The Region and Its History
The Middle East lies at the junction of Africa, Asia, and Europe. The world's oldest civilizations were born there, as were three of the world's great religions: Judaism, Christianity and Islam. From the point of view of most Muslims, the rise of Islam is the most significant event in the region's long and complex history. Muslims make up the majority of the population in every Middle Eastern country except Israel, and Islamic values and institutions and values permeate every aspect of Middle Eastern society.
The Prophet Mohammed first heard what Muslims believe to be the word of God around 610, outside of Mecca in what is today Saudi Arabia. After an interval without visions, he communicated a steady stream of divine commands to his followers until his death in 632. These revelations were collected into the Quran. The sayings of the Prophet, or the hadith, form a second source of knowledge about the Prophet's life and teaching.
The religion the Prophet Mohammed founded contained the design for a political as well as social system. In pre-Islamic Arabia, tribal affiliation was the major social bond. However, as the Middle Eastern scholar John L. Esposito argues, “Islam replaced this with a community whose membership was based upon a common faith rather than male blood ties; religious rather than tribal affiliation become the basis of Islamic society” (Esposito 1998:5). For the community of new Muslims, Mohammed was a leader with multiple roles. He was a religious authority as well as the head of state. He was a judge as well as commander of the military. He was the head of a family as well as a people. The way he handled his responsibilities in all these realms remains a social ideal for Muslims to this today: the sunna, or "fine example" of the Prophet.
At the crux of the new Islamic way of life were the Prophet's teachings on family law. The basic social and political unit in pre-Islamic Arabian society was the kin-based patriarchal clan. However, in Mohammed's youth, the Arabs agreed upon no single form of marriage, much less on rules for the guardianship of children, the protection of women or the distribution of property. In such conditions of confusion, the effect of the Quran's guidelines was to strengthen the patriarchal clan. Women could no longer marry more than one man at a time. Rules such as those laying down the iddat period in which a woman may not remarry were provided to assure knowledge of paternity. At the same time, the Quran set a new moral tone for family life. Women and children were no longer considered chattels, but individuals with rights and needs of their own. (Lapidus 1988: 29-31.)
As Mohammed's followers went on to conquer all of the Middle East as well as much of Asia, Africa, and Europe, the idea of the Islamic family as the basic building block of Islamic society remained at the heart of the Muslim concept of the umma, the community of believers. The four great schools of Islamic law that grew up in the Middle Ages each interpreted the Quranic regulations in slightly different ways, and in every place and time, local custom subtly or not so subtly altered the weight given to different parts of Muslim family law. Nevertheless, the basic rules laid out in the Quran regarding the rights and obligations of family members to each other remained basically unchallenged until the advent of European colonialism in the 19th century. As the Egyptian writer Leila Ahmed has noted, "For the first time since the establishment of Islam, the treatment of women in Islamic custom and law - the license of polygamy, easy male access to divorce, and segregation - were openly discussed in Middle Eastern societies" (Ahmed 1992: 128).
Family law became a topic for discussion because the colonial officials used the treatment of Muslim women both as an explanation for the "backwardness" of Middle Eastern societies and as a justification for European domination of those societies. In the early 20th century, Middle Eastern intellectuals concerned with the need for the Islamic world to "catch up" with Europe took up the issue of women as part of a broader nationalist program of political, social and cultural reform. The nationalists wanted to secularize Muslim societies, separate state and religion, reduce the domain of Islamic law and repudiate the authority of the Ottoman empire. As countries such as Iraq, Syria, Iran, Jordan, and Lebanon gained independence, the nationalists were able to put many parts of their program into action. But attempts to change family law remained politically sensitive. In the second half of the twentieth century, public disappointment with the results of the nationalist project fostered the growth of Islamist movements who have sought to set up governments based on their understanding of sharia. Since oil was discovered in the Middle East, Saudi Arabia and several other Gulf states have used their oil revenues to help finance schools, charities and political associations that promote their conservative interpretation of Islam and sharia. In 1979, Islamic revolutionaries overthrew the Shah of Iran and instituted an Islamic theocracy. Islamist intellectuals and organizations with roots in the Middle East have continued to gain influence throughout the region and beyond.
For the Islamists, as for their secular antagonists, women and family law are a key battleground. As Yvonne Haddad and Jane I. Smith have put it, "Absolutely basic to the Islamist discourse is the rejection of the West and the conviction that "freedoms" enjoyed by the Western women are among the key factors in the moral and ethical disintegration of the West" (Haddad and Smith 1996:138). The Islamists tend to see the role of women as divinely prescribed in Islamic family law, and they have resisted reforms based on non-religious arguments. On the other hand, the Islamic revival they have helped provoke has sparked debate over whether a deeper understanding of Islam itself might lend itself to changes in the way family law historically has been understood in the Middle East. Iran, in particular, has been the scene of paradox. The enforcement of Islamic dress and other measures that initially seemed likely to push women back into the home have instead had the effect of legitimizing women's public presence. Meanwhile, the incorporation of sharia into the apparatus of a modern nation state has forced Iran's clerics to reexamine the law to deal with new social realities (Mir-Hosseini 1999: 7).
The kingdom of Saudi Arabia exercises a greater influence over the Islamic world than its population of about 22 million might suggest. Each year, millions of Muslims make the pilgrimage to the holy city of Mecca. The Saudi monarchy came to power in the 18th century by championing the cause of the Islamic reformer, Ibn Abd al-Wahab, who wanted to return to what he considered the fundamental principles of the Quaran. In recent decades, the Saudis have also spent their vast oil wealth to promote the strict interpretation of Islamic law favored by their Wahabi sect The Saudi monarchy is committed to upholding shari’a. The country has a relatively high birth rate, and about 40 percent of the population is younger than 15 years of age. More than 75% of the total population is urban; large sections of the country are empty deserts. The Saudi population is almost entirely Sunni. Shi'ites, who are adherents of Shi'ism, the second major branch of Islam,make up about 4 percent of the population and are found mostly in the oases of Al-Hasa and Al-Qatif. The only Christians are foreign industrial employees and businessmen. Public worship and display of non-Muslim faiths is prohibited.
The kingdom of Kuwait has been an important Gulf state for centuries. In the eighteenth and nineteenth centuries, Kuwait flourished economically as one of the most important trading ports in the Middle East (al-Mughni 1993). For many years, the ports of Zubara and Kuwait City operated as intermediaries between the Persian empire and the British East India Company (al-Mughni 1993). With the discovery of oil in Kuwait, the small kingdom became even more crucial in the Gulf trade. Three other small oil-rich Gulf states are Bahrain, Qatar, and the United Arab Emirates.
Like its neighbors, the wealthy country of Oman has become increasingly urban. About 50% of Oman's some 2 million people live in Muscat and the Batinah coastal plain northwest of the capital. Muscat and Oman was converted to Islam in the seventh century Ce, during the lifetime of Mohammed. The Sultan of Muscat and Oman played a major role in extending Islam to East Africa by conquering the island of Zanzibar. Sultan Qaboos bin Sa'id assumed power on July 24, 1970, in a palace coup directed against his father, Sa'id bin Taymur. One of the new sultan's first measures was to abolish many of his father's harsh restrictions, which had caused thousands of Omanis to leave the country, and offer amnesty to opponents of the previous regime, many of whom returned to Oman. He also established a modern government structure; and launched a major development program to upgrade educational and health facilities, build a modern infrastructure, and develop the country's resources.
Yemen has a generally homogeneous, ethnically Arab population of about 17 million. The northern parts of Yemen are primarily Sunni, while the southern Yemeni are predominantly Shi’ia. Yemen is one of the oldest centers of civilization in the Near East. In the 7th century, Islamic caliphs began to exert control over the area. After this caliphate broke up, the former north Yemen came under control of Imams of various dynasties usually of the Zaidi sect, who established a theocratic political structure that survived until modern times.
Syria's 16 million inhabitants are almost all Muslim. Most are Sunni, though large minority belong to sects such as the Alawis, the Druse, the Ismaili, the Yezdis, or the Shiites. Syria has been ruled by a military regime under the control of the Baath party. Islam is not mentioned in the constitution. However, it is acknowledged that the head of the state must be a Muslim and the sharia is embodied in the 1953 Syrian law of personal status (Lapidus 1988). The Muslim Brotherhood opposed the Syrian government in the 1960s and 1970s, but its revolts were crushed.
Jordan's conservative monarchy bases its rule over a Jordanian-Palestinian population of about 6 million on upholding a relatively relaxed interpretation of sharia. Lebanon only emerged from years of civil war in the 1990s. The fragile division of power between its Muslim majority and Christian minority is still unstable. In the West Bank and Gaza, Muslims form a majority of Palestinians. Although secular nationalists have historically dominated the Palestinian movement, Hamas and other Islamist groups have gained influence in recent years.
Iraq's population of 23 million, which is overwhelmingly Muslim, consists of three main groups: Arab Shi'ites, Arab Sunnites, and Kurdish Sunnites. The Arab Shi'ites make up about three-fifths of the total population and live mainly in the south and southeastern parts of the country. Arab Sunnites account for about one-third of the population and are concentrated in the central area of eastern Iraq, around Baghdad. The Kurds, who are Sunnite Muslims and speak a language related to Farsi or Persian, live in the north and northeast and make up almost one-fifth of the population. Iraq is the only Arab country in the Middle East with a Shi'ite majority, but Arab Sunnites dominate its government. Iraq's Baathist government is officially secular, although sharia is recognized as one source of Iraqi law.
Iran is a multilingual and diverse cultural society, but most of its 67 million people are Shii'a Muslims. Nearly one-half of the people speak Farsi, and another fourth speak some other Indo-European language ordialect. The Kurds are also a small but significant percentage of Iran's population. They have resisted the Iranian government's efforts, both before and after the revolution of 1979, to assimilate them into the mainstream of national life. Iran's 'ulama' of religious teachers, students and politicians dominated its revolution and have maintained authority over its Islamic republic. Shortly after the revolution, the Islamic republic sought to overturn a number of the Pahlavi monarchy's reforms, particularly in the area of family law. As time has passed, Iran has reintroduced many of these reforms, as well as passing new laws revising interpretation of sharia in cases of divorce, family planning, and segregation of the sexes.
Legal Practices and Institutions
The central institution of Saudi Arabian Government is the monarchy. No formal constitution exists. A system of Islamic courts administers justice according to the Shari'a. The king appoints the judges on the recommendation of the Supreme Judicial Council. The independence of the judiciary is protected by law. The king acts as the highest court of appeal and has the power to pardon.
All Saudi political and religious positions are reserved for men; laws maintaining the segregation of men and women make it impossible for women exercise overt political power over men. Two women are equal to one man in the country's legal proceedings. In court, a Saudi woman may witness a legal document if another woman agrees to witness it with her. In a trial, it takes the testimony of two women to match that of one man. However, women have the right of access to a sharia court in civil matters concerning her own property.
Oman's sultanate has no constitution, Western-style legislature, or legal political parties. Oman's judicial system traditionally has been based on the Islamic law. The Shari'a courts fall under the jurisdiction of the Ministry of Justice, Awqaf, and Islamic Affairs. Oman's first criminal code was not enacted until 1974. The current structure of the criminal court system was established in 1984 and consists of a magistrate court in the capital and four additional magistrate courts. In the less- populated rural areas among the nomadic Bedouin, tribal custom often is the law.
The two parts of the new state of Yemen had markedly contrasting legal traditions. In the north, both Islamic law and tribal law were in operation. In the south, family and personal status laws were based onshari’a, but there was a long history of applying British commercial law, and common law in many civil and criminal disputes. The unified state of Yemen has attempted to integrate all three systems into its legal and judicial systems. In 1974, several family law reforms liberalized the codes. Polygyny was restricted, but not banned. Further, the reforms required consent for marriage, limited the mahr, gave women equal rights to initiate divorce and explicitly stated favor for mothers in custody disputes (Moghadam 1993). .
Qatar is ruled by a hereditary emir who presides over a fairly homogeneous native Qatari population. The ruling family, the Al Thani make up as much as 40 percent of the native Qatari population. Qatar introduced civil and criminal codes in 1971, and all civil and criminal cases fall within the purview of a system of secular courts. Islamic law is now essentially confined to personal and family matters. It follows very closely the lead of Saudi Arabia on most issues, in part because, like Qatar, Saudi Arabia adheres to the conservative Hanbali school of Islamic jurisprudence.
Before the 1979 revolution, Iran was one of the most liberal Muslim states, with a legal system comparable to those of Tunisia and Turkey. In 1962, Iranian women were given the right to vote. Further, the 1967 Family Protection Act protected women on many issues: women were given the right to initiate divorce, child custody rights were increased and polygamy was limited. After the revolution, the Islamic Republic suspended the Family Protection law as un-Islamic. It later reintroduced many parts of the law, such as the use of special courts for family law. Iran opened the first theological college for female Shi'i scholars in 1986. Among the all-male seminaries and colleges that produce Iran's clerical leaders, women's issues are taken more seriously than before the revolution. Women, who lost the right to practice law after the revolution, can now serve as lawyers and assistant or "research" judges (Poya 1999: 102). In the 1990s, all major political parties included women in their slates for election. In 1997, eight women nominated themselves for president, although the Council of Guardians did not approve any of them. The women's vote played a critical role in the 1997 elections and the thirteen female deputies serving in Iran's parliament have become extremely vocal on women's issues (Mir-Hosseini 1999)
Over the last twenty years, Syrian women have held a number of high government and private offices. However, the Syrian writer Bouthaina Sha'aban complains that women are still not adequately represented in Syria's legal and justice systems. "Although women graduating from law colleges constitute one-eighth of the graduates, and women graduating from sharia college constitute one-fourth of the graduates, female representaton in both the legal and the justice systems in Syria is very low indeed. This reflects badly on the legislation and implementation of laws concerning marriage child custody, divorce, benefits, etc." (Sha'aban 1996:56).
Kuwait operates under a constitutional monarchy. Its legal system draws heavily on Egypt's French-inspired system. Most of Kuwait’s commercial laws are based on Western secular codes; but in personal status and family laws, Kuwait’s laws are based on the Maliki version of shari’a (Longva 1997). Women do not have the right to vote.
Women have voted in Jordan since 1974. In 1989 they constituted about half of voters. However, they have seldom won political office. Islamist groups have campaigned against women running for office.
Women occupy many high offices in Iraq, but the Iraqi legal code is subject to the will of President Saddam Hussein of Iraq, who once told his nation on television that "a law is a piece of paper on which we write one or two lines, and then sign it underneath: Saddam Hussein, President of the Republic of Iraq."
Several years ago Yemen appointed a woman to its 15-member Supreme Court, despite the opposition of conservative sharia scholars. (Carapico 1996)
Seclusion of Women / Purdah
Traditionally, Middle Eastern societies made a relatively sharp division between the roles of men and women. The public sphere was almost always reserved for men; women had domain over the family and the household. Face veiling has been recorded in the Middle East as far back as 1500 BC. Long before Islam, the movements of Middle Eastern women were more circumscribed than that of men. Most of the social restrictions on women appear to originate in cultural notions of patriarchy and honor. The idea that a man's honor depends on the sexual behavior of his daughters and his sisters, the women for whom he has responsibility, is particularly widespread. Until the early 20th century, families who could afford it kept their women isolated from the marketplace, politics and social life with men (Lapidus 1988). In many countries, virginity until marriage is not just a cultural expectation, but also a legal one. Most countries in the Middle East have criminal sanctions against sexual intercourse outside of marriage (al-Mughni 1993).
Veiling and conservative Islamic dress had been declining such countries as Iraq, Jordan, Syria, and Lebanon, but recent decades have seen a resurgence. In many cases, it is not seclusion that prompts women to wear Islamic dress, but their emergence in the public sphere. As record numbers of Muslim women have entered schools, universities and the labor force, they have used Islamic dress to signify their adherence to the Islamic moral code and to protect themselves from male harassment. As Leila Ahmed writes, "The adoption of the dress does not declare women's place to be in the home, but, on the contrary, legitimizes their presence outside it" (Ahmed 1996: 224)
To veil or not is not an option in Saudi Arabia or Iran. The governments of both countries enforce a dress code for women as part of the legal segregation of the sexes. Religious police may stop a Saudi women who leaves her house without being fully veiled. All Saudi public facilities are segregated. Women may only work in occupations where they will not come in contact with unrelated men. They are barred from praying in mosques. They need the permission of a male guardian to obtain a passport or travel outside the kingdom (Altorki 1986). Women are not allowed to drive, further confining them to the private domain (Altorki and Cole 1997).
After the 1979 revolution in Iran, the Islamist regime began to enforce women’s seclusion. In 1980, veiling or "hejab" was made complusory by law. The Ministry of Education banned sex-integrated schools. Further, child care centers were closed down, effectively eliminating women’s public employment. The new government also made a woman's right to work conditional on gaining the permission of her husband. Finally, many tourist beaches were segregated by sex (Moghadam 1993). However, throughout the past 20 years, these restrictions have been increasingly loosened. Although married women must have their husband's permission to work outside the home, more women do so today in Iran than before the revolution (Esfandari 1997) and more women than men are enrolled in institutions of higher learning (Poya 199). The government has expanded employment opportunities, so that most families have come to depend at least partly on the earnings of their female members. Although almost all women still veil, styles of cloth and wear vary greatly (Moghadam 1993). Adultery is is strictly outlawed and men have the legal right to kill their wives if they are unfaithful.
Iraq and Syria have facilitated the movement of women into the workplace by subsidizing childcare. On the other hand, Iraq issued a regulation in 1982 that married women were not allowed to travel without their husbands. Further, unmarried women must have written permission from their fathers or guardians (Moghadam 1993). At the same time, the Iraqi government instructed women to fill the vacant jobs of men in the army, sending contradictory messages on women’s place in Iraqi society (Moghadam 1993).
Islamist movements in the region have had significant effects on women’s access to public space. In Gaza in the 1980s, an Islamist group called Mujama proposed a return to stricter Islamic social codes among Palestinians. Women were pressured to veil. In May 1988, Mujama youth broke into classrooms and demanded that schoolgirls wear hejab (Moghadam 1993).
Historically, women from wealthy families in Kuwait have been strictly secluded, although women in the middle and lower classes were not under such strict seclusion, as most of these families could not afford servants to perform duties outside the household (al-Mughni 1993). However, women who left the household were still required to follow strict dress codes; women dressed in a long black cloak called an abbaya and veiled with a similar black cloth called a boshiya (al-Mughni 1993). Longva argues that veiling in Kuwait intensified in the mid-1980s with the increase in immigration. Veiling has been used a way to distinguish Kuwaiti women from non-Kuwaiti women (Longva 1997). Women in Kuwait have also been exluded from political activities. Although the question of suffrage has been debated in Kuwait, women still do not have the right to vote. In 1982, a bill was introduced into the National Assembly to allow women to vote but not to hold office. The bill was debated only a few hours, and lost by a vote of 27 to 7 with 16 abstentions. Many members of the Assembly who had been in favor of granting women the vote abstained in fear of a backlash by Islamists in Kuwait (al-Mughni 1993). After the war with Iraq, many Kuwaiti women argued that denying women the right to vote and participate in the political process was a violation of the country’s 1961 constitution, which prohibits discrimination on the basis of gender (Prusher 2000). The emir of Kuwait, Sheikh Jaber al-Sabah issued a royal decree in June 1999 to allow women to vote and run for public office. However a bill to put his decree into effect was defeated in the National Assembly by a vote of 32-30 in November 1999 (Prusher 2000). Between 1986 and 1988, 42 women in Kuwait were arrested for giving birth outside of marriage. Of these, 11 were jailed for more than 2 years, 17 were forced to marry the father of the child and 14 were put under guardianship of male family members (al-Mughni 1993).
Female circumcision, usually in the form of excision of the clitoris, is common in many Arab states such as Yemen, Bahrain, Oman, and the United Arab Emirates (Hosken 1982).
Family in the Region
In the Middle East, kinship remains the principle unit of social and economic organization. The family into which an individual is born is the most important social group to which he or she will ever belong, providing protection, food, shelter, income, reputation and honor. Patrilineal family units continue to live in close proximity and marry endogenously; cross-cousin marriage is predominant. Young people are taught to respect and defer to their older kin, who in turn take responsibility for younger relatives. Females are taught to respect and defer to their fathers, brothers, grandfathers, uncles and cousin, who are taught to protect and care for them. A married man is often not called by his own name, but as a reference as a father to his first-born son. Women are almost exclusively identified as daughter, wife or mother of a man. Unmarried women are pitied and considered social and familial failures in many communities (Joseph 1996).
Courtship, engagement and marriage customs vary widely according to the location, education, and social class. The women of the two families involved usually play a large role in arranging the match, while the older males of families determine the bride wealth or mahr,as well as the clothes, jewelry and other gifts to be given by both sides. Among Muslims, there are three different forms of payment given at marriage: 1) jahaz (gifts to the bride by her father) or mahr (gifts from her in-laws); 2) shirbaha (cash provided by the groom to the bride’s father to purchase the jahaz); a practice common in Iran; 3) traditional Islamic mahr (Moghadam 1993). This amount is stipulated in the marriage contract, and consists of a direct mahr, given at the time of the marriage, and often a deferred mahr, given in some situations of divorce (Moors 1995). Women are entitled to claim the deferred mahr in cases where the husband repudiates the wife or where the wife has a valid reason to ask the court to dissolve the marriage (Moors 1995).
Economic and political crises in the Middle East have caused changes in the mahr. For example, in 1988, the first year of the intifada, the average price of the mahr among Palestinians decreased by 10-25% (Moors 1995). Further, the effects of the intifada have also been linked to decreased marriage ages for both boys and girls, as well as decreased registration of marriages, making women’s potential claims to maintenance vulnerable (Moors 1995). The country of Oman has placed limits of the amount of the mahr, although these limitations are routinely ignored (Eickleman 1997).
When the family arranges a marriage, it usually accepts some responsibility for the outcome. In Syria, Sha'aban writes that the parents of woman whose marriage is failing will see to it that she and her children are provided for if she went into the marriage on their recommendation (Sha'aban 1996: 55)
Most Middle Eastern countries have introduced a minimum age for marriage. Jordan's 1951 Law of Family Rights, raised the minimum age for marriage to 15 for both boys and girls (Moors 1995). In Syria, the legal marriage age for girls is 17, although parents may petition the court to marry off a girl who is 15 or 16; while in Iraq girls must 18 to marry (Moghadam 1993)
The age at which girls can marry has shifted back and forth in Iran. Tthe Pahlavi regime had raised the marriage age for girls to 18 (Hoodfar 1995). The post-1979 regime under Khomeini lowered the this to 9 years of age. However, as of August 2000, the reformist Parliament in Iran was considering a new bill to raise the minimum marriage age for girls to either 15 or 16 (The New York Times 2000). Iran's Islamic Republic is also unique in sanctioning temporary marriages, or muta, as a legal form of union (Hoodfar 1995).
In several Arab countries, women who marry men from another country lose some of their civil rights. A Syrian woman married to a foreigner cannot pass on her nationality to her children (Sha'aban 1996). In Kuwait, non-Kuwaiti men who marry Kuwaiti women are not given residence based on marriage; instead they are required to leave the country if they cannot find employment and secure a residence permit. Even when such a permit is granted, the couple may still be forced apart. Permits are issued for only one year at a time, and upon renewal, are reviewed by the Interior Minister, who has unequivocal power to renew or terminate the permit. Likewise, children of such unions are also required to obtain residence permits to remain in Kuwait and are not entitled to free health care available to all Kuwaiti citizens (al-Mughni 1993).
Divorce is fairly common in the Middle East. Several Arab countries have modified their family codes to require men who divorce their wives to give them maintenance beyond the three-month idda period. Article 17 of the 1953 Syrian Law of Personal Status provided that if the qadi judges that a husband has repudiated his wife without reasonable cause, the qadi can require the husband to pay compensation up to the equivalent of one year’s maintenance (Pearl and Menski 1998). In Iraq, the Personal Status Act of 1959 required either a declaration from the court for a divorce or registration of repudiation during the wife’s iddat for the divorce to be valid. The 1976 Jordanian Law of Personal Status stipulates that in cases where the husband has arbitrarily repudiated his wife, she is entitled to ask for a maximum of one year’s maintenance (Moors 1995).
Although Syrian women are entitled to register a right to divorce in their marriage contracts, few women know it and it is considered socially unacceptable for brides to ask to preserve their right to divorce their husbands. Meanwhile Syrian men in some cases have the right to divorce their wives without the women attending court. Courts rarely enforce the payment of compensation to divorced women. In most cases, the husband owns the house and can force a divorced wife to leave (Sha'aban: 1996).
In Iran, the government has made a model marriage contract available to marrying couples that gives the divorced wife a right to half the property acquired during the marriage, provided she does not seek the divorce herself and is not at fault. Another article of the contract consists of a power of attorney from the husband to the wife, permitting her to divorce herself on twelve different grounds (Esfandiari 1997:43) Regardless of the marriage contract, an Iranian man must secure the court's permission to divorce his wife. In 1994, the Iranian parliament enacted a law giving a divorced woman the right to monetary compensation for the years she worked in her husband's home as a mother and housewife. In 1997, a law was passed requiring courts to calculate the mahr payments husbands must pay divorced wives according to an index updated for inflation (Poya 1999: 101-102).
Polygyny has declined throughout the Middle East (Soffan, 1980:42). Several states officially have restricted the practice. In Syria, as early as1953, the Law of Personal Status attempted to limit polygyny. Article 17 of the Law gave the qadi power to refuse permission to marry a second wife if a man cannot prove he is financially capable of supporting both women (Pearl and Menski 1998). The 1959 Iraqi law of Personal Status restricted polygyny even further. Not only did a man have to convince a judge that he could financially support two wives, he also had to show “lawful interest” in the second marriage and convincing evidence that both women will be treated equally (Pearl and Menski 1998:243). Second marriages without approval were declared invalid, although in 1963, this invalidity was amended.
In Iran, second marriages still require the consent of the first wife, who has the right to initiate divorce if she does not consent (Hoodfar 1995). However, this right is not often used, as women are often better off economically in a polygynous marriage than as a divorced woman.
Children of both sexes are valued in the Middle East, but a woman traditionally gains more status when she gives birth to a male child. The mother-son tie is often the closest relationship a woman has with a male; while daughters leave the home, boys stay and take care of their parents in old age. The ties between brothers and sisters are also close. Ideally a brother defends his sister, while a sister serves as a kind of second mother to her brother (Bowen and Early 1993). Although Middle Eastern countries have established compulsory education for girls and boys, girls still lag behind men in literacy (Lapidus 1988).
As in any social system, children represent a variety of social and religious values. In one context, children are seen as a solidifying factor in a marriage; childless couples are not viewed as stable as those with children (Shami and Taminian 1997). Perhaps partly for this reason, the Middle East has maintained one of the highest regional birthrates in the world.
Bearing children is sometimes viewed as nationalist duty. For example, in the Iraq-Iran war, the Iraqi government instructed women that there national duty required them to bear five or more children to narrow the gap between the vastly disparate populations (at the time, Iraq’s population was approximately 15 million and Iran’s was 47 million). In 1986, all forms of birth control disappeared from Iraqi pharmacies (Moghadam 1993). The population of Oman is growing the fastest, at an estimated 3.8% per year (Eickleman 1997). Based on regional growth rates, demographers estimate that the population of the Arabian peninsula to double from the early 1990s to the early years of the new century (Eickleman 1997).
After Iran's birthrates jumped in the post-revolutionary period, the Islamic Republic launched a full-fledged birth control program promoting the benefits of small families. Iran also has adopted the International Labor Organization's Convention No. 3, which applied to all employed women and provides for 12 weeks of maternity leave including a required leave after childbirth (Moghamdam 1993).
Family planning is also a current discussion in the Middle East. A recent study in Jordan found that 80% of men, 86% of women, 82% of male religious leaders and 98% of female religious leaders believe that family planning and contraceptive use is consistent with Islamic tenets on family and sexuality (Underwood 2000). Less than 1% of those interviewed considered family planning to be prohibited by Islamic law.
IX. Custody of Children
In case of divorce, Saudi boys remain with their mothers until the age of seven or nine and girls until the time of marriage (unless she remarries, in which case she forfeits custody of her children.) Usually a divorced Saudi woman will bring her children with her to her father's house (Altorki 1986: 81).
If a divorced Syrian woman has a home and does not remarry, she will be allowed to retain of her boys until the age of nine and her girls until the age of 11. But since husbands usually own the marriage home, they often persuade courts to give them custody on the grounds that the woman has no proper home for them (Sha'aban 1996).
Iran's Islamic republic at first gave guardianship of girls over the age of seven and boys over the age of two to fathers, and in the case of their death, to their male kin. During the Iran-Iraq war, however, war widows were granted the right to raise their children and to keep their husband's salary, pension or other living expenses without the interference of his male kin. Subsequently other widows gained the same rights (Poya 1999: 101).
Inheritance / Land Rights
In pre-Islamic Arabia, inheritance was the exclusive right of male relatives, primarily sons, fathers and brothers. Women were excluded from inheritance rights based on their lack of participation in tribal disputes. One of the major Islamic reforms to inheritance in the area was the Quranic requirement of inheritance for both widows and daughters (Esposito 1998). Although women’s inheritance under Islamic law is generally half that of men, it represents radical change from previous systems which completely excluded women (Fluehr-Lobban 1993). However, despite these protective sanctions, Joseph argues that women often forego their inheritance in preference of their brothers; this practice is seen as a form of insurance or security for the protection provided by the brother for the woman and her children (Joseph 1997).
In areas under the Ottoman Empire, two forms of inheritance were common. Property held in full owernship--buildings, orchards, vineyards and moveable property -- was inherited under Islamic codes of succession. This type of property is called mulk. Agricultural land, known as miri, was often land for which individuals could obtain user rights, but ownership rested with the state. This type of land was usually inherited under the secular law of succession under the Ottoman Empire (Moors 1995).
In Kuwait, inheritance oftens follows tradition over Islamic decrees, particularly for women married young. Often fathers leave their property, both mobile and immobile assets, exclusively to sons (al-Mughni 1993). Among Palestinians, women in situations with no or few contending heirs fare much better than other women. Daughters without brothers and widows without sons often stand the best chance of inheriting their due shares (Moors 1995).
Saudi women inherit exactly according Quranic rules, but only a few women actually manage their own property (Altorki 1986).
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