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From the Editors
The Pedagogy Section
New Texts Out Now: Maaike Voorhoeve, Family Law in Islam
Maaike Voorhoeve, editor, Family Law in Islam: Divorce, Marriage and Women in the Muslim World. London and New York: I. B. Tauris, 2012.
Jadaliyya (J): What led you to edit this book?
Maaike Voorhoeve (MV): When I started my PhD on the contemporary application of Tunisian family law by Tunisian judges, my idea was as follows: the Tunisian family code deviates significantly from Islamic law, and therefore it is interesting to examine if judges apply the code, or whether they apply Islamic law instead. This approach was informed by other studies on family law in the Muslim world that focus on the relationship between legislation and Islam. But during my fieldwork, I realized that the presumption that there is such a dichotomy is actually a prejudice, and that I should let go of this idea in order to be able to see what was going on. I needed to enter the field with a clean mind, without any thoughts about Islam, or even custom, whatsoever. I think that in the end, I got to actually see much more than if I had held on to this prejudice, and I felt like I should somehow spread the word that we should stop looking at law (and other institutions and practices) in the region through the “Islam”-lens.
But of course, I was not the first to have this illumination. In the writings of Baudouin Dupret, among others, this idea comes to the forefront. This is why I decided to bring together academics who work on family law in the region and who apply what I call a “bottom-up approach,” in the sense that they try to look at what is going on in the field of marriage and divorce with an open mind. I organized two panels on family law at the World Congress for Middle East Studies (WOCMES) in Barcelona in the summer of 2010, which was a great success, in the sense that I felt that I had found soul-mates. Therefore, I decided to take it one step further, to bring our approach to a larger audience than the WOCMES one, and to make a book out of it. A number of the papers presented at the conference were transformed into chapters for the book, which I. B. Tauris decided to publish.
J: What particular topics, issues, and literatures does the book address?
MV: All our contributions are about matters of marriage and divorce, but each focuses on a particular country in the region (Tunisia, Egypt, Syria, Lebanon, Iran, and Yemen). The book is divided into two parts: the first part talks about public debates on family law reforms, and the second part talks about practices of judges, lawyers, and litigants. All contributions apply the “bottom-up approach,” in the sense that all contributions look at what people do. The authors have different backgrounds, ranging from law to anthropology and political science. But I think that all are informed by sociological and anthropological methods and literature, mainly ethnography.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
MV: Just like any other academic, I surely hope that this book shall reach a larger audience than academia alone. Family law in the Muslim world is a hot topic in public debates in the West and in the region itself, and I think that it is a duty for academics not so much to participate in such debates, but to contribute to them by providing data and theoretical frameworks to address these topics. In that way, we can hopefully ensure that the people who are participating in these debates are informed. In the case of this book, we hope to inform people of what the situation is like in practice.
[Maaike Voorhoeve. Image via the author.]
For example: in the West, many people still think that every issue in the Muslim region is governed by Islam, especially questions of marriage and divorce. This image is often accompanied by the idea that since Islam governs everything, there must be huge inequalities between men and women. But what the chapters in the book on public debates demonstrate is that on the one hand, the role of Islam in legislation is highly contested in the countries themselves, where factions in society call for a “secularization” of the law, and that the Islam-argument can be used to enhance gender equality. By giving insight into practices and debates, this book opens the way to a more nuanced image of law in the region.
As the world seems to be particularly interested in the region after the “Arab uprisings,” we hope that we can reach an even larger audience than when we started with our project; indeed, although all the contributions address the situation from before the uprisings, the topic is even more timely nowadays, as the aftermath of the “revolutions” is characterized by intensified debates on personal status law.
J: What other projects are you working on now?
MV: I am currently working on several legal aspects of the “revolution” in Tunisia, again with a bottom-up approach. I recently finished an article about how people in Tunisia wish to deal with the crimes committed by the Ben Ali regime, focusing not only on human rights offences but also on corruption. I’m also looking at debates on women’s rights after the revolution, and I’m currently writing an article on “political” justice, namely the recent development that courts are taking a very “conservative” stance towards issues of nudity, blasphemy, etc.—for example, by convicting two men to seven and a half years imprisonment for their cartoons of Mohammed that they published on Facebook. Beginning in September 2012, I will be affiliated with Harvard, where I shall study the public debates on the role of Islamic law in the new Tunisian constitution.
Excerpt from Family Law in Islam: Divorce, Marriage and Women in the Muslim World
From the Introduction (by Baudouin Dupret and Maaike Voorhoeve)
Since they were mainly considered an offspring of the jurisprudential corpus called “Islamic law,” the many legal systems of the Middle East and North Africa (MENA) used to be treated in terms of their relationship to Islam. The direct outcome of this tendency was to ascribe overarching importance to Islam in the inception and organization of the law, and to minimize those specificities of each country which had proceeded from the historical and social circumstances of their recent development. In other words, Islam’s influence was overemphasized, while the impact of socio-political transformation was neglected. […] Focusing on the theme of Islamic law, researchers forgot to consider that the law is a daily and ordinary activity, with litigants trying to settle their problems and professionals carrying out their jobs. Legal activities are performed for all practical purposes, and therefore their study must primarily consist of the description of what people do when using legal provisions and institutions. To put it bluntly, law is first of all a conflict-resolution or guarantee-setting device, not the symbolic reflection of society’s unconscious.
…the descriptive approach […] restricts itself to the task of examining how Islam is invoked and referred to by those people who, at some point in their daily life, orient their talk and actions towards it. In that sense, Islam cannot be found outside its practice, and describing something as “Islamic” is to ascribe to it the quality of being closely related to Islam, whatever the “something” in question. Thus “Islamic law” corresponds to what people consider as specifically Islamic in the law, independent of any consideration about the truth of such a claim.
People address the issue of sharia for very different purposes. When demanding its implementation in a country, activists address a legal theme for political purposes. When assessing whether a law is in conformity with Article 2 of the Egyptian Constitution, which stipulates that “the principles of sharia are the main source of legislation,” the Egyptian Supreme Constitutional Court deals with the same theme for judicial and constitutional purposes. And when the heading of a Western newspaper states that the stoning of an Iranian woman “is a symbolic issue, but it is at the same time the whole sharia that is questionable” (Le Soir, 28 August 2010), it is clear that the journalist’s purpose is related to the ongoing debate in Europe on the so-called “clash of civilizations.” An adequate description of how different people address the issue of sharia shows that the latter is not seen in the same light—or as “the same thing”—simply because the same word is used. To put it in a different way, people are oriented towards the notion of sharia in a way that is sensitive to the context in which it is used and to the practice in which they are engaged.
Such contexts are, broadly speaking, of two types. On the one hand there is the context of ongoing public debates, where the issue of law is a theme and a resource for addressing a matter that is not specifically legal. On the other hand, there is the legal context as such, where law is a textual source, an achievement and a practice. In other words, there is a discourse on the law and a discourse of the law, i.e. law as a topic and law as a performance: and there is a huge gap between these two conceptions of law. This gap is not related to a difference in the substance of what is at stake, but to a difference in the goal-orientation of the protagonists, i.e. what we call their practical purposes. Doing politics is very different from adjudicating; writing an open editorial aims at something other than formulating a plea; claiming that sharia is a kind of Pole Star of a regime’s legitimacy is technically and consequentially different from the search for fiqh-based solutions in the formulation and implementation of a ruling; and so on. When not taking these fundamental differences into account—an omission that comes about merely by sticking to the words people utter without looking at what they are doing when they utter them—research misses the phenomenon it purports to explore. It remains fascinated by the power of terms endowed with an intrinsic, essential meaning, independent of their practical uses. Thus, for instance, the Arabic word tashri‘ is supposed to convey a reference to the divine on the sole basis of its etymology—“referring to sharia” (shari‘a)—while a competent look into contemporary legal systems shows that the word has the direct, obvious sense of “legislation.” Similarly, it is supposed that the Islamic state is intrinsically instable, because the etymology of the Arabic word used to capture this institution (dawla) conveys the notion of a cyclic change (see Bernard Lewis). Phrased in an anthropological way, the same cultural concept has resulted in attributing intrinsic meanings to words such as haqq, which are deemed to convey the power of their supposed linguistic “origins” (see Geertz), instead of simply expressing ideas related to the context of their uses (e.g. the “right” to do this or that, or one of God’s names, or the “truth” of a statement).
Instead of deriving the meaning of words from assumptions about their etymology, research should arrive at a description of what people do in actual contexts. However, this does not mean that words are devoid of any importance, that talk is opposed to action, or that, in the sphere of law, there is a conflict between “living law” and state law. Indeed, there is a classical dichotomy in socio-legal studies that opposes the law set out in codes, rulings and jurisprudence to the law as it can be observed in action, that is, when performed by flesh-and-blood human beings. Although this distinction stems from a positive intent—that one should not merely stick to legal formulations in order to study the law—it queers researchers’ pitch by artificially severing legal practice from one of their main resources, i.e. legal texts. The law is mostly performed through direct or indirect references to formal sources, which protagonists use to orient themselves in choosing a way forward. This issue of rule-following, which has been much debated in philosophy, can be dealt with, when turning to more empirical contexts, through the notion of “instructed action.” Instead of considering that legal rules and legal practice each work autonomously, it suggests that they can indeed be distinguished analytically, but empirically function in an interdependent way: a rule is always a rule-instructing-an-action (since a rule alone has no existence but on paper) and the action is always an action-as-constrained-by-a-rule (since an action cannot be characterized as legal if it has no connection to a rule). This mode of describing the law has the double advantage of doing justice to the teleological formulation of legal rules—i.e. which aim at being implemented—and to the legal protagonists’ systematic referencing of them—whether to apply or evade them.
 Baudouin Dupret, Adjudication in Action (Aldershot, 2011).
 See the Encyclopaedia of Islam, second edition.
 Bernard Lewis, Le langage politique de l'Islam (Paris, 1988).
 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York, 1983).
 Eric Livingston, An Anthropology of Reading (Bloomington and Indianapolis, 1995) and Baudouin Dupret, Adjudication in Action (Aldershot, 2011).
[Excerpted from Family Law in Islam: Divorce, Marriage and Women in the Muslim World, edited by Maaike Voorhoeve, by permission of the editor. Copyright editorial selections and introduction © 2012 Maaike Voorhoeve. For more information, or to purchase this book, please click here.
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