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Moving Beyond Sectarianism

Jaafari banner

SOURCE: AP/Karim Kadim

A schoolgirl passes a banner for the Jaafari personal status law in Baghdad. The Arabic on the banner reads, "The Jaafari personal status law saves my rights and my dignity."

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On March 8, 2014—International Women’s Day—a small group of Iraqi women protested the Iraqi cabinet’s approval of a law; if passed, it would codify the personal status of Iraqi Shiites under religious law. Known as the “Jaafari Law” after the eighth century Islamic jurist, the legislation empowers Shiite clerics to impose religious law on Iraqis of Shi’a heritage.

This law would restrict and imperil the freedoms and status of Iraqi men and women of Shi’a background. Among other things, it would allow the marriage of girls as young as 9 years old. Other provisions would forbid men from marrying non-Muslim women and would allow unconditional polygamy.

Specific provisions of the law violate Iraq’s own existing laws, as well as commitments under international human rights agreements such as the Universal Declaration of Human Rights. The law’s marriage provisions for young girls, for instance, breaches both Iraq’s obligations under the U.N. Convention on the Rights of the Child and its existing 1959 Personal Status Law. For a more socially and politically progressive and inclusive Middle East to emerge, issues of personal status should be removed entirely from the authority of religion and placed on a secular, universal foundation.

While it remains unclear whether this draft legislation will pass the Iraqi parliament before the April 30 elections for a new parliament, its existence and progress point to a very real problem facing states and societies the region over: the lack of universal, secular personal status laws that ensures that all citizens of a given country are treated equally and enjoy the same personal freedoms to live as they choose. Individuals find themselves confined in narrow boxes of religious heritage that currently define their rights. At the same time, religiously based personal status laws both help create and exacerbate sectarian tensions within countries such as Iraq and across the region by encouraging exclusive definitions of citizenship.

Personal status laws based on religion are prevalent throughout the Middle East. As a 2011 UNICEF regional gender equality survey observed:

The personal status law, or family code, regulates matters such as marriage, divorce, and child custody and is governed in most countries by Shari’a [Islamic religious law]. This means that in cases related to personal status in many countries a woman’s testimony is worth half of a man’s before a court. In countries such as Egypt, Lebanon, Morocco, and Sudan, religious minorities are allowed to apply their own communities’ religious standards to some personal status matters. In other countries, they are obliged to follow Shari’a law.

Religiously based personal status laws are not confined to Arab- or Muslim-majority societies. Israeli personal status law also operates on the basis of religious heritage with Israelis of Muslim heritage covered by Sharia courts and those of Druze heritage covered by Druze religious courts. The personal status of Israelis of Jewish religious heritage is governed by the Chief Rabbinate, which imposes Orthodox religious law. Neither civil marriages nor marriages performed by other branches of Judaism are recognized in Israel, leading many Israelis to marry abroad, often in Cyprus.

The violations of basic human rights, personal freedoms, and equality produced by systems of religious personal status law are by far the most disturbing feature of these laws. In Lebanon, for instance, Kholoud Sukkarieh—a Shia Muslim woman—and Nidal Darwish—a Sunni Muslim man—are unable to have their civil marriage recognized by the Lebanese state due to Lebanon’s reliance on a crazy-quilt patchwork of religious personal status laws. More broadly, state recognition and enforcement of religious personal status laws force particular sectarian religious identities on individuals rather than allowing them to live their lives outside the influence of religion.

Beyond the inherent dangers to freedom and equality that these laws pose, they contribute to the sectarian divisions and exclusivist political ideologies that continue to plague the region. These laws promote sectarianism by forcing individuals to define themselves primarily by their religious heritage and by forcing the state to treat its citizens first and foremost on the basis of their presumed religious background. In short, religious personal status laws serve to police the sectarian walls they erect.

Discerning the impact of religious personal status laws on the Middle East’s narrow and tired ideological landscape is a more difficult proposition. But these laws do serve to buttress the region’s two predominant—and exhausted—ideologies: Arab nationalism and Islamism. It should be obvious how these laws support Islamist ideology by defining individuals primarily in religious terms. But they also offer Islamists a means of imposing their own ideological project even when they are not in power. In Egypt, for example, the Muslim Brotherhood chronically pushed for the government to apply Sharia law in the 1970s and 1980s. President Anwar Sadat had made Sharia law a “principal source of legislation” in Article 2 of his 1971 constitution and successfully reversed progressive changes Sadat had made to personal status laws in the late 1970s. It also lies behind the Brotherhood’s more recent 2013 outburst against a document on violence against women prepared by the U.N.’s Commission on the Status of Women, which the Brotherhood said “violates all the principles of the Islamic Sharia and the Islamic community.”

The support religious personal status laws provide to Islamist ideology appears clear; but the support they provide to Arab nationalism may be less so. However, both Arab nationalism and Islamism spring from the same intellectual and ideological roots of German romantic nationalism—both aim to regenerate mythical organic communities. For the Islamists, this community—the umma—is defined in religious terms. For Arab nationalists, this community—in the phrasing of early Arab nationalist Sati’ al-Husri, al-Umma al-Arabiya is defined by language, ethnicity, and history. In effect, both Islamism and Arab nationalism are competing for the same ideological and political terrain.

Many practical Arab nationalist leaders, such as Egyptian President Gamal Abdel Nasser, took care to explain that their ideologies were in sync with—if not natural outgrowths of—Islam. While to many Arab nationalist ideologues, such as Baathist theorist Michel Aflaq, Islam and the subsequent Arab-Islamic empires were and are a cardinal achievement of the timeless Arab “nation.”Although Arab nationalist regimes had secularizing effects during their heyday, on the whole they espoused and enacted pseudo-secular ideologies that married notions of ethnic exclusivity to religious exclusivity. These secularizing effects decayed starting in the 1970s, as Arab nationalist regimes such as Sadat’s Egypt turned to religion to accommodate Islamists, counter rivals to their political left, and legitimate their own hold on power. Religious personal status laws buttress the ideological claims of Arab nationalism by reinforcing the primacy of exclusive self-definition.

Both Arab nationalism and Islamism aim to construct exclusive societies to which individuals must conform, and religious personal status laws help both to do just that. By erecting and policing social and political boundaries between individuals, these laws assist both ideologies in their effort to impose singular identities on a historically cosmopolitan region. They contribute to what the scholar Sami Zubaida calls the “ever greater purification of constructed national and religious cultures” in the Middle East.The introduction of universal, secular personal status laws not only liberate social space in regional societies and better respect the human rights of individuals throughout the region but also help foster new, inclusive political ideologies by allowing its citizens to crash through the barriers that these laws build and control.

Introducing secular personal status laws that apply to all the citizens of a given state won’t be easy. Israel is the furthest along, with both the center-left Labor Party and popular newcomer Yair Lapid calling for civil marriage, although progress has been slow. In Lebanon, as noted, there is an incipient effort to challenge that country’s religious personal status laws.

But elsewhere in the region, the outlook is not good. While in Tunisia, the Islamist Ennahda movement failed to insert a direct reference to Sharia into the country’s new constitution, or alter its relatively progressive Personal Status Code, continued salafist vigilantism and Ennahda’s likely persistent political power will make forward progress more difficult. The removal of the Muslim Brotherhood from power in Egypt has, for the moment, also removed the threat of regression to even more discriminatory and divisive religious personal status laws. The new hyper-nationalist political atmosphere, however, does not portend progress toward universal, secular personal status laws for all Egyptians. Conservative Gulf monarchies are also currently poorly positioned to see progress toward these laws despite their profound disagreement over the status of the Muslim Brotherhood. These regimes base their legitimacy in large part on religion and are in no position to move away from religious personal status laws without undermining their own legitimacy.

In this inauspicious atmosphere, the United States should begin to publicly make the case for universal and secular personal status laws in the region. It should do so on the basis of the progressive values of freedom and equality and the basic human rights that underpin them. Religious personal status laws fundamentally endanger these values and rights, and the United States should make no bones about this fact. At the same time, the United States also should outline how introducing secular personal status laws can help relieve the sectarian tension currently plaguing the region.

Doing so will not be easy. The power of Islamist political movements and the strong undercurrent of Arab nationalism will make tangible progress on instituting secular personal status laws in the region difficult in the years and decades ahead. But as the region continues to move through a prolonged and uncertain political transition, a new set of political ideas and ideologies must emerge.

Peter Juul is a Policy Analyst at the Center for American Progress.

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