The 20th century witnessed a new wave of interests in the ‘shari’a’- particularly its role as a legitimacy and identity signifier for majority Muslim states. Develop family law has recently attracted the attention of commentators and scholars; this has seen them describe it as the ‘last stronghold’ after Islamic states adopted constitutional law in their state law. These metaphors have outraged many Islamic scholars evoking ideas of battle and siege in contemporary society through cultural globalisation forces that are rampaging and insidious. Historically, they are connected with the reorganization of judicial systems and the process of codification of laws; familywas excluded from the European-based statutory codifications. Comparably, developments in the tort and contract laws have attracted less political and public interests compared to family law reforms that have been opposed by majority Muslim states. Prior to the Ottoman law of family rights of 1917, family law in the Muslim world was dependent on the prominent jurists’ opinions. The study focuses on the most recent of legislation coupled with how the substance and approaches have compared with trends across the region and changed earlier legislative interventions. The analysis focuses on public policy debates, state authority presentation of text, court practice and legal text. However, I do not investigate political movements or Islamist activism on family law in any systematic manner; focus is on the assessments and interventions by advocacy for women rights. Specifically, contemporary states differ in their substance and form articulation of what they consider the shar’I postulate. Under Muslim family law, their national formulations benefit from state legislature decisions that are a product of the shar’I postulate; also, the judiciary benefits because the shar’I postulate informs the application and interpretation of statutory instruments. The study considers numerous concerns that recur in debates and discussions on the application of codified law and codification of Muslim personal law. The paper will give some substance on legislative developments and patterns in Muslim family law.

In the early 1950s, women groups across the region began advocating for their rights to be adopted and applied to Personal status code. The legislature was actively involved through dispute processing for, guidelines, directives, and amendments. However, codification has often been met with resistance not necessarily related to the content of the legislation.

Islamic scholars have published works that led to many questioning personal status laws and the religious sanctity afforded to them by the states. In the past, the judge was the sole arbiter of Muslim family through the fiqh application and articulation. The codification process has altered the role of the judge in the shar’I judiciary by undermining their ability and flexibility to exercise discretion. Codified law is now the basis for Muslim family law; however, the litigants, lawyers, or the qadi remain social agents, working out their values and interests in the grey zone created by the multiple references to qadi, un-codified norms, and codified law. It is expected that qadi’s role will be protective since the focus will be on protecting the vulnerable, empowered, and the weak; this means that the acts of the qadi will be derived from their own professional education, understanding and social expectations rather than frameworks of society and the law. Codified law may hamper the strategies used by women in the courts and the choices of protection used by the judges in the courts. For instance, the ‘idda period will not protect the women claiming maintenance after the lapse of 1-year limitation period. Family law reforms have had codification at the core of its implementation; its procedural and bureaucratic regimes have been identified as a way that states intervene to decide on polygamous unions, on consent, and the minimum age of marriage.

In Bahrain, there has been personal resistance law whereby if accepted, the courts will not examine circumstances on a case by case basis. They will be confined to general written law resulting in wrongs to women and men alike. Bahrain’s lack of a personal status law means that what the shar’I qadi says is legally binding and must be obeyed. The courts have had decisions premised on the whims of the qadi. Promulgation of personal status laws would result in unified rulings and eliminate many problems; these would guarantee women their rights and reassure citizens of the conduct of litigation. The two arguments on personal law derive from tension between legislative direction and judicial discretion. Whereas the woman activist desires intervention of the state through codified law, the qadi emphasises on the need for flexibility in making decisions since this guarantees predictable rulings and known laws. Women activists seek justice from the state while the qadi guarantees justice from the individual judge’s decision. Bahraini women desire a unification of the code for the sectarian divide that exists on the Island, to guarantee equal rights for women, regardless of sect. Moreover, the institutional and legal debate reflects on both the power and size of the shi’I majority about the Sunni minority.

Generally, family law codification engages the shar’I postulate by giving directions to the judiciary with regard to subjects not covered by the text. This comes in different formulations that indicate either political (and legislative) aspiration or history. An example, is In Morocco and Kuwait, reference is made to the prevailing practice or the Maliki position without the need for codified laws, the ‘ijtihad supplements the Maliki schools that identify with the values of Islam in good relations, equality and justice.

In 1956, the Tunisian law of personal status put an end to the previous Maliki and Hanafi jurisdictions; the law allows the courts at their discretion to draw from any jurist or school. Recently, scholars in Tunisia have argued against the use of the fiqh- the reference for application and interpretation of the law; this debate provoked concerns over the authority of international norms, the intentions of the legislator, and attitude of the judiciary. The debate was centred on Muslim women getting married to non-Muslim men that were prohibited in Tunisian codified law and by traditional jurists. Many traditionalists have viewed these marriages as an offence to the beliefs and identity of the people. Amendments are necessary to avoid misinterpretation of article 5 of the code, as a matter of fact; the government in Tunisia felt that that the matter was better if left for analysis by the courts. Although the court attempted to make amendments, they were not exhaustive with a press statement made in 1964 referring to the need to evaluate the sources of fiqh and Islam in the marriage organisation. In 1966, the court declared marriage between a Muslim woman and a non-Muslim man was held as an unpardonable crime and a marriage would be considered void. In 1973, the Minister of Justice released a circular that prohibited the registration of such marriages. Recently, International Law has been invoked with a judge even noting that in some cases there lacked proof that the husband was non-Muslim; in this case it could be “ignored or over-ridden in the amendments to the personal status law in Tunisia”. The situation with these marriages is not unique to Tunisia; a myriad of factors have led to such jurisprudence; these include tourism, migration, and population mobility. Apart from arguments on the elements of choice in marriage and equality norms, it is important to note that recognising such unions would obviate the need to travel abroad for consummation and consolidate national law authority. Similarly, in Lebanon, Shia and Sunni circles were concerned by the lack of reference to the parties’ religion; this cited an implicit sanctioning to “marriage between a Muslim woman and a non-Muslim man” , thus leading them to consolidate their marriages abroad. Scholars have identified that the constitution of Tunisia fails to recognise shari’a as the source of legislation intimating that the legislator desires to establish the primacy of positive law over religious sources and its sovereignty; that civil law should be the reference for judges in interpretation. Therefore the personal status code should be lower in priority of laws on the rights of the woman and be subject to international law.

Legislative direction and judicial interpretation play a crucial role in determining women’s rights. Where the code hindered women’s choices and rights, judges have used this opportunity to undertake rules restitution. In Yemen, the marriage by a guardian of his female or male wards before the age of legal majority was invalidated in 1992 ; this dissolved the previous position that held that on reaching puberty, the female could make a choice. Even in the absence of state law, judges dissolved this based on shari’a law; when the state failed in its duty to pass legislation protecting young girls against early marriage, traditional rules stepped in to supplement statute law. Long before statute law provided for women involved in abusive divorces, some judges in Egypt had already begun compensating these women. Statutory law benefits a lot from judicial interpretation, but the latter has on many instances frustrated the legislator’s intentions. For example, the rights for women’s compensation have encountered obstacles after judicial interpretation. In Jordan, judges took to procedural aspects of divorce law to deny women their petition by strictly construing the law. In Morocco, Zirari-Devif reports failures on the part of notaries to inform spouses of their right to insert stipulations in the contract for marriages on the basis that the deeds fail to conform to the traditions. Furthermore, judges have on numerous occasions allowed underage marriage based on visual appearance despite the passage the Moudawana Code 2004. Another example is on the aspect of polygynous marriages without the consent of the wife. Judges in Egypt have refused to rule on this citing a lack of implementation of this law. Judges are likely to decide cases in accordance with their social perspective than professional training. The responsible ministry in the respective states has also directed the courts in their interpretation of the statutes; in Jordan, the minimum age for marriage of a girl was set through guidelines that were issued by the qadi. The reforms have also set up guidelines that judges in divorce cases mediate between the parties in the search for reconciliation before proceeding with the claims; this was the case in Palestine that have attempted to regulate conflict beforehand.

Regardless of training, court system’s considerations are based on shari’a within the confines of codifications of the Muslim personal law. The dynamic relationship between the text and the judiciary remains the same; judges have filled the gaps left by legislation as discussed and sometimes result in conflict with the legislature. The study looked at the role of states in asserting their directive authority about the functions and roles of the judiciary. In addition, it focused on the judicial interpretation of the courts on divorce, polygynous marriages, and the legal age for marriage within the spectrum of shari’a and its application in Muslim states. Finally, the paper espoused on the interaction between legislative direction and judicial interpretation in the midst of the reforms in Muslim family law.