Dörthe Engelcke, Reforming Family Law: Social and Political Change in Jordan and Morocco (Cambridge: Cambridge University Press, 2019).
Jadaliyya (J): What made you write this book?
Dörthe Engelcke (DE): This book is based on my doctoral dissertation which I completed at the University of Oxford. It all started with an empirical puzzle: two seemingly similar semi–authoritarian monarchies like Morocco and Jordan vary in how they engage in family law reform over the course of the 2000s. In Morocco, the process of reform became less dominated over time by actors who had received religious training, whereas in Jordan the shariʿa court administration retook control over family law reform. In Morocco it was the king who took the lead, whereas in Jordan the king was not involved in the reform process. The Moroccan law reflects more strongly the demands of women’s groups and proclaims international law as one of its sources, while the preamble of the Jordanian 2010 law states that the law is based entirely on Islamic sources. In contrast to Morocco, international actors such as UN Women play no role in the implementation of the family law in Jordan. So, this book started from the empirical puzzle of why two seemingly similar hereditary monarchies vary in how they engage in family law reform.
I was also intrigued by the reach of family law. Like most family laws world-wide, Islamic family law is gendered, but it provides more than just a lens through which to study gender relations, notably state-society and inter-religious relations as well. It is an area of law that affects every single citizen. People might never come into contact with criminal law throughout their life, but they definitely will encounter family law. I also felt that law and legal institutions in general were understudied, probably because the region is falsely perceived as lawless and law is assumed to matter less in non-democracies. In sum, I felt that family law, and law and legal institutions in general were issues of central importance.
When I started the project, I noticed that there were great in-depth studies of individual reforms but there have been few efforts to compare cases. The Moroccan family law reform of 2004 had become this shining example of reform both in the region and abroad. However, there was little effort being made to investigate whether the Moroccan case was really that exceptional. As a comparativist I naturally find the exceptionalism argument less convincing. The book thus makes a case for comparative analysis. Ultimately, comparisons caution us not to exoticize a particular case and to draw sharp lines between the universal and the culturally specific.
J: What particular topics, issues, and literatures does the book address?
DE: Family law reform has been a priority for women’s movements across the MENA region ever since most countries achieved formal independence after World War II. It is therefore understandable that many studies on family law focus on the role the women’s movement played in bringing about these reforms. However, the over-emphasis on the role of women’s groups has left other factors underexplored, including the impact of colonial legacies, state-building processes, mobilization against reform, the role of international law, and the impact of the legal system. The book directs our attention to the role legal systems play during reform processes. It demonstrates that the structure of the legal systems, shaped by colonial policies, had an effect on how reform processes were carried out, as well as the content and the application of family law. As a feminist, the question of women’s rights remains important to me and I am interested in how power relations impact on family law and thereby rights and obligations.
Also, scholars who study family law reform rarely consider that these reforms are carried out within an authoritarian context, and scholars of authoritarianism are not interested in family law. In the 2000s, authoritarianism scholars have mainly been concerned with explaining the stability of authoritarian rule. They have greatly enhanced our understanding of how various institutions have contributed to the stability of authoritarian regimes. The functionalist approach often implies that all reforms undertaken by authoritarian regimes are system-maintaining. All internal processes that do not lead to regime change or that are not seen as system-maintaining are therefore considered irrelevant. This negates the possibility that there can indeed be change without regime change. I think that we miss a lot when we narrow our focus in such a way.
Common approaches also have paid less attention to how different elements of the state interact during reform processes. I therefore adopt Joel Migdal’s state-in-society approach to counter the narrative of an active state at the center and a passive society as the recipient of state legislation. State agencies are not autonomous from society. It is relatively easy for a semi-authoritarian regime like Morocco to issue laws that express the views of politically dominant actors, since the regime controls the relevant political organs that are in charge of these processes. However, the regime then requires cooperation from both state and non-state actors to implement new legislation. In other words, actors other than the regime and the ruler shape how the law is implemented, and regimes are often unable to impose a consensus over norms and values.
My study uses Pierre Bourdieu’s theory of practice as an interpretative framework. It primarily focuses on the relationship between actors and how these are embedded in power relations; it combines structure and agency without seeing structural factors as deterministic. This helps us avoid repeating apologetic arguments which justify the existence of all forms of legal discrimination because of the history of European colonialism, while at the same time recognizing that colonial policies did and continue to shape reforms, attitudes, and practices.
J: How does this book connect to and/or depart from your previous work?
DE: How and why contexts impact on reform practices has occupied me for some time. I originally wanted to write about family law in Algeria and Syria. I made an initial fieldwork trip to Algeria in 2010 and then left to Syria. Unfortunately, I had to leave Syria in May 2011. I published the data I collected in Algeria in a book chapter that analyses how colonialism, regional developments, and the civil war impacted on family law reform in Algeria. In Algeria, colonialism shaped what Algerians consider possible and acceptable avenues of reforms. How and why context shapes contemporary reform projects has remained important in my work. I have also worked on reconfigurations of Islamist and non-Islamist organizations in Morocco since 2011. How change happens without regime change has also played a role in my book.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
DE: I hope that the book will make those of us who study law and society in the contemporary period more receptive to how specific historical development processes and political contexts impact reforms today. I also hope that we revise common notions of reform that equate reform with linear progress. I think to understand law in any given setting it is helpful to adopt an inter-disciplinary approach. The book engages with debates in Islamic studies, law, and political science. Ultimately, I hope that there will be more conversations happening across disciplinary boundaries.
I first presented the book during a book talk at the University of Jordan in Amman last year in April. The talk was attended by members of government institutions that work on family law reform, members of international organizations, as well as Jordanian students. I also discussed the book with members of the shariʿa court administration, the dāʾirat qāḍī al-quḍāt. Ultimately, I hope that it will matter to the people I wrote about and that they will find an outsider’s perspective informative. Language is of course a big issue in this regard, and this is why I am hoping to translate the book into Arabic.
J: What other projects are you working on now?
DE: I am currently working on a book about the personal status laws of Christian communities, comparing Jordan and Iraq, and examining issues such as filiation (nasab), adoption, divorce, and inheritance rights. Research to date has focused very heavily on Islamic family law in the Middle East, often neglecting the family laws applied by non-Muslim communities. This is particularly surprising given how much legal autonomy Christian communities enjoy across much of the region. Even at the international level, there is always a focus on Islamic law. The implementation of international conventions such as the United Nations Women’s Rights Convention exerts pressure to reform Islamic family law with a view to reducing discrimination against women. The family laws applied by Christian communities often go unnoticed in these debates even though, like Islamic law, they are gendered. This unequal treatment of different bodies of religious law also leads local actors to perceive the international system as biased and partisan. Thus, my motivation is to present law in the region in a more holistic way, but also to put Islamic family law and the family laws applied by Christian communities in relation to one another.
Excerpt from the book
The issuing of the Moroccan family code in 2004 was followed by initial approval from women’s groups who praised the new code as a milestone for women’s rights in the country. Islamists and other social–conservatives were primarily seen as the losers of this reform. Secular feminists assumed that the law would trigger social change, that is, make large numbers of people engage in relationships and practices that differ from those embraced before. By the end of the decade, however, secular women’s groups had become disappointed because the law did not function as a tool of “social engineering” to the extent that they had hoped. (…) Contrary to their initial hopes, marriage of minors has not disappeared but rather increased in the 2000s. Polygyny figures only remained stable. Also, only around twenty percent of all women now chose to marry without a marriage guardian. Islamist women’s organizations have also claimed that the 2004 law is not properly applied, but have expressed frustration about different issues. They have asserted that divorce has become too easy for women, leading to high divorce figures. They have also criticized the reconciliation (ṣulḥ) procedures, which oblige a judge to attempt to reconcile a couple to prevent a divorce, as insufficient and not working in practice, which further contributes to the breakdown of the family.
A variety of conventional explanations are usually advanced to explain why statutory law reform often does not have the intended outcome. These include people’s ignorance of the law, insufficient enforcement capacities of the state, and people’s perception that the reformed statutory laws are in violation of their customary practices and beliefs. Moroccan women’s groups have argued along similar lines. They in particular criticized the state for not carrying out sufficient awareness campaigns, which in turn left people uninformed about the new provisions. Islamist women’s groups have made similar claims. (…) The state has taken several measures to guarantee a better application of the family code which is, among other things, exemplified by the institutionalization of the social assistant, a judicial auxiliary that was established in cooperation with UN Women. The involvement of international actors in the implementation process of family law in Morocco stands in sharp contrast with the Jordanian experience, where actors like UN Women have not been involved in this process.
However, the sole focus on enforcement capacities leaves other factors that explain why the law works differently than expected underexplored. As will be seen, different parts of the state have taken very different approaches to the 2004 family law. Different agencies of the state have emphasized and rejected different concepts contained within the 2004 law. The state is therefore not acting as a homogeneous actor, enforcing one normative order against cultural resistance from society. Instead, different state actors are themselves actively involved in the production and preservation of multiple normativities. (…) The multiple interpretations of the 2004 law are greatly facilitated by the law’s ambiguity. Marriage guardianship has not been abolished but made optional. Minor marriage and polygyny have not been outlawed but have been made conditional in the case of the former and, with respect to the latter, put under tighter state control. (…) Two types of “street-level bureaucrats” interpreted the 2004 law differently: the social assistant (al-musāʿid al-ijtimāʿī), a judicial auxiliary, and the ʿulamaʾ of the Rabita Mohammedia des Oulémas du Maroc, a state religious institution. Beyond the state level, two women’s groups—the secular Association Démocratique des Femmes du Maroc (ADFM) and the Islamist Organization for the Renewal of the Female Consciousness (ORCF) teach the family law to their constituencies in very different ways.
Since the mid–2000s, the Moroccan government has more closely cooperated with international actors, mainly UN Women (formerly UNIFEM), to guarantee a “better” implementation of the family law. The position of the social assistant had already been referred to in the 2004 family code, but the profession was not previously operationalized, leading to complaints by women’s groups. Many members of women’s groups have worked for the UN in Morocco. (…) By shaping the agenda of an international organization like UN Women in Morocco and due to the responsiveness of the Moroccan government to these international actors, the secular women’s movement was thereby able to implement some of its demands.
The cooperation between the Moroccan government and international actors is exemplified by the creation of the position of the social assistant (al-musāʿid al-ijtimāʿī). The social assistant is a judicial auxiliary, employed by the Ministry of Justice, who is based in the family law section of a court. According to the guidelines formulated by the Moroccan Ministry of Justice to clarify and define the tasks, qualifications, and competences of all civil servants, the social assistant is intended to facilitate the work of the judge. He or she (currently the overwhelming majority of social assistants is female) conducts social inquiries by interviewing people in cases of kafāla (a type of foster care system), the marriage of minors, the marriage of mentally disabled people, custody cases, and polygyny. The report of the social assistant is intended to give the judge a better idea of the social circumstances of the case, so that the judge can make a more informed decision.
The institutionalization of the social assistant by the state is based on a pilot project carried out by UN Women (then UNIFEM) in 2008. UNIFEM recruited and trained social assistants to operate at the family court in Tangier. The project was then evaluated as successful, and the Moroccan government formally decided to include the position of social assistant in the 2011 national budget. The state will continue to recruit hundreds of social assistants each year until courts in bigger cities have two to three social assistants and tribunals in smaller cities have one social assistant. The social assistant is thus a street–level bureaucrat in–the–making. (…)
It is relatively easy for a (semi-)authoritarian regime to issue laws that express the view of politically dominant actors, since it dominates and controls the political organs responsible for these processes. But it then requires cooperation from both various state agencies and non-state actors to implement these policies. This is why the law–making process is more straight–forward and often determined from above as was the case in Morocco, whereas the law–implementation process is not.
Through family law reform, the state entered areas that it did not previously regulate and has sought tighter control over people’s lives. However, this has not been a smooth process, and the state has faced severe obstacles in fulfilling its new role. The above observation of actual state practices suggests that power is relatively decentralized. To better understand how the implementation of the Morocco’s 2004 family code works one must depart from the assumption of a homogenous authoritarian state which imposes itself on society. Instead, the boundaries between state and non-state actors are often fluid. The state is not a unified actor that simply contests norms within society that are at odds with the state’s statutory law. Instead, different state agencies emphasize different aspects of the law. Street-level bureaucrats’ interpretations of the law at times overlap with those of non-state actors who disagree with some of the norms incorporated into the law. State agencies thereby themselves help foster, at least indirectly, the proliferation of conflicting interpretations of the law, for example by funding such non-state actors. (…)
As a result of differing conceptions of the state, gender roles and family’s welfare roles, different groups emphasize or reject different concepts of the law. Islamist women’s groups emphasize reconciliation (ṣulḥ) procedures and complementary rights within the family, while ADFM shows little interest in reconciliation and instead emphasizes the new rights that women gained through family law reform, such as the right to marry without a marriage guardian. The differences in emphasis are partly related to different understanding of what social ills the family law should address—high divorce rates or women’s legal inferiority—and by whom. Many Islamists see the family as best equipped to provide support for individuals and therefore view divorce as a rupture to family relations to be avoided at all costs. Easy access to divorce (for men and women) is therefore seen as a threat to this welfare model. Most feminists, meanwhile, attribute this welfare role to the state. (…) Divergent interpretations of the law are also greatly facilitated by its ambiguity, which in turn enables different groups to bring in their own agendas. Instead of presenting a radical rupture and replacing the norms that were expressed in the previous law in their entirety, the new law coexists with and modifies some of them.
In Morocco, UN Women, an international actor, considerably shaped how family law was implemented. The impact of UN Women was mostly exemplified by the creation of the social assistant that began as a UN Women pilot project. Several structural factors explain why UN Women was able to shape the implementation of family law in Morocco but not in Jordan. In Morocco the courts are supervised by the Ministry of Justice which was more favourable to cooperating with an international actor. The Ministry of Justice was the main cooperation partner for UN Women. In Jordan the Supreme Judge Department, the shariʿa court administration, enjoys great autonomy and has chosen not to cooperate with international actors, so as to guarantee a better application of the 2010 Jordanian law.