I don’t think the importance of what the Moudawana has achieved has either been acknowledged or recognised. It is a revolutionary transformation of Islamic personal law. I have been arguing for decades that the Sharia needs to be rethought and reformulated – the Moudawana shows what a reformulated Sharia, at least one aspect of it, will actually look like.
The Moudawana is particularly significant in light of the wave of popular uprisings sweeping across the Middle East in recent weeks, which dumbfounded many western observers. It has been a common enough presumption among ‘experts’ and governments that democracy is a demand not readily associated with or likely to be self selected by Muslim nations. The yearning of Muslims in so many parts of the world to be free of the disease of dominance by one variety of authoritarian dictator or another and the corruption and coterie of cronies they bring in their wake is no news to Muslim audiences. The determination of the Arab streets is indeed a seminal revolutionary moment with potentially profound consequences. The big question is what comes next.
Debate about transformation, renewal, renaissance and yes, revolution, is no new phenomena amongst Muslims – numerous unproductive cul-de-sacs have been explored over the years. The challenge has always been to conceive what a modern social order, consonant with the heritage or principles and beliefs of Muslims, but not hide bound by the customary traditions of the past, would actually look like. It is in resolving this tangled web that substantive transformation and the building of vibrant civil society will have to be found to secure genuine democratic advance. And it is here that the Moroccan initiative in recasting the Moudawana code of Islamic personal law offers a much neglected and overlooked template.
I am not alone in the argument I have been advancing for decades that the Sharia needs to be rethought and reformulated as a basis for self-sustaining home-grown change. The Moudawana shows what a reformulated Sharia at least one aspect of it, will actually look like. It is one immensely important section of the larger jigsaw of piecing together and embedding real transformation that needs to become much better known as evidence of the possible to Muslim and non Muslim alike.
Consider, to begin with, that the vast majority of Muslims in the world think that the Sharia is divine and cannot be changed. The Moudawana demonstrates that the Sharia can be changed. Verses of the Qur’an and the traditions of the Prophet relating to personal law can be interpreted in a new way to produce a new law fit for contemporary purpose. Indeed, in many cases the Moudawana is based on the same verses of the Qur’an that the classical jurists used to produce the original Sharia. Both the original Islamic family law and the Moudawana are the product of human intellect and effort. Interpretation is all we have; and interpretation must continue throughout history and into the future.
Think just how the Moudawana establishes true gender equality. It throws out the centuries old notion that the husband is the head of the family and the wife is a mere underling in need of guidance and protection. Rather it suggests that the Qur’anic notion of equality means that women are equal partners in marriage and family life. Moreover, the Moudawana regards women as independent, thinking beings and allows them to contract a marriage without the legal approval of a guardian. It also rises the minimum age for women's marriage from 15 to 18, making it the same as for men.
When we consider just how much abuse has been generated by ‘triple talaq’ – where a man can divorce his wife by simply saying ‘I divorce you’ three times – we can appreciate the true achievement of the Moudawana. In India, the debate about triple talaq has been raging for decades, and much blood has been spent on defending this absurd convention. Just to give you a flavour of how ridiculous the issue has become here is a recent fatwa by the Deoband seminary of India. In response to a question by a man – ‘I angrily said talaq three times to my wife on cell phone but she claimed that she didn’t hear it even once and nobody was around both of us. Please tell me whether talaq has taken place’ – the jurists of Dar-ul-Uloom replied: ‘If you have given three talaqs to your wife, all the three took place and she became haram (forbidden) for you. It is not necessary for talaq to take place that the wife hears it or the witnesses are present’. Indeed, the Deobandi scholars have even declared that divorce can be given by text!
In the face of such superannuated jokes, and blatant discrimination against women, the Moudawana outlaws verbal divorce. Rather, it requires men to have prior authorisation from a court, and gives women equal rights to divorce – no questions asked. Again, when we consider just how much energy has been spent on denying alimony to women – personified by the classic Shah Bano affair in India - the Moudawana’s position is a breath of fresh air. Under the Moudawana women can claim alimony and can be granted custody of their children even if they remarry. Husbands and wives must share property acquired during the marriage. The old custom of favouring male heirs in the sharing of inherited land has also been dropped, making it possible for grandchildren on the daughter's side to inherit from their grandfather, just like grandchildren on the son's side.
While, on the one hand, the Moudawana apparently permits polygamy, it all but abolishes on the other. The ambiguity here is a reflection of the ambiguity of the verse in the Qur’an which gives permission to marry ‘two, three or four’ but ‘if you fear that you cannot be equitable to them, then marry only one’ (4:3). The Moudawana allows men to take second wives only with the full consent of the first wife and only if they can prove, in a court of law, that they can treat them both with absolute justice - an impossible condition.
Let me emphasise again that these changes have not been conjured from the air. Every change in the law is justified - chapter and verse - from the Qur’an, and from the examples and traditions of the Prophet Muhammad. And every change acquired the consent of the religious scholars who, it must be noted, also included women. It is not surprising that even the Islamist political organisations welcomed the change. The Party of Justice and Development described the law as ‘a pioneering reform’ which is ‘in line with the prescriptions of Islam and with the aims of our religion.
So a natural question arises: why has this ‘pioneering reform’ been neglected – both in the Muslim world and the West?
It is obvious that the Moudawana challenges orthodoxy and the establishment. The ulama and jurists, from India to Saudi Arabia, have used the defunct Sharia as an instrument of control and domination. Change the Sharia and you pull the carpet from under their feet. If women have equal rights and disputes are settled in civil courts, how many men will seek guidance from the obscurantist Dar-ul-Uloom? If the Sharia is revealed to be a human construction, where will the ulama go for Divine sanctions that provide them their legitimacy? If women become independent and empowered, what will happen to the male-dominated, Saudi society?
The Moudawana is not just law – it is a mechanism for the total transformation of society. That’s why it has been deliberately ignored. And that’s why the battle for its adaptation in the Middle East, India and Pakistan and other Muslim countries will be a tough one.
In the West, a good story about Islam and Muslims is not a story. It does not make the blood curl or sell newspapers and brings audience for television channels. Changes in law, even one that is regarded as Sacred, are not the stuff of popular imagination. It’s far easier to demonise.
However, the project that the Moudawana has begun is not complete. The next step is a similar reformulation of Islamic criminal law. The hadood, much like the ‘triple talaq’, needs to be consigned to history.
For an English translation of the Moudawana click here
Read the text of a lecture hosted by the Muslim Institute and delivered by Dr Rajaa Naji el Mekkaoui, an expert in family law at the Université Mohamed V in Rabat and one of the architects of the mourchidat programme Moudawana (Morocco Family Code): Symbol of reconciliation between sacred religious texts and constraints of our time.