Significant differences in historical development led to the modern status of women in the three nations of Tunisia, Algeria, and Morocco.The Maghreb cultures form patrilineal kin-based societies, with state formation and the tribal system intricately linked. The different power relationships between tribes and the political state thus greatly influenced the development of modern family law.
The religious unity of Islam is the greatest common factor, unifying virtually all of the Maghreb under the Maliki school of Islamic law. Islamic family law greatly influences the role of women, building on pre-Islamic tribal ideals – both of which designate women to a subordinate position.
While men are seen as a unifying force, since inheritance runs through the male side, women are considered as potentially dividing clan-based loyalties through marriage and subsequent loss of name and property to the males of another lineage. In spite of several common elements, historical differences are more relevant in examining the differences among modern family law in the Maghreb.
Precolonial Tunisia was the most centralized of the Maghrebi states, characterized by successful taxation, relatively stable communities, and recognized boundaries. Tribal structures had weakened by the nineteenth century to allow for stronger central authority. During Ottoman rule, Tunisia was already forming a more cohesive state than Algeria (only under partial Ottoman rule) and Morocco (outside the Ottoman empire)
In State’s and Women’s Rights: The Making of Postcolonial Tunisia, Algeria, and Morocco, author Mounira Charrad shows that “unification [between the tribe and state] was posed as a salient issue early on in Tunisia at a time when no comparable attempt took place in the other two Maghrebi countries.” (p112) The consequence was that Islamic family law reigned throughout the region with comparatively little variation among tribes. Colonial rule furthered bureaucratic centralization, weakened the already fading tribal structures, and generated a laissez-faire policy on family law.
In effect, French rule was made possible without changing family law. “The nationalist struggle … culminated in the formation of a national state that was largely autonomous from the support of tribal areas,” writes Charrad. “This was the decisive factor that … permitted major reforms of family law with the resulting expansion of women’s rights in the aftermath of independence.” (p201) The reformation of family law was only a part of the larger attempt to build a modern nation-state by removing traditional tribal groupings.
This was made possible since Tunisia was already characterized by a tradition of national unity, which gave the independent country an advantage in state formation. Tunisia’s family code is today heralded as one of the most egalitarian in the Arab-Muslim world.
Both during Ottoman and French rule, Algeria experienced “a weakly centralized political system and a highly segmented form of social organization,” according to Charrad (p98). Most tribal groups had little or no contact with central authority. During the nineteenth century different sources estimate that between one half to two thirds of the Algerian population escaped central rule completely, for example by avoiding taxation.
Although the French established official colonial rule in 1830, large areas of the country still escaped French control even several decades later. Kin-based groups remained stronger than in Tunisia throughout the colonial period, creating several local codes of family law that varied between tribes. Colonial rule failed to break up tribal solidarity although tribes were fragmented into smaller and less powerful units.
Local, particularistic codes of customary law were maintained by tribes. The French introduced a number of changes to family law in the attempt to tighten the colonial grip. The French encouraged divisions among regions with the objective of facilitating bureaucratic rule. In contrast to Morocco and Tunisia, Algeria experienced a highly fractioned and difficult independence. Although independence was granted in 1962, the conservative Algerian family law was not ratified until 1984.
The highly fractioned state, aggravated by colonial rule, is symbolic in the struggle to codify family law. During the years between 1962 and 1984, new factors such as the emergence of Islamic radicalism and the migration from rural areas to urban centers affected the adoption of a conservative code. Women’s movements and calls for reform during the beginning of independence showed promise for a more egalitarian code. However, in 1984 the liberalizing process had been reversed back to a conservative attitude intent on preserving the patrilineal kin-based structure in the face of popular fear of increased internal migration toward the cities.
Prior to establishment of the French and Spanish protectorates, Morocco was characterized by a long-standing dichotomy between autonomous tribes and the central power structure. In contrast to the Algerian situation, where most tribes were left to themselves, Moroccan tribes were in a constant state of tension with state authority.
As a consequence, Morocco experienced even greater diversity than Algeria in variations of family law and the treatment of women between different regions and tribes. Charrad claims that “the French colonial state actively preserved tribal organization by using a divide-and-rule strategy.” (p115) Family law was politicized by, as in Algeria, emphasizing existing divisions among regions and tribal groupings. “A major effect of colonization on Moroccan society was to tame but preserve the tribes,” writes Charrad (p125).
Thus tribal solidarities remained a defining feature of Moroccan politics after independence in 1956, reflected in the family code adopted in 1957-58. In the effort to avoid disturbing the tribal order, the new monarchy adopted a family law faithful to Islamic law that, as Charrad writes, “institutionalized the model of the family as an extended patrilineage.” (p147)
Women’s legal status was left fundamentally unchanged. In spite of small changes on specific points, women were assigned a subordinate status in regards to rights of divorce, polygamy, filiation, and inheritance. According to Charrad, the family code adopted in independent Morocco “should be read as the continuation of the legal subordination of women to men..” (p167)
Critical differences between the Maghrebi states created the environment for the emergence of differing codes of family law that affect the life of men and women. The degree of tribal isolation, the capacity of tribes to evade taxation, and the extent of emerging central bureaucratization characterized the precolonial period. The relative autonomy of tribal groups in Morocco and Algeria created different conditions for colonial politics than in Tunisia, which experienced greater centralization prior to French rule.
Precolonial differences led to separate approaches by the French during colonial rule, which in turn strengthened the differences between the three nations. Through three different paths toward modernity, Tunisia today stands as a model for egalitarian family law in the Arab world, while Morocco and Algeria hold conservative policies.
References:
Charrad, Mounira M. State’s and Womens Rights: The Making of Postcolonial Tunisia, Algeria, and Morocco.
University of California Press, Los Angeles, CA, (2001).
