How the Door of Ijtihad Was Opened andClosed: A Comparative Analysis ofRecent Family Law Reforms in Iranand Morocco

Table of ContentsI. The Question 1500II. The Iranian Case 1502III. The Moroccan Case 1505IV. Comparison and Conclusions 1509I. The QuestionIn this working Comment, I compare the politics and dynamics of recent family law reforms in Iran and Morocco. In both countries, the source of family law is Islamic jurisprudence or fiqh-the Twelver Shi'a School in Iran, and the Maliki Sunni School in Morocco-whose rulings were codified and grafted onto a modern legal system during the twentieth century. As in other schools of Islamic law, these rulings privilege men in marriage and grant them unilateral rights in divorce and polygamy.1 Since codification, women in both countries have struggled to achieve reforms and a more egalitarian family law. The gains of Iranian women have been erratic and the reforms modest and incremental, while women's gains in Morocco have been steady and the reforms radical. In February 2004, Morocco enacted a new family code that incorporates the principle of equality in marriage, thus casting the classical Maliki law on which it is based in a new light.2 This is the most substantive and radical reform of family law achieved by women's activism in any Muslim country. Previous reforms either were not so comprehensive, were granted from above (as in Tunisia), or were accomplished by putting the Islamic framework aside (as in Turkey).3My central questions are: How, and by what processes, did Moroccan women succeed in bringing about radical reforms of Maliki law, which in many ways amount to nothing less than "opening the gate of ijtihad'?4 And, how and why have Iranian women failed thus far to do the same with Shi'a law? These questions acquire poignancy in view of both the claim of Shi'a jurists that the gate of ijtihad is open in Shi'a law, as well as the emergence of novel jurisprudential thinking in Iran since the 1979 Revolution.The genesis of these questions lies in my earlier research on the theory and practice of Islamic law in Iran and Morocco. Between 1985 and 1989, I did fieldwork in family courts in Tehran, Casablanca, Rabat, and Sale, studying marital disputes that made their way to courts. I focused neither on Islamic jurisprudential texts (fiqh) nor on legislation, but I tried to understand the relevance and operation of fiqh-based family law by examining court cases and litigants' strategies.5 My study revealed that in Iran-despite the absence of a viable women's movement at the time, and despite the "return to Shari'a" and the application of family law in courts headed by clerical judges-women fared better in law, and in the event of marital breakdown, they had more bargaining cards and greater access to the courts. I observed how women in Iran would use the courts as an arena to renegotiate the terms of their marriage contracts, and how some succeeded in turning on their head those elements in the contracts that gave men power. By contrast, in Morocco-where a vibrant and vocal women's movement existed, but also where family law was applied in "secular" courts-women had fewer bargaining cards in marriage and less ability to use the courts as such a forum for negotiation.6In the two decades since that fieldwork, both my interests and my approach have changed, and I have shifted my research focus to the construction of gender in fiqh and the possibility of developing a feminist jurisprudence within an Islamic framework.7 I conducted further field research in Iran between 1992 and 2000, but I did not return to Morocco until early 2006, when I did a short period of research. Immediately afterwards, following an over five-year absence, I also returned to Iran. At that time, I came to appreciate the different trajectories that Iranian and Moroccan family law reforms and women's movements have followed since the late 1980s. …