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Personal Status Laws in Gulf StatesA Comparative Study into Guardianship Laws in Marriage

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




Haya Al-Noaimi






















2014
2
















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.













3

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





















4
“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
5
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
6
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
7
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
8
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.
9
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.


10
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.
11
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>.

12
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
13
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.

14
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
15
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
16
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.
17
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

18
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.
19
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

20
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
21
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
22
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>
23
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
24
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
25
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.

26
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
27
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.

28
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
29
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
30
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
31
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
32
without her husband’s permission. In Greer Fox’s article “Nice Girl”: Social
Control of Women Through a Value Construct she talks about three strategies,
similar to marital duties and rights imposed on women in Islamic law, that are
used to regulate the freedom of women. The first strategy used is confinement
where women are constrained physically within the boundaries of their home
and cannot move freely. This strategy is clearly evident when we review the
wife’s duty to ask her husband’s permission to leave the house and to travel. The
second strategy is protection where the women’s access to the public sphere is
guarded by her “designated protectors”
29
, in our case 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>.
33
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
34
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
35
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
36
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.


37
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
38
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
39
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
40
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
41
i. Embodiment of the principle of equality in the constitution or other
relevant legislation.
ii. Prohibition of Discrimination
iii. Legal protection to the rights of women
iv. Modification or abolishment of existing laws, customs and practices
which constitute discrimination against women
v. Repealing all penal provisions that constitute discrimination against
women.
The general style of writing undertaken by Article 2 in CEDAW does not impose a
direct obligation on State Parties, instead allowing each state to interpret their
obligations as they saw fit. Moreover, Article 3 goes on to discuss aspects of
equality in non-legal fields such as political, social, economic and cultural. Article
5 goes on even further when it deals with the social and cultural patterns of
conduct;
With a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
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
42
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
43
(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
44
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.

45
“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
46
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
47
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.
48
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
49
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 Emir”
48
, thus making it impossible under
Qatari law for women to inherit the throne. However, the majority of article 2
goes well beyond hereditary rule, by asking states to eliminate discrimination on
a legislative level, something that the State of Qatar did not make a reservation
to, yet continue to overlook. Other Gulf States such as Saudi Arabia, UAE and
Oman also made broad reservations that stated they would not comply to any
provisions which conflict with Islamic Sharia law. Such reservations prove to be
very problematic because 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
50
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
51
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
52
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
organizations”
49
. 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
53
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.

54
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

55
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
56
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.

57
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.
58
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/>.

59
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
60
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16. Welchman, Lynn. Women and Muslim Family Laws in Arab States. Lexington :
Amsterdam University Press.

Online sources:-

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

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

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

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

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

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

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

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

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


List of Statutes cited:-

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

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

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

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

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

62
6. Article 58, Law No. 22 of 2006. Qatar

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

8. Article 35, Law of Associations, Qatar

9. Article 8 of the Qatari Constitution. Doha Qatar

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

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

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

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

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

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

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




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