State, Law and Religion –
Gendered Debates on Family Law in Syria (and Lebanon)1
Rania Maktabi
Høgskolen i Østfold
rania.maktabi@hiof.no
Abstract: The article presents aspects of the current debate on family law in Syria and Lebanon. An
insight into legal pluralism and the institutionalization of family law is rendered. Some of the
participants in debates regarding family law are introduced by focusing on two dimensions: First, a
‘gender dimension’ which highlights internal forces such as civil society organisations and public
institutions are addressing the legal empowerment of women through demands for social justice.
Second, a ‘multireligious dimension’ where minority Christian religious groups express concerns
regarding family law issues. In conclusion, I present some tentative reflections regarding patriarchal
bargains and alliance accommodation between the political regime and different social forces that
partake in debates on family law.
Jeg gjør oppmerksom på at den opprinnelige planen var å sammenligne debatten
omkring familieretten i Libanon og Syria, men jeg har ikke hatt mulighet til å gjøre det
planlagte feltarbeidet i Libanon. Paper’et presenterer derfor i hovedsak debatten
omkring familielovgivningen i Syria i påvente av sammenlignbar materiale i Libanon.
Av praktiske hensyn har jeg valgt å beholde formuleringene om ”comparison” og
henvisninger til Libanon.
Introduction
This study compares the existence and impact of legal pluralism in the judicial system in
Syria and Lebanon, two multireligious states, by focusing on debates regarding potential
changes in family law. Family laws regulate matters of personal status such as marriage,
divorce, adoption, inheritance, maintenance and financial custody of children (hadana,
wilaya, wisaya), and alimony (nafaqa). In Syria and Lebanon, as in most states in the Middle
East2, the domain of family law is formed and applied under the influence of religious laws
such as the shari’a (Islamic jurisprudence) and different church laws. While all legal domains
have been modernized in accordance to Western inspired civil and constitutional norms,
family law remains under the influence of religious tenets and doctrines. Formed to different
degrees under state auspices, religious leaders as well as ‘men of religion’3 are influential
when religious texts and doctrines are formed, interpreted and applied in the domain of family
Paper presented at The 15th Norwegian National Conference in Political Science, Trondheim 3. – 5. January
2007 (Den 15. nasjonale fagkonferansen i statsvitenskap). The information gathered and the interviews were
made during a stay in Damascus between 14 – 30 November 2006.
2
With the exception of Turkey and Tunisia.
3
‘Men of religion’ represent both living and dead philosophers, judges and experts in religiously based
jurisprudence within the different religious groups. They can have a wide variety of political opinions ranging
from radical, conservative to reformist liberal interpretation within Islam and Christianity.
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law. Family laws are thus formed and applied by both state and non-state actors4 creating
politically potent spheres of decision-making processes where religiously sanctioned tenets
and arguments figure along non-religious /civil oriented arguments and positions (Dupret
1999).
The status and rights of women within family law constitute central points - many
observers argue the focal points - of dissent in debates regarding the changing or maintaining
of current family laws. De-Long Bas & Esposito indicate: “Reflecting the centrality of the
family in Islam, family law has been the heart of the Shariah and the major area of Islamic
law” (2001:xiv). Family laws regulate the private affairs of all citizens. However, these laws
premise and affect women’s living conditions to a greater extent than men’s. Family laws are
gendered in the sense that individuals are accorded with different rights and obligations
according to their sex, and because some law segments empower males legally and financially
more than women in matters of inheritance, custody of children, alimony and (in the case of
Islam) divorce. Debates on family law reflect therefore the differing positions of actors
towards maintaining or changing structural features of gender-based roles and rights within
society.
The past decade has seen researchers as well as activists (secular feminists, Islamic
revivalists, as well as human rights activists and lawyers) who have questioned the legitimacy
of the gendered interpretation and application of religiously anchored family laws which set
limits to women’s civil rights (Joseph 2000, Buskens 2003, Moors 2003, Welchman 2004,
Rabo 2005). This debate has mainly focused on segments within family law that is seen as
biased towards empowering men and curtailing women’s opportunities in participating in
society on an equal footing with men. Proponents for changing the family law point that
citizens are regarded as equal in the state’s constitution, but when family laws is given legal
primacy by state authorities in defining women’s civil rights, constitutional rights are
rendered obsolete. (Lazreg 2000:65).
The term ‘para-state actors’ is probably more precise in the case of Syria where the clergy in mosques and
churches within all religious denominations are state employees. This is not the case in Lebanon. However, even
in Syria, there exists a complex relationship between state employed religious leaders of mosques and
‘unofficial’ (i.e. not state employed) religious leaders, where both state and non-state religious actors represent
different religious positions ranging from liberal, main-stream to radical interpretations of Islamic tenants. The
‘unofficial’ clergy may enjoy religious authority and is able to make a living based on private donations
following different forms of consultations regarding matters of religious character, including the clergy’s
opinions regarding the interpretation of family laws. It is important to keep in mind that family laws regulate
economic and social rights that have a tremendous impact on the financial and social living conditions of
citizens. When the opinion of religious leaders is sought this is not necessarily an indication of a stronger
“religious identity” among inhabitants in the Middle East, but can be seen as a necessary way to figure out fairly
secular matters such as conflicts regarding inheritance or the securing of financial means for divorced women.
For persons who cannot afford to engage a lawyer, consultations with religious leaders offer a favourable outlet.
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In addition to gender-related issues that are embedded in family law debates in the
Middle East, a multireligious dimension the debates on family laws in Syria and Lebanon is
evident. Political considerations regarding the existence of religious pluralism and the
accommodation of different religious communities are intrinsic, but multireligiousity takes
different forms. Debates on family law in these states include thus both a ‘gender dimension’
as well as a ‘religious community dimension’ which set distinct characteristics to the claims
for change and the kind of political deliberations involved compared to predominantly
Muslim countries in the Arab world.
Two sets of questions are addressed in this article: First, what characterises family law
debates in each state? Who participates and what sort of objectives are posed with regards to
family law and changes within these laws? How are these debates gendered, i.e. focused on
issues that reflect norms and ideals regarding the distribution of rights and duties between
men and women within society? Second, how does the multireligious identity of the state
influence questions related to family law? In which ways do religious communities in each
state relate to the debates on family law in general and on gender in particular?
This article aims at presenting perspectives regarding the debate on family law in Syria
and Lebanon. An insight into legal pluralism and the institutionalization of family law is
presented (part 2). The debate on family law in Syria is introduced, and two aspects regarding
family law, namely the ‘gender dimension’ (part 4) and the ‘multireligious dimension’ (part
5) are then presented and discussed, before I conclude by reflecting on what I see as
patriarchal bargains and alliance accommodation between the political regime and social
forces that partake in debates on family law.
2. The state, family law and legal pluralism
Legal pluralism in Syria and Lebanon reflects the existence of multiple sources of legislative
and judicial authority that regulate and implement family laws applied to citizens according to
their religious affiliation. Eight religiously based family laws regulate the personal status
affairs within 17 religious groups in Lebanon, and 15 religious groups in Syria.5
5
In Syria there exists 11 Christian communities that are regulated by five different family laws: 1) The Greek
Orthodox (qanun haqq al-‘aila); 2) Syrian Orthodox (qanun al-ahwal al-shakhsiyya); 3) Armenian Orthodox
(qanun al-ahwal al-shakhsiyya); 4) Evangelist (qanun al-ahwal al-shakhsiyya); and 5) Catholic family law
(nizam sirr al-zawaj) applicable to Roman Catholic, Armenian Catholic, Syrian Catholic, Maronites, Chaldeans
and Latins. The Druze, Jews and the majority Muslim population have their own family law. (Berger 1997:118119). In Lebanon, the Christian denominations have approximately the same family laws as in Syria, with the
major difference that the shi’as have their own family law. There exists 17 religious communities that are
regulated by xxx family laws: 1) Sunnis, 2) Druze, 3) Greek Orthodox churches (includes the Greek Orthodox,
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Modern Western legal systems do not distinguish between the legal status of a person
in the public sphere (i.e. outside the realm of the family), and the legal status of a person in
the private sphere, i.e. within the realm of the family.6 In Arab legal systems, however, this
distinction is central: While a person’s civil status (ahwal madaniyya) denotes an individual’s
rights and obligations in the public sphere that are regulated within civil law (qawanin alahwal al-madaniyya), a person’s relationship within the family, i.e. the private sphere, is
regulated by laws that govern his or her personal status (ahwal shakhsiyya) (al-Siba’i
2001:11). It is the latter set of laws that are called ‘family laws’.7
Legal pluralism is the institutional outcome of the state’s partial centralization of
judicial authority which began with the reformation of the Ottoman legal system in late 19th
century. In most states in the Middle East, religious texts and tenets are – in different forms
and various degrees - expressed and applied by religious communities in partial cooperation
with state authorities. The civil rights of the state’s citizens are thus regulated by two sets of
laws: one formed by state legislation that is not religiously sanctioned (civil law), and the
other sanctioned by religious groups.
2.1. Partial containment of state authority
The legislative and judicial autonomy of religious communities in forming and applying
family law has resulted in the “containment” of state authority over the personal affairs of
citizens (Vikør 2000:234). In the contemporary Middle East, state authorities cannot – or
more precisely, do not have the necessary legitimate authority to - issue or change segments
within family law without having the ‘blessings’ of substantial parts of the religious
communities.
Although the state’s political manoeuvring space is contained, when it comes to
issuing or changing segments within family law, it is nevertheless existent. In the course of
Syrian Orthodox and Armenian Orthodox), 4) Protestants, 5) Jews and 6) Catholic churches (Maronites, Greek
Catholics, Armenian Catholics, Syrian Catholics, Latin Catholic, Chaldenians), 7) Shi’a (sjekk mer i ElGemayel 1985:280, An-Naim 2002:127, 139).
6
Modern Western legal systems distinguish between ‘public law’ and ‘private law’, but the civil status of a
citizen is not affected by which of these two laws a citizen is subject to. By ‘modern Western legal systems’ I
imply changes within Western legal systems that have evolved in response to and in the aftermath of women’s
liberation movements in the 1960’s and 1970’s. Western legal systems were until then still gender-biased, and
the French legal system, for example, showed surprisingly similarity to patriarchal shari’a rules until 1965.
Mayer indicates that the “degree to which Islam accounts for discriminatory features in family law tends to be
exaggerated. […] Westerners […] fail to realize that aspects of family laws in Muslim countries that strike them
as archaic, had until recently, counterparts in Western laws.” (1996:3).
7
Family law is referred to as such in Lebanon (qanun al-usra), but in Syria it is more precisely called ‘Laws of
Personal Status’ (qawanin al-ahwal al-shakhsiyya).
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the codification8 process of family law, a range of decisions were made regarding who was to
partake in forming the law and which sources were to be used, before each state formed its
own legislation.9 In other words, there does not exist “a unified shari’a law” which is applied
as “Islamic law” in the different states: Each state has chosen a family code formed out of
national and politically defined “mixtures” of Islamic jurisprudence as well as “non-religious”
civil laws.10 The shari’a is an example of an uncodified code, when it is codified and becomes
part of a state’s family law, the process is an expression of the state-authority’s exercise of
power within a territorially defined unit.
Debates regarding family law, and the process linked in maintaining or changing
segments within, can thus be seen as political in the sense that they display and reflect the
priorities of the ruling regime or power holders regarding the distribution of rights and duties
within the family among the state’s citizens.11
2.2. The Syrian family law and court system
In Syria, the 1917 Ottoman family law governed matters of personal status until 1953 when
the Law of personal status (qanun al-ahwal ash-shakhsiyya) was issued. The draft proposal
for the 1953 law was prepared by a government commission and formed principally in
accordance with the Hanafi school of law.12 The law was codified based on five sources: 1)
the 1917 Ottoman family law, 2) the unofficial code prepared by the Egyptian jurist Qudri
Pasha, 3) various Egyptian laws enacted between 1920 and 1946, 4) a treatise on personal
‘Codification’ implies a process where customary law and traditional jurisprudence are explicitly stated in the
form of codes or laws.
9
All states in the Middle East have codified family laws, with the exceptions of Saudi Arabia and Bahrain. Not
all religious groups have codified their family law, the Druze sect serves as an example.
10
Layish (2004:86) explains the textual sources that form the corpus of the shari’a: ”The characteristics of
shari'a are manifested in the textual sources, legal methodology, and the authority for sanctioning legal rules.
The legal methodology (‘usul al-fiqh) of the shari’a consists of four sources of law: the Qur’an and the Prophetic
hadith or sunna (custom, normative way of life) that make up the material sources; the analogical deduction
(qiyas) […], and the consensus (ijma’) of the fuqaha’ of each of the schools of law (madhahib)”.
11
The reaction of interviewees when I applied the word “politics” (siyasa) or “politicization (of an issue)”
(mas’ala mutasayyisa) in Syria is indicative of the collective curtailment regarding freedom of expression. When
asked whether the question of changing family law is seen as ‘political’ in Syrian society, a recurring reply was:
“No, this question [issues related to family law and changes within] has nothing to do with politics”. While I felt
at ease using ‘politics’ as a term for government-related as well as for general social and economic issues in
Lebanon without making some kind of ‘conversational offence’, the term ‘politics’ echoed differently in the ears
of Syrians. When asked what different activists, journalists and intellectuals connote with the term ‘politics’ the
reply was more or less unanimous: ‘opposition (mu’arada) and resistance (muqawama)’, implying actions and
sayings that have to do with political opposition against the ruling regime, a connotation which their Lebanese
counterparts do not immediately imply. The heavy weight and historical experience security apparatus and its
agents (mukhabarat) is felt in Syria as compared to Lebanon. This small insight may indicate that the climate of
expression is less curtailed in Lebanon than in Syria.
12
There exist four main schools of law (madhab) within Sunni Islam: Hanafi (widespread in areas under the rule
of the Ottoman empire), Hanbali (dominates the Arabian Peninsula), Maliki (widespread in North and West
Africa), and Shafi’i (widespread in East Africa and South East Asia) (Vikør 2005:10-11).
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status law drafted by the Damascene judge Ali al-Tantawi, based on his choices among
different law schools (takhayyur) according to principles most suitable to changing
conditions, and 5) the choice of the committee members of various Islamic jurisprudence
regulations in accordance with the Hanafi school. (An-Naim 2002:138-139, Shafaqa
1972:15). The law applies to all Syrian citizens, but art. 307 and 308 grants the Druze,
Christians and Jews autonomy in matters related to marriage and divorce. In all other matters
(such as inheritance, guardianship, and kinship) the Syrian (Islamic) family law applies
(Berger 1997:127).13
The most marked difference between the Lebanese and the Syrian family law is that
there does not exist a “semi-encompassing” family law in Lebanon that resembles the 1953
Syrian family law which applies to all citizens. Hence, the Lebanese family law is, in
comparison to the Syrian family law, fragmented and plural both in legal terms and in terms
of the judicial system that exists.
2.3. Two multireligious polities with different political structures
Lebanon and Syria are multireligious polities where the state officially recognizes more than
15 religious groups by accommodating them in a variety of ways: symbolically, by
acknowledging religious pluralism in the constitution14, and legally by granting autonomy in
the field of family law.
The size of the different religious denominations in both states is not officially known.
The last official census in Lebanon was held in 1932, and Syria stopped releasing statistics on
the distribution of the population according to ethnic and religious identity in 1956. There are,
however, rough estimates that the Christians in Lebanon comprise 40% and the Muslims appr.
60% of the population, while the Syrian population comprises of 74% Sunni Muslims, 16%
The Syrian court system differentiates between the judicial courts (mahkama shar’iyya) and religious courts
(mahkama ruhiyya). Judicial courts have general jurisdiction in all legal fields, including family law, relating to
all Syrians without respect to religion. Religious courts have jurisdiction in family law over non-Muslims. There
are two levels of appeal at the judicial court: a court of first instance (mahkama bida’iyya) and a high court
(mahkamat naqd / ta’n / Cour de Cassation). There are also two levels at religious courts: courts of first instance
(mahkama bida’iya) and courts of appeal (mahkama isti’naf). The high court functions as the supreme court in
both court systems. (An-Naim 2002:139). Although the mahkama shar’iyya is translated as ‘shari’a court’ by
An-Naim (2002), the translation is misleading. These courts regulate ‘non-religious matters’ and administer all
other law fields in addition to family law, this explains why I prefer using the term ’judicial court’ rather than
‘shari’a court’.
14
Article 9 of the Lebanese constitution asserts that “[t]he State (…) shall respect all religions and doctrines,
shall guarantee the freedom to conduct religious rites under the State’s protection (…) and shall also safeguard
for the citizens of whatever religion or sect, due respect of their Personal Status Code and their spiritual
interests”. (Quoted in Nasir 2002:36). The Syrian constitution states that ……. .
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Alawite, Druze and other Muslim sects, and 10% various Christian denominations. (CIA
Factbook, 2006).
The state’s partial delegation of legislative and executive power to religious groups in
family law takes different forms in Syria and Lebanon: In Syria, the centralist party system
and Baathist secularist ideology set different limits and opportunities for the relationship
between state authority and society than in Lebanon where the political system is
decentralized and based on the confessional representation of the different communities.
The foundation of the current Syrian political regime was laid down with the take-over
of the pan-Arab and socialist Ba’th party in 1963. An internal military coup led by Hafez alAsad in 1970 heralded the building up of a robust military with sizeable armed forces units as well as repressive internal security and intelligence agencies. The Baath rules, together
with eight small nationalist parties that form the ruling National Progressive Front (PNF). The
Front penetrates and controls the state apparatus and its bureaucracy, workers’ unions and
major agricultural and industrial institutions in society. The take-over of Bashar al-Asad in
2000 has opened up for a mild form of liberalization where the aim is to modernize the
authoritarian system without dismantling it by introducing systemic changes.
The Lebanese political structure has embedded the principle of religious representation
in its political system: members of parliament and government are distributed along a
carefully balanced equilibrium where members belong to the different 17 officially religious
groups on a 50/50 basis distributed between Christians and Muslims. Lebanon is still
grappling with problems connected with what can be labelled as ‘less than independent
statehood’ with no encompassing ideology that unites the different (and often changing)
political alliances that are strongly based on the individual charisma of members of traditional
elite families. Since independence in 1943, Lebanon has professed a laissez-faire economic
policy which has resulted in a minimalist state which has delegated substantial parts of the
state’s educational, infrastructural and media institutions to the private sector. A formula for
political co-existence is still in the making, and the country has yet to overcome the
repercussions of the civil war (1975-1989), and the war with Israel (July 2006).
3. Aspects of the gendered family law in Syria and Lebanon
The primacy of kinship-based social systems in the Middle East accentuates the importance of
family laws in the everyday life of citizens in the Middle East because these laws regulate
areas with a strong social and economic impact on the living conditions and life opportunities
of family members. It is, however, female members, who bear the brunt of legal pluralism and
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religiously-sanctioned family laws. Seen from a gendered perspective, the debate about
changes in current family laws is about whether these laws shall maintain a patriarchal family
model which is ideologically intrinsic in classical Islamic jurisprudence as well as in some
Christian religious family laws.15 With reference to Lebanon, Joseph maintains that “[t]he
legal pluralism in family law has led to absence of an “equality before the law” standard […]
Women and children have been disproportionately disadvantaged by the delegation of family
law to religious sects.” (2000: 131). To substantiate this statement: Which segments of the
Syrian family law is gendered?
3.1. Gendered segments of the Syrian family law
The 1973 Syrian Constitution guarantees equal rights to both male and female citizens (art.
25, par. 3). Article 45 specifies that: “The state guarantees women all opportunities enabling
them to fully and effectively participate in the political, social, cultural, and economic life.
The state removes the restrictions that prevent women's development and participation in
building the socialist Arab society” (The Constitution of the Syrian Arab Republic, ICL).
Furthermore, in civil law, women enjoy equal civil liberties as men at the age of full legal
capacity (ahliyya qanuniyya kamila) at the age of 18 years according to the Syrian
Constitution, and the witness of a woman is equal to a man’s. Likewise in trade law, women
are granted the right to function as economically independent subjects. However, these rights
are in reality partially abrogated by obstacles laid down in family law, as well as in criminal
law and citizenship law.16
Among the gender-biased segments within the Syrian family law we find articles 20,
21 and 23 which state that women are required to have a male guardian (wali) when
contracting their own marriage (usually their father or brother or another male family
member). Art. 70 compels a wife to travel with her husband unless she states otherwise in her
marriage contract or a judge approves of her unwillingness. Articles 206 and 207 grant a
husband the right to prevent his wife to move freely, including visiting religious cites
I use the term ‘patriarchal’ as Buskens defines it signifying a “model of family life in which senior men are
entitled to a dominant position over subordinate women and children. This male dominance, grounded in their
position as husbands and fathers, is expressed in norms about gender, descent, obedience, sexuality, the use of
space and freedom of movement, as well as about the economy of the household.” (2003:75).
16
Gendered citizenship laws imply that Lebanese and Syrian women are not able to pass on their citizenship to
their children in the cases where the father is a non-national. In the Syrian criminal law (art. 548) is clearly
gendered. “Honour killings”, i.e. the murder of women by male members of the family under the alleged pretext
of having broken sexual norms, including marrying men from outside their religious group, receive mild
sentences of no more than 2 – 4 months in jail. In comparison, the penalty for other kinds of murder, is up to 15
years imprisonment. (Interview with Adnan Fares, judge in the Syrian Supreme Court, 25 November 2006).
15
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(maharim) if he does not agree. Article 148 and 149 grants the husband the right to prevent a
divorced wife to travel abroad with their children without the father’s permission (the article
does not give the same right to divorced mothers). Article 117 guarantees the husband
unilateral divorce, including repudiation.17 A wife is required to raise a case in court if she
demands divorce. Article 17 allows polygamy and grants men the right to have up to four
wives. Art. 16 states that the legal marriage age to be 18 for a boy and 17 for a girl, but art. 18
allows youngsters to marry at the age of 15 for a boy and 13 for a girl provided that a male
guardian agrees (father or grandfather). Article 146 grants a woman the right to have custody
for her children (until the age of 13 for boys and 15 for girls) but does not guarantee the
mother to live in the marital home during that period.18 Article 170, 171 and 172 empower the
patrilineal family to take charge of the financial rights of children if the father is dead (wilaya
and wisaya), although the mother may have custody rights to the upbringing of her children
(hadana). Article 12 stipulates that the testimony of a woman counts half that of a man’s. In
matters of inheritance, females inherit less than male members (daughters half of sons) (‘Itri
2006).19
3.2. Legal texts and social reality
The urge to change existing laws of personal status in Syria comes mainly from individuals
and groups concerned about the weak legal and financial status of women and children.
Before I undertook my trip to Damascus, one of my hypotheses was that proponents of
change in family law would be contemplating at introducing reforms that open up for the
strengthening of already existing civil and constitutional laws which grant equal rights
between the two sexes. When I started to interview lawyers and judges within different
religious groups, and members of various civil society groups, I quickly found that such a
question was more or less of academic interest. Respondents pointed that as long as the family
constitutes the main building block of Syrian society, all attempts at changing or improving
women’s status have to spring out of efforts to improve women’s vulnerable position within
the family.
‘Repudiation’ is the technical word for the accepted religious ritual that grants a husband the right to divorce
by citing “I divorce you” three times. This can be conducted without the presence of the wife. In Syria, an
amendment in 1975 requires that the husband registers divorce after repudiation, but this law does not render a
husband’s right to practice repudiation illegal.
18
Ownership to the marital home is almost always registered as the husband’s sole property.
19
See also “Open letter for participation [in improving women’s civil rights within family law]” and articles by
Dr. Kinda al-Shammat in Syrian Women Observatory (netportal nisa’ suriyya], issued by jam’iyyat al-mubadara
al-ijtima’iyya.
17
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What many Syrians focus upon are issues such as violence against women and
children, the pressure on young girls to marry, the financial situation of girls and women
working in the agricultural sector, the lack of awareness when marriage contracts are made20,
and the social and legal hardships of divorce and custody. Perhaps nowhere is women’s weak
position most exposed than in crisis situations portrayed in cases of divorce and custody, as
well as in cases of marriage when official legal regulations and paternal guardianship do not
support women’s choice of a partner. The arenas of marriage and divorce serve also as two
domains where the multireligious dimension and the gender dimension of family law are
interlinked.
3.2.1. Divorce: some insight into main problems that face women
Jurists, lawyers and judges in direct contact with women and men who try their cases in court
assess that approximately 90 per cent of the cases regarding divorce, custody and alimony are
raised by women against husbands or ex-husbands who evade paying maintenance.21 Contrary
to what one might have expected of the lenient rules for divorce which the Syrian family law
grants Moslem men, less than ten per cent of divorces are actually initiated by men.22 Lawyer
Bassam al-‘Aisami explains:
When a husband demands divorce, he becomes subject to administrative divorce (talaq ‘idary), and
must abide to the rules of maintenance as agreed upon in the marriage contract. The majority of divorce
cases in Syria - approximately 70 % - are however actually raised by women who file cases through
court (raf’ da’wit tafriq). The third way to achieve divorce is through mutual agreement (al-mukhala’a
ar-rida’iyya) which accounts for appr. 20 % of divorce cases whereby the couple agree on certain
financial terms before registering the dissolution of their marriage. (Interview, 22 November 2006).23
20
Islamic jurisprudence offers fairly wide opportunities for women to state certain conditions in their marriage
contracts, such as guarantees against polygamous marriage and financial rights within the marital home.
21
The following lawyers were interviewed in November 2006: Bassam al-Aisami (22nd), Rukniya Schadeh (22nd
and 27th), Da’d Musa (18th) and Michel Shammas (26th). The following religious judges were interviewed
Antoun Mouslih (Catholic church) (17th and 20th), Boutros Boutros (Greek Orthodox church) (27 th), Adnan
Fares at the Syrian High Court (25th). Two female judges who do not handle family law cases, but who are active
in civil society groups were also conferred: Wisam Yazbek and Ghada al-Hamimi (26th) at the principle judicial
court in Damascus (al-mahkama ash-shar’iyya, (al-Qasr al-adli). Academics who were interviewed include Dr.
Kinda al-Shammat at the Faculty of Law, University of Damascus and active in several civil society groups
(interviewed several times), Dr. Mohammad Tawfiq Ramadan al-Bouti (Dean of Faculty of Shari’a) and Dr.
Imad id-Din al-Rashid (Head of Sunna and Koraan section) at the Faculty of Sharia, University of Damascus
(26th). Exegete in Islamic jurisprudence and MP Sheikh Dr. Mohammad al-Habash at the Islamic Study Center
was interviewed on the 16th.
22
Vikør rightly indicates that “it is mostly women who go to court, as only they need the court’s aid to obtain a
divorce” (2005:315). However, financial convenience, partly structured by divorce rules, reinforce men’s lack of
interest to initiate divorce, leaving it to the wife to go to court because this option reduces the husband’s
financial obligations towards his divorced wife.
23
According to al-‘Aisami, a woman usually raises a case for divorce due to physical violence, neglect of
financial maintenance or because the husband does not abide at her home, usually as a result of a second
marriage. The administrative course of a divorce case raised in court is as follows: The woman files for divorce
at court whereby the judge gives a period of one month for reconciliation (musalaha). If the woman insists on
divorce, two witnesses, either related or not related to the couple (lawyers or judges) are called to hear the
testimony of each. The judge bases his verdict on the views of the witnesses who distribute the alleged guilt
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According to estimates presented by different respondents who deal with cases of divorce,
almost 90 % of all men attempt to evade paying their financial obligations towards ex-wives
and children as ruled by court (nafaqa) after divorce.24
Among Muslim men in Syria, divorce appears to be a male prerogative if one takes
legal texts at face value. Social practice reveals however the vulnerability of women in times
of crisis: It is mostly women who call on lawyers to file cases and who go to court (both
judicial and religious courts), because there is a tendency that men – across all religious
groups – evade paying custody and maintenance for their ex-wife and children.
4. Debates on family law: Who are the participants?
In both countries, feminists, human right activists, politicians, lawyers and judges within both
religious and civil law, men and women of religion across different confessional
denominations, as well as moderate and radical Islamist revivalists are partaking in what
Buskens (2003) has coined “an emerging public sphere” related to family law reform.25 The
plurality of voices and the different types of claims and demands is perhaps the most
noticeable feature of the current debates on family law. The debates reflect opinions and
perspectives regarding concepts such as democracy, gender roles, the development of civil
society, social justice, human rights and the extent to which citizens can conduct and partake
in individual interpretation of religious texts and doctrines (ijtihad) (Buskens 2003:72). While
the codification of family law in 1953 in Syria involved hand-picked legal experts in Islamic
jurisprudence in collaboration with state authorities, the current quest for, and opposition
inflicted by the husband or wife in terms of percentages. For example, the husband is guilty of 70 % of the
alleged reason for divorce, and the wife 30%. The husband thus pays 70% of his financial obligations as
accorded in the marriage contract (muta’akhkhir). If the verdict finds that the couple is equally guilty for the
dissolution of marriage, the wife receives half of the sum which has been agreed upon in the marriage contract.
Most cases end up by sharing the guilt between the couple, with some cases delegating 60% or 70% of the guilt
to the husband. (Interview, 22 November 2006). See Rabo (2003) for more detailed cases of marriage and
divorce among the different religious groups in Syria.
24
The rates set by the government for the time being ranges between min. 800 SL – max. 1200 SL (100 - 150
NOK) for each child per month, but it not unusual that children receive up to 1500 SL (180 NOK) per month.
The usual alimony (nafaqa) for a divorced wife is a one-time payment of 5000 SL, and then 3000 for each
month. This is paid for the wife for max. 3 years, for the children until they reach 18. An average monthly salary
ranges between 7500 SL - 12,500 SL (appr. 900 - 1500 NOK). 100 Syrian Lira (SL) equalled appr. 120 NOK,
and 1 $ was equivalent to 50 SL (November 2006). Information given by lawyer Bassam al-‘Aisami, 22
November 2006 and judge Boutros Boutros at the Greek Orthodox Church, 27 November 2006.
25
Buskens describes the emergence of a ‘public sphere’ as a process where previously uncontested concepts and
ideas are presented by different segments of civil society who are “engaged in a national debate in which each
faction fiercely defends its rights to speak in public about its proper understanding of Islamic law.” (2003:72).
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against, changes in family law comes from multiple channels and is presented by more
diversified segments of the population.
4.1. Two-way forces for change: external impetus and internal demands
In Syria, the impetus for change of current family laws comes from two main sources:
international and regional conventions advocated by women’s unions and different civil rights
groups on the one hand, and the efforts of social workers, lawyers and judges that are
concerned about the increase in the social and economic despair of women and children in
cases of divorce and abandonment (hijr). Social justice concern is expressed by persons and
institutions that relate to both civil and religious laws across all religious groups, and is
presented below as part of the “gender dimension” within debates on family law.
In addition to addressing gendered issues within family law, the smaller Christian
groups in Syria express at the same time anxiety with cases of ‘conversion by convenience’
where Christians, both men and women, convert to Islam in order to evade church law rulings
and attain individual interests. ‘Conversion by convenience’ is seen as a challenge among the
small multireligious countries in the Middle East (Jordan, Lebanon, Syria and Palestinian
territories- and to a certain extent Copts in Egypt). The 1990 revision of Church laws for the
Catholic churches, for instance, addresses this problem and represents an external impetus for
change within the application of Catholic religious law in Syria. Some of the challenges
which minor Christian groups face with regards to shari’a-based family laws that regulate the
affairs of the majority of the population in Syria are discussed in part 5 as the ‘multireligious
dimension’ of debates on family law.
Although international and regional conventions and organizations can be seen as
‘external’ momentums and incentives for change, while the efforts of women and human
rights activists as well as opponents of change can be viewed as ‘internal’, the two impulsions
are clearly linked and enmeshed in national discourses for change. This ‘enmeshment’ is most
clearly exposed in the linking of women’s rights to human rights as reflected both within
reformist Islamic jurisprudence which advocate women’s rights, and in the government’s
endorsement of international conventions and the visible efforts in supporting these pledges
officially. Instead of presenting an ‘internal / external’-approach, it is therefore more fruitful
to view the mixture of external impetus and internal demands as comprised of a ‘downward
axis’ and an ‘upward axis’ for change with regards to family law. The ‘downward axis’
reflects the forces of international organisations and conventions as well as government-
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initiated changes. The ‘upward axis’ reflects the activist approach which non-governmental
and smaller social groups display in their effort to address family law issues.
4.2. Family Law: The ‘gender dimension’
The impetus from above: National and international conventions as channelled through
official institutions
The Syrian state bureaucracy can be seen as a ‘dirigiste’ centralist apparatus where official
objectives are formulated in a socialist party programmatic and dogmatic style. Underneath
this rhetoric, however, there is a rather surprising amount of divergent voices and institutional
frameworks that represent different perspectives. Although “official” in that these diverse
perspectives represent the state apparatus and its administrative branches - be it in the areas of
development, women, religion or international relations – the variety of voices is noteworthy.
4.2.1. The ‘Syrification’ of international conventions: The SCFA as national coordinator
The Syrian Commission of Family Affairs (SCFA) (al-hay’a as-suriyya li-shu’un al-usra)
was established as an independent directorate with direct links to the Council of Ministers in
2003. Its aim is coined in general terms as seeking to “bridge the gender gap and attain gender
equity, equality and empowerment of women” (Syrian Arab Republic, National Report 2004,
Beijing +10: 47). The SCFA’s mandate is to coordinate the work of different international
organizations26 and find means to introduce and raise national conscience towards concepts
such as women’s rights and children’s rights in Syria.
With regards to family law, the SCFA has focused its work on highlighting the Syrian
government’s reservations to the Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW).27 The SCFA has organized workshops and
seminars where parliamentarians, politicians, representatives from unions and civil society
groups, religious leaders and experts in Islamic jurisprudence discuss the reservations that the
These include the United Nation’s Development Fund for Women (UNIFEM), the United Nations
Development Programme (UNDP), The United Nation’s Children Fund (Unicef), United Nations Population
Fund (UNFPA). The UN organizations play a significant role in supporting and inspiring civil society
organizations as well as acting as guarantors of international law conventions – signed by Syria and Lebanon,
albeit with reservations, regarding human rights, women’s rights and children’s rights.
27
CEDAW was adopted by the United Nation in 1979. Lebanon signed the convention in 1997 and Syria in
2003 following commitments after the 1995 Beijing Conference. Neither state has ratified the CEDAW mainly
due to reservations, mostly linked to issues related to family law and the autonomous right of religious groups to
formulate and implement family laws. The SCFA presented a petition to the Council of Ministers where the
government is asked to lift the reservations of the CEDAW pointing that the opinions of men of religion as
expressed in the different nation-wide seminars held in Damascus, Idlib, Aleppo and Tartous suggest that “these
reservations do not disturb the spirit of the shari’a, nor do they oppose our social customs nor the Syrian
constitution”. (Letter sent by SCFA to the Council of Ministers, 5 April 2005).
26
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Syrian government has laid.28 It also works with Syria’s largest women’s union in presenting
proposals for family law reforms.
4.2.2. The Syrian Women’s General Union (SWGU)
- the centralist government’s “woman-branch”
“There is a tremendous need for change both at the legal level and at the social level because
times have changed, and the laws have to be altered and applied in new ways in order to
respond to the social and economic needs of women”, comments Summaya al-Ghanem who is
leader of the Division of legal affairs at the Syrian Women’s General Union (SWGU) (alittihad an-nisa’i al-‘am) (Interview, 23 November 2006).29 She comments further: “Laws are
made, but they need to reflect the needs of society. Whenever applied, there will always be
some holes and amendments that should be made in order to adjust to the contemporary needs
of people”. According to her, the commitment of the General Union of Arab Women
(GUAW)30 to concentrate on amending existing family laws in the Arab countries has been an
important determinant in putting the question of amendments in the family law on the
political agenda in Syria. Ghanem explains:
The GUAW met in Yemen in December 2005, and Syria was elected leader of the legal committee for
the coming three years. Our second meeting was in Damascus on 18 April 2006. At that meeting we
decided to concentrate our efforts on changing two main legal issues: the right for Arab women to give
citizenship to their children in cases where they are married to non-nationals, and amending articles
within the current family laws which we deem as unjust towards women. The GUAW is currently
studying the possibility of introducing some of the changes that have been made in Tunisia, Morocco,
Libya, Egypt and the PLO. (ibid.)
Experiences in other Arab states serve thus as guidelines in introducing amendments and
changes in the Syrian family law. In 2005, the SWGU established a working group consisting
28
See CEDAW in the Syrian press (SFCA publication, 2006) where a wide range of different opinions that have
appeared in the Syrian press between October 2004 and March 2005 are reprinted. The articles refer to
workshops and seminars arranged by the SCFA. Although the articles represent the opinions and ideas of mainly
liberal intellectuals, they do give an idea that the discourse on family law does not detach itself from the
religious framework. The following title is telling: “In a debate that is not the first of its kind and will not be the
last: The Islamic Shari’a is not to be held responsible for most of the reservations on the CEDAW convention”
(Tishreen, 17 January 2005).
29
The SWGU was established in 1967 and represents 114 women’s unions and associations in all social and
economic fields, making it the biggest women’s organisation in Syria. (Information bulletin issued by the
SWGU, undated publication). It is registered under the Ministry of Social Affairs and Labour and is perceived by
the new generation of small civil society organisations as a politically powerful, albeit colossal organisation,
with “very close ties” to the government. It is not a far-fetched assumption to regard the SWGU as the main
“woman-branch” of the centralistic Syrian government.
30
The GUAW (al-ittihad an-nisa’i al-‘arabi al-‘am) is the largest women union in the Arab world which
represents official unions. Another newly erected regional organisation which addresses the inconsistency of
Arab state legislation regarding constitutional laws and family laws is the xxxxxxxxx , the “woman-branch” of
the Arab League where the first ladies of presidents and kings meet. The xxxx had its first meeting in November
2006 in Bahrain.
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of representatives from the Faculty of Law, the Faculty of Shari’a from the Damascus and
Aleppo universities, legal advisors from the Ministry of Justice, the Ministry of Social Affairs
and Labor and the SCFA. The expert group is discussing three draft law proposals: One
introduces a state supervised Maintenance Fund (mashru’ sunduq al-nafaqa) which aims at
reducing the financial burden of divorced women in cases where divorced men evade paying
maintenance. The second law proposal regards the housing problems of separated mothers
during the custody period of children (mashru’ al-umm al-hadina). The third draft law aims at
establishing family courts (mahakim usra) that are specialized in cases of family law. As the
case is today in Syria, family law cases are handled in the regular legal courts where judges
do not specialize in family law. These projects address grave social issues which target mostly
women, according to the expert group. Family courts are hoped to help shorten the period in
which women receive financial rights decided in court, and the Maintenance Fund is signalled
to become a link between the woman and the state rather than the woman and the ex-husband,
which will put less burden on the individual woman. Asked whether such changes are in
accordance with common Islamic interpretations of family law, Ghanem points:
Islamic jurisprudence differs widely between conservative and more liberal interpretations. Different
Islamic schools either support or oppose (tu’arid) changes. Before starting to work on the three draft
laws we had two meetings with shari’a scholars from the Faculty of shari’a as well as the Faculty of
law at the universities of Damascus and Aleppo, representatives from the Ministry of Justice, the
government and the parliament. We explained to them that our work is social and humanist, and at the
same time legal in character (‘amalna ijtima’i wa insani wa binafs al-waqt qanuni). The shari’a
scholars told us that “among the Islamic principles is the just treatment of women” [min mabadi’ alislam insaf al-mar’a] and we got a clear signal that the projects we are working on are legitimate (ibid.)
Her comments on the wealth of interpretations embedded in Islamic jurisprudence reflect a
general debate about renewal in Islamic jurisprudence with special emphasis on women’s
position.
4.2.3. Islamic interpretations of reservations on CEDAW
Liberal views and “established Islam”: al-Habash and Hassoun (Grand Mufti of Syria)
The call for the renewal and re-examination of shari’a-based rules regarding women comes
mainly from both the liberal and from segments of “establishment-Islam” (i.e. state appointed
religious scholars). These calls are met with sceptical views, outright dismay and ridicule,
within the more radically conservative / Islamist segments of religious scholars. Focus on
women’s rights within Islamic jurisprudence raged following the publication of two books,
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one by Dr. Mohammad Shahrour31 entitled “Towards New Principles in Islamic
Jurisprudence- Jurisprudence regarding Woman” (2000), and the other by Islamic scholar Dr.
Mohammad al-Habash entitled “The Woman between the Shari’a and Life” (2001). Both
scholars profess renewal in the interpretation of shari’a-stipulations. The conservative
response was harshest to the book by Habash where Mohammad al-Zein published a book
entitled “Apologies to Comrade al-Habash” (2002) where he questions the liberties that
Habash has used in his liberal interpretations of classical Islamic tenets regarding women’s
rights.
Having become proliferated as a “liberal Islamist”, it comes as no surprise that when
the SCFA chose to commission a work on studying the CEDAW convention they approached
al-Habash who had the best credentials as having a classical education within the Islamic
establishment. In 2005 a study was presented on the reservations which the Syrian
government has made to the CEDAW as seen from an Islamic jurisprudence perspective.32
Al-Habash, who had in the meantime been elected as member of the Syrian People’s
Assembly (in 2003), has a style of argument consistent with his reformist project of religious
renewal (tajdid dini) (Heck 2003). He argues that the CEDAW reservations can be dispensed
with without abrogating Islamic principles by presenting liberal and women-friendly
interpretations of shari’a-principles.33 Al-Habash introduces his study by stating that
While the leftist tayyar argues that the underdevelopment of women is due to traditions, custom and the
cultural heritage and backwardness which often is maintained to spring out of one source - Islamic
jurisprudence (al-fiqh al-islami), the Arab right maintains that women’s social development is linked to
asala, culture and the many options offered by sage predators (khiyarat al-salaf al-saleh). […] If we
argue that the text [of Islamic jurisprudence] is able to reflect all these different perspectives, we are
able to understand the richness of Islamic jurisprudence which offers us solutions in our contemporary
circumstances (2005:4).
He translates the text of the convention, examines each of the 15 reservations and then
presents Islamic interpretations that point to lenient understandings which open up improving
31
Shahrour is professor of xxxx at the University of xxxxxx and proliferated Koraan exegete. According to the
German net-portal Qantara “Shahrur’s message is a contemporary message, a reassurance to the perplexed, a
reassertion of the liberal tradition of Islam and an affirmation of the relevance of the faith to the pluralistic global
village of the twentieth and twenty-first centuries. Hence the importance of his work.” (kilde)
32
Habash is director of The Islamic Centre Studies (est. in 1987) which states that its project is inter-religious
and inter-cultural. In the 2003 elections he collected the largest number of votes as an independent
representative. He has worked closely with the late Grand Mufti of Syria, Ahmad Kiftaro, and is married to his
granddaughter, Asma’ Kiftaro who leads the muntada an-nisa’ al-islamiyyat bi-dimashq [The Club of Islamic
Women in Damascus] (est. in 2004). I interviewed Mohammad Habash on 16 November 2006 and Asma’
Kiftaro on 26 November 2006.
33
Habash argues that “Human rights and women’s equity are not American commodities that are passed on as
‘boycott American goods’ […], [these rights] are part of human excellence born out of human struggle” (2005:1,
31).
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the legal status of women from an Islamic perspective.34 Habash recommends that there are
no substantial grounds for lifting all reservations, except one: article 16 par. 1, clause c
regarding marriage and polygamy:
Absolute equity in rights and responsibilities during marriage and when breaking it can never be
imagined, the wife’s responsibilities in pregnancy, breast-feeding and custody are different of the
husband’s ones. Islamic law stated man’s right in having more than one wife. Woman can never be
granted the same rights. As for divorce, a woman can never have sole decision on divorce. I believe
reservation on this article is necessary and absolute. (2006:5)
Habash concludes by stating:
No doubt that there are trends (tayyarat) in the Islamic jurisprudence which refuse to lift these
reservations, and even contemplates on adding new reservations. My due respect to these perspectives,
but it is important to point that Islamic jurisprudence encompasses all interpretation (ijtihad) that is
based on general shari’a-principles […] I do not doubt that the spirit of the shari’a has come to ease
burden. […] I believe that the responsibility of intellectual stratum is to the renewal (islah) of national
legislation in accordance with human achievement. Society will thus understand that women’s rights are
in principle a religious demand which the shari’a emphasize (Habash 2005:31).
While Habash represents a liberal tide, the current Grand Mufti of Syria, Dr. Ahmad Hassoun,
represents the opinion of “establishment Islam”, i.e. xxxxxxxxxxx (Berger in Dupret xxxx).
In an article in a Syrian monthly magazine he presents his interpretation regarding Syria’s
CEDAW reservations. The Mufti supports the elimination of most reservations, except
articles concerning the man’s right to polygamy (art. 16 clause 2), guardianship in matters of
marriage (clause f), restrains regarding establishing a minimum age for a legitimate marriage
(art. 16 provision 2), and the intervention of The International Court of Justice (art. 29)
(Hassoun 2006).
34
Syria has made reservations in six articles: Art. 2 (seven paragraphs) aims at establishing convergence
between constitutional laws and others relevant laws with regards to gender equity, and the enforcement of this
equity through court. Par. c includes the testimony of men and women: In the current Syrian law the testimony of
men and women is equal in civil law and contractual law (matters of trade and finance), but within family law
requires the testimony of two women equals that of one man. In the cases of Syria and Lebanon this would
require the abolishing of gender specific segments of family law, criminal laws and citizenship laws. Art. 9 (two
paragraphs) regards the woman’s right to give her citizenship to her children, art. 15 (four paragraphs) is
concerned with the woman’s freedom of movement and freedom of choice regarding her place of residence. Art.
16 (paragraphs j, d and z) are concerned with equality of rights and duties between husband and wife in
concluding marriage and divorce, custody and maintenance of children. Art. 16 (second section) maintains the
principle of illegality of marriage of non-adults, and requires the official registration of marriage. Art. 29 (first
section) enables the International Court of Justice (mahkamat al-‘adl al-dawliyya) as arbitrator in cases of
dispute between the law systems of two countries (Habash 2005:6-14).
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4.3. The ‘gender dimension’:
The impetus from below: local initiatives and counter-initiatives
The fruits of the ‘Damascus Spring’35 are evident in the existence of a lively flora of civil
society groups and organisations that aim at improving the life conditions of Syrian women.
Not all are “licensed”, i.e. they have not acquired an official approval by state authorities to
operate, but most of groups report that they work freely, under different forms of subtle
control by the authorities.36 The group that has addressed the question of family law most
adherently is The Association for Social Initiative (ASI) (jam’iyyat al-mubadara alijtima’iyya).37
Established in 2001, the ASI was central in the efforts of raising the age of children
under women’s custody38. In October 2003, Law 18 was passed and ASI was given credit for
getting it approved in parliament. The ASI continues to focus primarily on changing segments
of the family law which members perceive as gender-biased, and has carried out a survey
where 2764 questionnaires were filled among heads of households and women at health
clinics in seven of the country’s fourteen provinces.39 The results of the survey are currently
being processed by two sociologists at the University of Damascus, but the questionnaire
itself caused quite a stir in the public and the media while it was carried out last year.
The ‘Damascus Spring’ is nick-name for the period of political liberalization that followed in the aftermath of
Bashar al-Asad’s ascendance to power in July 2000 where Syrian intellectuals as well as state authorities
commented politically sensitive issues in the media and in public. Adherent critics of the regime where
eventually jailed, a step signalling that the regime still defined the limits of freedom of speech (Perthes 2004:1319).
36
During my stay in Damascus (14 – 30 November 2006), I met and interviewed one or several members of the
following civil society groups: al-jam’iyya al-wataniyya litatwir dawr al-mar’a [The National Association for
the Development of Women’s role] (Rania al-Jabiri as spokewoman), rabitat an-nisa’ as-suriyyat [The
Association of Syrian Women] (communist), jam’iyyat al-mubadara al-ijtima’iyya [The Association for Social
Initiative], lajnit da’m qadaya al-mar’a, [The Association for the Support of Women’s Issues], muntada alsuriyyat al-islami bidimashq [The Association of Syrian Women in Damascus] under the leadership of Asma’
Kiftaro, granddaughter of the late Mufti of Syria, Ahmad Kiftaro. Not surprisingly, many female employees in
governmental organisations with a health, education or social work profile are also activists in civil society
groups. (Eg. Sawsan Zakzak has a prominent position in the SCFA and is member of the rabitat an-nisa’ assuriyyat).
37
Interview with Nahed al-Hafeth and her sister xxxxxx, two of the founding members of the ASI which started
with “study circles” where 13 women and two men invited lawyers to hold lectures on family law and focus on
the gendered bias of the law. The ASI got an official license to operate as a non-governmental civil organization
in 2004. “There is some control on what we do and say, we cannot work with foreigners without the approval of
the authorities, but all in all, we are treated well, we have a reliable guy from the government who gives us a call
once in a while” (25 November 2006).
38
Under the previous family law, the father had the right to custody over children when a son reached the age of
11 and the daughter the age of 13 in case of divorce. The new law raised the age for girls to 15 and the age for
boys to 13.
39
The questionnaire is entitled “Investigation on the opinion of changing laws that are unfair towards the rights
of women” [istitla’ ra’y hawl dururat taghyir al-qawanin al-mujhafa bihaqq al-mar’a]. The survey was carried
out between March - September 2005. For an English translation of the main questions in the questionnaire, see
appendix 1.
35
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Abdelaziz al-Khatib, a conservative cleric at the al-Darwishiyya mosque in central Damascus,
held ten Friday speeches at his mosque and led verbal attacks against the ASI’s initiative to
question the existing family law.40 He accused ASI members in particular, and women's rights
activists in general, of imitating the West in their demands for reforms of family law:
This survey and its makers intend at growing an internal discord in our Arabic and Islamic country. […]
Its voice calls for the destruction of morals (akhlaq ) and religion in the name of the victory of the
woman against men. It seeks to destroy the last citadel of Muslim citadels […] and through the abolition
of laws that are based on the Islamic shari’a, a Western voice with an Arabic face. […] They want to
erase Koraanic verses, or in other words, to put them on a shelf. Who are they those who fumble with
the country’s sacred [laws] from the inside […] who has mandated these women protagonists to change
Syrian laws? […] women protagonists intend to put an end to honour killings and to erase the
inheritance verses from the Koraan by calling for equality between males and females, and by erasing
the verses on witness proofs in the holy Koraan so that a man’s witness is equal to that of two women,
and erase the verse on polygamy […] and by giving divorcees half of what a man owns. This is what
has been proposed in a publication which opposes religion, law and mind. […] These are proposals
against religion. I am sure that [these] attempts shall fail because our government is wide awake, they
will fail as they did under the days of President Hafez al-Asad (al-lathi kan lahu bil-mirsad, hva gjat
dette? sjekk side 3), and he refused to agree to their suggestions. […]
He attacks the questionnaire and its objectives in the following way:
[S]hall I point at the faults of this survey? They want to include [these laws] as mundane laws (qawanin
wad’iyya), they want to change them to start a war between the people and the state in addition to the
war that is raised against the family. […] Women proponents want to alter the sanctified legislation,
they do not say we do not want the Koraan because they would be very stupid if they had done so, so
what did they do, they took some of the legislation and asked people of their opinion, they want to
create chaos, because chaos is created out of laws that are based on interest and not on right. […]
Nahed al-Hafeth, one of the founding members of the ASI comments:
We did not hear anything while we were conducting the survey, the stir started long after we finished.
What we suggest is a family law that is more in line with civil law. […] Our current family law is a
masculine law (qanun thukuri), it is not necessarily Islamic. We are still interpreting all laws from a
masculine point of view, and [the laws] have achieved a sacred position, but they empower men who
give them this sanctified aura so that no one is permitted to question their premises by warning: “Do not
approach the shari’a!”. The government has been talking about changing parts of the family law for
fourty years. Nothing has happened. They raised the age of custody for children, but we are
disappointed. Raising the age of custody for children under their mother’s care has in effect put more
financial pressure on women because the law did not handle the question of dwelling which was part
and parcel of our demands: a divorced woman should also be able to support her children without being
dependent on her own relatives, and the law has to address the question of a divorced mother’s
dwelling. The new law has actually aggravated the financial situation of women, although she has
achieved an emotional victory in retaining her children for two more years. (Interview, 25 November
2006).
The precise date for al-Khatib’s sermons is unknown, but they were recorded and circulated in Damascus and
its suburbs on cassette-tapes and in a booklet already in January and February 2006, i,e, three months after the
ASI-survey had been conducted. The speeches are accessible on the net-portal nisa’ suriyya [nesasy.com]. and
were sent to me by editor Bassam al-Qadi who in an article dated 17 March 2006 introduces the speeches by
indicating: “It might seem strange that we publish Sheikh Dr. Abdelaziz al-Khatib’s articles, but we believe in an
open dialogue […] which does not give space to hearsay. […] so that people can make up their own minds about
the subject.” (Rudud ‘ala abatil fil-ahwal ash-shakhsiyya lilmar’a, alhalqa 1 – 10, Syrian Women
Observatory:1-21). (Rania: Se Bassams e-post, 27 November 2006).
40
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4.4. Change the law or work within exiting laws?
While some activists, such as he ASI, aim at changing the family law, other observers point
that the religiously based laws of personal status do not represent the main obstacle against
the widening of women’s rights, although both lawyers and judges acknowledge the problems
related to legal pluralism. Bishop Mousleh comments: “The constitution unites us, but the law
[of personal status] divides us […]. Some religious communities give more rights to women
than others, and there are communities that have their own views on women that differ from
the others. These legal differences (al-tawzi’ al-qanuni) trouble the citizen.”(2005:3-4).
The concern regarding legal pluralism does not translate into discussions or demands
about establishing an optional non-religiously based civil law which opens up for civil
marriage, for instance. What proponents for change in the family law seek is improvement in
the exiting laws that also take into consideration the religious cultural imprint, whether
Muslim or Christian. Dr. Kinda al- Shammat, lecturer at the Faculty of Law at Damascus
University is an essayist in the press on issues regarding women’s rights and participates in
discussing the three draft proposals promoted by the SWGU. She maintains that the different
religious groups have much in common in terms of cultural habits, customs and traditional
gender roles. She comments:
Our society is based on the primacy of the family and religion. We do not need new laws, what we
really need is the application of existing laws which already equip women with rights that are
religiously sanctioned but which are not in common use. An existing prerogative is the [Muslim]
woman’s right to coin her own wishes and conditions in a marriage contract regarding financial matters,
the right to travel alone and an insistence on enjoying a monogamous marriage, or have the right to
divorce. Custom (‘adat) and traditional norms (taqalid) of decency (sharaf) and humbleness (tawadu’)
when engaging in forming a contract are extremely strong. “This woman is starting her new life by
setting premises. What kind of woman is that?”, people would exclaim! Not even highly educated welloff families are yet confident enough to use the existing channels in the marriage contract to protect the
future interests of the woman. Another obstacle within the existing legal situation is the updating of
laws in ways that reflect the social reality of women in waged labour and the increase of divorce in
society. (Interview, 19 November 2006).41
Al-Shammat is thus among those who aim at presenting legal and social improvements within
the existing personal status laws.
5. Family Law: The multireligious dimension
The debates regarding family law in Syria and Lebanon have some semblance to those that
are taking place in predominantly Muslim states where the most heated exchanges of opinion
are between radical and conservative Islamists, moderate and liberal men of religion, and
41
When she received a job offer at Damascus University in 2005, al-Shammat who is a graduate from the
Faculty of law in Damascus expressed a wish to lecture on family law at the Faculty of Shari’a (also at the
University of Damascus). According to her, the request made a stir. She eventually dropped the choice she was
given after being told that she could lecture in family law, but only to female students.
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human rights activists in women associations and nongovernmental organizations (NGOs).
The debates differ in character, however, in the constraints set by the different political
regimes as well as by the potential opportunities that the ideology and politics of mutual
religious co-existence (al-‘aysh al-mushtarak) offers in each state
The quest for confessional balance (al-tawazun al-ta’ifi) is particularly sensitive in
Lebanon, and most political considerations have to take account of a finely tuned religious
equilibrium between the representatives of the different groups. The Syrian regime has, to
some extent, a wider political manoeuvring room: it seeks to present itself as a secular state
where ethnic and religious divisions are politically irrelevant. At the same time it shows
reverence to the religious diversity by applying a ‘language of religious harmony’ where
inter-religious dialogue is an essential part of pursuing a secular socialist agenda (Nome
2006:52).
The preservation of family law as an autonomous domain under the auspices of
religious groups serves to a certain extent as a means of subsistence of religious minorities in
both states (Rabo 2005:71). This survival, however, is linked to the ways in which the
different minorities face the challenges of adaptation towards a Moslem majority, and the
ways in which potential changes within the family law occur within a framework where
Islamic shari’a is dominant. In Syria, the Catholic religious churches have recently issued a
new family law in June 2006, and an insight into the process and forces behind the change
sheds light on aspects of multireligious dimension of family law in Syria.
5.1. The Catholic Churches in Syria: A new family law in 2006
In a historic step born out of the effort of the Catholic Council of Churches in Syria (majlis alkana’is), the Catholic denominations united in issuing a new family law. The new law allows
the Catholic churches to adopt their own religious laws in matters such as inheritance, wills,
adoption and filiation (hikm al-nasab) that have been regulated by Islamic jurisprudence since
the 1953 Syrian family law was issued.
Proposals for changes started in 2003, when the Catholic Council of Churches, which
is composed of representatives from each of the six Catholic churches in Syria, decided that
Bishop Antun Mosleh of Damascus, who also is judge at the Catholic religious court
(mahkama ruhiyya) in Damascus, would head the work on forming a draft for a new Catholic
Church Law.42 Bishop Mosleh chose two experienced lawyers in family law affairs as
42
Bishop Antoun Mosleh is the author behind the new Syrian Catholic Church Law (Mosleh 2006).
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partners, and the three formed a team that drafted the text of a new law which was eventually
accepted by the Syrian parliament on 13 June 2006 (Law 31), and issued in the Official
Gazette on 5 July 2006. Bishop Mosleh informs that the team mandated to make a new law
took into consideration three main points of departure: The Law of Oriental Churches dated
18 October 1990, international conventions on the rights of women and children, and local
legal experience in Syrian affairs when required local changes could not be grounded on a
specific law.43
There was a need to ease people’s problems (tashil umur al-nas), in the case of the custody and the
annulment of marriage, and there were some “holes” in the old law that we sought to amend in the new
law. […] We did not in fact gain new distinctions (mutamayyizat), we regained our original rights that
were taken away from us by the introduction of the Syrian family law in 1953. The new law enables us
to revitalize parts of our religious laws that have been inactive (mu’attala). (Interview, 20 November
2006) .44
Among the major changes introduced in the new law, is the equality principle between
daughters and sons in matters of inheritance. In general, the financial rights of women has
been strengthened: in cases of divorce, the wife preserves an independent right to retain
material or financial resources brought in the matrimonial home upon her marriage or what is
recorded as the produce of her own labour during marriage. The 2006 law establishes the
principle of equality between the mother and the father in the custody of children, both in
matters of upbringing (hadana) and financial matters (wilaya), in distinction to the previous
shari’a-based rules which principled that the father gained formal custody. (ibid.)
Another major “legal hole” that is sought closed in the new law is the case of Christian
men who refrain from paying maintenance for their abandoned wife and children (nafaqa) as
ordered by the church court.45 In order to obtain a speedy divorce or a marriage with a second
wife, Christian men convert to Islam and are thereby legally able to take a second wife. This
‘conversion by convenience’ is experienced by the other Christian churches also, and is seen
as a major problem created by what is seen as “too lenient shari’a family laws” in the eyes of
43
I was present at a public meeting at the Niah Cathedral in Old Damascus on 17 November 2006 where the
main points of the new law were outlined. See lawyer Suleiman Qubti “al-jadid fi qanun al-ahwal al-shakhsiyya
liltawa’if al-kathulikiyya” [What is New in the Personal Status Laws of the Catholic Churches] on the net-based
portal nisa’ suriyya [Syrian Women], 10 November 2006, where the three mandated persons presented the new
law at the first public meeting regarding the new law.
44
Public meeting at the Niah Catholic Church, Damascus, 17 November 2006.
45
The Catholic churches do not handle cases of divorce (talaq) which is not acknowledged in religious
scriptures. Formally, cases of divorce are handled as cases of “marriage annulment” (batalan zawaj) or
separation (faskh zawaj) due to long term abandonment (hijr). Annulment of marriage may in some churches
take up to three years.
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Christian judges, and as judicial errors committed by the Supreme Court (mahkamat annaqd).46 Bishop Mosleh comments:
There is a marked tendency that some Christian men convert to Islam and get their divorce from the
mahkama al-shar’iyya (legislative court). When a case against him is raised by his abandoned Christian
wife, the Court of Cassation has made judgments in favour of the husband, freeing him from sustaining
his legal obligations as ordered by the Church Court. These judgements have created a legal precedence,
and there is dire need to reduce the effect of some of these unjust and illegal actions, whereby some
individuals use the holes available for their own advantage on behalf of the rights of others. Matters of
marriage and divorce are the prerogatives of the Religious Court and should not be overruled by other
courts. (ibid.).
When asked whether the Supreme Court, by overruling the Catholic religious court in matters
of conversion, does not reflect a political unwillingness by the ruling regime to take such
cases seriously, the Bishop replies that these cases are not to be seen as “political acts”, but
rather as legal violation of one court by another, and that “it is possible to avoid these legal
blunders through administrative measures” (ibid.). In the course of working with the drafting
of the new law, the Bishop proposes other administrative measures that could reduce the
negative impact of legal pluralism in the country:
We need a unified family law that is applied to all the religious denominations. My experience in the
[Catholic] religious court is that issues related to family laws have much in common, and that we could
wisely initiate measures to unify our family law by establishing a common law and a common court
system for all religious groups in Syria. (ibid).
Interestingly, the suggestions which the Bishop proposes (Mousleh 2005) for the
establishment of family courts that would improve the civil rights of women and children are
in line with proposals set by the SWGU. At the time of the interview, he was unaware of the
law proposals that are currently being discussed by the expert group at the premises of the
SWGU. Asked on whether he was not afraid of introducing secular measures when forming a
unified family law, he comments:
If we maintain the principle that each religious denomination has legislative and judicial autonomy in
matters regarding marriage and divorce we can easily have a common family law and a common court
which is divided in two: One part that administers religious affairs (mafa’il diniyya) and another part
that administers civil affairs (mafa’il madaniyya) such as adoption, custody and maintenance. Even in
matters of inheritance, where Islamic jurisprudence has specific rules, we could form one section for
Muslims and another for non-Muslims. As the case is today, there is a tendency that one group
dominates at the expense of another because each religious group has its own ‘special’ laws. Are you
surprised that I advocate the case of a more unified civil family law? To put it this way: I am willing to
relinquish some prerogatives for the sake of gaining more equality between citizens across religious
groups. (ibid).
The bishop displays a pragmatic approach towards changing the Syrian family law: On the
one hand, he is concerned in improving the status of women within the existing law. On the
other hand, the introduction of some ‘civil principles’ such as a common family court and a
46
Interview with judge Boutrous Boutrous at the Greek Orthodox Church, 27 November 2006.
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more unified family law for all citizens are seen as guarantees for Christian minority rights vis
a vis a Muslim majority.
‘Conversion by convenience’ which Bishop Mousleh indicates is most apparent in
cases where individuals change their religion from Christianity to Islam in order to evade
financial penalties or legal liabilities. However, there are also cases where the current Syrian
family law prevents cross-religious marriage, especially in cases where a Muslim woman
marries a Christian man.
5.2. Cross-confessional marriage
Theoretically speaking no act symbolizes the national slogan of mutual co-existence (al-‘aysh
al-mushtarak) more than the conclusion of marriage between two persons belonging to
different religions or marriage across different denominations within the same faith. Crossreligious marriage highlights the particularities of multireligious societies. In both states the
option of concluding a civil marriage is non-existent.47 As a rule, Muslims can marry nonMuslims, provided that the partner converts to Islam. Conversion from Islam to Christianity is
not officially prohibited in Syria, but marriage between a Muslim woman and a Christian man
cannot be registered officially (art. 48 of the Syrian family law) .48 In practice, official
disapproval of children born out of mixed marriages between Muslim women and Christian
men is displayed by the authorities by way of denying their registration in Syrian personal
registries.49
Lawyer Michelle Shammas has handled several cases where children born out of
marriages between a Muslim woman and a Christian man are sought registered. He explains
that a legal option to register the children of a Moslem woman married to a Christian man - in
the case where the Christian husband does not wish to convert to Islam – is to raise cases of
filiation (raf’ da’wat nasab) where the woman usually claims that she has been tricked by her
47
Civil marriage in Cyprus is, howeve, a common option for couples of mixed marriage.
There is no law or article that actually states that the conversion of Moslems to Christianity is prohibited.
However, the Syrian constitution states in art. 3 par. 2 that “Islamic jurisprudence is a main source of legislation”
which regards a converted Muslim as an apostate (murtadd).
49
Children born of a non-national father or non-national mother may avoid this obstacle, because they can be
registered in the personal records of a foreign state. However, if the children’s parents are both Syrian nationals
and the children reside in Syria they will not be regarded as Syrian, simply because they are not allowed to be
registered. According to Birgitta Hallberg: a Syrian Christian man married a Syrian Moslem women in a civil
marriage concluded in Canada. The children are registered as Canadian citizens. However, the family lives in
Syria, and the children are regarded as foreigners. They are not registered as Syrians because the father has not
converted to Islam as is required by the shari’a when the wife/mother is Muslim. Both parents are registered as
“single” in the Syrian personal registries, although they have a civil marriage contract. Their civil marriage is not
acknowledged by Syrian law, and their children will not be registered unless the father converts to Islam.
48
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husband when he had claimed that he had converted to Islam before their marriage (Interview,
26 November 2006).50
Lawyer Rukniya Schadeh is currently raising a case against the Syrian Ministry of
Justice that puts cross-religious marriage to the test in the Syrian judicial system. The
Ministry of Justice has recently required that a (previously) Muslim woman divorce her
Christian husband. Schadeh explains that her client, a 46 year old Syrian woman converted to
Christianity in 1984 (when she was 24 years old) in a Lebanese town, in order to be able to
marry a Christian man. To be able to register their marriage in the Syrian official registries,
she forged her identity card whereby the woman’s father’s name was made Christian,
enabling the couple to register their marriage in Syria. In December 2005, the couple received
a letter from the Political Security Division (shi’bat al-amn as-siyasi) which accused the
woman of conversion to Christianity, and the couple of forging their documents of personal
registry. In a case against the couple, raised by the Ministry of Justice in March 2006, the
couple is required to annul their marriage (da’wat ibtal ‘aqd zawaj).51 Schahdeh comments:
Somehow, after 22 years, somebody who knew about the illegal conversion informed the Ministry of
Interior, who took affair in 2005, and raised a case against the couple in order to end her ‘illegal’
marriage with a non-Muslim. The woman contacts me and we raise a counter case insisting that the
woman is Christian. After a while we receive a call from State attorney informing us that the judge
agrees on withdrawing the case. However, I insist on raising this case in court in order to get a verdict
on the subject. I don’t want my client to live in uncertainty. One of these days, state officials might retry
her case, and maybe even forcefully register her children as Muslim. (Interview, 27 November 2006).
Christian Syrian lawyers and judges in religious law are apparently not at ease with what they
regard as lenient official rules that allow conversion to Islam, while at the same time the rules
are strict in observing and preventing conversion from Islam to Christianity.
While cases of ‘conversion by convenience’ are regarded as a problem for the
religious minority as a community, it is also conceived as a problem from a gendered
perspective, because some Christian husbands attempt at evading their financial obligations as
ordained by church law by converting. According to lawyer Schadeh and judge Boutros, the
financial sums that are set in matters of maintenance are in some cases so low that they do not
in effect give women their due share. Judges are however unwilling to raise the amount of
maintenance and alimony for fear of indirectly promoting conversion to Islam. Schadeh points
at a case she is dealing with currently:
A young Christian woman married a much older man and moved to live with him outside the country
last year. After seven months she returns home and complains that the man is impotent. She raises a
50
See Decision 997, 3rd November 1996 by Ministry of Justice. (Rania case II from Michelle).
Letter no. 25963 sent by the Political Security Division (shi’bat al-amn as-siyasi) to the Personal Civil
Registry in Damascus (amanat as-sijl al-madani bidimashq), dated 18 December 2005. On 14 June 2006,
Schadeh raised counter case against the Minister of Justice (Case 5245/ 2006).
51
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case of marriage annulment (butlan zawaj) – which she is entitled to due to her husband’s impotence
according to church law - and demands compensation (ta’wid) of 5 million SL (appr. 600, 000 NOK).
The husband raises a counter case against the claim. The case is being tried in court, where the judge at
the religious court has expressed surprise regarding what the religious fathers think is a far too high
sum. The fathers (matarne) do not like the idea that the sum is so high and argue that it is a bad signal to
the Christian community: “What if such huge sums tempt even more Christian men to convert to Islam
in order to evade financial burdens demanded in the church courts?”, they ask. Well, my point of view
is that this girl’s life has been ruined she is worth the sum. (Interview, 22 November 2006).
When it comes to choosing between maintaining what religious leaders deem as “acceptable
financial” arrangements for sustaining the size of the religious community at the expense of
improving women’s maintenance conditions, the enhancement of women’s and children’s
living conditions are considered secondary.
6. Reflections on patriarchal bargains between ‘men of politics’ and ‘men of religion’
Kandiyoti (1988) introduces an analytical framework for women’s strategies that include
evaluating gains and losses when engaging in material and immaterial investments in
household activities. She describes the various strategies as different forms of ‘patriarchal
bargains’. According to Kandiyoti, some women attain more relative autonomy in corporate
households where they actively seek less dependency on male members, while others achieve
less autonomy when they engage in dependency relationships in more corporate forms of
male-headed household entities.52
There are limits to using an individual level of analysis and applying it on a more
complex and comprehensive national level. However, the parallel of various forms of
‘patriarchal bargains’ is fruitful as an approach when analyzing the different bargaining
positions and set ups of social groups in relation to the ruling regime/ political elite in
societies where patriarchal family models are sought changed. In Syria and Lebanon, social
and religious groups are in different bargaining positions in relation to the political elite when
it comes to demands regarding the renegotiation and change of the current gendered family
laws.
‘Patriarchal bargains’ are struck between the ruling regime and conservative
representatives regarding positions on gendered issues when institutional and legal means are
maintained in the distribution of rights and duties within the family. These bargains are
structurally upheld by current family laws which limit the autonomy of women as reflected in
The term ‘patriarchal bargain’ indicates “the existence of set of rules and scripts regulating relations, to which
both genders accommodate and acquiesce, yet which may nonetheless be contested, redefined, and renegotiated.
[…] bargain commonly denotes a deal between more or less equal participants, [h]owever, women as a rule
bargain from a weaker position.” (Kandiyoti 1988: 275, 286).
52
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the gender-biased segments of family law. Efforts that aim at questioning and eroding the
patriarchal bargain between the political regime and a conservative establishment enhance
women’s opportunities in changing gendered segments of current family law and expanding
women’s civil rights. Patriarchal bargains can, however, also happen along confessional lines,
as lawyer Da’d Mousa perceives the new Catholic Church law in Syria. As a representative of
a secular voice in the debate on family law and women’s rights, she notes:
The religious fundament that our society builds upon is a bargain (musawama) between men of religion
(rijalud-din) and the present regime (al-sulta). Our most important rights as Syrian women and citizens
were achieved in the 1950s and the 1960s: we got the right to vote, the right to get an education and to
partake in the labour market. These rights are written in the Constitution. What have we achieved since
that time in the field of family law? Two meagre steps that constitute minimal details: In 1975 the
mother’s right to have maintenance for her children upon divorce was raised from 9 to 11 years for
boys, and from 11 to 13 years for girls. In 2003 we “achieved” that women had custody over their
children until the age of 13 for boys and 15 for girls. Nearly three decades of hard labour for women,
and all we get is a lousy two years ‘pay-raise’! (Interview, 18 November 2006).53
Mousa is sceptical to the new Catholic law which improves the position of women among the
Catholics. She sees the widening of autonomy to some groups as further underlining the
segmentary orientation of the regime: the legal difference between citizens is extended,
although the status and position of some women is improved.
6.1. The context for change in Syria and Lebanon
Is it easier for Christian denominations in Syria to improve the legal and economic status of
female members precisely because Christian groups are perceived and treated as minorities by
the authorities who find no obstacles in granting more autonomy in matters related to family
law? The sheer small size of the Christian groups in Syria, no more than up to 10 per cent of
the population, proves to be an asset in negotiating with the ruling majority. The centralist
regime, eager to show a committed standing towards minorities appears compliant in
supporting internal changes within the family law of minority groups, as the case of the new
issuing of the new Catholic family law illustrates. With structural changes in inheritance laws,
custody, maintenance and marital financial assets, the status of women has been improved- at
least on paper.
The relationship between the ruling Ba’th regime and the Muslim majority is more
complex and politically inflamed: the political elite is able to constrain the opinions of radical
Islamists who seek to oppose changes in existing family laws along less gendered lines in two
ways. On the one hand, the regime bolsters the position of the traditional “official” clergy
53
See also Mousa 2005.
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which upholds less fundamentally radical, albeit conservative opinions and standpoints,
regarding the empowerment of women within the Syrian family law. The Grand Mufti’s
verdict on several issues such as honor killings, abolition of some reservations in the CEDAW
convention and the improvement of Syrian women’s legal and social security reflect a
concerned attitude which is in line with the standpoint of political regime. On the other hand,
the demands of civil society groups to strengthen the civil rights of women, and the activities
of national institutions to improve women’s legal and social status within family law have
also been supported officially in the past three years. Radical religious views and perspectives
are thus sought placed in check by striking a patriarchal bargain with the conservative
elements of the religious establishment at the expense of women’s rights. At the same time,
the regime is currently eager to show a political willingness for reform which is in line with
the modernist project of the young president by giving some leeway to civil organisations and
state institutions that profess women’s rights.
Whether official support for enhancing women’s civil rights within family law falls
into the category of “lip service” has yet to be seen. From a political bargaining perspective,
the ruling Syrian regime is comfortably in line with the conservative religious establishment.
This alliance between the men of politics and men of religion may well prove to be too
convenient for the authoritarian regime to risk destabilizing it for the sake of what is seen as
“too drastic” efforts of improving womens’ legal rights and status through amendments of the
existing gendered family law.
The situation differs when it comes to accommodating religious minorities and their
pledge for changes in matters related to family law. Paradoxically, Christian groups in Syria
have a defined opponent, an authoritarian political regime, which they can negotiate with. The
cautious widening of religious autonomy within marginal groups supports the agenda of
religious pluralism under the aegis of mutual co-existence, despite the socialist secular Ba’th
ideology.
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Appendix 1
The questionnaire which the Association for Social Initiative (ASI) (jam’iyyat al-mubadara al-ijtima’iyya) (ASI)
formed includes 23 questions: In addition to questions regarding personal status, educational level and work (Q
1-6) the questionnaire has the following questions:
Q7: Article 20, 21 and 23 of the family law requires that a woman has a guardianship (wali) to
conclude her marriage. Do you agree that a girl who has reached legal capacity (i.e. the age of 18) can
conclude her own marriage?
Q8: Article 117 of the family law gives the husband a unilateral right to divorce, without the
approval of the wife […], and the article states that the woman has the right to claim material compensation
if she is saddened and depressed after divorce. Is an ‘unprovoked divorce’(?) (talaq ta’assufi) negative for
the woman?
Q9: Do you support the divorced woman’s right to obtain compensation (ta’wid) that is
comparable (yatanasab) to what the couple has produced throughout their years of marriage?
Q 10: Do you support the woman’s right to permanent compensation if she does not have an
income?
Q 11: Do you support the woman’s right to divorce (mukhala’a) without the husband’s
agreement?
Q 12: Article 17 of the family law grants the husband the right to marry other women without the first wife’s
knowledge […]. Does polygamy have a negative effect on the family?
Q 13: Choose between these options: a) maintain polygamy, b) accept polygamy provided that the first wife
agrees, 3) abolish polygamy
Q14: Law 18 raised maternal custody (hdana) of children after divorce, but did not guarantee the mother of a
resident for during her custody period. Do you support that he custodian should have the right to live in the
marital home during the period of custody?
Q 15: Art. 170-172 grants the father the right to have financial custody (wilaya) of his children, and gives
paternal family members, and not the custodian mother, this right in the cases where the father is dead or absent
[…]. Do you support that both parents share the financial custody of children?
Q 16: Do you support the right of both parents to be the financial caretakers of youngsters?
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Q 17: Do you support the transfer of custody rights (haqq al-wilaya al-mubashara) to the mother in the case of a
father’s death?
Q 18: Art. 12 of the family law states that a man’s witness proof equals the proof of two women, while civil law
regards the proof of men and women as equal. Do you support equality between women and men with regards to
witness proof?
Q 19: [….] Do you support the call for the reliance on scientific methods in proving filiation (ithbat sahhat alnasab) cases [i.e. the use of DNA-tests and the like in order to prove filiation of a new-born]?
Q 20: Do you support equality between women and men in inheritance?
Q 21: Art. 548 in the criminal law views a woman as a criminal in honour crimes, and she is judged by criminal
courts in the opposite way than a man who is pardon on the ground of guarding his honour. Do you regard honor
crimes as murders which do not exempt an actor from receiving penalty?
Q 22: Do you support mothers to be able to grant their children her citizenship in the cases she is married to a
non-national?
Q 23: Put by order of importance the matters that should be changed in the family law according to your view:
1) The woman’s legal capacity to concur her own marriage
2) Abolish ‘unprovoked divorce’ (talaq ta’assufi)
3) Change the law on polygamy
4) Grant the custodian’s right to residence in marital home
5) The participation of the woman in custody matters (wilaya)
6) The participation of a woman in financial custody (wisaya)
7) Equity in giving proof between men and women
8) Abolish article on filiation (ilgha’ maddat an-nasab)
9) Equality in inheritance
10) Abolition of article on honor crime
11) The right of woman to grant children their citizenship
Q 24: Do you agree to the call of changing the laws regarding women?
Q 25: Mention a problem that relates to the family and which has not been touched upon
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