Tunisia, Algeria and Morocco constitute a geocultural entity. They all went through a period of French colonization and they became independent during roughly the same period in the late 1950s and early 1960s. Despite the similarities, though, the three countries engaged in markedly different policies in regard to family law and women’s rights from the time of national independence to the mid-1980s. Tunisia adopted the most far-reaching changes whereas Morocco remained most faithful to the prevailing Islamic legislation and Algeria followed an ambivalent course.
The differences are made especially intriguing by the fact that it is neither the most industrialized country (Algeria), nor the most socialist and revolutionary regime (Algeria again), nor the society exposed to French culture for the longest period (Algeria still) that made the most radical changes. Neither level of industrialization nor official socialist ideology accounts for the variations in state policies among the three Maghribi countries.
Most explanations of changes in women’s status emphasize factors such as economic development or revolutionary ideology. Here, though, an approach that takes the state as a key variable is more useful. In explaining changes in women’s rights, it is necessary to consider the process of state formation and to relate state and gender. State interventions are not only responses to economic or class-based demands. They are also shaped by the political requirements of state stability or consolidation. At given historical moments, the state engages in actions to further its own interests of domination and hegemony. [1] The state is an institution of domination with its own structure, history and pattern of conflict.
A common denominator of many newly independent countries is that they are “old societies,” but relatively “new states.” [2] Even where existing ruling dynasties go back to the nineteenth century or even earlier, the pre-colonial state effectively controlled only a fraction of the population with respect to taxation, military service, and law and order. [3] Colonial rule frequently weakened existing indigenous political institutions. A national state had to be either formed or consolidated in the wake of colonization.
In many new nation-states, the existing social structure at the time of independence is characterized by social segmentation. Collectivities — ethnic, caste or kinship-based, tribal, religious or linguistic — retain a degree of separate identity and need to be integrated into the nation. The establishment or extension of state domination therefore entails a rearrangement of the nexus of social solidarities.
In the Maghrib, the ties binding local communities have historically been grounded in kinship. Members of a community thought of themselves as relatives issued from a common ancestor. Family and kinship served as the bases for social formations striving to remain autonomous from the state. They also offered a unifying principle for contesting state power. In the case of the Maghrib, the national state in formation had to take resources previously embedded in kin-based networks of obligation and redirect them toward national goals.
Germaine Tillion captures the character of Maghribi kin groupings with her metaphor of the many “republics of cousins.” [4] Many kin groupings survived as cohesive entities until the period of national independence. As an integral part of this process, they kept tight control over their women, jealously saving them for the men in the “republic of cousins,” or orchestrating collectively useful marriage alliances with outsiders. [5] Whatever the particular pattern governing marriage ties, the control of women was necessary for the maintenance of community cohesion. Women were key resources for the alternative centers of power resisting the state.
State formation affects the position of women in society in several ways. In particular, the state mediates gender relations through the law. Legislation is a key element in the panoply of strategies available to the state in its attempt to foster or inhibit social change, to maintain existing arrangements or to promote greater equality for women in the family and the society at large. Insofar as it regulates marriage, divorce, individual rights and responsibilities, and the transmission of property through inheritance, family law is a prime example of state policy affecting women. [6]
There is no single route to nation-building and state formation. The possibilities are several: The state can directly threaten and break tribal or kinship ties; it may tolerate them and only timidly chip away at tribal cohesion; or it may actively encourage the existence of tribes and lineages as part of a divide-and-rule stratagem. In all cases, the status of women is affected. Whatever its pattern, the process of state formation is likely to have consequences for gender relations.
Islamic Law and Women’s Legal Status
Islamic law, especially in its Maliki version that has historically predominated in the Maghrib, gives male members of the kin group extensive control over key decisions affecting women’s lives. For instance, a woman need not give her consent to marriage during the marriage ceremony. It is the consent of the woman’s guardian, her father or the next male in the kinship line, that makes the marriage valid. There is no legal minimum age for marriage.
Like other schools of Islamic law, Maliki law gives the husband the privilege of breaking the marital bond at will, while it specifies — and restricts — the circumstances to be considered legitimate grounds on which a woman may be granted a divorce. If a man chooses to repudiate his wife, the woman has no legal recourse. A man has the legal right to marry as many as four wives. No more than a small minority of men can afford more than one wife at a time, but the legality of polygyny threatens women, and pressures them to comply with their husband’s wishes.
Maliki laws define precisely who is to inherit under various conditions. A woman receives half as much as would a man in a similar situation. Under many circumstances, the laws favor distant male relatives on the man’s side of the family over the wife or female descendants.
Regulations on marriage encourage kin control of marriage ties and thus facilitate both marriages within the lineage and collectively useful outside alliances. Laws on divorce define the conjugal bond as fragile and easily breakable. The absence of community of property between husband and wife implies that the patrimony of each may remain untouched by marriage. By favoring males and kin on the male side, inheritance laws solidify ties within the extended patrilineal kin group.
The “message” of Maliki family law is that the conjugal unit may be short-lived, whereas the ties with male kin may be enduring. Maliki law defines the kin group rather than the nuclear family unit as the significant locus of solidarity. It facilitates the maintenance of tribal communities. The law thus has implications for the broader social structure, at the same time as it subordinates women.
Women’s Rights After Independence
What is the “message” of the laws promulgated in each Maghribi country in the wake of independence? What type of relationships do the new laws define as enduring, and what kind of family structure do they sanction?
When Morocco and Tunisia became independent states in 1956, and Algeria in 1962, the previous homogeneity in family law throughout the Maghrib came to an end. Morocco and Tunisia each equipped themselves with a Code of Personal Status and Algeria with a Family Code. All three national codes consist of a body of legislation on individual rights and responsibilities in the family, but they differ significantly. [7]
The Moroccan Code essentially reiterates Maliki family law in a more concise and codified manner. Consent to marriage is not expressed by the bride, but by her father or male guardian. The bride need not be present at the marriage ceremony for the marriage to be valid. Compulsory marriages remain a very real possibility. The procedure for divorce remains the same, except that repudiation, which could previously be a private act, must now be observed by two witnesses who record it in writing. Polygyny remains legal. Even fewer modifications have been brought to the laws on inheritance.
Algeria’s attitude toward family law and personal status oscillated for over 20 years. From the time of independence in 1962 until 1984, there were several attempts to reform the law, but the plans aborted because of disagreements in the working committees or conflicts between liberal and conservative tendencies. Some of the slight modifications to Maliki law introduced by the French colonial regime were reconfirmed, and a few new laws were passed, but for 22 years Algerians lived without an overall, comprehensive family law. Legislation consisted of a perplexing mismatch of Maliki law and secular codes. On June 9, 1984, the government finally adopted a long-awaited Family Code.
In the new Algerian Family Code, the legal prerogatives of husbands and unequal inheritance between women and men remain essentially unchanged. Polygyny continues to be legal. The principle of the matrimonial guardian is reconfirmed. An innovation is that if the father dies, the mother now becomes automatically the children’s guardian. The term “divorce” has replaced “repudiation” and a divorce must occur in court, but the husband’s will to terminate the marriage is still a sufficient and legitimate reason for divorce. For over two decades, Algerian leaders repeatedly expressed their interest in changing family law so as to increase women’s rights. But they have not delivered on those promises. The codification of family law in sovereign Algeria remains faithful to Maliki legal principles.
Tunisian women saw their legal status change significantly when the Code of Personal Status was promulgated in 1956 and supplemented by additional laws thereafter. The bride must now attend her own marriage ceremony and give her verbal consent for the marriage to be legally valid. Divorce can take place only in court, and husband and wife are equally entitled to file for divorce. Polygyny is abolished outright. It is punishable with imprisonment and a fine. Although the new laws on inheritance maintain that the share of a woman is worth half that of a man, daughters and granddaughters may, under certain circumstances, now receive the entire property to the detriment of distant male kin. [8] The law also ends the legal guardianship of man over woman and redefines the rights and obligations of husband and wife so as to make them more equal.
The Ideal Family
One of the key functions of a legal system is to present a summation of objectives for the society at large. The law provides a basis for social control and is meant to imprint on social dynamics a given rhythm and direction. The legislation that has emerged from the reforms in each Maghribi country contains an image of the ideal family as envisioned by the national state.
The Tunisian Code gives greater rights to women and decreases the legal control of male kin over them. With respect to the kinship structure, the code weakens the extended patrilineal kin group while strengthening the conjugal unit.
In contrast, in the model of the family contained in the Moroccan Code, women remain in a subordinate status. The law sanctions the extended kin group. It allows kin to control marriages, the marital bond is easily breakable, and inheritance rules maintain male privileges.
The legislation in effect in Algeria is ambiguous. There is slight encouragement for the development of the conjugal unit, but on the whole Algerian law continues to sanction the male-based extended kinship structure.
The Moroccan and Tunisian reforms occurred very soon after independence: within a year in Morocco and within six months in Tunisia. In both countries, they came from above rather than as a response to pressure from below. They were formulated by the government, the result of political choices on the part of the social groups in power. In both countries, individuals, mostly intellectuals or prominent figures in the nationalist movement, raised the issue of women’s rights and family law. In Algeria, women were active in obstructing the most conservative plans to make Algerian law even more faithful to Maliki law. But nowhere was there an organized, sustained movement with this issue at the core of its platform.
Why has the political leadership in each country made the choices that it has? The three countries reached independence with a different balance of power between the national state and local, kin-based communities and this, in turn, shaped state policy on family law and women’s rights. By leaving intact the integrative mechanism of kin-based communities, the Moroccan policy can only help maintain the “republics of cousins.” In Algeria, there has been a partial attempt to confront these communities. In Tunisia, the legal policy directly threatens them.
Strategies of State Formation
Even though Maghribi societies had developed some state institutions in the pre-colonial period, they lacked a state apparatus able to control effectively the whole territory. In the absence of bureaucratized states in the pre-colonial period (which was not chronologically the same for the three countries), tribal communities were major actors in the regulation of economic production and political conflict. Some were involved in an ongoing antagonistic relationship with whatever state existed at the time, with the goal of evading state control. Depending on the area, local revolts occurred either occasionally or with great frequency, for the most part aimed at avoiding taxes. [9]
Tunisia appears in its pre-colonial period as the country where kin-based communities had retained the least political autonomy and where the trend towards the emergence of centralized institutions was most recognizable. The history of pre-colonial Morocco exhibits an antagonistic relationship between central authority and tribal communities, as the former struggled to extend its power either through the use of force or through tactical alliances with local groups. Algeria was the most segmented society, with local groups living in relative independence and with minimal state interference.
Colonization altered the situation. In Tunisia, the colonizers exerted their rule in large part through the administrative machinery available. They increased administrative centralization and weakened kin-based communities even beyond the loss of political leverage that these communities had experienced before colonization. In Algeria, the French dismembered entire communities by transplanting parts of them to distant areas, took the best lands and imposed their own network of officials onto the largely segmented Algerian social structure. Algerians retreated into what was most secure, namely the solidarity of their kin-based collectivities, whenever that refuge was available. The effect of colonial rule was to destroy some of the tribal communities while leaving others in place and unwillingly reinforcing their internal cohesion. In Morocco, the French took the place of central authority and relied largely on a method of indirect administration in which they manipulated the local power structure. The result was that colonial rule affected tribal communities less than in either Algeria or Tunisia. At the end of the colonial period, the state was most highly bureaucratized in Tunisia, least bureaucratized in Morocco, and the Algerian state was somewhere in the middle.
Occurring in different structural settings, the struggle for national liberation and the transfer of power at independence took different forms in the three countries. In Tunisia, the nationalist strategy was to operate through a powerful party extending throughout the whole country. This was made possible by the relative integration of Tunisian society. State formation proceeded in large part without the reliance of the political leadership on kin-based communities.
In the Algerian war of national liberation, factions appeared not only on the basis of ideological differences but also among groups finding their support in different localities. Several post-independence insurrections in local areas demonstrated the revival of kinship and tribal ties. Segments of the leadership had at their disposal linkages with local, kin-based communities that they could mobilize when necessary in the struggle for power at the central level.
In Morocco, a party somewhat similar to its Tunisian counterpart found support predominantly in urban centers, but could not penetrate rural areas. There it lost out to the monarchy, which relied precisely on tribal communities in rural areas. In the period following independence, kin-based communities continued to be significant in Moroccan politics in that they served as bases of political support for power struggles played out at the national level. The strategy of the monarchy has been to establish systems of patronage, to act as arbiter among competing groups and to orchestrate a complex web of factions.
National integration has been accomplished throughout most of the Maghrib, thus excluding competition as the predominant form of interaction between the state and kin-based groups. We are not witnessing secessionist movements in which tribal communities demand separation from the state or the creation of entirely independent political units. In Morocco and Algeria, however, these communities remain relevant to national politics.
For these reasons, the three Maghribi states have not been equally interested in bringing about changes in the relationship between the state and kin-based communities and, therefore, in reforming family law. In Tunisia, it was in the best interest of the government to break kin-based solidarities, and it was possible to do so because tribal groups had already lost much of their political leverage. In Algeria, it was also in the best interest of some leaders to foster a rearrangement of kinship by weakening kin groupings, but other segments of the leadership depended in part on the continued availability of kin-based solidarities for political mobilization. In Morocco, the monarchy derived much of its power from its ability to maintain a balance among kin-based communities. It thus had a strong incentive to avoid any disruption of kinship organization.
Family law has been used as an instrument of change in Tunisia. It has served the status quo in Morocco. It has been held hostage to political cleavages in Algeria. Political elites have vested but differing interests in either strengthening or undermining kin-based communities. Depending on these interests, elites have tended to make different choices in regard to family law and women’s rights.
Endnotes
[1] Charles Tilly, ed., The Formation of National States in Western Europe (Princeton, NJ: Princeton University Press, 1975); Theda Skocpol, States and Social Revolutions: A Comparative Analysis of France, Russia and China (New York: Cambridge University Press, 1985); and Peter Evans, Dietrich Rueschemeyer and Theda Skocpol, eds., Bringing the State Back In (New York: Cambridge University Press, 1985).
[2] As in the title of Clifford Geertz, Old Societies and New States: The Quest for Modernity in Asia and Africa (New York: Free Press, 1963).
[3] See several of the articles in Ghassan Salame, ed., The Foundations of the Arab State (London and New York: Croom Helm, 1987).
[4] Germaine Tillion, Le Harem et les Cousins (Paris: Editions du Seuil, 1966) translated by Quentin Hoare as The Republic of Cousins: Women’s Oppression in Mediterranean Society (London: Saqi Books, 1983).
[5] See, for example, Jean Cuisenier, Economie et Parente (Paris and Mouton: The Hague, 1975); and Hildred Geertz, “The Meaning of Family Ties,” in Clifford Geertz, Hildred Geertz and Lawrence Rosen, Meaning and Order in Moroccan Society (Cambridge: Cambridge University Press, 1979).
[6] The analysis in this paper focuses on the doctrine of the law. In everyday life, legal regulations are usually mitigated by social practices. What matters here is how the legal doctrine defines gender and kinship relations for the collectivity as a whole.
[7] For a detailed analysis of legal reforms in each country, see Maurice Borrmans, Statut Personnel et Famille au Maghreb de 1940 a Nos Jours (Paris and the Hague: Mouton, 1977).
[8] More drastic reforms of inheritance laws were contemplated at various times, but rejected for fear of widespread opposition.
[9] There is a growing literature on the social and political history of the Maghrib. A few examples are Lisa Anderson, The State and Social Transformation in Tunisia and Libya, 1830-1980 (Princeton, NJ: Princeton University Press, 1986); Elbaki Hermassi, Leadership and National Development in North Africa (Berkeley, CA: University of California Press, 1972); Allan Christelow, Muslim Law Courts and the French Colonial State in Algeria (Princeton, NJ: Princeton University Press, 1985), reviewed by Mounira Charrad in Middle East Journal 41 (1987); Ernest Gellner and Charles Micaud, eds., Arabs and Berbers: From Tribe to Nation in North Africa (Lexington, MA: Heath, 1972).
