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Personal Status Laws in Gulf States A Comparative Study into Guardianship Laws in Marriage

Haya Al-Noaimi

Personal Status Laws in Gulf States A Comparative Study into Guardianship Laws in Marriage Haya Al-Noaimi

2014

To my parents; For their continuous love and support of my ideas, no matter how wild they might seem at the time.

To Hisham, For igniting the fire of change in me, I am forever grateful.

Contents

  • 1. Introduction: 4

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

    • 2.1 The Four Schools of Thought: 12

    • 2.2 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: 20

    • 3.2 The Marital Relationship: Redefining the Role and Responsibilities in Marriage: 27

  • 4. Muslim Personal Status Laws in the International Legal Arena: 36

    • 4.1 Analysis of the Convention on the Elimination of All Forms of

  • Discrimination Against 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

    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 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 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 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 10 th 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

    1 Surah-Al Nisa; 34

    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 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. 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 10 th 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 10 th 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 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 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 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 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,

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

    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 can be made to remedy the disorder of gender inequality in Islamic law.

    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 10 th 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, 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 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 10 th century 3 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 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.

    3 "Ijtihad (Islamic Law)." Encyclopedia Britannica. 2014.

    <http://www.britannica.com/EBchecked/topic/282550/ijtihad>.

    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 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” 5 Another 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: The Case of the Maliki School. In his article, Fadel tries to reconcile between the idea of individual autonomy

    • 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_Isla

    mic_Law>.

    • 5 Ibid, 16

    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;

    “a male child [is] automatically emancipated from his fathers jurisdiction upon reaching biological and social maturity, whereas a female [is] not emancipated from her father’s jurisdiction until two additional requirements are satisfied entry into her marital home and the testimony of reliable witnesses that she could successfully manage her own property Analytically ... then a female’s legal capacity can be divided into two stages: First, she is legally incapacitated because of youth; second upon reaching physical maturity, she is treated as legally incapacitated because of presumed inability to manage her property” 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

    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.

    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 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 guardians 8 . 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 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

    • 7 Ibid, 13

    • 8 Ibid, 19

    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.

    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” 9 However, 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 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

    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_Isla

    mic_Law>. Pg. 13

    10 Ibid, 15

    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 Courts

    In 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 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

    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.

    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, 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 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.

    12 Ibid

    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 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 wali 13 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 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

    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 wali ikhtiar which is a chosen guardian if no paternal guardians are alive or present.

    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” 14 What 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 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.

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

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

    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 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 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 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 husbands 16 , 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 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, 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

    • 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>.

    • 17 Article 10, Ministry of Justice and Islamic Affairs, 2007

    • 18 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.pd>

    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, 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 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, 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.

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

    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” 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 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

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

    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. When it came time to test these laws I thought what better way to do it than through my own marriage contract. Due to my socially unconventional way of choosing my marriage partner my guardian, being my father, was reluctant to come forth and conduct my marriage contract. As a natural next step I took my issue to the court in the Ministry of Islamic and Judicial Affairs enquiring whether it would be possible to have the judge be my proxy since I had no wish to have my guardianship rights be passed down to other male members in the

    family (nor did I find it logical to decree this right to my 16 and 18 year old brothers). I was told that there was no legal possibility of having the judge become my proxy, as guardianship should always remain within the kin as long as there were living males. Furthermore, even if my father made a request for my legal emancipation to enable me to conduct my marriage contract this would not have been possible, as guardianship rights cannot be extinguished and can only be assigned to another male. The integral problem with the wording of Qatar’s personal status law on guardianship in marriage is that it offers no legal venue in the case that the guardian is not fulfilling or is unwilling to fulfill their role as a guardian. In my case, my father wished to give me back my right of choice, which he viewed as a natural right that should not be mediated through a proxy, and yet legal institutions in the country could not recognize that with the current legal system. 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 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 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 years is a male agnate according to the order of succession, and if no agnate exists, guardianship transfers to the judge.

    • b) It is stipulated that the guardian and the person who is the subject of the guardianship be in agreement.

    Article 30: A women who has been previously married or who has attained twenty-five years of age has freedom of choice in her marriage. She shall not however make her own contract; this shall be done by her guardian.

    Article 31: If the guardian prevents the marriage, she is entitled to bring the matter before a judge for him to order or not to order marriage. The same applies if there is more than one guardian and they are of equal status, whether they jointly prevent her 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 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 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

    • 21 Ibid, 71

    • 22 Ibid, 76

    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.

    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 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

    • 23 Ibid, 89

    • 24 Ibid, 90

    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 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

    • 25 Tucker, Judith

    E. .

    Women, Family and Gender in Islamic Law. New York: Cambridge University

    Press, 2008. 1-247. Print.

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

    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, 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 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

    • 27 Article 58, Ibid

    • 28 Article 68, Ibid

    without her husbands 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 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. 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

    29 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=374

    707563&uid=2&uid=70&uid=3&uid=60&sid=21103892777743>.

    wife and children in his capacity as the head of the family while the wife shall participate in maintenance if she has the means” 30 As 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 19 th 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 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 20 th 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

    30 Article 23, 1956

    the young girl’s lack of 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 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.

    31 Tucker, Judith

    E. .

    Women, Family and Gender in Islamic Law. New York: Cambridge University

    Press, 2008. 1-247. Print. Pg.69

    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 gender, yet the element of control is not

    automatically assumed to be the husband’s right.

    32 Ibid, Pg.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 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 .

    • 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.

    • 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.

    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 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 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 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 18 th 1979, where it entered into force on September 3 rd 1981 after the 20 th state deposited its ratification. 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 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 women to the welfare of the

    family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between 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

    • 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

    • 36 Paragraph 13 of the Preamble of CEDAW

    to change the traditional roles and ideas of men and women in 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 on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms 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 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;

    37 Article 1 of CEDAW

    i.

    Embodiment of the principle of equality in the constitution or other

    ii.

    relevant legislation. 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

    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 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;

    v.

    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 women 38

    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 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

    38 Article 5 of CEDAW

    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 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

    • 39 Article 4 of CERD

    • 40 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

    (SCW) was opened under the patronage of the King’s wife, Sheikha Sabika Al Khalifa. Shortly after, political 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 Sharia 41 . 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 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

    • 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

    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 children 43 This is yet another obstacle set forth by sexist marriage laws in the Gulf that deprive both the spouse and children 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 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

    • 43 Article 9 paragraph 2 of CEDAW

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

    “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 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 region 45 ) 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 States shall accord to women equality with men before the law 46 . It goes on to explain that

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

    • 46 Article 15 of CEDAW

    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 against women in matters regarding marriage and family relations. The article asks for:

    • a. The same right to enter into marriage

    • b. 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 marriage and 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 have access 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 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 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 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 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 state 47 . 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 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 Emir48 , 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 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

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

    • 48 Article 8 of the Qatari Constitution

    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 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, 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 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, 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 57 th 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 organizations49 . However, it is 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 issues 50 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

    • 49 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/>.

    • 50 Article 35, Law of Associations, Qatar

    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 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 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

    • 51 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.

    • 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.

    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 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 status 54 . 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

    • 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.

    • 54 Esposito , John

    L. .

    Women in Muslim Family Law. 2nd. New York: Syracuse University Press,

    2001. 1-195. Print. P.127

    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 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 21 st 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

    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 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 shopping 55 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 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

    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.

    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 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 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 world 56 . However, what I 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.

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

    Glossary of Terms 57 :

    • 1. Ummah: an Arabic word meaning nation or community. Commonly used to describe the common 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 where the teachings of the Hadith are compared and contrasted with the Quran.

    • 5. Ijma’a: refers to consensus or agreement amongst the 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 derived them 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 requires witnesses. Usually a paper, stating that the two are married, is written and at least two witnesses sign it, although others may record 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.

    57 Definitions of terms from Wikipedia.org

    Bibliography:

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