Recently, Lebanon has witnessed increasing debate about the compatibility of the personal status laws with the most basic rights, particularly women’s rights and needs. Amidst the failure of all attempts to impose a civil personal status law, these debates have raised two questions. The first concerns the means of improving the status of women and children in family laws. It asks whether it makes more sense to reform existing sectarian laws given that the demands calling for centralized civil laws have faltered. The second concerns the means of changing these “religious” laws in response to popular pressure: although the process of legislative change is relatively straightforward when it comes to civil laws, at least in theory – the people elect their representatives in the legislature, which produces and amends laws – it is complicated when it comes to unelected religious authorities who as a result are not subject to popular accountability. 

 

The first question (civil vs religious means of change) involves political and ideological criteria and preferences that this article will not discuss, except insofar as such criteria are part of the motivations of the women who choose change from within the sects. The article, however, will address the second question by examining the only case in Lebanon, back in 2012, wherein a popular movement from below helped instigate partial change in a sectarian law, namely the Sunni personal status law. 

 

The other instances of personal status law amendments in the last two decades (the Orthodox sect in 2003, the Evangelical sect in 2005, and the Druze sect in 2017) are limited to top-down change produced by the highest religious authorities, albeit in response to indirect demands from the people of these sects. The other sects so far remain in a deep legislative slumber (albeit not as deep as the civil Lebanese state’s rigidity in many areas). The Sunni experience also raises important questions for the situation of family laws in Lebanon today and their susceptibility to change: were dozens of women really able to impose the family law amendment onto the Sunni religious authorities? If this is completely or partially true, then how did they do so, and with what resources, strategies, and alliances? Is it possible and advisable to replicate the Sunni example in the other sects, and under what conditions and political cost?

 

1. Anxious Sectarian Legal Systems

 

To begin with, I must point out that although the women’s movement to change Sunni personal status laws via the Family Rights Network led by lawyer Iqbal Doughan is important, it cannot by itself explain the change in 2012, which raised the age of maternal custody (the primary criterion determining when child custody is usually transferred to the father in the case of separation) from 7 for boys and 9 for girls to 12 for both genders and amended certain rules concerning mahr [dowry paid to a bride]. “Religious” laws and their modern systems do not exist in a vacuum; rather, they are produced, interpreted, and applied in a certain social context, and the movement’s women took advantage of some features of this context to help bring about the aforementioned legislative change.

 

The first feature of this religio-legal sphere was that for two decades, its sectarian judicial systems had been in an unprecedented defensive position because of the proliferation of feminist and rights movements.. Despite the strict religious discourse rejecting the new feminist ideas and discourses, the religious authorities concerned with family laws began having to constantly justify their stances and laws in the public sphere (as best illustrated by the recent justification efforts in the case of Shia sectarian laws) under the pressure of the influx of rights-based and feminist ideas in mainstream and social media.

 

The second structural factor that paved the way for the 2012 legislative change was the existence of a long-standing reformist current within the Islamic courts. This current is not at the forefront of the Islamic judiciary as the “reformist” judges are a minority, nor is it known to or visible in the media because the secular-religious dichotomy that dominates public discourse today prevents light from being shed on the diversity within each camp. This current constituted an important foundation for reform from within the religious system as the women were able to find allies inside it and their demands were consequently more easily accepted.

 

Finally, in the years 2007-2012, when the women’s movement occurred, a confrontation was underway between the Sunni courts and juvenile judges over the protection of at-risk children. Some juvenile judges argued that the Islamic courts’ application of religious rules could put some children in a dangerous situation warranting their intervention, provoking a wave of objections from Islamic court judges. Hence, competition arose between the two judicial systems over which one is qualified to protect children, exacerbating anxiety among Christian and Islamic court judges and causing some changes in judicial practice and rulings. This factor also convinced key actors in the Islamic court system that they would inevitably have to compromise on the content of the “religious” law in order to preserve their authority to produce it in the domestic sphere.

 

These structural factors combined to provide the movement’s women a foundation for change from within the Sunni sect.

 

2. From Feminist Caution to Civil Frustration

 

While some feminist currents argue that the problem with personal status laws lies primarily in their religious nature and inherent bias against women and as a result call upon the state to intervene to protect them from the sects’ laws, the Family Rights Network adopted a different approach. It went directly and exclusively to the Sunni sectarian authority and its laws while ignoring the state, thereby replacing the aspiration for a strong legislating state with a state that merely registers rules produced in another sphere, namely that of the sects. This positioning provoked harsh criticism from some feminists, who accused the Family Rights Network of legitimizing the religious authorities, especially as Doughan had a long history of activism in the ranks of left-wing feminists.

 

The response by the movement’s women to such criticism was multifaceted. It focused on the complexities of the concept of “gender” that provokes many women, the western funding that some feminist organizations receive and that undermines the legitimacy of their demands, pragmatic considerations (i.e. that reforming the religious laws would be a short-term solution to relieve the women subject to them while the long-term goal would remain a civil law), and tactical considerations (i.e. that attacking the whole system to radically change it currently seems infeasible). Amidst these justifications, they frequently recited a long history of civil “defeats”, including the abortion of the civil personal status bill in 1998 (how could a few isolated women succeed where President Elias Hrawi himself had failed?) and the recent failures of the juvenile judges.

 

The juvenile judiciary issue played a role in pushing the women of the Family Rights Network away from the civil law option and toward the option of amending the religious laws. What they perceived as the juvenile judiciary’s “failure” to protect their children and its relative retreat in the face of the Islamic courts helped convince them that the path to change was not through the civil central state and its judges but the sects. 

 

After 2007 (and Judge Fawzi Khamis’ famous rulings), many mothers, some among the movement’s women, had resorted to the juvenile judiciary to evade the age-of-maternal-custody rule in the Christian and Islamic courts. Interviews with the movement’s women show that the “failure of the civil judiciary” is ubiquitous in their discourses. They mention the “removal of Judge Khamis”, who “dared confront the sects’ kingdoms”, and even the experience of Judge John Qazzi, who “was punished and no longer has an office” because he dared make interpretive judgements allowing Lebanese women to pass their nationality on to their children. 

 

Hence, the women of the movement deemed civil judges to have been too tamed to be trusted in defending their children’s interest. This pushed them toward a notion opposite to the aforementioned notion among Islamic court judges: they would have to compromise on the source of the law (i.e. civil or religious?) in hopes of changing its content. The convergence of these two notions pushed the women toward working to change the sectarian laws one by one, on one hand, and boosted their odds of success by unsettling the sphere of the Islamic judiciary, on the other.

 

The women of the movement also presented other tactical arguments, such as that their movement is less provocative to the sects as the demand is only to change the content of sectarian laws, not the principle of such laws, and that focusing on each sect individually would reduce overall resistance while the subsequent accumulation of successes via each sect would lead to the same practical outcomes that the civil feminist currents desired. They also argued that the movement was confined to narrow, less contentious points (children and custody is an easy issue that enjoys a high degree of consensus among all involved parties, whereas difficult issues such as inheritance went unaddressed), which would weaken the resistance to it.

 

3. A Different Rights Language

 

One of the most prominent features of the Family Rights Network movement is that it ignored the rights language generally adopted by feminist currents and based primarily on international agreements and texts. Instead of relying on the rights found in the Convention on the Elimination of all Forms of Discrimination Against Women or the Convention on the Rights of the Child, for example, the movement resorted to a different system of rights, one with more potency before the religious authorities. It exploited the plurality within Islamic law itself by highlighting the diversity of jurisprudential currents within the Hanafi school (the school adopted by Sunni courts in Lebanon) when it comes to custody. This constituted an unofficial process of talfiq [the derivation of new rules by combining different Islamic legal opinions] from below. What distinguishes this process is that it was largely carried out by women who are neither legal experts nor experienced in Islamic law and in relation to an issue that in Lebanon is usually only spoken about by clerics.

 

With the silence of the 1917 Ottoman Family Rights Law on the custody issue, Article 242 of the law regulating the Islamic courts originally stipulated (before the 2011 amendment) that Islamic court judges should resort to the predominant view from the school of Imam Abu Hanifa. However, the women of the movement challenged the intuitiveness of this expression by highlighting the plurality within the Hanafi school and its views on custody. They thereby broke the monopoly of the religious authorities and clerics over the topic of religious rules, on one hand, and made rejecting their jurisprudential arguments much more difficult than the prompt, automatic rejection that arguments based on international rules usually receive, on the other. Besides this jurisprudential plurality, the movement highlighted another plurality: the laws of Islamic and Arab states such as Syria, Tunisia, Morocco, and of course Egypt and al-Azhar, where Islam had not posed an obstacle to radical and significant family law reforms. Finally, the movement devised new uses of certain principles such as justice and certain criteria such as the child’s mental health to differentiate the various jurisprudential stances and views.

 

Highlighting these jurisprudential, international, and normative pluralities had two results. Firstly, it defused the cultural particularities discourse (i.e. the argument that the Lebanese or Islamic family is under threat) that the religious authorities usually use to reject proposals to reform family laws. Secondly, it dismantled the sanctity given to certain rules concerning the family on account of their religious nature because demonstrating Islamic plurality made such sanctification and argumentation based on it impossible. Hence, the custody issue was no longer an exclusively  jurisprudential–religious issue thanks to the entry of new actors and rules into the operating principle whose sphere of action and language were previously monopolized by clerics. This resulted in unprecedented de-facto equality between the clerics and the women of the movement.[2]

 

4. The Role of Politics and Social Networks

 

Political actors constituted a final key factor that helped the women’s movement succeed in amending the Sunni sect’s personal status law. Change required more than a strategy whereby the movement manipulated jurisprudential and legal rules to achieve its goals; it also required working to create circumstances that would allow prominent Sunni political figures, such as former prime minister Fouad Siniora, former minister Khaled Kabbani, MP Bahia Hariri, and former prime minister and current MP Najib Mikati, to intervene. All of them formed a liaison with Dar al-Fatwa, and some put pressure on the religious authorities, which is what similar movements in the other sects lacked. Actors and families from Beirut also played an important role in promoting the movement’s goals and arguments in decision-making circles and among the affluent class within the Sunni sect. For example, the famous couple Omar and Adla Zain acted as an intermediary between the women of the movement and some influential families and institutions in the capital and the sect. Particularly remarkable is the role of the traditional morning gatherings of women in “upmarket” Beirut neighborhoods, such as Verdun and Ras Beirut, in marketing the movement’s ideas, which formed a climate of pressure within the Sunni bourgeoisie that gave Dar al-Fatwa and the sect’s hardliners limited options. Clearly, the women of the movement understood well that they would achieve quick results if they concentrated their efforts on specific spaces and networks within the sect, namely those to which most of the politicians, businessmen, and influential wealthy belong.

 

All these factors accelerated developments on the ground. In February 2009, Dar al-Fatwa adopted a bill including most of the movement’s demands unmodified (including raising the age of maternal custody to 15 years for girls and 13 years for boys) and sent it to the Council of Ministers. The latter adopted it the same month and sent it to Parliament, creating a positive atmosphere among the women. Parliament was expected to be a walk in the park for the bill, for who would dare oppose a bill supported by Dar al-Fatwa and the sect’s most important political forces? However, the bill encountered fierce opposition from several Sunni MPs, who froze it in the committees for more than a year. The reason given to the women at the time to justify this impasse was that these MPs refused to have Christian, Shia, and Druze MPs examine a bill linked to the heart of the Sunni sect, namely its personal status law. Hence, some MPs began demanding that equality be established among the sects by giving the Sunni sect autonomy “like the Christian sects” in family matters. Accordingly, they stipulated that Article 242 of the 1962 law be amended to make the sect’s Supreme Sharia Council the primary source of the law applied by Islamic court judges. An opposing bill was proposed during 2010, providing what was at the time portrayed as a middle-ground solution, namely a maternal custody age of 12, in exchange for the amendment of Article 242. After an extraordinary women’s sit-in was held in front of Dar al-Fatwa in June 2011 to induce the Supreme Sharia Council to accept the latter bill, Parliament voted on the law on 29 August 2011. Then, the aforementioned council, with the powers that the new law granted it, promptly made a number of amendments to Islamic law rules, including raising the maternal custody age to 12, in October of the same year. The council’s decision was published in the Official Gazette in January 2012.

 

Amending Personal Status Laws: Preliminary Conclusions and Results

 

The legal change that occurred was undoubtedly limited and prompted many criticisms. The movement was accused of achieving little in exchange for giving the Supreme Sharia Council significant new powers via Article 242’s amendment. However, irrespective of one’s view regarding the movement’s methods and results, it raises several observations – or at least questions – about reforming personal status laws in Lebanon.

 

First, change requires objective factors mentioned earlier and most of which may now exist in Lebanon in relation to certain sects. When these factors are present, change becomes possible via the legal and rights-related choices made by women activists in conjunction with sociopolitical networking with the influential actors in each sect, and each of these factors would not have been enough without the others.

 

Secondly, whatever the movement’s legal results may be, it produced a certain liveliness in relation to sectarian-based institutions, as exemplified by women’s new interest in the Supreme Sharia Council with its expanded powers (an elected council whose members are to this day all men), which has fueled conversation about the possibility of women running for its positions.

 

Thirdly, certain factors made the centralized parliamentary sphere seem more resistant to the movement’s demands than the religio-sectarian sphere. The national, multi-sect parliamentary sphere clearly provided new weapons that the conservatives had lost in the religio-sectarian sphere in the face of religious–jurisprudential arguments. The weapon of protecting sectarian particularities vis a vis other sects, which had become obsolete within the Sunni religio-sectarian sphere, was revived in the face of the other sects in Parliament.

 

The final question is the replicability of the Sunni experience in the other sects. In this regard, we have seen mixed results in relation to similar struggles to change Druze and Shia personal status laws, with the religious authorities deriving different lessons in each case. In the Druze case, the religio-sectarian authority was quick to understand the demands before the emergence of a movement in the public sphere, and adopted them as its own legal reforms. In the Shia case, the demands continue to face blanket rejection despite recent proposals of certain partial solutions. How can these differences be explained? Although the answer to this question is outside the scope of this article, it can clearly be found in the religious authorities’ relationship with the political authorities within the sect. The political dimension has an important role – even more important than the religious dimension – not shown by the current public debate, which is only interested in the religious nature of the personal status laws.

 

In any case, whether we like it or not, today it is apparent that movement and change from within the sects is a difficult but serious option for amending personal status laws in Lebanon. These strategies, which played out in the case of Sunni courts, become more attractive to some Lebanese when they compare them to the chronic failure of the centralized civil reform projects. 

 

The remarkable thing is that via this new approach, the sect and its laws seem more susceptible to change and reform than the state itself. But what are the political consequences of this inversion in the approach to reform after a century of focus on the civil options and near-absolute faith in them? And where will shifting the battle from the religious nature of family laws to the content of those laws, and from working to change the entire political system to working to change the law of each sect, lead? At that point, the sphere of the political system will seem non-politicized (in the sense of an apparent acceptance that it never changes and reforming it is impossible, at least for the foreseeable future) as politics moves into the religio-sectarian sphere and the relationship of people and political actors to the religious authorities within their same sect.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Personal status law, Sectarian law, Religious authorities, Sects, Maternal custody, Feminist, Women

 

 

[1] Some of this article’s ideas were previously published in an extended French version:

Samer Ghamroun, “Le droit de la communauté sunnite libanaise saisi par les femmes”, Rochefort, Florence et Sanna, Maria Eleonora (dir.), Normes religieuses et genre. Mutations, résistances et reconfiguration XIXème-XXIème siècle, Paris: Armand Colin (2013), p. 203-216.

 

An extended version also formed Chapter 8 from my Ph.D. thesis:

Samer Ghamroun,“Effets d’État. Les juges des enfants, les tribunaux de la charia et la lutte pour la famille libanaise”, Thèse de doctorat, École Normale supérieure de Cachan (2016).

 

[2] It would be ill-advised to place this movement within what has become known as Islamic feminism because, firstly, the movement’s women did not define themselves in this manner and, secondly, the strategic nature of their movement (i.e. the notion that religious change is more realistic than civil change) distances them from the main components of Islamic feminism in my opinion. However, delving into the details of these factors warrants a separate study.