schools of Islamic Law Eirini Kakoulidou states “the first

Islamic scholars were first and foremost Muslim

devotees and did not regard themselves as men of law.

Their main – and perhaps only interest – was to

explain and document the system of ritual law

practice”4. The four Muslim schools of thought had

very distinctive approaches when it came to Islamic

jurisprudence, corresponding to their different

applications of law in court rulings. The Hanafi school

of thought was known for being based on rationale as

opposed to tradition. It heavily depended on the 4 Eirini, Kakolidou. "The Background and Formation of The Four Schools of Islamic Law ." 1-14. Web. 15 Apr. 2014. <https://www.academia.edu/2310961/The_background_and_formation_of_the_Four_Schools_of_Islamic_Law>.

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usage of opinion in the process of legal analysis; in

addition to Qiyas, which is a form of personal

reasoning. As for the Hanafi school of thought, Abu

Hanifah founder of the school, believed strongly in

personal freedom. Initially, “[He] allowed unmarried

women who had reached their adulthood to be able to

marry without the intervention of a marriage

guardian. Nevertheless, the Hanafi doctrine later

restricted this right to a women who had previously

been married”5Another school of thought that was more

favorable towards women’s rights in personal status

laws was the Maliki school where, Malik Ibn Anas, the

man responsible for this doctrine depended on the

Quran, Sunnah, Ijma and analogy to formulate his legal

theory. The approach of the Maliki School towards legal

analysis was through deductive reasoning and is often

considered, alongside the Hanafi school, to be less

conservative than the other two schools of thought in

regards to gender rights. The Maliki school of

jurisprudence is followed predominantly by the Sunni

population in Bahrain resulting in more favorable

laws towards women, especially in regards to marriage

and divorce laws.

For the purpose of this essay an extensive

analysis of the Maliki school of thought will be

conducted based on Mohammed Fadel’s article

Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage:

5 Ibid, 16

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The Case of the Maliki School. In his article, Fadel tries to

reconcile between the idea of individual autonomy and

Islamic legal doctrines through analyzing the Maliki

school’s take on guardianship in marriage. Fadel’s

argues in his article that what applies to males in a

court of law should also be applicable to females,

further stating that the legal emancipation process

should be applied to both genders. The gender

inequality that exists, both historically and in

present day, consists of a male being declared

legally emancipated when he physically comes of age.

However, a female has to prove in court that she

wishes to be declared legally emancipated by proving

that she can manage her personal and financial

affairs. In the case that a female is not legally

emancipated in court, her father in his role as

guardian has the power to conduct his daughter’s

first marriage. The hierarchy of guardianship over

women tends to be held firstly; by the father but in

his absence the guardianship can be designated to

male relatives in a written testament. On the

occasion that no designation has been made by the

primary guardian or no consensus has been reached as

to which male relative becomes the guardian, the

State in the form of a male judge has the right to

become the guardian. Fadel talks about the extent of

inequality between the genders;

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“a male child [is] automatically emancipated fromhis fathers jurisdiction upon reaching biologicaland social maturity, whereas a female [is] notemancipated from her father’s jurisdiction untiltwo additional requirements are satisfied – entryinto her marital home and the testimony ofreliable witnesses that she could successfullymanage her own property...Analytically then afemale’s legal capacity can be divided into twostages: First, she is legally incapacitatedbecause of youth; second upon reaching physicalmaturity, she is treated as legally incapacitatedbecause of presumed inability to manage herproperty”6

In comparison to men, legal incapacity is presumed

non-existent unless otherwise proven in court. A

mature man could be subjected to having a guardian if

it can be proven that they have no control over their

property or finances. Thus, the fundamental flaw in

legal reasoning, in regards to guardianship in the

Maliki doctrine, is that a woman who has attained

physical maturity is still subject to her guardian’s

power and is considered legally incompetent in court

whereas a man, of the same level of maturity is

deemed legally sound by the mere fact of his gender.

Nevertheless, what makes the Maliki school of

thought distinct from the other schools of thought is

the legal recourse that is offered to women who wish to

marry against their guardian’s wishes. The Maliki

school stipulates that an “adult women has the right

6 Fadel , Mohammed. "Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the Maliki School." Journal of Islamic Law. 3. (1998): 1-26. Print.

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to use any male relative as her guardian, or even the

judge when she is unable to find a cooperative male

relative, which implies that she is entitled to marry

the groom of her choice, and indeed, it is the rule

of the Maliki school that the guardian of an adult

woman is duty bound to marry her to any free, male

Muslim who she wishes to marry”7. Furthermore, any

adult women can sue her guardian in court for

standing in the way of her marriage if it stems from

unjustifiable reasons. Fadel goes on to explains that

these two proofs of legal mechanism mean that an

adult women has an option to go to court and contest

her guardians opposition. The Maliki school is quite

clear in stipulating that the guardian’s role is to

act as an agent in the marriage contract and does not

have legal power to block an adult women’s marriage

unless serious issues arise in the choice of groom.

Fadel concludes his article by saying that “The role

of the guardian in a marriage should be interpreted

as though the guardian was exercising a delegated

power from the state is implicit in the

jurisdictional structure of Islamic law… under

Islamic constitutional law, the state is both the

guardian of those that lack a natural guardian, and

those with natural guardians8. Thus, what can be seen

from a deeper analysis of the Maliki school of thought

is that Islamic law may have limited the right of 7 Ibid, 138 Ibid, 19

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choice women have in choosing their spouse, yet it

has not completely eradicated it.

The third school to appear after the death of

the Prophet was the Hanbali school, which is considered

to be the most conservative of all schools since the

only sources of law it depends upon is the Quran and

Sunnah. Consequently, any form of Ijma was deemed to

be irrelevant, eradicating in the process the

component of public interest in the creation of legal

theory. Even though Ibn Hanbal never composed an

independent legal theory, the philosophy of the

Hanbali School nevertheless, remains present in Gulf

court systems such as Qatar and Saudi Arabia. This

conservative stance towards interpretation of legal

thought and the refusal to adapt Quranic verses to

current circumstances has created a legal system that

does not correspond to the evolving role of women,

both in the private and public sphere. In the case of

the Shafi’i school of thought, Imam Muhammed ibn Shafi’i

was a jurist who composed a seven-volume book that

dealt with a wide array of issues regarding Islamic

law. Unlike the scholars before him, Shafi’i composed

his own fundamentals of jurisprudence relying

completely on the literal meaning of the Quran and

the Sunnah. Imam Shafi’i also disregarded the

practice of private judgment in legal theory, which

gradually eradicated the process of analogical

deductions of the law.

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In her article, Kakoulidou talks about how

“consensus generally considered to be a unifying

principle of Islam has [proven] to be very successful

in smoothing out the differences of doctrine and

opinion amongst the different law schools”9However,

what makes Kakoulidou’s interpretation so problematic

for the purpose of this hypothesis is that the four

schools’ agreement that consensus amongst scholars is

essential to legal methodology promulgates the gender

bias that is found in Islamic court systems today.

The extremely limited communities of Islamic

scholars, to which no women belong to, continue to

perpetuate a gender bias through their agreement with

patriarchal legal practices. Moreover, the fact that

all four schools of thought follow consensus

indisputably makes it very difficult to propose the

idea that not all aspects of Sharia law are God’s will

and are in fact a compilation of interpretations of

the Quran that have been influenced heavily by social

norms and values. Additionally, Kakoulidou goes on

to explain “any follower of Islam had the right to

choose and join the school of their choice, and also

change their adherence to a specific school according

to their wish and without hindrances”10. Although this

9 Eirini, Kakolidou. "The Background and Formation of The Four Schools of Islamic Law." 1-14. Web. 15 Apr. 2014. <https://www.academia.edu/2310961/The_background_and_formation_of_the_Four_Schools_of_Islamic_Law>. Pg. 13

10 Ibid, 15

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might be true in essence, in practice followers of

Islam are dictated by the school of thought their

country follows. This form of trial by choice of

school did happen, at a point of time in Ottoman

Courts, where the judge would ask the plaintiff their

preferred school of thought. As a result, judgments

on issues such as inheritance, custody, marriage and

divorce were adapted based on the plaintiff’s

personal beliefs and circumstances. Unfortunately, in

recent history legal practice in Gulf courts are

limited strictly to the school of thought the country

chooses to follow with no exceptions given

whatsoever. What Kakoulidou makes no mention of in

her article is that the legal inconsistencies in

gender rights, from one school to another are highly

problematic because they were never really remedied

by court systems in similar geographic and

demographic areas. At times, the Qadi, would be given

the right to rule as he saw fit but in most schools

of jurisprudence women continue to be a legal

extension of their father with no means to legal

emancipation.

The Historical Role of Women in Sharia CourtsIn pre-Islamic society most of the legal laws to

be found were a product of urf (social custom), which

were a form of tribal customary law. Even thought the

Quran only contains 80 verses of specific legal

decrees it, nonetheless, managed to transform

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customary law into Islamic jurisprudence by building

a framework based on justice for all and precisely

defined individual right. Nevertheless, pre-Islamic

society was drastically transformed. During the time

of the Umayyad caliphate Muslim society was a mélange

of different cultures and customs. At the time non-

Arab Muslims had the possibility to attach themselves

to Arab tribes, resulting in a considerable growth in

the legal regime, which had to encompass the changing

socio-economic order. As the growing empire’s

government became more centralized and the judicial

regime was streamlined the role of the Qadi also began

to change. Qadi’s were given the full authority to

interpret and apply law, which “opened a venue for

[them] to make their peculiar contribution to the

development of Islamic law in the greater Muslim

community”11. As the Umayyad Empire began to grow and

different areas followed different local customs,

Qadi’s were sensitive to common practice and fused

social conditions with the preaching of the Quran. An

example about the two drastically different cities,

Medina in the Arabian Peninsula and Kufa in Iraq,

both under Umayyad rule were given where “The

Medinans, who hewed faithfully to the traditions of

Arab tribal law, did not allow a woman to contract a

marriage on her own; only her guardian - a father,

11 "A Concise Summary of the Evolution of Islamic Law (Sharia) From it's Inception to the Present." n.pag 2.University of Pennsylvania . Web. 10 Jan 2014.

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brother, or uncle - could give her hand in marriage.

Conversely, in Kufa, whose population was a mix of

ethnicities and whose ambiance was more Persian and

urbane than tribal, a woman could arrange her own

marriage contract without the participation of a

guardian.”12 Hence, the body of law that Qadis depended

upon was already shaped by different cultural

practices and the rulings reflected the actual needs

of society.

A crucial problem that is found in the Islamic

judicial system today is the ad hoc nature of Qadi

rulings in family law cases. Court decisions are

often based on one particular Islamic school of

thought combined with the Qadi’s limited perception

of the case at hand. Where once upon a time a Qadi

found it a necessary to better understand the

societal norms that surround the case at hand, in

more recent years, this essential legal practice is

being constantly bypassed. This strict approach that

Qadis usually undertake when making their decisions is

often attributed to Sharia law, however, Amira Sonbol

offers an alternative perspective in her study of

Women in Shari’ah Courts: A Historical and Methodological discussion.

This study shows the practice of Ottoman judges in

Egypt before the nineteenth century where the

practice of Islamic law was quite different from

today. An extensive search into Ottoman archives has 12 Ibid

28

uncovered a different legal system from the one that

can be found today. Firstly, even though Sharia court

judgments were primarily based on Islamic law,

European jurisprudence still had influence through

the practice of precedent. The importance of

precedence in family law is that it offers a form of

legal continuity and consistency when it comes to

judgments. Using precedent in family law is essential

considering that legal issues that arise can be

socially sensitive and polarizing, thus having a

legal reference in the form of precedent is

beneficial. Secondly, Qadis in Sharia courts during

the Ottoman Empire were flexible when it came to

making a judgment. Judges were guided to make their

decision based on all of the Islamic schools of

thought relevant, and most importantly, on the local

socio-cultural norms found within the community that

the case arose from. As a result of this dependency

of social custom, Ottoman courts did not

differentiate on the basis of gender, which can be

seen by the fact that many women had the right of

guardianship over their children when their husbands

passed away. The implications of this meant that

women during the Ottoman period had a particular

level of independence when it came to financial and

personal matters. The courts’ recognition of women as

being sufficient legal persons is indicative of the

status of women in society at that time. Thirdly, by

29

analyzing the flow of people that attended court and

had access to the Qadi, Sonbol argues that the

courtroom was central to people’s lives. Access to

the Qadi was simple, which explains why a myriad of

people from different social and educational

backgrounds came forward and filed cases, asking for

justice. In return, judgments passed by the Qadi were

essentially based on social customs people were

familiar with and could relate to. It is also

interesting to note that at the time, each courtroom

had representatives from the four different Islamic

schools of thought so that the claimant had a choice.

This is an interesting notion because had this

practice continued to exist, women could, if

necessary, legally defend their choice in marriage by

reverting to the Hanafi school of thought, which

allows women to be her own wali13 and to give

themselves away in marriage without the presence of a

male guardian.

Contrasted with the state of courts in many

Muslim states today, filing a case or contesting a

marriage or divorce contract is often a complicated

process, often requiring the presence of the woman’s

guardian to initiate court proceedings. Therefore, it

comes as no surprise that oftentimes women perceive

13 In the Arabic language a wali denotes a willingness to take up authority or to administer a contract. This usually takes the form of wali mujbar, which is determined through fatherhood or waliikhtiar which is a chosen guardian if no paternal guardians are alive or present.

30

court proceedings with trepidation knowing that

family laws are gender biased, coupled with the

stigma society attaches to women going against their

fathers or husbands by fighting for their rights,

which in turn results to limited access of the court

system. These historical accounts of women in Muslim

courts can annihilate the prevalent ideas that

portray women’s role in society as historically being

secondary to males. As readers of history, these

accounts are fundamental to one’s understanding of

the regression of women’s rights in Islamic law. In

her concluding remarks Sonbol states, “this does not

mean that pre-modern system was not patriarchal. It

was a different type of patriarchy than the one that

exists today where state power is used to enforce

legal patriarchal rules that confine the activities

and rights of women. Put differently it is not a

question of God’s laws that cannot be changed; rather

it is a patriarchal state that refuses to change laws

controlling gender and family”14What can be best

understood from Sonbol’s study is that both the

behavior of Qadi’s and the structure of the legal

system during the Ottoman period not only outlined

society’s ideological stance but also the cultural

fabric of the people. What made Sharia law so

distinctive from other bodies of law worldwide is the

14 Sonbol, Amira. "Women in Shari’ah Courts: A Historical and Methodological discussion." Fordham International Law Journal. 27.1st (2003): 225-253. Print.

31

fact that it has seeped into the fabrics of society

by becoming part of everyday life. Both the public

and private spheres in society are dictated by what is

considered to be permissible and what is not. In a

sense the individual practice of reasoning that

humans are meant to employ in their day-to-day lives

have been paused indefinitely. As can be seen from

Amira Sonbol’s article, Sharia permeated the lives of

the whole community and Qadi’s, were a product of

their social surroundings. As Foucault once said “law

is not just rules and principles, it is constantly

growing as the exercise of power”15 and to have Sharia

law be so intertwined with the daily lives of people

can be problematic if the interpretation and

application is not up for debate. I believe that

prior to the codification of the law, Islamic

jurisprudence was on the right path to becoming an

egalitarian body of law based not exclusively on the

verses of the Quran but also through human reasoning.

In the next section I discuss how family law

codification in the Gulf States of Bahrain and Qatar

have affected and been affected by women’s rights

issues and the impact such codifications have had on

the framework of society.

15 Beck, Anthony “Foucault and Law: The Collapse of Law‟s Empire”, 16 Oxford J Legal Studies (1996): 489-496. Print

32

33

3. Codifying Dependency? Guardianship Laws in the

Modern Gulf States

The centrality of marriage to Islamic

jurisprudence is evident in the Quran and Hadith,

where one verse states “He created for you, of

yourselves, spouses, that you might repose in them

and has set between you love and mercy” (30:21). Our

approach towards explaining Islamic jurisprudence in

regards to marriage can be divided into two parts;

firstly, the rules that govern the drawing up of the

marriage contract and secondly, the rights and duties

of husbands and wives after marriage. Moreover, in

the past ten years, Gulf States have witnessed a move

towards codification of family law. The Muscat

Document on the Unified Personal Laws in the GCC

states, which has been approved by the GCC Supreme

Council in December 1996, set up a radical model for

codifying Sharia-based family laws in the Gulf. This

led to codifications happening in Qatar in 2006 and

in 2009 for the Sunni population in Bahrain, amongst

other Gulf States. As a result, there are several

points of convergence in family laws across the Gulf

States, such as marriage of minors, the male

guardian’s consent in marriage contract proceedings

and different marital responsibilities for both

genders will be reviewed and analyzed. The majority

of Gulf States still require the consent of the

guardian to conduct the female’s marriage contract

34

with no legal options offered to protect females

against coercion or alternatives in the case of

insufficient guardianship.

Role of the Guardian in Capacity and Consent

The role of the guardian in terms of marriage,

under Gulf law, applies to both minor women and women

of legal majority. In regards to marriages of minors,

all legal schools in Islam agree that a girl’s father

has the legal right to marry her off without her

consent if she happens to be a minor. Even though

this jurisprudence applied to both minor female and

male wards, social practice dictated that lack of

consent usually affected females more. In recent

years Gulf personal status laws were under pressure

to set an age for marriage, eventually settling for

16 years of age for females and 18 years for males.

Under both Bahraini and Qatari law, if the female was

to enter into a marriage contract under the age of 16

the law stipulates the consent of the guardian and the

consent of the court. This exception proves to be

highly problematic because neither party involved in

facilitating the marriage can be considered

impartial. In most instances of marriages involving

minors the female’s guardian feels strongly enough

about the marriage that he would rather not wait for

two more years to conduct it independently without

the involvement of the court. Moreover, in a society

35

that is heavily interlaced with strong kinship ties,

it is a rarity for a judge to go against the word of

the female’s guardian, considering that no imminent

danger arises from such a union. Even though the

average marriage age in the Gulf has shifted

dramatically from the age groups of 15-19 to 20-24

year olds making marriages of minors not an everyday

occurrence, Gulf personal status law still do not

protect young females from such arrangements when

they do arise. Contrary to Gulf males who have the

freedom of choice de facto once they turn 18, females

under the age of 16 are under grave danger by not

having an impartial party representing them whilst

conducting their marriage contract. It is also

interesting to note that all Gulf states have signed

and ratified the Convention on the Rights of Child,

which is a legally binding international agreement on

the rights and welfare of children that strongly

condemns child marriages.

Current legal systems in the Gulf have protected

the rights of males by setting the age at 18 and yet,

females as young as 15 in Bahrain and 16 in Qatar can

get married by proxy through their fathers. Legal

modernists argue that the reason driving child

marriages to be condoned is a societal and

patriarchal effort to curb pre-marital sexual

activity, especially with young females. The phrasing

“unless an urgent necessity exists” that is used by

36

courts in Arab countries, to sanction child

marriages, relates to circumstances where the minor

female may have gotten pregnant or had extra-marital

sex. As a result, the guardian would usually push for

his female ward to get married as soon as possible to

limit the risk of a scandal arising. However, amidst

the hype over intact hymens and sexual morality, laws

that allow minors to enter into marriage contracts

have become fair game. Documented cases in Arab court

systems show that the use of the “sexual morality”

clause has been applied so strictly, even in the case

of non-consensual sex, where young girls were married

off by the guardians to their rapists in an aim to

protect the family’s reputation. Additionally, the

young age set by the court system affects females, in

child marriages, by creating an unhealthy power

dynamic within the marriage itself. Statistics have

shown that in child marriages around the Arab world,

females are much younger than their husbands16, which

correlates to higher rates of dropping out of school

and lower chances of employment. Social and legal

reformers have long argued that marginalizing the

issue of child marriages can have devastating mental

and physical effects on the psyches of young women

involved. As a result, NGO’s in Bahrain lobbied

heavily to have this law changed in 2007 where 16 Fahmi, Roudi, Shaimaa Ibrahim, et al. "Ending Child Marriage in the Arab Region." Population Reference Bureau. (2013): 1-8. Web. 19 Mar. 2014. <http://www.prb.org/pdf13/child-marriage-arab-region.pdf>.

37

Article (10) states: “No marriage contract may be

concluded or ratified unless the age of the wife is

fifteen years and the age of the is husband eighteen

years at the time of concluding the contract, unless

an urgent necessity exists, justifying marriage for

people less than this age. A court permission is

mandatory in this case”17. In a shadow report prepared

by Bahraini NGO groups they stated “although this

decision may contribute to limiting cases of marriage

below the legal age, it nevertheless represents a

clear discrimination against women through specifying

a lower age for women than men.”18.

Even though cases of child marriages are not as

prevalent in the Gulf as they are in less

economically privileged countries in the Arab world,

legal systems in Egypt and Algeria, for instance,

have targeted this problem through their statutory

legislation. In Algeria’s 1984 law the capacity for

marriage was set at 21 for males and 18 for females

allowing the court to allow a marriage to take place

if there was an urgent reason. In a move towards

gender equality, Algeria’s 2005 amendment set the

marriage age at 19 for both males and females. In the

case of Egypt, notaries were not allowed to register

marriages of males under 18 or females under 16 thus,17 Article 10, Ministry of Justice and Islamic Affairs, 200718 United Nations. Convention on the Elimination of Discrimination Against Women. Shadow Report Convention on the Eliminationof Discrimination Against Women. Manama, 2008. <http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Bahrainwomenunion42.pd>

38

curbing the right to claims in the court systems

arising from such marriages in the hopes that it

would deter citizens from entering in child

marriages. Consequently, what can be seen through the

examples of Egypt and Algeria is that there is an

active effort to curb the effects of child marriages

on the community taking into consideration that such

practices are no longer in agreement with the modern

way of life that their citizens lead. In the case of

the Gulf States, codification of personal status laws

has been a failure because it does not protect the

rights of the females, nor of their status as a

child. As in the case of Algeria, the age of marriage

for women must immediately be raised to 18 years of

age so that the female can legally represent herself

in the marriage. The legal dilemma that arises is

that as in all contracts, responsibilities and

stipulations are imposed on both parties and yet, one

party does not have the legal capacity to represent

herself when entering into the contract. Marriage of

minor women prevents them from having a stake or

being able to negotiate the conditions of the

marriage, since the female ward remains in the shadow

of her male guardian. At a time when modernization

and development is integral to the development of

Gulf societies, laws on child marriage cannot be

pushed to dark fringes of the social development

agenda, but instead must be brought to light,

39

discussed, rebutted and changed to empower females to

have a say in the legal system and for the court

system to recognize that demand.

Guardianship in marriage does not only extend to

age of capacity of the female ward, but also to women

of full legal majority. In the case of a women who

has reached legal majority, the guardian must not

stand in the way of her having a “suitable” marriage,

which is determined through the doctrine of kafa’a.

Islamic Sharia law dictates that when it comes to

choice of partner, both men and women should choose

their spouse based on kafa’a. The doctrine of kafa’a

revolves around social equality that is centered on

both partners having the same religion, lineage,

level of wealth and piety. Scholars attribute the

development of this doctrine to the Hanafi school of

thought where guardianship is not a legal requirement

to the marriage of women who were of legal age.

Legally, the doctrine of kafa’a relates to the issue of

guardianship in two different ways. Firstly, in the

case that the guardian opposes the marriage of his

daughter; the women can take her case to court on the

basis of kafa’a. If the Qadi reviews the case and finds

that the guardian’s objection is misplaced, the Qadi

may rule in favor of the marriage. Moreover, in the

case that a women was able to get married without the

presence of her guardian, as is the case in the Hanafi

and Maliki schools, the guardian himself can petition

40

the court to annul the marriage if he feels the

husband does not fulfill the requirements of kafa’a.

Secondly, the argument of kafa’a can also be used by

the women and her guardian against the husband, in

case the groom has deceived the family about his

background. The argument of kafa’a distinguishes

Muslims based on their tribe and their lineage,

something that was very much the case in Iraqi

society where the Hanafi School was nurtured. Abu

Hanifah, who was the chief justice in Baghdad at the

time, was faced with a situation where different

classes of the populations wanted to intermarry. In

pre-Islamic Arabia, marriage was not highly

institutionalized which can be judged by the

prevalence of muta’a marriage, where the duration of

the marriage and the dowry are settled beforehand.

Kafa’a also goes against the practice of the Prophet

who himself was poorer than his wife Khadijah and was

quoted to have said “There is no merit for an Arab

over a non-Arab, merit is by piety”19. Nevertheless,

kafa’a was established as a way to deviate

guardianship by putting forward a framework for

choice of marriage partner. Even though this choice

may seem to be for women and men alike, this doctrine

was initiated as a way to control the choices made by

a women or her guardian to make sure that she did not

marry beneath her social class. On the surface level,

19 Hadith quoted from Prophet Mohammed in his last sermon. http://www.soundvision.com/info/hajj/lastsermon.asp

41

kafa’a may seem like a small window of opportunity for

women to argue for their choice of spouse by proving

suitability, in reality this doctrine promotes

inequality amongst Muslims themselves and hinders the

process of marriage. However, the doctrine of kafa’a is

not redundant to our argument of guardianship.

Although kafa’a in this day and age may be viewed as

codified racism when it comes to marriage laws, the

way kafa’a came about was to address changing marriage

patterns in a once conservative society. A lesson

that could be learnt by Gulf court systems today is

that alternative legal venues or requirements must be

developed to determine marriage that are autonomous

to guardianship acquiescence. Considering the tight

family structure of Gulf society, disagreements

between guardians and their female wards are not

frequent. Therefore, the number of such cases that

actually end up in court will be limited but,

nevertheless, a legal remedy to such disagreements

will be an available option if needed.

In Lyn Welchman’s book Women and Muslim Family Laws

in Arab States she gives a practical overview of the role

guardianship in marriage in several different Arab

States. The laws on guardianship in both Bahrain and

Qatar only differ slightly, where Qatar’s personal

status law article’s 28 and 29 state respectively:

Article 28: “The women’s guardian carries out her marriage contract with her consent”

42

Article 29: “Marriage is concluded with the permission of the qadi by the guardianship of the more distant guardian in the following two cases:1. If the closer guardian obstructs the woman, or

there are a number of guardians in the same level of relationship and they all veto or differ.

2. If the closer guardian is absent, and the judge considers that waiting for his opinion will result in the loss of a benefit in the marriage”

In layman’s terms, the guardian is essential in

conducting the marriage contract since the above laws

make the husband-to-be and the male guardians the two

contracting parties to the marriage. Consequently, a

marriage conducted without the guardian is null and

void and will not stand in court. Moreover, if a

problem presents itself with the male guardian then

guardianship must be passed down the family line to

the relevant male kin, if none present themselves only

then can the Qadi rule for or against this marriage

by being the proxy guardian. In the UAE, the law

goes so far as “voiding contracts concluded without

the woman’s wali and ordering the separation of the

spouses, although establishing the paternity of any

children from such marriage to the husband”20.

According to Welchman’s research on this matter,

several jurists based in the UAE took the opinion

that the alternative route to not getting the

20 Welchman, Lynn. Women in Muslim Family Laws in Arab States. 1st. Amsterdam: Amsterdam University Press, 2007. 9-243. Print.

43

guardian’s consent was the path to urfi marriage. In

Islam urfi marriage is a customary marriage that is not

registered with state authorities whereby the two

parties sign a contract in the presence of two

witnesses. The issue with urfi marriages is that they

tend to be very taboo, especially in Gulf region and

are viewed as a glorified sexual relationship under

the guise of marriage. Even though urfi marriage

circumvents the need for a guardian, the opposite is

not true. If a guardian does not partake in a

marriage contract that is legally registered in a

court system through a Qadi then this marriage is

fully legal and cannot be considered urfi.

In the case of Bahrain, Islamic Sharia is the

source of all verdicts in the court system. In the

mid 1920’s the court system separated into two sharia

courts: the first for Sunni jurisprudence and the

second was the Jafari court for Shiite jurisprudence. In

1982, women’s societies formed a committee, which

lobbied for the adoption of a codified personal

status law immediately. Members of this committee

included lawyers, activists and Sharia scholars,

people from all walks of life that viewed

codification as a beneficial to the family structure

in society. However, the codification of personal

status law was not accepted by all and faced major

opposition from the Shiite population, who believed

that a unified law for both Sunni and Shiite was

44

unacceptable. Moreover, Sharia scholars protested

against the nature of drafting this law by lawmakers

and not religious scholars would essentially make the

law lose its religious qualifications. Currently,

Sunni courts have adopted a codified personal status

law whereas the Jafari School has not. In regards to

Bahrain’s take on guardianship, the consent of the

guardian is necessary to conclude the marriage

contract, as is the case in Qatari law. However, the

wording of article 15 in its personal status code is

different whereby it stipulates that the guardian

cannot hinder the marriage without a reason based on

Sharia. As unsubstantial as this provision might

seem, it gives Bahraini women the ability to appeal

their case in court by arguing that guardianship in

their case is hindering their marriage.

Interestingly, the Jafari school of thought, whom the

Shiite population follows in Bahrain, allows the

women to be her own guardian when conducting her

marriage contract. What the Jafari School concluded was

that in the case of an argument between the women and

her guardian, the judge has the power to interject

and conduct the marriage contract, consequently

eliminating guardianship as a prerequisite.

Most Gulf States today have come to a consensus

that a guardian is necessary when conducting a

marriage contract, with the exception of Kuwait,

which gives some freedom for women above the age of

45

25. Kuwait’s 1984 Family law contained 346 articles

that governed family issues ranging from marriage,

spousal responsibilities, inheritance and divorce.

Although the 1984 law was written with women’s rights

and issues in mind the text itself still contained

many loopholes. . Articles 29, 30 and 31 of Kuwait’s

codified family law states that were amended in 2004

state: Article 29:a) The guardian in the marriage of a virgin who is

between the age of puberty and twenty-five yearsis a male agnate according to the order ofsuccession, and if no agnate exists, guardianshiptransfers to the judge.

b) It is stipulated that the guardian and the personwho is the subject of the guardianship be inagreement.

Article 30: A women who has been previously marriedor who has attained twenty-five years of age hasfreedom of choice in her marriage. She shall nothowever make her own contract; this shall be doneby her guardian.

Article 31: If the guardian prevents the marriage,she is entitled to bring the matter before a judgefor him to order or not to order marriage. The sameapplies if there is more than one guardian and theyare of equal status, whether they jointly preventher marriage or they disagree.

Welchman talks about the case of Kuwait in her book

where “a 2004 amendment to the 1984 law exceptionally

allows a previously married woman to ask the judge to

conclude the contract of her re-marriage to her

former husband…Moreover, after the age of 25, the

guardian is to conclude her marriage, in view of

46

tradition and preservation of the status of the

guardian. In the event of his refusing her marriage,

the Qadi is entitled to intervene and marry her to a

man of her choice if he considers it appropriate”21

Even though the role of the guardian is not

completely extinguished, whereby the guardian remains

as a contracting party to the marriage contract, the

female ward nevertheless, has the right of choice, a

phrase only mentioned as of yet in the Kuwaiti

personal status code. Unlike the other Gulf States,

Kuwait’s personal status law on marriage reflects the

changes occurring in society, through women’s rights

groups and associations that put pressure on

governments to amend gender biased law. The inherent

difference between Kuwait and Bahrain, in comparison

to other Gulf countries, is their history in forming

democratic institutions, which in part, create the

right conditions in civil society for organic change

to be initiated by the people, for the people.

The problem with minimum age of marriage and

guardianship laws in Gulf family law is that there

has been no consistency with the efforts made by the

state to establish a standard practice. There have

been some efforts by women’s groups to raise the

minimum age of marriage to the legal age of capacity

agreed upon in the country however Gulf civil codes

have yet to reflect this modification. Welchman

21 Ibid, 71

47

concludes in her chapter that in terms of family law

codes, Gulf states such as Qatar and UAE tend to be

on the far end of the spectrum from states such as

Morocco and Tunisia, who have been able to increase

the minimum age of marriage and no longer require the

guardian’s consent for a women who has reached legal

capacity. Moreover she states, “public debates tend

to uphold the view that the involvement of the family

is, at the very least, desirable, particularly in the

marriage of a female, and removal of this involvement

from statutory legislation (through the removal of

the need for the guardian’s consent) remains

contentious”22. In my opinion, uninformed public

debate is a symptom of a much larger problem being

that the unequal nature of the legal system dictates

the role women play in the private and public sphere.

If women continue to be treated unequally in the eyes

of the law, this automatically weakens their position

in society and perpetuates a culture of patriarchal

protectionism. As in the case of Morocco and Tunisia,

there were discussions about guardianship and minimum

age of marriage that sparked huge debates within the

society, however these debates were then channeled in

a way to bring change to family laws from a bottom up

approach.

22 Ibid, 76

48

The Marital Relationship: Redefining the Role and

Responsibilities in Marriage

In Islam, the nature of the marital relationship

is based on rules and responsibilities for both

genders. There are mutual rights that both genders

enjoy such as cohabitation, sexual relations and

respect from the other. After that, marital rights

take a gendered turn where the responsibility of the

husband is two-fold; to pay the dower to the wife and

to provide financial maintenance. As for the wife,

her responsibilities extend to peaceful cohabitation,

taking care of the children and most importantly, her

duty to obey. Even though there has been much socio-

economic change to society, the financial role that

the husband plays is integral to the power dynamics

found in most Gulf households. In the case that

“women choose or are obliged to enter the waged labor

market and to contribute financially to the

household, the unaltered premises of the law in most

countries means that this contribution is not

recognized as altering elements of the equation”23

In terms of the marriage contract, a central

feature is the dower where it is “either an effect of

the contract or a condition to its validity”24. The

Quran states that the dower is a mandatory free gift

to the wife from the husband with no conditions

attached, since common practice before Islam was for 23 Ibid, 8924 Ibid, 90

49

the guardians of the female ward to give her away in

marriage whilst keeping the dower for themselves.

Ordinarily, the bride would collect her dower, or at

least a significant portion of it, at the time of the

signing of the contract. Historically, in practice

women would collect the remaining of their dower

after consummation of marriage. Judith E. Tucker in

her book Women, Family and Gender in Islamic Law states

describes the dower as an “important transfer of

property”25 where the woman was endowed with such

amount of money to be able to enter the marriage with

a stronger foothold considering the traditional view

held that the man was head of the household.

Once both parties have signed the marriage

contract and consummation has taken place, to

authenticate the marriage, a certain set of rights

and responsibilities apply on both husband and wife.

Most prominently, the husband has a duty to

maintenance, whereas the wife has a duty of obedience

to entitle her to receive this maintenance. Common

agreements amongst Islamic jurists about what

constitutes maintenance include clothing, food and

lodging. The concept of maintenance was viewed by

some schools, such as the Maliki’s as a form of

compensation for sexual enjoyment where serious

consequences would follow in the case of non-payment.

However, this arrangement proves to be problematic on

25 Tucker, Judith E. . Women, Family and Gender in Islamic Law. New York: Cambridge University Press, 2008. 1-247. Print.

50

a theoretical level considering that women are held

in a state of financial dependency by their husbands

depending on their sexual willingness and the extent

of their obedience. With fiscal responsibility comes

dominant power in the sphere of the household, as

Beauvoir mentioned, thus perpetuating the idea that

women need to be “maintained and protected” in return

for their ultimate compliance. On a more practical

level, even though Gulf States such as Qatar and

Bahrain both adopted legal provisions that state that

there shall be no discrimination amongst the sexes,

the reality is far from that when it comes to legal

responsibilities in family law. For instance, both

Qatar and the UAE laws on marriage state that the

rights and responsibilities of the spouses are gender

specific. Article 55 of Qatar’s codified personal

status law on marital relationships states “A valid

marriage gives rise to rights that are shared between

the spouses, and to rights particular to each of

them, in accordance to the provisions of this law”26.

The articles that follow go into great detail about

the wife’s rights to a financial maintenance, the

right to be allowed to visit her parents, the right to

not be injured physically or mentally. Amongst the

rights a husband should expect from his wife include

“caring for him and obeying him in accordance to

custom; looking after herself and his property,

26 Article 55, Law No. 22 of 2006. Qatar

51

managing the house, looking after his children”27. In

return for the women’s full compliance a husband

“shall give his wife the opportunity to complete her

education to the end of the mandatory period and

shall facilitate her pursuit of university education

inside the country, in so far as this does not

conflict with her family duties”28 and provide her

with a shari maintenance.

In Arab countries that are less well off

financially, claims from women for their maintenance

are an everyday occurrence in the court systems. Poor

women who live in agricultural societies where the

social system is based around men toiling the land

and women taking care of the house and children have

become entrenched in a system where the husband,

controls the household income where the shari

maintenance is deducted from. The man’s labor is

commodified in the form of an income that he gets

from his work whereas woman’s labor isn’t considered

as a commodity, which can be traded for a salary. The

reason behind such distinctions is the mere fact that

the socio-economic nature of Arab societies does not

recognize the work women undertake in the private

sphere, frees up the men’s overall time to be able to

perform work outside the house. When Islam was first

introduced, communities were relatively small in size

and the role of each gender was determined according 27 Article 58, Ibid28 Article 68, Ibid

52

to the family structure at the time. However, when

Arab societies developed and started to shift from

agricultural societies, the household dynamics also

began to change. Thus, the inherent problem of

maintenance in modern society is that women, who work

in the house, do not have an equal stake of the

income as a constant, irrespective of their

“obedience” to their husbands or not. Moreover, Arab

states have failed to perceive women as an equal

partner to the household so long as maintenance is

mandatory on the male and obedience is a requirement.

The articles goes on to outline that the woman is not

entitled to financial maintenance if she disobeys the

husband by leaving the house without permission or

chooses to work without her husband’s permission. In

Greer Fox’s article “Nice Girl”: Social Control of Women Through

a Value Construct she talks about three strategies,

similar to marital duties and rights imposed on women

in Islamic law, that are used to regulate the freedom

of women. The first strategy used is confinement where

women are constrained physically within the

boundaries of their home and cannot move freely. This

strategy is clearly evident when we review the wife’s

duty to ask her husband’s permission to leave the

house and to travel. The second strategy is protection

where the women’s access to the public sphere is

guarded by her “designated protectors”29, in our case

29 Fox, Greer Litten. ""Nice Girl" Social Control of Women Through a Value Construct." Journal of Women, Culture and Society. 2.4

53

these would be the fathers that execute the marriage

contracts and later, the husbands who become the

protectors of women by providing them maintenance.

The last restriction, and the most invasive, is

described as a “normative restriction” which is a form of

self-control over social behavior. The legal

expectation for women to be virtuous, chaste and in

the Muslim world, obedient has led to years of women

being subservient to their male counterparts in the

so-called name of religion. Even though in theory,

the adult Muslim women is free to move around, in

practice if the husband chooses to enforce the law

this freedom can be stripped away based on

“disobedient behavior”. Fox also goes on to talk

about how these controls are administered where

confinement and protection are both external actions

such as the husband allowing the wife to complete her

education so long as it does not conflict with her

familial duties. However, self-control over behavior

is very much internalized by the women who are

conditioned by laws that evaluate good behavior

through shari maintenance. Consequently and over time,

a woman that behaves out of line and who loses her

entitled maintenance as a result will correct her

behavior accordingly, as a means to her survival.

(1977): 805-817. Web. 1 Apr. 2014. <http://www.jstor.org/discover/10.2307/3173211?uid=3737432&uid=2134&uid=374707573&uid=374707563&uid=2&uid=70&uid=3&uid=60&sid=21103892777743>.

54

Conversely, when observing other Muslim states

that have taken a different approach to marital

rights and responsibilities the North-African states

of Algeria, Morocco and Tunisia all have family codes

that reflect a deeper sense of cooperation between

the two genders. New amendments in Algeria and

Morocco have led to the law being changed into “the

husband is to maintain the wife and children in his

capacity as the head of the family while the wife

shall participate in maintenance if she has the

means”30As a result, there has been a real

acknowledgment of the power sharing that goes on in a

marriage by such states. Interestingly, North African

Muslim states such as the above have long had a

history in open debate when it came to Islamic legal

reforms. The process of reforming Islamic law started

well into the 19th Century where Ottoman reformers

introduced commercial and penal codes, where marriage

laws were not featured. As a result, marriage laws

were left in the hands of Islamic legal schools at a

time where Islamic scholars wanted to reform marriage

laws by orchestrating a return to primary texts to

resolve inconsistencies between Sharia and modern day

life. Much of the Sharia, at that time, was being

overshadowed by European codes and was under much

scrutiny by European colonialists who used women’s

rights in Islam as proof of the inferiority of the

30 Article 23, 1956

55

Islamic culture. Considering the circumstances,

Islamic scholars chose to reevaluate the key sources

used to produce marriage laws. Tunisian scholar Al-

Tahir Al-Haddad, a 20th Century reformist, who went

about exploring the essence of marriage and the power

dynamics created by matrimony within the household.

The response he got from his research on the subject

showed that some schools of thought had the opinion

that women were equal partners in the household,

whilst others held the belief that households were

hierarchal structures with husband holding the

position of head, as is religiously decreed. Al-

Haddad also explored the question as to whether women

can be forced into marriage by their guardians or

not. Both the Hanafi and the Maliki school upheld the

belief that women should not only have consented to

the marriage, but also have some choice in choosing

her marriage partner. Malak Hifni Nasif who was an

Egyptian writer, one of the few women who wrote about

Islamic reform at the time, wrote heavily about the

significance of compatible marriages. Even though she

was a supporter of arranged marriages, she emphasized

the importance of having the couple meet before

writing the marriage contract, giving them ample time

(under parental supervision) to get to know one

another. She strongly argued that marriage of minors

would eventually lead to the deterioration of the

family structure due to the young girl’s lack of

56

knowledge as to how to raise a family and take care

of a husband and household.

Most Islamic scholars at that time viewed reform

as an “attempt to realize God’s justice in the modern

world… and also as a political project aimed at

strengthening the social fabric of the Muslim

community”31. Moreover, it is interesting to observe

that the Muslim scholars, at the time, who chose to

reevaluate notions about marriage under Islamic law

were not directly involved in the subsequent reform

of legal codes, that took place. The project of

reforming the laws taken up by national lawmakers

meant that Islamic scholars’ opinions and experiences

on certain issues were assessed when creating the

legal reforms for marriage. The result is evident

when we compare the legal evolution of states such as

Algeria, Tunisia and Morocco to other Gulf States.

North African states were much more susceptible to

legal debate about religious issues, never really

shying away from criticizing practices that no longer

were compatible with day to day lives. However, the

practice of legal reform in Gulf States never really

involved open, public debate because marriage and

family laws were always viewed as religiously

sanctioned issues not to be meddled with. I believe

that the codification of laws in Gulf States after

the Muscat Document came into existence has actually

31 Tucker, Judith E. . Women, Family and Gender in Islamic Law. New York: Cambridge University Press, 2008. 1-247. Print. Pg.69

57

led to the deterioration of women’s legal rights

where the women continue to be an extension of the

central male figure in the household. The Muscat

document has allowed structural inequality to become

codified in the legal system, irrespective of the

fact that such a marital structure proposed by the

codes does not reflect the socio-economic realities

of today. In comparison to Algeria, Morocco and

Tunisia who also had inter-state cooperation when it

came to codifying their family law, such gender-

biased rules and responsibilities have been

completely eradicated from the law. Tucker describes

marriage in the legal cannon as a “contractual

relationship that conferred rights and duties in a

highly gendered fashion. Husbands and wives, while

subject to similar moral exhortations to support and

cherish each other, were assigned very distinct

responsibilities and privileges. The jurists thus

inscribed gender differences in the rule of marriage.

This was not a regime of equality nor did it aspire

to be one. Rather, the rules of Islamic marriage

constructed the Male as breadwinner and patriarch of

the household, and the Female as dependent and

subservient”32 The only way real legal reform will

take place is when marriage contracts between the

male and female party are viewed as a symbiotic

relationship. may be different roles assumed by each

32 Ibid, Pg.59

58

gender, yet the element of control is not

automatically assumed to be the husband’s right.

59

4. Muslim Personal Status Laws in the International

Legal Arena

The essence of International law decrees that

rules applicable to States are conditional to their

consent whereby consent can be either given in

written form or by implication. In her book Women,

Islam and Family Law: Within the Context of the Convention on the

Elimination of Discrimination against Women Ekaterina Krivenko

talks about how legal rules are established in two

different ways, where at first “States can agree on

particular provisions, write them down and expressly

give their consent to comply with them or States can

behave in a certain way with a belief that they

comply thereby with a rule of law. They establish

this rule through their behavior."33 Once these rules

have been established, the execution of the rules is

solely in the hands of the consenting State. When

there has been a breach of the law by the State, the

execution of the punishment is usually implemented

through International institutions set up by these

States, by denying the violating State, membership to

the institution or the benefits that come with being

a member of this institution.

As a reader, it is important to understand that

the struggles faced by the women’s rights movement

are very similar to the struggles faced by the human 33 Krivenko, Ekaterina. Women, Islam and International Law Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women. 1st. 8. Boston: Martinus Nijhoff Publishers, 2009. 1-263. Print.

60

rights movement to be recognized by the International

community. Human rights law only became part of

International law after the Second World War, after

the extensive human rights violations that took place

during that time. The Universal Declaration of Human

rights was the first international document that

recognized human beings had rights that should be

protected on an international level, thus limiting

the contracting States’ sovereignty in treating their

citizens as they wished. Even then, Islamic countries

viewed human rights declaration as an imposition of

Judeo-Christian beliefs on Islamic Sharia, which

prompted them to come up with their own version

better known as the Cairo Declaration on Human Rights in

Islam that grants humans the right to “freedom and

rights to a dignified life in accordance with the

Islamic Sharia”34.

In terms of understanding the correlation

between the role women played in society and how laws

evolved around changing circumstances one should

start by observing early human societies where a

woman’s biological role determined her position

within society. Across different cultural landscapes,

women tended more to the private sphere by taking

care of the housework and child bearing. As

34 Cairo Declaration on Human Rights in Islam,Aug. 5, 1990, U.N.GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc. 

61

technology progressed and social patterns changed,

women have acquired a larger presence in the public

sphere. Nevertheless, this growing involvement of

women in the public sphere has led to limitations

being imposed on them by men who already dominated

this sphere. As a result, the process of legal

contribution that has led to the creation of the

women’s rights doctrine, similar to Islamic Sharia,

has been mostly made and practiced by men. The

problem existed in the fact that the rights acquired

by women were not entirely reflective of their needs.

As the women’s rights movement started to gain

momentum, women were able to assert themselves more

by demanding treatment equal to their male

counterparts and for the elimination of traditional

gender roles assigned to men and women. This in turn

meant that governments were confronted with demands

by their populations, to which they either chose to

incorporate changes into their legal reform or chose

to reject such demands under the claim that they were

incompatible, either socially or religiously, with

their current laws. The continuous struggle of the

women’s rights movement has eventually led to the

adoption of CEDAW (the Convention on the Elimination

of All Forms of Discrimination Against Women) which,

as of yet, is the most comprehensive treaty that

recognizes women’s needs under an international human

rights law perspective. In regards to the rights

62

decreed to women by International law, an examination

of sources of law in international legal instruments

will be provided in the following paragraph.

Legal theory in international law dictates that

the establishment of a right should be proven in the

sources of law where it exists, so that obligations

on part of the contracting States can be applied. For

the purpose of this thesis it is important to

identify these sources of law when it comes to

women’s human rights. Firstly; treaties are a formal

source of international law, whereby they create

international rules and standards for their

signatories. They denote a merging of wills between

two parties by creating a framework to regulate their

interests based on international standards. However,

states that do not consent to be bound by such

treaties are not obliged to comply with the rules

that are set. The second source of law is custom,

which is considered to be a pattern of behavior that

has consistently been carried out and is accepted as

law. Once a customary law has been established and

objectively verified it binds all states, without

exception, even without states’ individual consents.

The final source of law is general principles of law,

which include principles of law that are common in

large numbers of legal systems. General principles of

law as they are aptly called, are general in their

character, are intended to fill the gaps when

63

treaties or customary law do not cover certain legal

issues. It is also important to note that general

principles of law are applicable on all states

regardless of their consent. In terms of women’s

human rights, both custom and general principles of

law have had a very limited scope of effect, whereas

written instruments such as treaties have contributed

much more. Treaties such as the Convention on Consent

to Marriage, Minimum Age of Marriage and most

significant of them all, the Convention of the

Elimination of All Forms of Discrimination Against

Women are the most essential instruments used to

represent and develop women’s rights in the

international arena today. An article by article

analysis of CEDAW will be provided in the next

section with a closer look into the preamble,

defining the term ‘discrimination’, general and

specific undertakings of State Parties and a critique

on the enforcement mechanisms of CEDAW.

Analysis of the Convention on the Elimination of All

Forms of Discrimination Against Women

In 1976, the UN’s Commission on the Status of

Women presented its draft of the CEDAW to the General

Assembly. After much review and several amendments

the General Assembly adopted CEDAW on December 18th

1979, where it entered into force on September 3rd

1981 after the 20th state deposited its ratification.

64

As of yet, 187 countries have ratified this treaty,

to which 58 states made reservations to certain

articles within the text. The General Assembly

adopted an Optional Protocol in 2000 that allows for

an inquiry and communications procedure into the

compliance of State parties with CEDAW to which, 90

states parties are signatories to. The CEDAW

convention was a result of a dire need for a text

that encompassed women’s rights both on a national

and international level. However, the negotiation of

the text has led to intensive debate, criticizing the

text for its interference with religious and

ideological beliefs. As a result, certain provisions

of CEDAW tend to “have a character of policy

statements or expressions of intentions rather than

concrete legal obligations”35

The convention starts off with a15 paragraph

preamble stating the intention of the convention and

the parties that accede to it. The first couple of

paragraphs recognize that despite different

international instruments in place, discrimination

against women continues to exist on a worldwide

level. It goes on to state that international peace

and security, in the long run, is contingent on the

equality of the sexes. The nature of the preamble

begins to take a general form around paragraph 10 35 Krivenko, Ekaterina. Women, Islam and International Law Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women. 1st. 8. Boston: Martinus Nijhoff Publishers, 2009. 1-263. Print. Pg.22

65

where a blank statement about the eradication of

apartheid, racism, racial discrimination,

colonialism, aggression and domination should be

enjoyed by both men and women, a statement that is

similar to previous human rights treaties on

elimination of racism. This, however, does change in

the last three paragraphs of the preamble in CEDAW

which provides an initial framework for the

elimination of discrimination against women.

Paragraph 13 states:“Bearing in mind the great contribution of womento the welfare of the family and to thedevelopment of society, so far not fullyrecognized, the social significance of maternityand the role of both parents in the family and inthe upbringing of children, and aware that therole of women in procreation should not be a basisfor discrimination but that the upbringing ofchildren requires a sharing of responsibilitybetween men and women and society as a whole”36

Paragraph 13 explains that women are an integral part

of the family unit and society at large, where the

burden of raising a family does not only fall upon

the women’s shoulders, but that of the fathers’ as

well. Moreover, the statement concerning women’s

childbearing role in the domestic sphere clearly

outlines the preamble’s intention, where it states,

that the objective of the convention is to change the

traditional roles and ideas of men and women in

36 Paragraph 13 of the Preamble of CEDAW

66

society and to be able to find a middle-ground for

equality between both sexes.

However, the generality of the preamble put forth by

CEDAW weakens its position as a legal instrument

considering that it does not outline a potential

structure for the women’s rights framework it wishes

to put forth or provide a clear explanation about the

reason for adopting this new Convention. In

comparison to the preamble in the Convention on the

Rights of Child, the CRC provides a valid description

of the principles and purposes the Convention wishes

to achieve and provides means for regulation into

areas that were once deemed outside legal regulation.

Moving on to the actual text of CEDAW, article 1

goes on to define ‘discrimination against women’ as;“any distinction, exclusion or restriction made onthe basis of sex which has the effect or purposeof impairing or nullifying the recognition,enjoyment or exercise by women, irrespective oftheir marital status, on a basis of equality ofmen and women, of human rights and fundamentalfreedoms in the political, economic, social,cultural, civil or any other field.”37

In the case that the convention does not cover all

the rights and freedoms decreed to women in

circumstances outlined by the articles, article 1

provides an all-encompassing protection to maintain

women’s equality. For the purpose of our thesis the

statement “irrespective of their marital status” is

extremely important because it decrees rights to 37 Article 1 of CEDAW

67

unmarried women in legal systems where their legal

representation is only granted through male

guardians. In this light, women can attain their

rights, as capable adults, without having it be

contingent on their marital status. Moreover, the

above statement shows that CEDAW’s provisions extend

not only to women’s public life but also to their

private life, which is very significant, considering

discrimination against women firstly stems in the

private sphere and is later replicated and maintained

in the public sphere.

Article 2 of CEDAW deals with general

undertakings of States Parties where it presents

general steps and obligations States parties can have

in achieving equality. The measures State parties are

required to take include the following;

i. Embodiment of the principle of equality in the

constitution or other relevant legislation.

ii. Prohibition of Discrimination

iii. Legal protection to the rights of women

iv. Modification or abolishment of existing laws,

customs and practices which constitute

discrimination against women

v. Repealing all penal provisions that constitute

discrimination against women.

The general style of writing undertaken by Article 2

in CEDAW does not impose a direct obligation on State

Parties, instead allowing each state to interpret

68

their obligations as they saw fit. Moreover, Article

3 goes on to discuss aspects of equality in non-legal

fields such as political, social, economic and

cultural. Article 5 goes on even further when it

deals with the social and cultural patterns of

conduct; With a view to achieving the elimination of

prejudices and customary and all other practices

which are based on the idea of the inferiority or

the superiority of either of the sexes or on

stereotyped roles for men and women38

What makes article 5 so noteworthy is the fact that

it talks about prejudices and customary practices

that go well beyond state intervention. Prejudices

against women in the Arab-Muslim world, exist in

school systems, households and in the parenting

styles where differences in sex directly relate to

the amount of freedom you have as a child. Changing

such ideas requires a change in thought and practice

starting from a very young age on both a legislative

and social practice level. That being said, article 5

is more of an ideological recommendation rather than

a legal recommendation considering that the article

does not outline the criteria set to assess state

compliance. As the general obligations on states

parties come to an end it is interesting to compare

and contrast CEDAW as a non-discrimination treaty

with another non-discrimination treaty like the

38 Article 5 of CEDAW

69

Convention on the Elimination of Racial

Discrimination. In her book, Krivenko compares

CEDAW’s article 1 on non-discrimination with CERD’s

article 4 that “requires state parties to declare

illegal and prohibit organizations and all other

propaganda activities which promote and incite racial

discrimination”39 In comparison, CEDAW does not deem

it illegal to discriminate against women, leading

Krivenko to ascertain that a lack of prohibition

towards discrimination against women has led to

“organizations and groups propagating ideas of

inferiority of women to defend their right on the

basis of freedom of expression”40. What can be

observed in the Muslim world is that such

organizations and groups tend to take the form of

religious authorities that preach rhetoric of

inferiority under the guise of Sharia law, yet at the

same time, claim that doubting such rhetoric is

blasphemous and equivalent to apostasy. Consequently,

this creates a legal standstill where personal status

codes, in Gulf States, have been religiously

preserved in a way that makes them immune to changing

social patterns.

In terms of specific obligations upon parties

that are outlined by CEDAW, states are obliged to

39 Article 4 of CERD40 Krivenko, Ekaterina. Women, Islam and International Law Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women. 1st. 8. Boston: Martinus Nijhoff Publishers, 2009. 1-263. Print. Pg. 30

70

make changes in three different aspects which are:

Public and Political life, Economic and Social Life

and Marriage, Family and Civil matters. A brief

overview on the first two parts will be provided, and

a more detailed analysis on the Marriage, Family and

Civil Matters section will be provided considering

its relevance to our hypothesis. Part two of the

Convention deals with the rights of women in the

public and political arena, such as the right to vote

and to be eligible for elections. Moreover, women

should have equal access in formulating governmental

policy and when holding public office. Finally, women

should also be able to participate in non-

governmental organizations and in creating a civil

society in general. The rights of women in politics

in the Gulf are, as of yet, not a controversial

issue, considering that the political arena in the

Gulf region is quite underdeveloped and is still in

its elementary stages. Nevertheless, Gulf States that

do have civil societies and experience political

participation, such as Bahrain and Kuwait have

witnessed trends of substantial women’s participation

in politics with certain issues arising as a result.

For instance, the first case of female political

activism in Bahrain dates back to the mid-1950’s and

in 2001 the Supreme Council for Women (SCW) was

opened under the patronage of the King’s wife,

Sheikha Sabika Al Khalifa. Shortly after, political

71

liberalization reforms were put forth in 2002 to

provide Bahraini women with universal suffrage

rights. The SCW plays the role of a women’s rights

advisory body to the government and has played a

close role in making sure that CEDAW’s

recommendations have been implemented within the

country and within the limits of Islamic Sharia41. One

of the areas that the SCW focuses on is political

empowerment, where political training programs

provide women with the skills necessary for

participating in the political arena. Magdalena

Karolak in her paper Politics and Gender: Advancing Female

Political Participation in the Kingdom of Bahrain showcases the

number of female candidates in municipal and

parliamentary elections from 2002 to 2010. The number

of women running in elections has surprisingly

declined in the past years even though the number of

women elected has risen ever so slightly. Karolak

goes on to state, “female candidates running in the

elections were breaking an established social order,

which caused tensions. In 2002 and in 2006 elections

many female candidates felt a direct pressure to

withdraw, directed at them by male candidates in

electoral districts where male candidates used

traditional division of gender roles to discredit

their female opponents.”42 Moreover, none of the 41 Karolak, Magdalena. "Politics and Gender: Advancing Female Political Participation in the Kingdom of Bahrain New York Institute of Technology. Web. 9 Apr. 2014. 42 Ibid, Pg 7

72

Islamic associations, involved in the political

process in Bahrain, supported any female candidates.

The only associations that supported and put forth

female candidates were leftist organizations such as

Waad, who are considered to be Bahrain’s largest

leftist political party and who were often harshly

critiqued for their views and labeled as atheists by

their opponents. Hence, even though there was a

sizable female presence in political elections,

barriers to entry for women in politics remain high.

In terms of civil society, Bahrain has witnessed

large lobbying efforts by women’s rights groups such

as Bahrain’s Women’s Association and Bahrain’s

Women’s Association for Human Development who have

all pushed hard to reform and modernize family laws

and women’s role in society, in general. In

comparison to other Gulf States, Part Two of CEDAW on

political and public life only applies, as of yet, to

Kuwait and Bahrain, which are constitutional

monarchies with a parliamentary system of government.

Moving onto more contentious issues within CEDAW,

article 9(2) has garnered reservations from all six

Gulf States were it stipulates that States Parties

shall grant women equal rights with men with respect

to the nationality of their children43 This is yet

another obstacle set forth by sexist marriage laws in

the Gulf that deprive both the spouse and children

43 Article 9 paragraph 2 of CEDAW

73

from getting the women’s nationality. Unfortunately

the concept of citizenship is heavily gendered in

Gulf states, fittingly characterized by Suad Joseph

as the “masculinization of citizenship”44, which has

caused women and their families to be disempowered

simply because of their choice in marriage.

Considering that most Middle Eastern countries are

twentieth century creations that have changed

boundaries and people over time it is interesting to

see that the reading of citizenship laws also has

been a masculine act. The widely claimed idea that

both men and women are equal citizens in the Gulf is

a façade, especially when the rights and benefits

that are granted by the State are unequal on many

different levels. Women tend to be infantilized by

the State as in need of care and control by their

husbands, fathers and brother, all proxies of the

patriarchal state. As a result, citizenship has

continued to be a patrilineal acquisition where

states have effectively positioned wives and mothers

as subordinates within their own families, something

CEDAW strongly wanted to eliminate from happening.

Part Three of CEDAW deals with the rights of

women in their economic and social lives. These areas

include education, employment, health care and rights

of rural women. Even though previous international

44 Joseph, Suad. Gender and Citizenship in the Middle East. 1st. New York:Syracuse University Press, 2000. Print.

74

instruments may have covered the above-mentioned

topics, CEDAW makes sure to focus specifically on the

manifestations of discrimination in each separate

practice. In regards to equality in education, CEDAW

urges states parties to ensure that women have the

same opportunities offered to men from kindergarten

to higher education. CEDAW also requires governments

to ensure that stereotypical roles of men and women

are eliminated in the educational field. The UNESCO

Convention Against Discrimination in Education asks

for states to ensure that “equivalent access” to

education is available for women, denoting in their

word usage that women are equal but essentially not

the same. However, CEDAW replaces the word

‘equivalent’ with the ‘same’ in article 10. In terms

of work employment, article 11 of CEDAW requires

states parties to ensure that women have the same

employment opportunities, as do men. States are also

required to make sure women receive equal pay and

have access to the same benefits. Even though ILO

Convention No.100 already covered the issue of equal

pay, benefits and compensation, CEDAW took a more

detailed approach by defining each issue separately,

instead of in general terms as in the ILO Convention.

Article 11 goes on to reinforce the idea that

familial obligations, such as housework and child

rearing, where it is the joint responsibility of both

parents and not simply the mothers. In reality, the

75

situation of women in the workplace in most Gulf

States is not bad. Female university graduates highly

outnumber male graduates in the region, which also

correlates to the high numbers of women in the

workforce (Qatari women constitute 40% of the

workforce, one of the highest numbers in the region45)

However, barriers to equal pay still exist, where

single women are expected to be supported by their

families and as a result, receive a smaller national

allowance stipend in comparison to males. Income

from work is assumed to be secondary to the support

they receive from their family or their husband, thus

reiterating the expectation that women “need to be

maintained”. Article 12 of CEDAW deals with

healthcare where states parties are expected to

provide equal healthcare, including family planning.

Gulf States did not make a reservation to the above

article, as family planning does not contradict

Islamic sharia, but needless to say, methods of

family planning are solely reserved for married

women.

Part Four of CEDAW deals with marriage, family

and other civil matters. For the purpose of this

thesis, this section is most relevant to our

discussion of marriage and guardianship laws and

unsurprisingly, the most contested section in CEDAW

by Arab-Muslim countries. Article 15 stipulates that

45 International Labor Organization. Women in Labor Markets: MeasuringProgress and Identifying Challenges. Geneva. 2010. Web.

76

States shall accord to women equality with men before

the law46. It goes on to explain that women should

have legal capacity identical to men. Moreover,

states should ensure that laws, which restrict the

legal capacity of women in contracts or in private

matters, should be deemed null and void. Lastly,

states parties should accord to women the same rights

of freedom of movement and choosing their domicile as

with men. As can be observed from the previous

section that disseminates personal status laws in the

Gulf, article 15 goes directly against marriage laws

of all Gulf States under the pretext of Islamic

Sharia. Traditional interpretations of Islamic law

decree that women are not equal to men in the court of

law by giving examples of hadith where two women’s

testimonies over a financial dispute in court were

equivalent to one male’s. This hadith is extremely

disputed between scholars in terms of whether women’s

testimonies are worth half of a man’s or if it solely

depends on the circumstances. Moreover, the structure

of the legal system in place, Gulf States at present,

does not allow for women to be equal to men legally,

precisely because of guardianship laws. Article 16,

which is the most reserved and controversial article

in CEDAW goes into great detail as to the measures

States should undertake to eliminate discrimination

46 Article 15 of CEDAW

77

against women in matters regarding marriage and

family relations. The article asks for:

a. The same right to enter into marriageb. The same right freely to choose a spouse and enter

into a marriage only with their free and full consent.

c. The same rights and responsibilities during marriageand its dissolution;

d. The same rights and responsibilities as parents, irrespective of their marital status in matters relating to their children.

e. The same rights to decide freely and responsibly on the number and spacing of their children and to haveaccess to the information, education and means to enable them to exercise these rights;

f. The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children

g. The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

h. The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

Even though the Convention asks States to take

“appropriate measures” when implementing the above,

all Gulf states chose to make reservations to article

16 due to the fact that it completely goes against

all laws of marriage within these states and puts the

wife on equal standing with her husband on issues of

marital responsibilities, custody, acquisition and

much more. In presenting article 16, the Committee

takes into full account that the women’s presence in

the private sphere is integral to the overall

conduciveness of the family unit thus, issues such as

78

choice and consent to marriage dictate the course of

women’s lives. Consequently, what can be seen with

article 16 is that a real conflict of laws exists

between the CEDAW Convention and Sharia law. One of

the greatest problems CEDAW has had to deal with is

the widespread discrimination arising from plural

legal orders, which are religious/customary laws that

are in place alongside civil law. The Committee has

consistently asked States to reconcile and harmonize

their national legal systems with the laws of the

Convention; however, it has been met with much

resistance especially when the change is pertaining

to evolving Islamic Sharia laws.

CEDAW’s enforcement mechanism is the subject of

Article 17 where the Convention only provides for a

reporting procedure submitted by States Parties on

their progress in elimination of discrimination on a

legislative, judicial and administrative level.

States signatories to CEDAW must submit an initial

report one year after joining and then submit further

reports every four years where the purpose of this

report is to gage States parties progress in

enforcing CEDAW. However, such reports often lack

full transparency as States have full control over

the type of information disclosed and withheld. In

return, the Committee can make suggestions based on

the State reporting but it does not have the power to

impose sanctions. In comparison to other human rights

79

treaties, CEDAW’s enforcement mechanism pales in

comparison for several reasons. Firstly, the

Committee has no power to investigate into reported

cases of discrimination or to consider complaints by

individuals. The only power CEDAW has is the

consideration of reports willingly submitted by

States Parties. Secondly, considering that many State

reports are often inaccurate and submitted late, the

Committee only has a period of two weeks per year to

review these reports and submit subsequent

recommendations. This period is extremely

insufficient and does not suffice when it comes to

reviewing the material presented. Thirdly, on an

institutional level, CEDAW is separate from other

human rights treaty monitoring bodies, thus having to

operate in an independent domain, without the proper

enforcement mechanisms in place. Nevertheless, in

light of the weak enforcement mechanism outlined

above, CEDAW has come up with an Optional Protocol in

December 2000 as a response to the Commission on the

Status of Women’s call for increased protection. This

protocol establishes a complaint and inquiry

procedure where individuals or groups of women can

come forth to submit a claim, which in turn will

create an inquiry procedure in the case of women’s

rights violations. As of now, 90 states are

signatories to the Optional Protocol, a good move

that places CEDAW on par with other human rights

80

treaties. However, there have been doubts about the

impact this Protocol will provide especially since

the majority of Arab Muslim countries (with extensive

histories of women’s rights violations) are not

signatories to it.

In sum, what can be observed through a close

analysis of CEDAW’s articles is that there exists a

genuine struggle between cultural definitions of

acceptable women’s rights. Arab Muslim states

signatory to CEDAW continue to resist the rights

defended by the Convention as being in conflict with

Islamic Sharia. Even though the practice of Sharia

law differs greatly in the Maghreb, the Levant and

Gulf States, reservations based on incompatibility of

the above articles with Islamic Sharia have been

declared mostly by Gulf States, perhaps out of

apprehension that compliance with CEDAW would mean a

complete overhaul of Gulf personal status codes at

present. The next section will analyze the nature and

significance of Gulf States’ reservations on the

articles of CEDAW.

Islamic Sharia as the Last Bastion of Control:

Interpreting CEDAW Reservations

Human rights treaties often establish monitoring

bodies vested with the power to supervise the

implementation of the treaty by States Parties.

However, this can only happen when states have made

81

very minor or no reservations to the treaty. This

upcoming section will discuss the nature of

reservations made by Gulf States Parties and how

Islamic law has limited CEDAW’s scope of application

within national legal systems. Theoretically, the

idea of a reservation in International law can be

summed up as a unilateral statement made by a state

when signing, ratifying, accepting, approving or

acceding to a treaty whereby it purports to exclude

or modify the legal effect of certain provisions of

the treaty in their application to that state47. Thus,

reservations allow states to become members of

treaties even if they are unwilling to comply with

the treaty’s provisions in their entirety.

International law generally has two theories on

reservations. The first is that unanimity rule

decrees that all states party to the treaty must

accept the reservation made entering state for the

reservation to have legal effect. The other dominant

theory on reservations dictates that a ratifying

state which accompanies its joining with a

reservation can become party to the treaty only if

another state accepts its reservation. In legal

theory, it has generally been said that the unanimity

rule is better at preserving the integrity of the

whole treaty. As of now, CEDAW has accrued more

reservations made by states than any other human

47 Article 2 of the Vienna Convention on the Law of Treaties

82

rights treaty before. For the purpose of this thesis

an analysis of the reservations made by several Gulf

States on articles 2, 9, 15 and 16 will be provided.

In terms of article 2 of CEDAW it contains a

general statement about adopting necessary

legislative measure to eliminate discrimination.

Article 2 is viewed as a core article in CEDAW that

outlines the purpose of the Convention. Both the

States of Bahrain and Qatar made reservations to

article 2 in order to ensure that Islamic Sharia is

not in conflict with this measure. Qatar elaborated

on its reservation to article 2 by stating that it

conflicts with article 8 of the Qatari constitution

that states “The rule of the State is hereditary in

the family of Al Thani and in the line of the male

descendants. The rule shall be inherited by the son

named as Heir Apparent by the Emir”48, thus making it

impossible under Qatari law for women to inherit the

throne. However, the majority of article 2 goes well

beyond hereditary rule, by asking states to eliminate

discrimination on a legislative level, something that

the State of Qatar did not make a reservation to, yet

continue to overlook. Other Gulf States such as Saudi

Arabia, UAE and Oman also made broad reservations

that stated they would not comply to any provisions

which conflict with Islamic Sharia law. Such

reservations prove to be very problematic because

48 Article 8 of the Qatari Constitution

83

they set no limits to the legal effect of the

reservation, in the process, disregarding a

significant portion of the article, which is not in

conflict with Sharia law. Other Muslim states such as

Algeria and Morocco made similar reservations,

stating that they would be prepared to apply the

provisions of CEDAW on condition that they do not

conflict with the Family Code, instead of Islamic

Sharia Law. Article 9 in CEDAW is concerning equality

of women in nationality where it requires States to

grant women the same rights as men when it comes to

passing on their nationality to their spouse or

children. All Gulf States made reservations to

article 9, however, the reservations were targeting

different parts of the article. The Kingdom of

Bahrain made a general reservation to article 9

without providing an explanation as to why it came

about to this decision. Both Kuwait and Qatar made

reservations to article 9 paragraph 2 stating that

this provision is inconsistent with their national

laws on citizenship whereas the UAE’s reservation to

article 9 was classified as an internal matter in the

hands of the State. As for Article 15, it accords to

women equality before the law, to have legal capacity

identical to men, to deem unequal contracts that

restrict women’s legal capacity as null and void and

to grant women the freedom of movement and choice of

domicile. Interestingly, both Bahrain and Qatar only

84

made reservations to paragraph 4 relating to the

movement of persons and freedom to choose residence

and domicile. Seeing that Bahrain provides no

explanation to this particular provision, Qatar

explains their reservation to paragraph 4 as being

inconsistent with the provisions of family law and

established practice. This provision is true in Qatar

as unmarried women are unable to travel alone until

the age of 25 and as a result, exit permits have to

be issued by the guardian every time his female ward

leaves the country by herself. However, such

restrictions on travel do not exist in Bahrain,

whereby unmarried women are free to travel without

the permission of their guardian, making it slightly

confusing as to why Bahrain would reserve this

specific paragraph. Interestingly, no reservations

were made on the first three paragraphs of Article 15

that accord women identical rights to men before the

law even though in practice, women in both Bahrain

and Qatar have limited access to court systems in

comparison to men. For instance in Qatar, women have

to have the permission of their guardian to apply for

a driver’s license and for jobs in the form of a non-

objection letter. Furthermore, even in the process of

marriage, divorce or custody of children women are

deterred from filing claims in court until their

guardian, be it the father or the husband are present

to acknowledge these proceedings. Hence, in practice,

85

Gulf States have not complied with article 15 and

women are still a long way from having equal legal

capacity with men before the law. As for article 16

relating to private sphere matters of equality in

marriage and family affairs, the Convention sees an

urgent need in regulating private life issues since

it considers the majority of discriminatory behavior

to occur in domestic affairs. The scope of the

Convention focuses on choice of marriage, forced

marriages, the status of the head of the household,

child marriage and property rights, all topics that

are highly contentious on the national level in Gulf

societies. Certain Gulf States made reservations to

the article in its entirety and others limited their

scope to certain paragraphs. Article 16 paragraph 1

proves to be very problematic as it goes against all

guardianship laws in the Gulf by granting both men

and women the same right to enter into a marriage. In

the case of Bahrain it made a reservation to the

whole article, whereas Qatar only reserved paragraph

1 and 3, where the Convention outlined equal duties

and rights to men and women, during marriage and its

dissolution. Considering the review of marital rights

and responsibilities presented in the previous

chapter, Qatar’s specific reservation to paragraph 1

and 3 means that it is legally bound to comply with

the rest of the paragraphs it made no reservation to

amongst them; the same rights and responsibilities on

86

both spouses when it comes to familial matters such

as household responsibilities and guardianship over

the children. From a legal standpoint, Bahrain’s

vagueness in the wording of their reservation allows

for a loophole to be present, making it easier to not

comply with Article 16 in its entirety for the time

being. However, general practice of international law

indicates that such reservations are intended to be

temporary in their nature, until the states parties

applies the necessary legislative change in

accordance with social practice. The integral

problem with CEDAW is that states’ reservations,

mostly to articles 2 and 16, were made to specific

articles that did not require an immediate result.

The wording of article 2 obliges a state to take “all

appropriate measures” where some would call it a

“hard” obligation on part of CEDAW. However, once

analyzed more methodically, article 2 is quite

similar to article 16, the only difference being that

the rights guaranteed by article 16 are of a precise

nature, whereas article 2 is more of a general

nature. In regards to the implementation of the

obligations set forth by the Convention, CEDAW

recognizes the fact that legislative and constitutive

change towards equality does not occur overnight.

Thus, the temporary nature of the reservations is

simply meant to grant states parties with more time

to implement change in their countries. Moreover,

87

progress reports expected to be published by States

every four years should include detailed information

about the necessary actions state’s are taking to

resolve the discrepancies between the Convention and

their national laws. Yet, when the Committee reviewed

both the states of Bahrain and Qatar in its 57th

session the results were startling. For example, when

the Committee questioned Qatar’s delegates on

conflict of laws between CEDAW and local law the

delegate responded that CEDAW had supremacy within

the court system but when examples were asked to be

given, none were provided. In practice, this is far

from the truth; local law is still heavily

indoctrinated by Islamic law, whereby the majority of

judges that serve in the courts are conservative and

apply ‘local’ law very strictly. There is also a

profound lack of knowledge about the provisions of

CEDAW within the court system, which in turn curbs

the ability of female claimants to rely upon it as a

legal source. CEDAW members also questioned Qatar’s

lack of women’s rights organizations (in comparison

to the neighboring state of Bahrain, which has a

sizable presence), to which Qatari delegates stated

that “there were no laws in place prohibiting these

organizations from being established, however, there

are no members of the community who applied for

establishment of such organizations”49. However, it is

49 Al Suwaidi, Nofe. "CEDAW Review: Qatar’s gender discriminatory laws and practices comes under fire."Just Here

88

also important to take into consideration the

circumstances, which permit the registration of NGO’s

in the first place. In the case of Qatar a proposal

must be formally submitted and accepted by

governmental authorities, subject that the NGO does

not get involved in political issues50 and have a

starting capital of $2.75 million. As a result, the

impediments to register NGO’s coupled with widespread

societal apathy are the reasons behind a lacking

civil society. Lastly, when the Committee asked

whether the State of Qatar was working towards

withdrawing and/or limiting their reservations, the

official statement was that the State of Qatar

“abandoned its practice of entering general

reservations when it acceded to CEDAW. It chose

instead to enter reservations regarding specific

articles of the Convention and declared its reasons

for entering those reservations”51 however, no new

measures were under way to remove the reservations.

In the case of Bahrain, when the Committee asked for

examples of legislation adopted to stop

discrimination of women, delegates were able to

provide two different articles in the Bahraini

Constitution that provided equal treatment of women

Qatar. 15 Feb 2014: n. page. Web. 20 Apr. 2014. <http://www.justhere.qa/2014/02/cedaw-review-qatars-gender-discriminatory-laws-practices-comes-fire/>.50 Article 35, Law of Associations, Qatar51 United Nations. Convention on the Elimination of Discrimination Against Women. List of issues and questions in relation to the initial report of Qatar. Geneva: 2014. Print.

89

and one specific article stating that the Convention

is equivalent to national law. When the Committee

questioned the delegates whether they would consider

removing or modifying the reservations made by the

State to certain articles, their answer was

encouraging. After careful delegation with the

Supreme Council for Women, the government decided to

“withdraw the reservation to article 15, paragraph 4

of the Convention, to affirm Bahrain’s commitment to

the implementation of articles 2 and 16 of the

Convention without prejudice to the provisions of

sharia law and that the Council of Representatives

are currently examining a bill to grant Bahraini

nationality to the children of a Bahraini woman

married to foreigners”52. Thus, what can be seen in

the case of Bahrain, contrary to Qatar, is that small

but steady change to women’s rights is happening from

a grassroots level, prompted in part by the

Convention. Even though, the states of Qatar and

Bahrain are relatively identical in their social

customs and local laws, the difference does exist in

Bahrain’s thriving political scene where women’s

rights committees act as watchdogs for the

Convention’s implementation. That is not to say that

the Convention itself is without flaws. In my

opinion, CEDAW’s lenient attitude towards State 52 United Nations. Convention on the Elimination of Discrimination Against Women. List of issues and questions in relation to the initial report of Bahrain. Geneva: 2014. Print.

90

reservations is the major reason behind state non-

compliance to the Convention’s articles. The creation

of the Convention was intended to push women’s

equality to the forefront of state’s agendas yet, the

lack of a solid enforcement mechanism and the fact

that the Optional Protocol is as described, optional,

allows states parties to hide behind grandiose and

broad reservations in the name of defending Islamic

law.

5. Concluding Comments

In her article Why Do They Hate Us: The real war on

women in the Middle East Mona El Tahawy speculates upon

the reason why Arab women have no freedoms. A flurry

of statistics and reports showcasing gender gaps,

unequal laws and widespread societal misogyny lead

her to saying that “when it comes to the status of

women in the Middle East, it's not better than you

think. It's much, much worse. Even after these

"revolutions," all is more or less considered well

with the world as long as women are covered up,

anchored to the home, denied the simple mobility of

getting into their own cars, forced to get permission

from men to travel, and unable to marry without a

male guardian's blessing -- or divorce either”53. Even

though El Tahawy’s description of misogynistic hatred

53 El Tahawy, Mona. "Why Do They Hate Us: The real war on women in the Middle East ." Foreign Policy. 23 Apr 2012: n. page. Print.

91

as the cause of women’s oppression in the Arab world

falls short from identifying the deeper roots of

conservative Islam, her documentation of inequalities

is nevertheless significant to women’s legal struggle

in this region. Gender inequalities in present day

are protected and advocated as part of Gulf States

cultural identity and traditional customs, thus

allowing inequality to be codified into law is a

natural reflection of the state of Arab countries. As

can be seen from the first chapter where the sources

of Sharia law are analyzed, the doors of ijtihad have

been closed and will remain closed for quite a while.

John. L Esposito describes, “tradition in the

Islamic world as being elevated to an almost

sacrosanct status54. Restrictions on reasoning in

Islamic jurisprudence have led the Islamic Ummah to

place the same level of importance to both divine and

humanly interpreted sources. Moreover, scholarly

consensus has also had a substantial role in the

sacralization of tradition, where groups of scholars

apply consensus yet ignore the whole process of

analytical reasoning that comes before the final

stage of general agreement. Due to this practice,

Islamic jurisprudence has remained stagnant and

unyielding to the changing socio-economic environment

partly due to external reasons, such as the lack of

54 Esposito , John L. . Women in Muslim Family Law. 2nd. New York: Syracuse University Press, 2001. 1-195. Print. P.127

92

civil society found in the Gulf, and partly due to

the unfair sacralization of the reform process, which

acts as an effective barrier in the face of legal

reformists. In the midst of the vacuum left behind by

reasoning, modern Islamic scholars have resorted to

the technique of taqlid, a doctrine that was employed

heavily by Egyptian jurists to avoid the practice of

ijtihad. Taqlid is very much alive in present Gulf court

systems due to the fact that Egyptian jurists were

responsible for laying out the legal framework in the

Gulf post-colonialism. As a result, questionable

traditions in Islamic jurisprudence have been handed

down from one century to another, impervious to

changing socio-economic patterns. Even though the 21st

Century brings on massive challenges to Islamic

jurisprudence, Muslim family law is still the biggest

issue requiring reform. At this point of time, the

Muslim world is at a standpoint, which is not a

pleasant situation for the issue of women’s rights.

Genuine Islamic methodological reform requires

structure and rigid implementation, as opposed to ad

hoc efforts conducted by different countries intended

to test the social waters or to simply target

specific loopholes in the legal system. After close

observation of Gulf States’ social practices and

customs, I have come to the realization that

proposing a secular family law would never flourish,

solely because religion and social custom are so

93

heavily intertwined in this part of the world, making

it counterproductive for the sake of social cohesion,

to implement such a change. However, it is also no

secret that the continued inequalities affecting

women in this region are a direct result of a legal

system that refuses to acknowledge social changes

under the pretext of religion, therefore; an Islamic

methodological reform of family law is also not

completely the answer. In the case of the Islamic

Republic of Iran, which has one of the most

progressive marriage laws in the Middle East, the

secular Family Protection Act of 1967 was repealed

because it was a direct departure from classical

Islamic law. Instead it was replaced with a new civil

code that combined both classical legal principles

adjusted in a way to deal with modern conditions of

society. More recent examples of progressive Islamic

laws can be seen in Algeria, Morocco and Tunisia,

perhaps by virtue of being geographically further

away from the Middle-East, where they were able to

incorporate more gender equal laws in their family

codes yet still maintain their Islamic identity. This

was made successful through the implementation of the

sources of ijtihad and ijma’a, a practice I believe Gulf

countries should once again undertake when moving

forward. Through our analysis of Ottoman court

systems, three sets of recommendations can be made.

Firstly, the practice of precedence in family law

94

should be instated considering that precedent offers

legal continuity and consistency from one case to the

other offering, both the judge and the claimant, a

form of reference to the possible outcome of the

case. Secondly, judges placed in family courts should

be a direct product of the society they preside over,

allowing them to base their decisions on a sound

understanding of the circumstances surrounding the

case. Moreover, judges should have a more extensive

legal knowledge of different Islamic schools of

thought. The reality of the world today is that

borders, especially in the Arab world, are porous

which makes it harder to find entire communities that

adhere to one established school of thought. In most

Gulf States, exceptions have been made for non-

Muslims to be exempt from Sharia law however, the

large majority of cases brought forth to court

systems are by Muslims from different backgrounds.

The ability of the judge to refer to opinions in

different schools of thought would be extremely

beneficial because it would allow claimants to

practice forum shopping55 in the hopes of getting the

most favorable judgment for their case. Thirdly,

court systems should make a greater effort in

becoming more accessible to women. During the Ottoman

55 Informal name given to the practice adopted by some claimants to have their legal case heard in the court or jurisdiction thought most likely to provide a favorable judgment.

95

Era, the court system itself was central to society,

where people regardless of their backgrounds and

religion would file their cases asking for justice.

Nowadays, informal barriers to entry imposed on

women, by asking for her male guardian to be present,

should no longer be practiced. Even though there are

no formal obstacles to having women file cases

against their guardians, the bureaucratic paperwork

required for filing is often conditional to the

guardian’s signature, making it into a catch-22.

Legal venues should be provided when guardianship,

like anything else in life, falls short from

fulfilling its purpose.

In terms of practical recommendations to reform

guardianship laws in the Gulf I propose four urgent

modifications. Firstly, the approval of the guardian

should not be a condition for the marriage of a woman

who has attained legal maturity by the age of 18.

Even though the involvement of the family is

desirable and a necessary component to a healthy

marriage, for the woman to not be party to her

marriage contract or be able to negotiate the form

that it takes (without a male proxy) is both unfair

and legally unsound. Both the man and the woman must

enter the marriage contract as equals because if they

do not, marital life will consist of the same unequal

dynamic repeating itself over and over again.

Secondly, when it comes to concluding the marriage

96

contract, either or both parents may object to it

before entry into the contract. This step does not

replace the role of the guardian, but still allows

the parents some legal venue to contest their

offspring’s marriage contract before it takes place.

Most importantly, the relevance of the mother figure

in the daughter’s life thus, weakening the

patriarchal claim fathers and brothers have over

their daughters and sisters. Thirdly, based on the

objections from the parents over the marriage

contract, the Qadi may rule that the contract is not

completed or rule for its dissolution. Lastly, there

should be a sufficient waiting period after an

objection arises from the parent’s side, whereby the

couple can proceed with their marriage contract.

Aside from the necessary legislative reform that

needs to take place in Gulf States, national

committees for women’s rights and social activism

cannot be repressed by state authorities but instead,

must be encouraged because they form a balancing act

to shari judges that enforce the law. On a micro

level, national committees as in Bahrain, act as an

intermediary between legal authorities and the public

by lobbying for laws or even against laws that do not

reflect the larger societal sentiment. On a more

macro level, women’s rights groups and national

committees can evoke international instruments that

State’s are party to, to ensure domestic compliance

97

on agreed topics. Thus, the presence of legal reform

without a civil society ready to host and accept

these changes would be counterintuitive to the larger

picture of promoting women’s rights in the region.

Upon closer analysis of the CEDAW convention I

have discovered certain parallels between the

relationship of human rights law to international law

and Sharia law to the people it serves. In the case

of CEDAW, attempts made by human rights law to

introduce modifications into the reservations regime

have been consistently obstructed by international

law on the basis that it goes against state

sovereignties and the general norms of international

law. Conventions often are heavily encumbered by the

rules they put forth, forgetting in the process that

in practice, these rules may no longer be applicable.

State’s are asked to change legislation and provide

equally fair laws for the opposite sex, sometimes

with much resistance, in the hopes that this will

create a fairer reality for men and women to co-exist

in. The same process takes place in Sharia law where

rules are interpreted and applied in legislative

systems and then enforced as law under the auspice

that it is God’s will. Natural law theory dictates

that the moral standards that govern human behavior

are objectively derived from the nature of human

beings and the nature of the world56. However, what I

56 Himma , Kenneth. "Natural Law." Internet Encyclopedia of Philosophy. <http://www.iep.utm.edu/natlaw/>.

98

have observed whilst researching this thesis is that

instead of a symbiotic relationship between people

and the law, reality has been altered to validate the

way the rules are enforced. Being a feminist in the

Arab world and in the Gulf no less, I am constantly

confronted with claims that women are not

discriminated against because of the positions they

hold at work and the respect they receive by virtue

of their roles as wives and mothers and yet, feminism

goes beyond nationality, geography and certain

circumstances. Muslim family law does not only need

feminist uprisings, it also needs an upheaval that

consists of re-readings by both men and women, active

civil societies and a body of law that is not

resistant to change. The reality we live in today is

that religion is inherently patriarchal and for the

women that choose to practice these religions the

duty to fight for their rights falls upon their

shoulders. And as any activist can claim, the fight

for equal rights is not purely for the sake of the

present state of affairs, it is also fought for the

sake of future generations of women, to not feel

stigmatized or marginalized simply because of the

gender they were born in.

Glossary of Terms57:

1. Ummah: an Arabic word meaning nation or community. Commonly used to describe the common

57 Definitions of terms from Wikipedia.org

99

nation of Islamic people.

2. Sunnah: is the way of life prescribed as normative for Muslims on the basis of the teachings and practices of the Islamic prophet Mohammed and interpretations of the Quran

3. Hadith: in religious use is often translated as 'tradition', meaning a report of the deeds and sayings of the Prophet Mohammed.

4. Qiyas: is the process of deductive analogy wherethe teachings of the Hadith are compared and contrasted with the Quran.

5. Ijma’a: refers to consensus or agreement amongstthe Muslim community based on religious issues.

6. Ijtihad: is an Islamic legal term that means independent reasoning or the utmost effort an individual can put forth in an activity.

7. Taqlid: is a term that translates to imitation. In Islamic legal terminology it means to follow a person, who is qualified to exercise ijtihad, in religious laws and commandment as he has derivedthem without necessarily examining the scriptural basis or reasoning of that decision.

8. Wali: an Arabic word that means custodian or protector.

9. Qadi: a judge ruling in accordance with Islamic religious law and whom the ruler of a Muslim country appoints.

10. Urf: is a term referring to custom of a particular society.

11. Urfi: is a "customary" Sunni Muslim marriage contract that is not registered with state authorities. This form of marriage usually

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requires witnesses. Usually a paper, stating that the two are married, is written and at least two witnesses sign it, although others mayrecord their commitment on a cassette tape and use other forms of documentation.

12. Kafa’a: a doctrine with the purpose to ensure that a man should be at least the social equal of the woman he marries.

13. Shari: condoned by Sharia law.

Bibliography:

Books and Journal Articles:-1. Beck, Anthony “Foucault and Law: The Collapse of

Law‟s Empire”, 16 Oxford J Legal Studies (1996): 489-496. Print

2. Eirini, Kakolidou. "The Background and Formation of The Four Schools of Islamic Law ." 1-14. Web. 15 Apr. 2014. <https://www.academia.edu/2310961/The_background_and_formation_of_the_Four_Schools_of_Islamic_Law>.

3. Esposito , John L. . Women in Muslim Family Law. 2nd. New York: Syracuse University Press, 2001. 1-195. Print.

4. El Tahawy, Mona. "Why Do They Hate Us: The real war on women in the Middle East ." Foreign Policy. 23 Apr 2012: n. page. Print.

5. Fadel , Mohammed. "Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the Maliki School." Journal of Islamic Law. 3. (1998): 1-26. Print

6. Fahmi, Roudi, Shaimaa Ibrahim, et al. "Ending Child Marriage in the Arab Region." Population Reference Bureau.(2013): 1-8. Web. 19 Mar. 2014.

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<http://www.prb.org/pdf13/child-marriage-arab-region.pdf>.

7. Fox, Greer Litten. ""Nice Girl" Social Control of Women Through a Value Construct." Journal of Women, Culture and Society. 2.4 (1977): 805-817. Web. 1 Apr. 2014. <http://www.jstor.org/discover/10.2307/3173211?uid=3737432&uid=2134&uid=374707573&uid=374707563&uid=2&uid=70&uid=3&uid=60&sid=21103892777743>.

8. Hosseini, Ziba Mir. Islam and Gender: The Religious Debate in Contemporary Iran. Chicago: Princeton University Press,1999. 1-304. Print.

9. Joseph, Suad. Gender and Citizenship in the Middle East. 1st. New York: Syracuse University Press, 2000. Print.

10. Karolak, Magdalena. "Politics and Gender: Advancing Female Political Participation in the Kingdom of Bahrain New York Institute of Technology. Web. 9 Apr. 2014

11. Krivenko, Ekaterina. Women, Islam and International Law Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women. 1st. 8. Boston: Martinus Nijhoff Publishers, 2009. 1-263. Print.

12. Nasir, Jamal. The Islamic Law of Personal Status. 3rd. Boston: Martinus Nijhoff Publishers, 2009. 1-267. Print.

13. Sonbol, Amira. "Women in Shari’ah Courts: A Historical and Methodological discussion." Fordham International Law Journal. 27.1st (2003): 225-253. Print.

14. Sonbol, Amira. Women of Jordan: Islam Labor and The Law. 1st. New York: Syracuse University Press, 2003.1-287. Print.

15. Tucker, Judith E. . Women, Family and Gender in Islamic Law. New York: Cambridge University Press, 2008. 1-247. Print.

16. Welchman, Lynn. Women and Muslim Family Laws in Arab States. Lexington : Amsterdam University Press.

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Online sources:-

1. Al Suwaidi, Nofe. "CEDAW Review: Qatar’s gender discriminatory laws and practices comes under fire."Just Here Qatar. 15 Feb 2014: n. page. Web. 20 Apr. 2014. <http://www.justhere.qa/2014/02/cedaw-review-qatars-gender-discriminatory-laws-practices-comes-fire/>.

2. "A Concise Summary of the Evolution of Islamic Law (Sharia) From it's Inception to the Present." n.pag 2.University of Pennsylvania . Web. 10 Jan 2014.

3. Cairo Declaration on Human Rights in Islam,Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc. 

4. Himma , Kenneth. "Natural Law." Internet Encyclopedia of Philosophy. <http://www.iep.utm.edu/natlaw/>.

5. "Ijtihad (Islamic Law)." Encyclopedia Britannica. 2014. <http://www.britannica.com/EBchecked/topic/282550/ijtihad>.

6. International Labor Organization. Women in Labor Markets: Measuring Progress and Identifying Challenges. Geneva. 2010. Web.

7. United Nations. Convention on the Elimination of Discrimination Against Women. Shadow Report Convention on the Elimination of Discrimination Against Women. Manama, 2008. http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Bahrainwomenunion42.pdf

8. United Nations. Convention on the Elimination of Discrimination Against Women. List of issues and questions in relation to the initial report of Qatar. Geneva: 2014. Print.

9. United Nations. Convention on the Elimination of Discrimination Against Women. List of issues and questions in relation to the initial report of Bahrain. Geneva: 2014. Print.

List of Statutes cited:-

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1. Article 10, Ministry of Justice and Islamic Affairs,2007. Bahrain

2. Article 29, Personal Status Law, 2004. Kuwait

3. Article 30, Personal Status Law, 2004. Kuwait

4. Article 31, Personal Status Law, 2004. Kuwait

5. Article 55, Law No. 22 of 2006. Qatar

6. Article 58, Law No. 22 of 2006. Qatar

7. Article 68, Law No. 22 of 2006. Qatar

8. Article 35, Law of Associations, Qatar

9. Article 8 of the Qatari Constitution. Doha Qatar

10. Paragraph 13 of the Preamble of Convention on the Elimination of Discrimination Against Women

11. Article 1 of Preamble of Convention on the Elimination of Discrimination Against Women

12. Article 5 of Preamble of Convention on the Elimination of Discrimination Against Women

13. Article 9, paragraph 2 of Convention on the Elimination of Discrimination Against Women

14. Article 15 of Convention on the Elimination of Discrimination Against Women

15. Article 4 on the Convention on the Elimination of Racial Discrimination

16. Article 2 of the Vienna Convention on the Law of Treaties

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