1996: Preliminary draft
At least since the days of European imperialism, treatment of women in the Arab world (and the Muslim world more broadly) has been portrayed as both a major feature and cause of social retrogression. Islamic law in particular is often depicted as operating on women in particularly unfavorable ways. While such images are not always inaccurate they are incomplete. In recent years, our understanding of the Arab world has been enriched by new attempts to understand women as agents who craft their own lives and history, even as they operate within sharp social, cultural, and legal constraints.[2] Yet this newer approach has yet to penetrate our understanding of how law operates in the Arab world. Writings on law and gender are varied and rich but they suffer from silence on two issues.
First, Islamic law receives extensive attention at the expense of other legal systems. The attention given to Islamic law is understandable. It generally informs personal status law even in countries that have adopted European-inspired law codes. Since personal status law governs areas like marriage, divorce and custody, it is often the only area of law that treats women specifically and deliberately as women; other areas of law are generally gender-blind in their explicit language (though not necessarily in their application). Yet personal status law, while critical in women’s lives, does not wholly define their legal position. Civil and criminal law are based far more on European than Islamic sources in almost all of the Arab world; considerations of law and gender that focus exclusively on Islamic law and personal status thus miss much of the legal environment that governs women.[3]
Second, writings on gender and law in the Arab world often focus on the law as it is written less than the law as it is applied; even when the latter draws attention the law is seen as something that operates upon women.[4] Since all civil and most criminal legal actions require an aggrieved party to bring a dispute to a court, the police, or a prosecutor, the paucity of research that examines women as potential legal actors is puzzling.[5] This silence is even more striking given the tremendous interest in law-and-society scholarship on matters like litigant strategies, forum shopping, and resistance to or through the law.[6]
My purpose in this essay is to bring some of the newer approaches on women as agents to bear on our understanding of law in the Arab world. In particular, I wish to pursue two arguments that are contrary to much of the tone of writings on law and gender in the Arab world. First, law in the Arab world allows women substantial latitude for negotiation. Even when the legal system places them on unfavorable terrain (as it frequently does), women have a part to play in defining their position. Second, women often maximize their positions by exploiting the operation of several different areas of law. They do so not simply by shopping for the most favorable legal (or non-legal) forum to resolve their problem, but by resorting to several fora simultaneously in order to improve their bargaining position.
I have selected two areas where women would
seem to (and indeed do) operate on particularly unfavorable legal ground: marital disputes in
Egyptian marriages are of course very often based primarily on love, but they can never escape economics; if they become troubled they often do not escape the courts. A web of personal- status law, customs (some based on the law, others designed to minimize its effects), and intensive pre-marital bargaining forms the backdrop to all marriages. Divorces occur within the same framework, but it is not at all unusual for informal family intervention and the criminal law to play roles as well. (The law and practice for Egyptian Christians are very different, and divorce is extremely difficult. This section concerns only Egyptian Muslims.)
Egyptian personal-status law is based on
Islamic law and an Islamic conceptions of marriage as a contractual agreement
between a husband who pledges support and a woman who pledges obedience.[7] The law in
The impact of the law can only be understood in the context of Egyptian customs and bargaining related to marriage. Since husband and wife retain separate ownership, much of the pre-marital bargaining concerns what each side will bring to the marriage or pledge to the other. In general, a husband is expected to provide an apartment and major appliances. A wife may provide some of the furnishings for the apartment. A husband also is required to pay a mahr [bride-price] to his wife (or to her family to hold in trust for her), often consisting of two separate amounts. The mahr muqaddim [advance bride-price] is paid at the time of the wedding. A mahr mu’akhkhar [delayed bride-price] is also sometimes pledged to be paid in the event of divorce (or death). A husband is also expected (and required by law) to provide financial support for the family; so long as the husband provides the proper home and support, a wife is expected (and required by law) to live with her husband.
These arrangements leave tremendous room for bargaining and protracted financial negotiations to precede (and often prevent) a wedding. With housing scarce and expensive and financial resources tight for all but the very affluent, the families of the bride and groom are generally very anxious to ensure that the needs and interests of their side are guaranteed; they are also careful to safeguard the interests and property of their side should the marriage end in divorce. The social standing of the two sides, the earning power of the groom, and quality of housing he can provide all affect the outcome. As a result, although the law would seem to give a husband far greater divorce rights than a wife, the situation in practice often depends on the arrangements made in advance of the marriage and the nature of the marital difficulties. If a wife can show harm—perhaps because of physical or verbal abuse (or, since 1979, because the husband marries a second wife)--she will not only be able to divorce her husband, but may also be able to demand the mahr mu’akhkhar, child support, and housing. If, however, she leaves her husband and is unable to satisfy a court that she is justified, she may face a bayt al-ta‘a order giving her the choice of returning to the home she fled or forfeiting most of her financial rights.
The result is that a troubled marriage often erupts in a tangled web of lawsuits and even criminal charges, which in turn provoke formal and informal attempts at mediation. For instance, in order to substantiate charges of harm, a wife will sometimes go to the police to swear a statement that she was subject to physical or verbal abuse. A husband will seek to gain an advantageous legal position by filing a bayt al-ta‘a suit to make clear to the wife that she will face potentially disastrous financial consequences unless she returns. A creative spouse can find a variety of ways to invoke personal-status, civil, and criminal law on his or her behalf; such attempts generally provoke a similar set of moves by the other spouse.[9] What is especially noteworthy is the wide variety of fora that are employed, often simultaneously. Husbands and wives will deal directly with each other, use the mediation of relatives and friends, and use the criminal, civil, and personal-status courts in complex strategies to obtain (or prevent) a divorce on the most favorable terms.
The following case illustrates how litigants can use the courts and informal mediation (and even physical violence) in a protracted and bitter breakup of a marriage.
Case 1 (Informant: Friend of husband; relative of wife[10])
A friend of mine married my relative; she was studying to be a teacher. He was from a poor family, from a sha‘bi [popular] neighborhood. After the engagement they quarreled over money and over her friends. He lived with her for about two months after the wedding. He lived in the same apartment building as his father. Whenever somebody would visit her, his relatives would look on. That annoyed her. She liked to go out with her friends and he forbade that. She wanted to help out her family because her father was old. He refused to help. They had a bad quarrel, and her family intervened. Then things really got bad—he was barred from her family’s house. Not even the police could help. After the end of the school year he was beating her every day. She wanted to go out; he did not want her to go out. She left him. She demanded a divorce from him but he refused. He filed a ta‘a suit against her and charged her with khiyana [betrayal, in this case infidelity]. She filed a suit demanding divorce and possession of the furnishings [that she had provided], claiming that he had taken them. He denied that he had them. We tried two or three times [to settle], but she wanted her furnishings. One of her relatives, a good, older man, was helping. They [the husband’s family] attacked him [verbally] in the street. He raised a slander suit. Once the husband saw his wife in the street and quarrelled with her. He grabbed her. He had to pay a fine.
The suits went on for four or five years or more. A session, another session, the lawyer did not show up, then the lawyer would come but the witnesses did not show up, then they came but the judges delayed the case. It was delayed once or twice a month. At the end he won the ta‘a suit [requiring her to return], but she refused [to return] unless they would find a new house far away from his family. He refused. They [the wife’s family] appealed to the High Court for divorce. She did not abandon the suit for the furnishings, but he won it because she did not return to his house. They kept on going for more than seven years. She would file a case, he would file a case; from one case to another all the way to the High Court. After seven years, the court ruled for divorce.
While it is impossible to ascertain the extent
of physical violence in family relationships, the courts tend to take the
matter extremely seriously.
Case 2 (Informant: Husband’s uncle)
A young man, a house painter, fell madly in love. He was a youth, with all those feelings. They got married. He got a simple apartment with simple furnishings. There were problems, but there was love. Her mother would come to stay for a week or a month. Naturally, a man wants to stay in a house by himself. Then her sister came. That is where the problem began. So she went to her mother and siblings for a month. He said he would not give her money for household expenses. She left him [for good]. He filed a [bayt al-ta‘a] suit against her. She swore a mahdar [statement] that he had beat her and had not been paying household expenses. They went to the police station. He denied beating her and withholding the money, but he hit her in front of the police officer. They made out a mahdar there. Later he saw her walking in the street with a man. He then agreed with a friend to go to the police station and complain that the friend had been having an affair with his wife. The officer did not believe the story; the husband went crazy and hit the officer. He was summoned to the police station [for having hit the officer]. He went to another officer, whose house he had painted, to intervene. They dropped the complaint after he apologized.
I went with him to his apartment. There was nothing there—even the pictures on the wall were gone. He asked his friend who had a shop in the building about it, and he told him that his wife had come and taken everything. He asked his friend how he could sit back and watch that happen. Then he insulted and hit his friend. He went on to his wife’s relatives. They were butchers. There was a fight. When he got home he found threats written in blood on the walls. He did not complain to the police because he wanted to get even.
He divorced her and paid support [nafaqa] of LE 60. They had a son. When he turned 12, the husband filed suit to obtain guardianship, as was his right. He wanted to get the boy so that he would no longer have to pay support to his wife. But the boy did not want to go, so the judge ruled that the boy would stay with his mother. The husband still pays the support. He has brought suit to reduce it. The ex-wife wants to get remarried but does not want to lose the support payments. That case is still going on. She brought proof of poverty, and he brought proof that she is living well.
The husband filed a suit to gain the furnishings [from the apartment the couple had lived in]. They inspected the apartment to make sure it was empty. His friend the police officer advised him to get witnesses that she had taken what was there. But he could not get evidence. Everyone was scared of her family. The case is still going on. It has lasted five years. The case about the beating is still going on as well. The ex-wife has also sworn a mahdar that he brought women to the apartment. She has said she would drop her cases if he drops his regarding the furnishings and guardianship of the son. He wants to get rid of the case. He wanted to get married again, but the ex-wife’s family went to his prospective bride’s family, and the marriage fell through.
Working-class and middle-class Cairenes tend to
be very aware of the provisions of the personal-status (and other relevant)
law, and this affects their actions both before a marriage and in the course of
a marital conflict. Thus some of their
strategies are essentially preemptive—to gain stronger bargaining position in
case marital difficulties occur. This
takes the fairly obvious form of carefully recording the material obligations
of both sides in a written marriage contract, but it can also take more subtle forms. In one instance, a fiancee’s engagement
seemed about to collapse in an argument over finances and her prospective
groom’s wish to travel to
The extensive use of the courts by working- and middle-class Cairenes in marital disputes suggests that the formal legal system is hardly seen as the forum of last resort. With the prolonged nature of litigation surrounding divorce (according to one estimate, the average life of a divorce case in the courts is seven years[11]) early resort to the courts is almost necessary. Yet the courts are hardly seen as a forum of first resort either. The various methods for settling marital problems—formal and informal, direct and manipulative, obvious and inventive—are all used, very often simultaneously. The courts and the legal system have become part of the social landscape, not simply accepted but actively sought out by those with severe marital difficulties.[12] Indeed, it is probably the affluent who can afford to take a more reticent attitude towards the courts. When difficulties in a marriage occur, the material conflicts of less wealthy Cairenes (over apartments, furniture, and child support) can be less pressing and more easily resolved informally outside of a legal framework.[13] Once the courts have been introduced into a dispute, their role tends to escalate partly because of the actions of the parties themselves: suits provoke countersuits; criminal charges are filed to buttress a civil claim; appeals and delaying tactics insure that the matter can be postponed for a momentarily disadvantaged party. And Egyptians are aware not only of the provisions of the personal-status law available to them but also other legal provisions (including the criminal code) whose relevance to marital dispute is made obvious only by the ability of litigants to invoke them. Hardly passive actors, even those with a relatively weak legal position devise tactics to make their claims on property, spouses, or custody of children.
For Cairenes involved in marital problems, the legal system is not an alien, hostile, or terrifying presence but a potential ally or a set of tools. Some of these tools are generally helpful to one side and some to the other, but all are used, sometimes early and sometimes often.
While the use of domestic labor has been fairly
common since the beginning of the oil era, initially it was most common to hire
males from other
Domestic workers throughout the world have few
legal and non-legal protections available to them, and their situation in
The situation of domestic workers in
Domestic laborers can enter and work in
Second, domestic laborers may come to
Workers in the second category have very few
legal protections. They generally have
no written contracts and any arrangements they may have agreed to orally were
generally discussed in their country of origin.
It should be no surprise that their Kuwaiti employers cannot be held
accountable in Kuwaiti courts for oral arrangements the laborers made with
distant agencies. Once in
While other workers will often complain about
deceptive practices by employment agencies and ill-treatment by employers,
domestic workers, especially females from the
Most Kuwaitis feel that their society has been
unfairly singled out for criticism.
Since
Yet even if they do seek refuge in the embassy the legal position of domestic workers is weak. If their complaints stem from contract violations or work conditions, they can do little to substantiate their claims and can not leave their employer without permission until they have completed two years of work. If their complaints are related to physical or verbal abuse, they will likely be able to produce no witnesses. And while cases of rape may be treated seriously, there are again rarely witnesses. In cases where they claim more than one rape, skeptical authorities will probably question them on why they did not escape after the first occurrence. In this way, a victim of multiple rape can often be treated less seriously than the victim of a single rape.[29]
Yet while domestic workers still find obstacles
when resorting to the legal system, the official actions taken on their behalf
have given them some legal tools. There
is every evidence that they use them. As
in marital and housing disputes in
A charge of battery, verbal abuse, or rape
rarely results in a prosecution in
Kuwaiti families in such situations generally
have two concerns. First, and most
seriously, is the criminal charge itself.
Second is the shame involved in being accused of such a crime. Third, families who employ domestic labor
generally pay a substantial fee to the agency which covers the laborer’s trip
to
In
Once the bargaining begins, it is extremely rare for the legal issues to go to court. If the Kuwaiti family feels the charges are strong, they may offer to pay for the laborer’s return to the country of origin or to allow the transfer to a new sponsor. If the charges are weak, they may demand that the initial fee they paid the agency be repaid—if not by the agency than by anybody wishing to hire the worker and assume sponsorship. Of the domestic workers who sought refuge in the Philippine embassy in 1994, roughly one-third were repatriated, a second third returned to the original place of employment, and the remainder found new employment (either with the assistance of the embassy or by returning to the agency). The total number alleging criminal violations to an embassy official was over one thousand; there were only twelve prosecutions. The courts and the legal system were hardly inert on the issue, but their chief role (sometimes intentionally and sometimes not) was to establish more clearly the bargaining position of the two parties. Indeed, bargaining does not even necessarily stop if a case does go to court. In 1994 a Kuwaiti couple accused in the beating death of their maid offered to pay diya [in Islamic law a payment in the event of death that the family of a victim may accept in return for dropping criminal penalties].[32] Kuwaiti courts are not obliged to accept the payment of diya as are some Islamic-based courts, but the payment of diya often results (as it did in this instance) in a reduced sentence.
Unless criminal charges are made the bargaining position of the laborer is quite weak. Kuwaitis involved in the issue often claim that criminal charges are made falsely because a laborer is simply dissatisfied with working conditions or wishes to find more lucrative employment elsewhere in the country.[33] This is very difficult to substantiate, but it must be recognized that immigration and labor law give a laborer few tools to change employment other than criminal charges; it should be no surprise if some use the only tools at their disposal. Kuwaitis often claim that they are the victims of crimes by domestic workers (especially theft). But their bargaining power is so strong—since they are the worker’s sponsor and often hold his or her passport as well in defiance of official policy—that there is little need to resort to the police in such cases. In 1994, only thirty-three Kuwaiti families made criminal complaints against Filipino workers.[34]
The low prosecution rate in charges domestic workers make against their employers is thus related not to the attitudes of the niyaba or the courts. Instead it is directly related to labor and immigration law. Reforms currently under discussion would do much to alleviate some of the sources of inequality. Among those ideas sometimes discussed by government officials and parliamentarians involve easing restrictions on changing sponsors (allowing the laborer—or the new sponsor—to pay a fee rather than wait two years or obtain the consent of the existing sponsor) and still greater regulation of employment agencies operating in Kuwait. Such changes, if implemented, would probably result not simply in better working conditions for domestic labor but also in fewer false criminal allegations and a higher rate of prosecutions.
Studies of women and law in the Arab world have generally removed (or evinced little interest in) agency from women because of a series of underlying assumptions: the law puts women in a weak position; the weak political and social position of women would make legal protections ineffective even if they did exist; and participation in such a system can only reinforce such subordination. In fact, while women’s weakness is generally difficult to deny it does not erase the ability of women to use the law to negotiate their relationships with family members, employers, and others.
First, it is important to note that there is no
absolute dichotomy between weakness and freedom of action; those who are
subordinate are often still confronted with real choices. Domestic workers in
Second, the array of choices and strategies open even to the subordinate is greatly expanded when the courts are not viewed as a final or exclusive forum. The ability to drop charges or abandon litigation and the availability of family (and other informal) channels allow resort to a combination and shifting set of tools more often than not. Certainly concentration on the law as written is insufficient, but concentration on a particular forum (such as the courts) is insufficient as well because it misses the way in which various fora can operate simultaneously and even depend on each other.
Finally, there is no evidence that those who resort to the courts reinforce or legitimate their legal subordination in any way. If going to court foreclosed other options and forced a narrow legal interpretation of a problem then it could plausibly be argued that the law operates to define and thus constrain action and identity. If a domestic servant could use only the protections available under the provisions of the contract then it might be plausibly argued that resort to those protections might foster a sense of identity defined largely in those subordinate terms. But she can also draw on criminal law and embassy protection; a Filipino domestic servant can conceive of—and present—her problem as a matter for civil law, criminal law, informal negotiation, and diplomacy. Most important, she can present the problem in all these ways simultaneously. So long as the law, in combination with other institutions and practices, presents so many options, scholars must take women seriously as agents.
[1]I gratefully acknowledge the
assistance of Muhammad al-Ansari, Muhammad al-Fahd, Khulud al-Fili, Baron Hall,
Sahar Hasan, Husam Mahmud, Ruth Wallace, and the Embassy of Philippines in
[2]There is an increasingly rich
body of writings here; for examples see Nikki R. Keddie and Beth Baron, Women
in Middle Eastern History (New Haven:
Yale University Press, 1991), and Arlene MacCleod, Accommodating
Resistance (New York: Columbia
University Press, 1991).
[3]For an exception, see Safia K.
Mohsen, Safia K. (1990) "Women and Criminal Justice in
[4]See, for example, Farida Shaheed,
"Controlled or Autonomous: Identity and the Experience of the Network,
Women Living under Muslim Laws," Signs 19 (4, 1994): 997. The article does describe actions some women
have taken but describes the current situation as one in which the
law--generally in its least favorable form--operates upon women.
[5]Two notable exceptions are
Richard Antoun, "Litigant Strategies in an Islamic Court in
[6]For an example of this
literature, see Julia Wells, "Passes and Bypasses: Freedom of Movement for African Women Under
the Urban Areas Acts of South Africa," in Margaret Jean Hay and Marcia
Wright (editors), African Women and the Law, Boston University Papers on
Africa, VII, 1982.
[7]The pledge of obedience has some
real legal implications, as will become clear.
Nevertheless, it should not obscure the nature of obedience is itself
often contested and continually negotiated.
[8]See
John L. Esposito, Women in Muslim Family Law (Syracuse: Syracuse University Press, 1982), chapter 3;
Carolyn Fleuhr-Lobban and Lois Bardsley-Sirois, "Obedience (Ta`a) in
Muslim Marriage: Religious
Interpretation and Applied Law in Egypt," Journal of Comparative Family
Studies 21 (1, Spring 1990): 39; and Enid Hill, Mahkama! Studies in the Egyptian Legal System,
[9]Opportunities for creativeness in
the use of litigation is not new. Ron
Shaham has documented the workings of the law (and the ways that judges applied
the law) in the shari`a courts that had jurisdiction in personal-status cases
until their abolition in 1955. See
Shaham, "Judicial Divorce."
See also Shaham, "Custom, Islamic Law, and Statutory
Legislation: marriage Registration and
Minimum Age at Marriage in the Egyptian Shari`a Courts," Islamic Law
and Society 2 (3, 1995):258.
[10]These interviews were supervised,
translated and transcribed by the author.
The interviewees are personal acquaintances of the informants. The words are the informants', but they have
been edited by the author for clarity and succinctness.
[12]Egyptians here are not
unique. In an extensive study of divorce
in
[14]Jamal al-Shihab, Assistant
Undersecretary for Legal Affairs and International Relations, Ministry of
Justice, personal interview, Kuwait, January 1995. Al-Shihab argued to me that many of the
problems with domestic servants have arisen because of strong cultural
differences which did not present a problem when most of those hired came from
other
[15]For a lurid example of such
discussion see "Some of the Servants are Students of Satan!" al-Watan,
supplement, July 1993. Most discussion
centers on the desirability of relying on non-family members (and non-Muslims)
in taking such a large role in child care responsibility. Certainly not all press discussion is
unfavorable to the domestic servants. A
local radio program devoted to legal subjects focused on the legal rights and
obligations of Kuwaitis employing domestic servants.
[16]"The Minister of
Interior: Servants are 168 Thousand in
[17]Jasim al-Shamari, "The
Political Crisis of 'Maids' between
[18]See "The Ambassador of India: 115 Thousand Indians in Kuwait Working in
Various Sectors, Among them 35,000 Working as Servants in Houses," al-Ra'y
al-`Amm, 19 January 1993; Philippine figures collected by the Embassy of
the Philippines in Kuwait.
[19]For the situation in the
[20]Bader I. Al-Shebani, A
Comparative Study of the Attitudes of Kuwaiti Families in the Role of
Entrusting their Children to Foreign Domestic Servants in Kuwait, a
dissertation presented to the division of Counseling and Educational
Psychology, University of Oregon, August 1988.
[21]See Mary Romero, Maid in the
[22]Since such agencies were only
loosely regulated in the past, it is difficult to ascertain the prevalence of
such practices, but they are believed by members of the Filipino community in
[23]For a general analysis of the
problem, see "Punishing the Victim:
Rape and Mistreatment of Asian Maids in
[25]For an example of some of the
international attention, see Bill Hewitt and Terry Smith, "The Shame of
Kuwait: A year after the country's
liberation, foreign household servants are treated like slaves," People,
[27]Salah Ahmad al-Najim, director of
Office of Household Labor, Ministry of Interior, personal interview,
[28]The procedures were described in
personal interviews in
[29]Several of those who have dealt
with such cases expressed the belief that allegations of multiple rape often
indicates consensual sexual relations--or at least will be regarded that way by
the courts. And in one case which I
became personally familiar with, a maid alleging multiple rapes reported that
the police questioned her about her failure to escape after the first rape and
expressed doubts about her claims because she was not pregnant.
[30]This information is based on
interviews with criminal investigators at al-Dasma in February 1995. In the course of conversation with the
investigators, several cases were dealt with in my presence, including one rape
case.
[31]It is probably the case that a
more aggressive attitude by the police would place the laborers in a far
stronger position. Yet in one way it
probably does protect some laborers from prosecution for making false
charges. Officials involved in the
investigation of crimes against domestic laborers claim that a large number,
even the majority, of allegations are false and designed only to obtain release
from a labor contract. Even if this
claim is exaggerated it probably has a strong basis. False charges undoubtedly are made because
they offer one of the few avenues for escape from an undesirable
situation. A domestic servant who is
verbally maltreated or not paid will probably have to live under such
conditions for two years. One who
alleges a serious crime will probably be able to settle for a transfer of the
contract to a new employer or a plane ticket home. Thus, official diffidence in the pursuit of
formal criminal charges makes it less likely that those making false (or merely
unproven) charges will be prosecuted.