Last update: 2018-01-24 13:10:04
When it comes to reforming Muslim societies, few issues are as contentious as the equality between men and women. The debate has been reignited again in Tunisia, then spreading to other countries, soon after President Beji Caid Essebsi announced on August 13th that he wanted to put an end to the inequalities in inheritance and matrimonial law, two fields historically regulated by Islamic law and in which the states have always intervened with great caution.
Based on two Qur’anic verses (4:11 and 2:221), traditional jurisprudence states that women should receive only half as much of the inheritance that men do, and that while a Muslim man can marry a woman belonging to the so-called “people of the Book” (Christians and Jews), a Muslim woman cannot marry a non-Muslim man. Essebsi has created a commission to study the question concerning inheritance, but has accelerated the reform of matrimonial law by abolishing the 1973 circular prohibiting Tunisian women from marrying non-Muslim men.
With this step, the president has joined the Tunisian tradition of female emancipation, but at the same time has reopened the discussion on the interpretation of the Scriptures and the role of Islam within society and politics, and moreover he has put the stability of the Islamic Ennahda Party to the test after the turning point represented by the latter’s tenth conference in 2016.
The legacy of Bourguiba
Already in 1930, stir followed the publication in Tunisia of the book Our Women in Sharia and in Society, in which the intellectual and political activist Tahar Haddad invoked, through a modernist exegesis of the Qur’an, the end of women’s social inferiority. In 1935, Haddad died, forgotten by everybody, but in 1956, his ideas merged into the new Code of Personal Status, wanted by the founding father and first president of the Tunisian Republic, Habib Bourguiba. The new legislation put an end to polygamy and unilateral repudiation by the husband, granting the judicial divorce for both spouses. With his reform, Bourguiba wanted to break up with the traditional jurisprudence, but not with Islam. The Code, indeed, was presented as an example of ijtihad, i.e. the interpretive effort through which a particularly qualified jurist can derive new rules directly from the sources, but that many modernists have transformed into a method to more comprehensively renew Islam.
This did not prevent the opposition by much of the religious establishment and, in particular, by Zaytuna’s ulama, the renowned Tunisian teaching center. Subsequently, the Code became a bone of contention between Bourguiba and the Islamic movement of Rashid Ghannoushi (later to become Ennahda). In 1977, the Islamist leader demanded the annulment of the Code and the application of sharia as the sole source of law, and in 1985 he unsuccessfully proposed to amend it through a referendum.
The conflict of interpretations
However revolutionary it was at the time, Bourguiba’s Code did not erase inequalities in issues concerning inheritance and marriage impediments. The decision made by Essebsi, who during the campaign for the 2014 presidential elections explicitly referred to the Bourguibian legacy, ideally aims at completing this path towards modernization, causing once again the opposition coming from religious circles. In a document disclosed on August 17, Zaytuna’s ulama wrote that the President’s proposal “explicitly denies the religion’s principles”; that the inheritance rules are among Islam’s immutable elements; that marriage of a Muslim woman to a non-Muslim man is forbidden by the Qur’an, the Sunna, and the religious scholars’ consensus (ijma‘).
The Egyptian mosque-university of al-Azhar also intervened with a concise but very clear statement which uses the same arguments as Zaytuna’s ulama, and focuses in particular on the criteria that should guide the interpretation of sacred texts and tradition: “Among the legal texts [of Islam] some can be subject to interpretation (ijtihad) by those who have particular qualifications in the sciences of sharia; others cannot. Texts with evident stability and clarity do not allow ijtihad: it is the case of the verses on inheritance and some texts regulating family-related rules”.
The distinction between changing and unchanging rules to which the ulama refer in order to establish the Qur’an’s interpretative limits is not shared by those Muslim intellectuals, also known as “new thinkers”, who propose to rethink the whole Islamic tradition through Qur’anic hermeneutics. One of them, Syrian Muhammad Shahrur, welcomed Essebsi’s project with an article that overturns the consolidated interpretation of the Qur’anic passages from which Islamic jurisprudence has derived the rules on mixed marriages and inheritance shares. From a cross-reading of some verses (41:33, 22:17, 98:1), the Syrian thinker concludes that the “idolaters” whom Muslim women cannot marry are not actually Christians and Jews, but only pagans. Moreover, he refers to verse 30:21 to show that the foundation of marriage is not religious affiliation but rather compassion and love. As for inheritance matters, Shahrur first invokes verse 2:180 to show that the Qur’an does not establish discrimination between the sexes. Then he proposes an innovative reading of 4:11, in which God recommends leaving to “the male the like of the portion of two females”: a verse that according to Shahrur would refer to the case of a family having a son and two daughters, and the right of the male to receive the part of each of the two sisters. The Syrian intellectual is aware of the originality of his position and justifies it by arguing that “every era has its reading and that this reading follows the progress of time”.
We are facing two opposite exegetical approaches: for the traditional ulama, only those matters which are not clearly dealt with in the texts are open to interpretation. For thinkers like Shahrur, there are no unchangeable principles aside from a core of essential truths (monotheism, Muhammad’s prophecy). The only constant is the interpretative process itself, which, in light of the temporal context in which the Qur’an is read, can derive ever new meanings from the text. In their diversity, however, both points of view highlight a problematic position with respect to the relationship between tradition and modernity, or between the foundational event and the present time.
The ulama tend to absolutize the legacy of the past to the point that they have difficulty in truly entering into dialogue with contemporary culture. From this point of view, the words by which the Grand Imam of al-Azharjustified the prohibition of marriage between a Muslim woman and a non-Muslim man are emblematic: he explained that since Christianity does not recognize Muhammad’s prophecy, and therefore it does not mandate men to guarantee the freedom to practice Islam to their wives, the love within the couple is likely to fail. This is an argument that implies the notion of male dominance. Furthermore, why would a Muslim husband be more tolerant towards a Christian woman than the opposite? The Grand Imam’s response, which states that Islam “contains” Christianity and not vice versa, does not recognize the notion of religious freedom and freedom of conscience, which are such regardless of the professed doctrines’ contents.
On the other hand, for the “new thinkers” (or at least some of them), the legacy of the past, or even the founding texts of Islam, have value only to the extent that their content can be validated by the principles and norms of the present time; thus, the risk is that of losing any objective content of religion in a continuous hermeneutic game.
A political question
It is interesting to note that Essebsi, unlike what Bourguiba had done in 1956, did not invoke a particular interpretation of Islam in order to justify his decisions (or did so but only in part), but rather he called for the need to conform the country’s legislation to the Constitution and the international treaties signed by Tunisia. This means that for the Tunisian president, reforming society does not necessarily require a modernist reading of Islam – which for that matter he personally agrees with – but is based on the distinction between the civil sphere and the religious sphere.
This stance is causing trouble for the Islamic Ennahda party, which participates in a coalition government with Nidaa Tunis (the formation founded by Essebsi) and other parties. In the past, Ennahda’s leader and principal theorist, Rashid Ghannoushi, made the Code of Personal Status one of the symbols of the degeneration that republican Tunisia was undergoing, and had always been insisting on the impossibility of dividing politics and religion. In recent years, his argument has changed and Ghannoushi ended up preferring to the rhetoric of rupture with the past a less dramatic one of progressive evolution. This evolution culminated in 2016 in Ennahda’s tenth conference, when the party announced that it was going to abandon religious preaching to focus on political activity, thus transforming from an Islamist party to a Muslim-Democratic party.
On that occasion, Ennahda’s leaders stated that the new phase resulted from the fact that Islam and society’s identity were now guaranteed by the constitution approved in 2014, at the time greeted by Ghannoushi as the best constitution in the world after the so-called “Constitution of Medina” (the document governing the life of the first Islamic community). Essebsi’s call for equality in matters of inheritance and mixed marriages has put this narrative into crisis. This explains why Ennahda’s leaders reacted in a very cautious manner, stating that they want to wait for the results of the commission set up by the president to study the issue, or claiming that this matter is not a priority for the country at the moment. Only some went ahead and criticized the reform project by defining it contrary to Islam. Ghannoushi has remained in strict silence: a silence that certainly has tactical reasons, but also reflects the incomplete elaboration of the notion of Muslim democracy following the 2016 turning point. Ghannoushi not only does not want to speak; but it also seems that he cannot speak, because if he challenges the President’s choices in the name of fidelity to Islam, he risks bringing Ennahda back to the time of religious opposition to the state; if he supports them, he may cause the party to lose its Islamic specificity, thus generating an internal split.
With his silence, Ghannoushi seems to have already accepted the president’s decisions, but it will be interesting to see how he will justify it from the theoretical point of view.
Essebsi’s initiative was probably dictated by reasons of political opportunity. It is no coincidence that the president has brought up the symbolically strong gender equality issue in a moment when Tunisian public debate was occupied by the controversial amnesty law on economic crimes committed by officials of the old regime, approved on September 13 with the votes of Nidaa Tunis and Ennahda. Human Rights Watch commented that the step forward taken by Tunisia in the field of women’s rights has been balanced out by a step back in the field of justice. It is true that this issue is likely to bring the country back to the time when some social and cultural achievements served to the regime to exhibit a patent of modernity and “secularism”, but it is undeniable that the reform of matrimonial law and, if realized, that of inheritance rights, will have profound cultural consequences.
Stay up to date: sign up for our newsletter
For insights and analysis subscribe to our biannual journal