Gender Justice and Legal Reform in Egypt. Mulki al-Sharmani
continued to draw on a fiqh-model of spousal and parental rights. Marriage in Islamic jurisprudence is premised on a hierarchical model of spousal relations and rights (Mir-Hosseini 2015). The marital union is based on a contractual agreement between a man and a woman in which the husband has the duty to provide for his wife and their children, and in return, the wife avails of herself to him and puts herself under his authority and protection (that is, qiwamah). The husband’s exclusive right to his wife’s sexual and reproductive labor is earned through and conditioned upon his economic role. These interdependent spousal duties and rights are governed through the principle of spousal maintenance (nafaqa) in exchange for wifely obedience (ta‘a). According to this model of marriage, there are no communal matrimonial assets. Whatever possessions and assets the wife brings to the marriage remain hers, and the same applies to the husband. Husbands have unilateral right to repudiation, polygamy, as well as guardianship over the children—rights that are often justified on the basis of the principle of qiwamah. Wives, on the other hand, can only secure divorce either through negotiation with the husband or can petition for judicial divorce based on delineated and restricted fault-based grounds. These grounds differed among the juristic schools, with the Maliki school being the most liberal on women’s access to divorce and the Hanafi being the most restrictive. The schools also differed in other aspects pertaining to women’s rights. For example, the Hanafi school allowed single, never-married, virgin women of majority age to contract their own marriages without the need for the presence or consent of their (male) legal guardians, while in the other schools there is a need for a guardian’s presence and consent before a valid marriage can be contracted.8 Notwithstanding these differences, the overall juristic construction of hierarchical spousal roles and rights was the same across different schools, and this construction was transferred into modern, codified Muslim family laws, including the Egyptian one.9
After codification, adherence to the Hanafi school of jurisprudence, which was decreed in the Ottoman period, was maintained in the Egyptian legal system. In fact, the legal system required the judge to apply the dominant opinion of the Hanafi school unless there was an explicit text in the Egyptian legislation on the personal matter being reviewed.10 And yet, the newly codified law contained articles drawn from rulings from other Islamic schools of jurisprudence, for example the Maliki school in regard to judicial divorce. The codification was motivated by a nationalist state agenda of establishing a modern nation. The historian Hanan Kholoussy, for instance, points out that in the first half of the twentieth century and as the country was seeking sovereignty and independence from British rule, “Egyptian legislators also viewed marriage as paramount to the nation because the bulk of state intervention into the so-called private sphere focused on marriage and divorce laws in order to secure their public objectives of political independence and national modernity” (Kholoussy 2010: 10).
Early generations of Egyptian feminists, such as the members of the Egyptian Feminist Union and its founder Huda Sha‘rawi, tried to incorporate their agenda for gender-sensitive legal rights into the state’s modernization project (Badran 1996; Kholoussy 2010; Mashhour 2005). For example, they lobbied for raising the marriage age and reforming divorce and custody laws. These efforts resulted in some reforms. PSL No. 25 of 1920, for instance, included some changes in divorce laws that were aimed at improving the legal rights of women: Articles 4–6 in the law allowed women to file for divorce on the grounds of the husband’s failure to provide maintenance. Articles 9–11 allowed judicial divorce if the husband suffers from a contagious disease, while Articles 12–14 allowed judicial divorce on the grounds of the husband’s desertion or imprisonment. In December 27, 1923, another reform was introduced and the marriage age was set at eighteen for men and sixteen for women. Women’s rights groups, in collaboration with the government, tried to introduce further reforms that aimed at restricting polygamy by proposing the inclusion of stipulations in marriage contracts. However, the proposal for the marriage contract was rejected by the monarch in 1926. On the other hand, in 1929, when PSL No. 25 was amended, women were granted another ground for fault-based divorce, namely spousal maltreatment. Also, the husband’s repudiations that occurred under coercion and intoxication were considered invalid.
Notwithstanding these reforms, the historian Amira Sonbol cautions us against reading the story of the codification of family law and its subsequent reforms as a story of emancipation of Egyptian women. Sonbol’s numerous historical studies of premodern marriage contracts and sharia courts show that with the codification and establishment of centralized state institutions, women lost the flexibility and plurality of the decentralized premodern legal system. According to Sonbol, the premodern legal system, despite being patriarchal, enabled women to creatively negotiate and redefine their marriage and divorce rights in terms that were favorable to them (Sonbol 1996, 2001, 2003, 2009). However, with the advent of nation-states and centralized legal institutions, Sonbol argues that women became subjected to a more discriminating and marginalizing patriarchal system that was now being imposed by state machinery. Sonbol’s central conclusion is: “seeing modern law as bringing about greater rights for women is a misreading of the actual impact of these laws” (2003: 253). The historian Judith Tucker, in her studies of the fatwa institution and marriage practices in the region, also draws a similar conclusion to Sonbol’s about the mixed (and somewhat problematic) implications of codification and legal reform for women’s pursuit of egalitarian rights in the family domain (1998, 2008). Similarly, Kenneth Cuno, in his study of the legal modernization of marriage and family in Egypt in the nineteenth and early twentieth centuries, contends that the establishment of centralized judicial system and codified state laws produced “setbacks for the welfare of women that required subsequent amelioration” (2015: 204).
President Anwar Sadat’s era, in particular, was characterized by a number of reform initiatives that had interesting and contradictory impacts. Sadat started his rule by courting the Muslim Brotherhood via releasing some of their members from prison. In addition, President Sadat amended the constitution in 1971. Article 2 of the constitution stated that Islamic sharia was the main source of government legislation, a strong reflection of the government’s espousal of an Islamic discourse. The growing influence of Islamist ideology in the Egyptian society in the 1970s may explain the government’s efforts to strengthen its rule through assertions of its religious legitimacy (Lone 1995). Yet at the same time during Sadat’s era, the bold and controversial PSL No. 44 was enacted in 1979. This new law, which was decreed by the president while the parliament was in recess, included revolutionary reforms such as women’s rights to automatic judicial divorce on the grounds of their husbands’ second marriage, and the wife’s right to the conjugal home in the case of divorce if she has custody of the children. PSL No. 44 also legislated post-divorce compensation maintenance (mut‘a) for women who are divorced by their husbands without their desire or fault (Fawzy 2004). However, the law was later annulled by the Supreme Constitutional Court in 1985.11
When PSL No. 44 was struck down, it was replaced in May of the same year by PSL No. 100. The reforms that were introduced in the previous law were either crossed out or watered down in the new law. For instance, PSL No. 100 does not give a woman the right to file for divorce simply on the grounds of her husband entering into a new marriage. However, the woman in such a situation will be granted divorce only if she proves to the court that she is ‘harmed’ by her husband’s new marriage. In addition, what constitutes ‘harm’ is very loosely defined in the law, which gives judges a lot of leeway in the interpretation process, a practice that has often worked against women in judicial divorce cases (Fawzy 2004). Moreover, a woman who is filing for judicial divorce on the grounds of her husband’s second marriage can only do so within one year of her knowledge about the new marriage. Also, PSL No. 100 of 1985, unlike the annulled PSL No. 44, does not give divorced women possession of the conjugal home during the period of their custody of their children. Instead, the new law obligates husbands in such cases to pay housing costs. The implementation of the law, however, showed that in most cases the court ordered husbands to pay very little money for housing costs (Fawzy 2004).
For the legal scholar Lama Abu-Odeh (2004), Egyptian legislators’ attempts to introduce