Tunisia: Islamic Law, Women’s Rights, and the Perils of Protection 

Photo by Christopher Furlong/Getty Images News / Getty Images
Photo by Christopher Furlong/Getty Images News / Getty Images

* By Dr Charis Boutieri, King's College London.  All views expressed are that of the author, not of the CRGA. 

For those of us who have been closely following regional and Tunisia-specific developments since 2011, there has been a sense of holding our breath to see how ostensibly drastic institutional transformation would translate into socio-cultural shifts that would support and enhance democratization inside the realm of social relations, namely the space where democracy becomes a way of life and the object of assessment by Tunisian citizens. 

In fact, Tunisian women have been assessing the affordances of democracy on a number of fronts: 

1) Women parliamentarians from a range of political fractions rigorously debated constitutional wording around the gendering of civic and economic rights, a domain in which the religious positioning of the sexes in relation to each other was one of many patriarchal paradigms to probe.

2) Seasoned feminist activists affiliated to the labor rights movements and surviving (secularist) NGOs from the pre-revolutionary period, along with their emerging interlocutors from the assumed to be more conservative religious sphere pushed their adversarial agendas on family matters and women’s experience of the public sphere

3) Non affiliated but exceptionally dynamic women activists continue to campaign tirelessly both online and offline for the defense of female sexuality and of diverse sexualities as well as for a range of intellectual, affective, and physical positions that fall outside the normative binarism of secularism vs political Islam (including advocacy for the legal and public acceptance of non-religious subjectivities). In this more under the radar activism, they are joined by informally organized campaigns to improve the conditions of rural women or protect the livelihoods of female factory workers from the ever increasing deregulation of labor. 

The fact that only the first two arenas of gender related pursuits have and continue to receive national and international attention is strong indication of what scholar Wendy Brown has called the risks of “institutionalized protection”, namely protection that entails accepting “the protector’s rules” (Brown 2006:189). I argue that we should be acutely aware of how state patronage of women’s matters regulates and controls the domain of visible and voiced debate on women’s issues. This dimension helps us complicate the much discussed but in my opinion reductive culturalist axis of religion vs secularism. 

I will briefly address the reform of elements of the Personal Status Code (1956-1957) in Tunisia through a recent draft bill submitted to President Beji Caid Essebsi by the government- appointed Committee for Individual Liberties and Equality (2017). The bill should be presented to Parliament in the coming months. Building on a number of promising steps to redress imbalances in areas of Islamic family law, such as the Basic Law on the Elimination of Violence Against Women that establishes harsher sentences for domestic violence and sexual harassment (July 2018) and the presidential lifting the ban of Muslim women to marry non-Muslim men (August 2018), the new draft bill pushes for further reconfiguration of the guardianship of women by men. It does this by asking for the abolition of dowry (mahr) in the marital contract and the re-positioning of both man and women as heads of household. Inheritance distribution – rooted in some of the most specific injunctions of the Qur’an (Charrad 2001) that confirm the economically and socially subordinate position of women – will soon become the object of re-assessment. These latter measures are bound to have significant material implications for women both within and outside of marriage. 

All the above are welcome advances but not necessarily for the reasons highlighted in mainstream Tunisian and/or international media as well as in many pundit opinions. In short, it is not the “democratizing state” that needs to be applauded for these announced transformations, but instead the tenacity of the thousands of female actors who have been negotiating patriarchy within state institutions, legal documents, work environments and the private sphere. In fact, the state as a conduit for women’s emancipation has at best been an ambiguous, contradictory, and partial conduit of change. Female scholars from Muslim societies have long propagated the idea even if the Qur’anic text is held to be infallible and immutable, the science of jurisprudence (fiqh) remains the domain of human-positioned patriarchal reasoning and therefore subject to intervention (Mir-Hosseini 2006). Yet we should not forget that in both illiberal states and in the modern state more generally, law is de facto imbricated with state institutions.

Hence, the state becomes the main addressee and final arbiter of women’s rights – as would be the case rom Morocco to Saudi Arabia. It has long been apparent that notwithstanding the leanings of political elites (reductively classified as either secularist or religious), women remain the object of patriarchal patronage by states that have made strategic use of women’s bodies, desires, and ideas for the accomplishment of domestic and transnational goals (al-Rasheed 2013). Similarly in the Tunisian case, the long-term deployment of women’s emancipation from the establishment of the more progressive Personal Status Code (1956) and the endorsement of few feminist associations during the authoritarian regimes of Bourguiba (1956-1987) and Ben Ali (1987-2011) is a memory of caution against a simplistic association of women’s rights with progressive politics and democratization. This association becomes even more problematic if we connect this institutional history with contemporary concerns about economic redistribution and the welfare state, whose respective crises and retreat affect women disproportionally across class boundaries while also exacerbating these boundaries. 

In short, I invite us to see that state-sanctioned patriarchy is much more entrenched and expanded than the domain of Islamic law for family matters. The reform of law as the field of struggle is, in fact, a disciplining act that assumes that the fulfillment of women’s rights can be fully realized through the reform of legal institutions. For one, it is ironic that law would be the focus of a struggle for rights at the same time as the government repeatedly renews a state of emergency, which essentially confirms the now regularized suspension of law and its concomitant vulnerability to the overreach of sovereign power. Secondly, the pursuit of equality, respect, and empowerment will critically be judged by its performance at home, in the street, out of the fields, in schools and offices, and in cyberspace. It will be experienced in the less tangible but crucial domains in which relations between genders play out: rhetoric, physical contact, affect. These confrontations will be – and need to be – agonistic as they involve not only rational deliberation but also the imaginative realm of women as dangers to the social order (alluding here to the religious concept of fitna) as well as their crucial position in circuits of prestige (material and symbolic) controlled by men. 

This brings me to the third domain of women’s activities that is rarely advertised and therefore less known in relation to the broader landscape of Tunisian democratization. Female activists are pushing for a plethora of matters that are dear to them from the trafficking of women across the region, to extracting the female body from conversations on identity politics (public religion versus its containment), to the possibilities of non-heteronormative sexualities and the public display of affection between genders. Through their sit-in action and demonstrations, they seek to influence policies around the economic position of female unemployed graduates and the fragrant disparities female mobility and possibility in urban environments versus rural areas. Even though their desires and activities are not regulated and perhaps are not even visible by the state yet, these agendas should not be separated from theological and legal deliberations regarding family affairs, parliamentary activities around the abolishment of polygamy, the punishment of violence against women, and the balancing out of inheritance rights. 

They should, I argue, be given more attention as crucial dimensions of finding and displacing the ‘Man from the State’, that is relativizing the potential of the masculinist State to authorize and spearhead the socio-cultural transformations conducive to gender equality.  In sum, religion – in this case Islam – is one of the experiential repertoires through which this re-negotiation of rights will take place. Yet it is neither the only nor the definitive one. To assume that it is risks obscuring the plethora of patriarchal scaffolds that sustain gender inequality as well as other types of inequality (regional, class, generational), both of which inhere in the very set up of the modern state in the period of advanced capitalism. 


Works Cited

Brown, W., 1992. Finding the Man in the State. Feminist studies, 18(1), pp.7-34.

Charrad, M., 2001. States and women's rights: The making of postcolonial Tunisia, Algeria, and Morocco. University of California Press.

Mir-Hosseini, Z., 2006. Muslim women’s quest for equality: Between Islamic law and feminism. Critical inquiry, 32(4), pp.629-645.

Al-Rasheed, M., 2013. A most masculine state: Gender, politics and religion in Saudi Arabia (Vol. 43). Cambridge University Press.