HISTORICAL DETERMINISM AND WOMEN'S RIGHTS IN SHARIA LAW.

Author:Glaze, Mackenzie

Although women's rights in many countries reflect Sharia Law, the interpretation of Sharia Law is not uniform across these countries. a result, not all countries that follow Sharia Law protect women's rights to the same degree. We can hypothesize that the interpretation of Sharia Law in various countries, and therefore the protection of women's rights, is determined by the historical forces that have shaped that country's cultural life. To test this hypothesis, this Note traces the history of three countries in order to explore what led each country to develop vastly different beliefs surrounding the rights of women under Sharia law. Although historical determinism is a tricky concept, I believe the evidence suggests that between the identity of the colonizer, who fills the power vacuum after the colonizer is forced to leave, and the country's desire to westernize have the greatest effects on the rights granted to women.

  1. INTRODUCTION II. COMPARISON OF RIGHTS AND PUNISHMENTS A. RIGHTS IN DIVORCE i. Saudi Arabia ii. Libya iii. Tunisia B. RIGHTS IN INHERITANCE i. Saudi Arabia ii. Libya iii. Tunisia C. PUNISHMENT FOR ADULTERY i. Saudi Arabia ii. Libya iii. Tunisia III. TRACING THE HISTORY A. SAUDI ARABIA i. Historical Background ii. Hypothesizing History's Effects on Today B. LIBYA i. Historical Background ii. Hypothesizing History's Effects on Today C. TUNISIA i. Historical Background iii. Hypothesizing History's Effects on Today IV. CONCLUSION I. INTRODUCTION

    Around the world women's rights seem to be improving, albeit at an uneven pace. As difficult as it is to understand the factors that determine the scope and pace of women's rights, such a determination is even more difficult when the subject is women's rights in Islamic countries. In those countries the role of women is governed in varying degrees by religious Sharia law. Yet even in Islamic countries and more specifically, within their interpretations of Sharia law, they differ in their treatment of women and the laws relating to their rights. These disparities are largely apparent and with enough information we ought to be able to create a hypothesis about what accounts for the differing treatments of women in different countries.

    It is therefore worthwhile to consider what factors may account for different attitudes towards women, even in countries that at least nominally share a common culture and religion. This topic is complex because Sharia law has vastly different implementations and interpretations across the numerous Islamic countries. These differences are visible through not only the distinct laws in place but also in the world human rights arena.

    This Note reviews the historical, social, and religious history of three Islamic countries in order to develop workable hypotheses about the factors that influenced the development of women's rights. This paper examines the factors that determined the attitude towards Sharia law with respect to women's rights in three former members of the Ottoman Empire: Tunisia, Libya, and Saudi Arabia. Each of these countries represents a different approach to the role that Sharia law plays in the lives of women. In Section II I discuss deviations in Sharia law interpretation and examine what factors might have led to those differences, by first comparing and contrasting the right along three dimensions: divorce rights, property rights for inheritance, and punishment for adultery. Next, in Section III, I will explore the histories of these three countries in an attempt to trace factors that have played integral roles in each country's development and the rights of women today, while hypothesizing what caused each country to diverge from the others.

  2. COMPARISON OF RIGHTS AND PUNISHMENTS

    There are three classifications used to distinguish amongst Islamic countries and the level of influence of Sharia law: Government Under God, Dual Legal System, and Completely Secular. (1) In Government Under God systems, Islam is the official religion and Sharia is the source of all law. (2) The majority of Islamic countries have a variation of a Dual Legal System in which the government remains secular but Muslims may choose to bring certain kinds of disputes to specific Sharia courts. (3) These courts generally have jurisdiction over cases involving marriages, divorces, and inheritances and are not mandatory but rather an option for Muslims within that country. (4) Finally, in a Completely Secular system, the government is considered to be secular in all aspects--Sharia law, however, may influence cultural and local customs. (5) I have identified three countries which represent each of the three classifications: Saudi Arabia (Government Under God), Libya (Dual Legal System), and Tunisia (Completely Secular).

    In this section, I will compare and contrast women's rights in divorce and inheritance proceedings, including the typical punishments for adultery in Tunisia, Libya, and Saudi Arabia. I have chosen these categories as they are often among the most visible and are among the most important rights in a woman's daily life. (6) Although their attitudes toward women's rights come from a common source and reflect common antecedents, each of the three countries have taken divergent paths.

    1. RIGHTS IN DIVORCE

      i. Saudi Arabia

      Saudi Arabia has the most restrictive divorce laws amongst these three countries. According to the Prophet Muhammad, there is no worse fate than divorce. (7) Saudi men have unilateral decision making and can divorce a woman without consent from a judge or without legal grounds. (8) Conversely, a woman cannot obtain a divorce without both the consent of the husband and a court. (9) Additionally, the woman must surrender all assets and money given to her throughout their marriage to the man before it can be considered a legal divorce. (10) Even if a woman is able to achieve a divorce, there is still a strong negative social perception and religious stigma towards divorced women. (11) Once divorced, women, if they are fortunate enough to gain custody of their children, can only retain custody until the children reach the age of nine, in which case it reverts back to the husband. (12) It should also be noted that throughout the duration of the divorce, the husband is considered the wife's legal guardian. (13)

      ii. Libya

      In contrast to Tunisia, Libya has a more restrictive divorce law. While men have the right to divorce a woman unilaterally, women lack that same right. (14) In order for a woman to divorce a man, certain conditions must be met. (15) These include, "if the husband is deemed unable to maintain his wife, is absent without justification, or is impotent." (16) Although the wife has the right to divorce the husband, if she "is deemed the cause of the divorce, then not only is she denied any outstanding mahar (dower payment), but in addition, the custody of her children is given to the husband. In some cases, she is also ordered to pay compensation." (17) Even after getting divorced, the woman faces a tremendous amount of social stigma and is often shunned from the community. (18) While the husband is technically required to pay the wife in the case that she receives custody of the children, in reality, the husband can choose not to pay without fear of ramification. (19)

      iii. Tunisia

      Finally, in Tunisia, the Personal Status Code has established distinct rights for women surrounding marriage. (20) Under the Code, polygamy was made illegal, women were given the right to consent to their marriage, and a wife's duty to obey her husband was abolished. (21) Women now tend to play important roles along with their husbands in their family life. (22) Tunisia recognizes equality for men and women in terms of divorce. (23) Prior to the Personal Status Code, women rarely succeeded in divorcing their husbands due to the extreme laws, conditions, and high standards of evidence required by Islamic law. (24) Men could easily rescind a marriage contract by simply declaring the divorce in front of two notaries. (25) The Personal Status Code leveled the playing field by making divorce more difficult for both men and women in order to promote family stability.26 There are three kinds of divorce recognized by the Personal Status Code: divorce by mutual consent of both spouses, a request by one of the spouses, and a divorce for prejudice. (27) A judge may choose to grant custody of the children to either parent by determining the interests of the child. (28) Women with custody of the children may receive alimony and child support. (29)

    2. RIGHTS IN INHERITANCE

      i. Saudi Arabia

      Saudi Arabia has the most restrictive inheritance laws in comparison to Tunisia and Libya. Although the original Islamic laws state that women are entitled to at least a portion of the inheritance,

      [m]isinterpretations of ... laws are preventing Saudi women from benefiting from their legal inheritance. Many women today are robbed of their endowment rights because of cultural norms and tribal customs that go against the teachings of the Holy Qur'an. Sadly, there are many cases today of women living in poverty after their fathers die because only the men in the family enjoy inheritance and endowment rights. (30) When a husband dies, the wife can only receive up to 50% (if she has children) and only 25% of the total inheritance. If the husband has a descendant, she only receives 12.5%. (31)

      ii. Libya

      When it comes to land rights and inheritance in Libya, the law is written more equally for men and women. (32) Although this is the case and, "... civil law mandates equal rights in inheritance, women often received less due to interpretations of Sharia that favor males." (33) As is the case in most other Islamic countries, like Tunisia and Saudi Arabia, women receive roughly half of the inheritance as their brothers. (34) Although there is a law that was written to prevent this and enforce a penalty against those that withhold inheritance from...

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