Morocco’s Divisive Family Law: Harmonizing Tradition and Modernity?

By Ann Eisenberg

Morocco’s 1958 Code of Personal Status may have looked like 20th-century legislation, but it codified aspects of Shari’ah family law that had been in place for over a thousand years.  Men had the right to take up to four wives, for instance, and male guardians chose most women’s—or young girls’–marriage partners for them.  But in 2004, King Mohammed VI replaced the Code with the Moudawana, ushering in a new era of family law by enshrining gender equality and more expansive rights for women.  My Note, forthcoming in Cornell’s International Law Journal and available at the Scholarship@Cornell Law repository, evaluates the impact of this divisive reform.

The Moudawana warrants attention because it is a rare example of change from traditional Islamic family law to modernized family law still based on Islamic principles.  Although controversial in Morocco, the Moudawana illustrates how sacred tradition need not be inimical to modern, rights-based law.  Approximately 1.5 billion people in the world practice Islam and a multitude of countries and communities continue to adhere to Shar’iah.  Thus, a law like Morocco’s that reconciles traditional norms with more contemporary conceptions of rights, whether successfully or fruitlessly, has implications for a large portion of the world.

Despite significant achievements, the Moudawana still faces major policy challenges seven years after enactment.  To assess what may keep Morocco’s society, judiciary, and rural communities from incorporating the new law into everyday life, I conducted field research with the financial assistance of the Kristan Peters-Hamlin Fund for Women in the Middle East.  Qualitative accounts from Moroccan women combined with academic research confirmed that myriad socio-cultural factors impact the Moudawana’s practical efficacy.  Judges who disagree with the law; families who use loopholes to circumvent certain provisions, such as the new minimum marriage age of 18; limited training for officials; and some women’s reluctance to exercise their new rights are a handful of phenomena illustrating the Moudawana’s limitations.  Due to an intricate interplay of religion, culture, and infrastructure, the law as written has been only partially implemented.

An effective method for mitigating such tension between new laws and customary practices will inform rights-based reforms worldwide.  My Note proposes that stakeholders in the Moudawana’s implementation should consider the novel, culturally-conscious approach of one Sierra Leonean NGO, “Timap [Stand Up] for Justice.”  By using trained paralegals who work in their communities of origin; a philosophy that tradition is inherently malleable; and a multi-faceted method of meeting community members’ needs, Timap works to bridge the gap between “external” and engrained norms.  The Moudawana and other reform movements could similarly be strengthened with an implementation mechanism that facilitates rights literacy, access to justice, community-based mediation, and grassroots advocacy.

Ann Eisenberg is in the class of 2012 at Cornell Law School, and her Note, Law on the Books vs. Law in Action: Under-Enforcement of Morocco’s 2004 Family Law Reform, the Moudawana, won the second place 2011 Cornell Law Library Prize for Exemplary Student Research.

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