Dialectic of Ijtihad: Reforming Family Law in Contemporary Lebanon

"This law in our religion cuts me inside," reads the protestors' placard. They carry their signs a few meters away from the old airport highway, which runs across the working-class and predominantly Shi'i southern suburb of Beirut. Facing the protestors is the Higher Islamic Council building, an institution founded in the 1960s to defend the rights and interests of Shi'i Lebanese citizens. Held in October 2013, the demonstration is part of a legal campaign Shi'i Lebanese launched five years earlier, advancing a specific set of demands. The protestors are requesting a prolongation of the legal period during which divorced women retain custody (hadana) of their children. Shi'i family courts routinely transfer the custody of male children to their father two years after birth. Daughters are typically brought under the care of their father at seven years old. Such decisions, protestors argue, both perpetuate gender inequalities and harm child development. Some of the other signs read "You can't take my children in the name of religion" and "Shame on patriarchy and injustice."

While protests over family law erupt periodically in Lebanon, this one is of a different sort. Since the end of the French Mandate (1920–43), leftist activists and intellectuals have repeatedly denounced the state enforcement of sharia-based laws, which they argue perpetuate women's subordination.¹ Within the last three decades, feminist groups and local nongovernmental organizations (NGOs) have taken this fight further, raising awareness of how current family laws consolidate existing patterns of domestic violence and gender discrimination.² In more recent years, liberal activists sought to seize the momentum of the ArabSpring to purge the Lebanese state of its religionbased family law, in hopes of establishing what they describe as a "truly secular state."³

Unlike these activists, most Shi'i citizens who rallied in front of the Higher Islamic Council did not frame their revolt as against the sharia tradition, but rather within it. Over the last few years, they worked with Islamic jurists to explain why the current child custody laws are unjust, and articulated alternatives within the framework of the scriptures. Yet this seemingly radical approach to family law reform was not without precedent in Lebanon: Shi'i activists drew inspiration from a similar campaign led by their Sunni fellow citizens. About two years earlier, Sunni legal activists occupied the country's premier Islamic institution (dar al-fatwa) at the peak of a campaign to extend the legal duration of maternal custody.⁴ But while Sunni Lebanese citizens succeeded, the Shi'a have faced a unique set of challenges.

This essay analyzes these twin legal mobilizations aimed at reforming Lebanese sharia-based legislation. It takes its cue from their contrasting denouements: while Sunni citizens managed to extend substantially the legal period during which divorced mothers retain custody of their children, the Shi'a failed to bring about even a modicum of change to judiciary practice so far. After five years of sustained effort, in 2014 they suspended their struggle. I ask, How could two parallel campaigns mobilized around the same issue, launched in the same country, and executed at approximately the same time produce such opposite results?

A preliminary answer lies in the fact that Sunni and Shi'i activists confronted two distinct legal systems. Like millions of people across the Middle East, Muslim Lebanese citizens' marital disputes are adjudicated based on rules drawn from the sharia. In Lebanon, however, Sunni and Shi'i citizens are subject to two separate court systems, enforcing distinct sets of rules. Family law also takes a different form in each of these court systems: while Sunni family law is largely codified, its Shi'i equivalent remains uncodified.⁵ Given this distinction, and considering the outcome of the two campaigns, it is easy to succumb to misleading questions: Does Shi'ism promote a more rigid interpretation of the sharia?; Is the Sunni tradition more disposed toward innovations and contemporary realities?; Have Lebanese Shi'is closed the door of ijtihad (scripture-based legal reasoning)?

These are the wrong questions to ask. A close analysis of the two...