From the Book Version, Originally Written in French

The legislation of a country is a reflection of its history. In this respect, Moroccan legislation is a very good illustration of civil laws that are inspired from the western world, which mainly evolved since 1913, and laws originating from VIIth century Koranic texts.

When the time came to elaborate on the legal texts for trade, land or criminal law, the lawmakers were facing a new situation. They could and did refer to legal texts used in Western countries to fill the existing legal void.

But when the personal status of citizens had to be legislated, i.e. laws directly relevant for a Moroccan subject, taking into account his religion (marriage, marriage dissolution, kinship, will, successions), he already had a wealth of Koranic dictates to draw from concerning his family life from birth to death.

In order to understand the impact of the Koran and how difficult it is to innovate or reform in this particular field, one has to keep in mind the sacred aspect of Islam which is a revealed religion: it is revealed by God to his prophet Mohamed. Mohamed was the mediator between the word of God and men; the go-between who transmitted messages to his fellow citizens in order to regulate their way of life. From that time on, failing to accept Islam’s teachings was equivalent to denying God.

Apart from their divine origin, it is possible that these texts were based on and justified by the customs of the time. The status of women, for example, was explained by the social context existing in Arabia before Islam, composed not of a small state but small independent tribes fighting each other, weakened by endless wars, killing warriors. The widows in this tribal system were taken under the wing of the clan; therefore, polygamy was a necessity. We can understand that the women who were looked after like children, passing from a father’s guardianship to a spouse’s and eventually to the clan’s, had no legal rights.

The prophet Mohamed unified Arabia. He made it a strong nation, whose strength was in its near-total adhesion to one common faith. Islam’s extraordinary impact comes precisely from its ability to gather around one faith, the same entity, having the same enemies, enabling them to become one powerful and respected state. The other side of the coin has been the unchanging aspect of revealed texts - which cement of Muslim cohesion.

However we may wish to deny it, the law cannot be unchanging. It is only the manifestation of a social phenomenon. It cannot be invented in a vacuum but must answer to the needs of a given society, obviously conditioned by geographic, ethnic, political and historical factors. Now, any society is perpetually changing - and the law must apply these changes if it is to keep up-to-date.

The code, called Moudouwana, set up in two stages in 1957 and 1958, brought some changes to classical Islamic law. The Moudouwana is primarily a translation of texts drawn up by legal authorities centuries ago, and does not take into account the character of contemporary Moroccan society. Moroccan women live in a modern age but remain governed by ancient texts. Many women’s associations have been created in recent years to defend women’s rights. Women express themselves at international meetings of which Morocco is a member, proclaiming that the country subscribes to the principles, rights and obligations mentioned in the Charters of the said organisms and reaffirm Morocco’s attachment to human rights as they are universally recognised. Women activists pushed to reform parts of the Moudouwana that discriminated against women. However, it is obvious that when we find ourselves in a society based on the family and where the family structure rests on the legal inferiority of women and mothers; we are in the presence of a socially discriminatory system which is unbalanced and destabilising.

Some Muslim states have more or less solved this anachronistic situation: Turkey purely and simply adopted the Swiss civil code, Tunisia kept the principles of Islamic rule but annulled the most humiliating texts for women, that is to say, polygamy and repudiation. Tunisian legal authorities say that there is no Koranic authority for polygamy and repudiation.

Islamic law is a human construction taken from Koranic principles and their interpretation. Sometimes these principles were very clear and could not lead to misunderstanding, and therefore could be applied directly, and they were the imperative rules of the Muslim religion. At other times the texts were unclear and were open to interpretation and comment. Another reading and another interpretation could occur if you referred to the spirit of the Koran but didn’t stick literally to the text. Religious considerations should not be an insurmountable obstacle anymore, but should be examined in the light of today’s social context.

The situation of women at the dawn of the XXIst century is not the same as that of women living in the VIIth century.

Society evolves and its new problems should be tackled with a fresh approach. Civil law as opposed to criminal law should not be repressive. Civil law helps citizens resolve their problems within a legal system adapted to their needs.

The purpose of this book is not to take a position either for or against the present worth of the rules set up by Islam, nor to judge the Moroccan legal system as far as personal status is concerned. It is to simplify an area of the law that has been complex and make it more accessible to the general public.

Not knowing what one’s rights are may lead to losing those rights. Let us first identify and understand these rights in order to be able to defend them.