The family laws and practices that exist in most Muslim countries are based on a combination of classical fiqh rules (interpretations of the sacred Shari‘a that were devised centuries ago by Islamic scholars); colonial concepts, legal structures and procedures; and norms and customs derived from local culture and not religion. The hybrid nature of these laws and practices indicates that they developed in a certain context. In many cases, they were enacted by a legislative assembly. Thus, they are not sacred and inflexible, but can be changed. In the 21st century, the framework for evaluating and proposing changes to family laws and practices must be multi-dimensional and holistic, balancing the realities of men’s and women’s lives against Islamic and universal standards of equality and justice for all. Multiple perspectives can be invoked to promote equality and justice in the family, so this Kit provides examples from each of these perspectives.
The various sources and references for each of these perspectives are briefly mentioned below. The Other Resources section of this website provides more details, including some online references.
Qur’anic provisions on personal matters such as marriage and divorce are often broad proclamations that provide a wide scope for interpretation. The Sunnah also provides examples of how the Prophet (saw) widely promoted equality and justice between men and women in the family. The guidance provided in the Qur’an and Sunnah, along with fiqh interpretations by Islamic scholars, can be considered along with the purposes of the Shari‘ah (maqasid al-shari‘ah) and public interest considerations (maslahah), with due attention given to the realities in the present day socio-economic circumstances.
All Member States of the United Nations have implicitly agreed to the Universal Declaration of Human Rights, which is also widely considered to be part of customary international law. In addition, most countries have ratified one or more international human rights treaties, thus are obligated to implement their provisions. There are a wide variety of other treaties and declarations that provide guidance and either legal or moral obligations for member States, both through the United Nations and other bodies such as the Organisation of the Islamic Conference (OIC) and the Non-Aligned Movement (NAM).
Many national constitutions, laws and policies provide guarantees and promises of equality and justice for men and women. Such guarantees and promises can also be identified in speeches and plans presented by high-level Government officials. It is essential to ensure that these reach all aspects of men’s and women’s lives, including within the realm of the family.
â–º Because constitutions, laws and policies differ dramatically between countries, NGOs, activists, lawyers, academics and government officials should examine the laws and policies of their own countries to determine how to use these to promote equality in the family.
One of the main justifications for reforming family laws and practices to be more equal and just is because the laws do not adequately address the realities of men’s and women’s lives. Examining social, economic, historical and cultural information, statistics, data, and stories about families in the 21st century and how family laws affect their lives provides insight into the ways in which family laws and practices can better promote healthy, stable, productive and harmonious individuals and families.
In the mid-20th century colonial and post-colonial period, many Muslim countries enacted legislative codes to standardise legal provisions related to personal matters like marriage, divorce, children, and inheritance. In the past few decades, there have been many efforts in different to reform these provisions to be more just and equitable, especially for women. Examples from different countries demonstrate the diversity of family laws and provide ideas for how provisions can be changed.
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