Family, Gender, and Law in a Globalizing Middle East and South Asia

7. Family, Gender, and Law in Jordan and Palestine

126 7. Family,Gender,andLawinJordanandPalestine Lynn Welchman Recent years have seen considerable debates around developments in family law in Jordan and in the West Bank and Gaza.1 The national liberation struggle in Palestine impacts distinctively on the discourse of gender and family law, while in Jordan the sovereign’s historic investment in legitimacy within the country’s tribal structures continues to challenge certain “globalizing” trajectories embarked upon by the authorities. This chapter focuses on the Muslim family laws that govern family relations for the majority population in both areas, in the context of vigorous ongoing national debates on law reform in the early years of the twenty-first century . The chapter examines interventions in support of and in objection to change in the law and the extent to which the existing law and arguments in the law reform debates variously invoke and contest the globalizing discourses around women’s rights in the family as set out inter alia in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). To this end the chapter focuses on two particular areas: the age of capacity for marriage and a woman’s right to divorce. In their legal systems both areas maintain separate jurisdictions for personal status matters for recognized religious communities: it is official legal pluralism. Under this system the majority Muslim population is governed by a codification of provisions drawn mostly from the rules of the 1. My thanks to Nouf al-Rawwaf, Asma Khadr, Reem Abu Hassan, Maha Abu Dayyeh, Khadija Hussein, Ala al-Bakri, Shaykh Taysir al-Tamimi, and the Women’s Studies Institute at Birzeit University. Family, Gender, and Law in Jordan and Palestine . 127 four Sunni schools and legislated as state law for application by the Sharia courts. Recognized non-Muslim minority communities apply their own family laws in separate communal courts. In both areas the Sharia courts comprise first-instance and higher appeal courts. In both Jordan and Palestine2 scholars have used language that may also be associated with the family to describe the system of political rule. Thus, Hammami and Johnson note that in Palestine in the post-Oslo period “an ethic of familialism structures power” (1999, 324), while Amawi analyzes a 1997 speech by the late King Hussein of Jordan as illustrating the idea of “the nation as a collective family with the king as its head” linked to “the interrelatedness between the patriarchal family and the patriarchal state and the promotion of allegiance around these symbols of family and tribe solidarity in support of the state” (2000, 158). In their examinations the main focus is gender and citizenship in Palestine and Jordan, respectively; both treat family law as a key element in the construction of citizenship. Constructions of “the family” are also key in representations of national identity. With differences in structure and history as societies and political entities, Jordan and Palestine nevertheless share certain features of the regional pattern of “the privileged place of women and family in discourses about cultural authenticity” (Kandiyoti 1991a, 7) and populist ideologies that vigorously oppose changes to the position of women in the family when they are proposed through the medium of legislative amendments to existing codifications. Thus, although there are differences in specific discourses arising from the different histories and constituencies of the areas, there are certain broad patterns. Objections to the proposed laws invoke biological determinism as well as monolithic and homogenous visions of Arab Muslim heritage and religious principle, populist representations of class difference, and the specter of family breakdown, growing numbers of unmarried individuals, and general moral dissolution stirred by Western agendas of antipathy and enmity to Islam and Arabs. References in this last regard to “international conferences on women” are not infrequent, 2. Used here to mean the West Bank and Gaza, rather than the historical area of Mandatory Palestine. 128 . Family Law Codes Contested and (Re)constructed and accusations that such activities are supported by “foreign funding ” invoke the same set of images. Proponents of change to the law similarly invoke religious principle and the need to protect the family, along with constitutional guarantees, the rights of women as equal citizens , socioeconomic change, and the realities of women’s lives as necessitating changes in the law. Some invoke principles of human rights and specific international instruments to which the political authorities have adhered (or, in the case of Palestine, announced their intention to adhere...