Family Law in Syria

Patriarchy, Pluralism and Personal Status Laws

Esther van Eijk

• Publisher: I.B. Tauris
• Year: 2016
• Print ISBN: 9781784533342
• eBook ISBN: 9781786720191
• Edition: 1
• Topic: Social Sciences
• Subtopic: Family Law
• Index: Social Sciences

The current Syrian crisis has its roots in the sectarian nature of the country's multi-religious society. Since Ottoman times, the different religious communities have enjoyed the right to regulate and administer their own family relations. Matters of personal status including marriage, divorce, child custody and inheritance continue to be managed by a variety of religious laws and courts operating simultaneously within the legal system of the state. However, this complex system of competing jurisdictions has also affected inter-communal relations and has been used to deepen communal divides. Esther van Eijk discusses socio-legal practices in Syria by focusing on three courts: a shar'iyya, a Catholic court and a Greek-Orthodox court. While the plurality of Syrian family law is clear, she shows how - irrespective of religious affiliation - it is nevertheless characterised by the prevalence of shared cultural or patriarchal views and norms on marital relations, family and gender. Based on extensive fieldwork, Family Law in Syria offers a detailed analysis of a country that has in recent years been inaccessible to researchers.The book is a vital contribution to the growing literature on personal status laws in the Middle East and sheds light on the historical, socio-political and religious complexities and fault-lines that mark contemporary Syria.

PART I

THE PLURAL LEGAL LANDSCAPE

CHAPTER 1

LAW, POLITICS AND RELIGION IN SYRIA:PAST AND PRESENT

Syria's legal system is a mix of Ottoman, French, Egyptian and religious law; the latter is predominantly found in the field of family law. The different religious communities have long since enjoyed the right to regulate and administer their family relations according to their respective religious laws. Consequently, family relations in Syria are governed by a multiplicity of religion-based personal status (or family) laws. This chapter will examine how this system of legal plurality, in particular with regard to personal status law, came about. Starting from the Ottoman era, I will concentrate on important historical and legal developments in Syria in general, as well as on developments relevant to Syria's legal system, especially those in the area of (religious) family law. The subsequent two chapters will elaborate in detail on the developments in the field of personal status law from the 1950s to recent times.

As Syrian family law is, for the most part, based on religious law, it is important to take into account how the position of religion, especially Islam, in relation to the central state authority, developed over time. Some key moments in history that had a long-lasting effect on the relationship between shari‘a, Islam and the state, in addition to events or episodes that affected the position of non-Muslim minorities vis-à-vis the Muslim majority in the area of personal status law, will be discussed. The final sections of this chapter are devoted to an analysis of the contemporary relationship between Islam and the state, including the Constitution and the position of the President. This chapter will conclude with a discussion of contemporary state policies concerning (religious) legal plurality in personal status law, in particular in relation to its non-Muslim minorities.

Syria in the Ottoman era

The country that is today's Syria became part of the Ottoman Empire in 1516, when the Ottoman Turks defeated the Mamluk Sultanate and conquered Syria. The Ottoman Empire had started to gain ground from the early fourteenth century onwards; at the height of its reign (sixteenth to seventeenth century), the Empire stretched from North Africa to Persia, deep into Europe and all the way down to the Gulf of Aden. Ottoman rule over Syria lasted until 1918, when the Ottoman Empire ceased to exist.¹

From the start, Ottoman rule from Istanbul was challenged from outside and inside the Empire. Istanbul's control over its provinces was never all-encompassing, yet its attempts to centralise and control the administration of its territories, including taxation, education and the legal system, proved seminal. The Ottoman political and legal heritage is significant to all contemporary countries in the Middle East, including Syria. Syria's legal system is similar to those found in other former Ottoman provinces: Egypt, Lebanon, Iraq and Jordan.

The Ottoman legacy is not only evident in the legal system in general but also in the field of family law. The reason that the Hanafi school of law is the preferred doctrine in matters of personal status in Syria today is that the official rite of the Empire was the Hanafi school of law. Consequently, the Hanafi doctrine spread throughout the Empire, often superseding other schools of law in the conquered areas.² Customary law, sultan's law (qanun) and shari‘a were all recognised sources of law in the Ottoman state. Over the course of time, however, sultan's or state law became the dominant force; shari‘a and the traditional shari‘a (or qadi) courts, who had general jurisdiction to adjudicate in all civil and criminal disputes, eventually lost out to the reform policies of the Ottomans which were put in place from the mid-nineteenth century onwards.³

Non-Muslims under Ottoman rule: the millet system

Like Syria today, the Ottoman Empire was also multi-religious; in addition to its Muslim subjects, the Empire had a significant number of non-Muslim subjects, that is, dhimmis – a dhimmi is a non-Muslim living under Islamic rule. Beginning in early Islamic history, non-Muslims living in conquered Islamic lands were offered a contract of protection (dhimma) in exchange for acceptance to live under Islamic rule.⁴ Due to this protected status, Christian and Jewish subjects were guaranteed certain privileges.

Under Ottoman rule, non-Muslims were guaranteed these privileges under the so-called millet system.⁵ The religious or confessional communities (millets) enjoyed the right to retain and apply their own religious laws, in liturgy and church affairs but also in matters related to a person's status, such as marriage and inheritance. However, this protected position came with certain conditions, meaning that dhimmis had to pay the poll-tax (jizya), they were prohibited from carrying arms, they had to live in segregated areas and they were required to dress in a distinctive style. In addition, dhimmis could not testify against Muslims in court and they were excluded from high public offices.⁶

The recognised millets had their own milla courts, where each millet applied its own religious law, most importantly in matters of marriage and divorce. Various studies on Ottoman history have, however, demonstrated that non-Muslims frequently appealed to qadi courts instead of to their own communal courts, also in matters concerning marriage, divorce and inheritance.⁷ Al-Qattan explains in a study on the legal status of dhimmis in Muslim courts that the Ottoman records (sijills) of the eighteenth and nineteenth centuries reveal that Jews and Christians in Damascus regularly made their appearance at the Muslim courts: either because they were obliged to, for example in the case of an inter-communal dispute, capital crime or cases which threatened public order and security; or voluntarily, for example to record their property and commercial transactions. The latter can be explained by the fact that the qadi courts, being the general ‘state’ courts, were the only official courts with the authority of enforcement. Nevertheless, dhimmis also came to the qadi courts because they preferred these courts over their own communal courts, because the former were considered more efficient and had stronger enforcement powers, or because dhimmi litigants believed that their ‘personal and financial interests were better served by shari‘a law’.⁸ Al-Qattan provides examples of Christians who went to qadi courts to get their marriage validated or notarised in conformity with shari‘a rules to secure matrimonial financial rights, to obtain a divorce or because of more favourable shari‘a inheritance law regulations.⁹

Ottoman reforms: Tanzimat and the millet system

In the nineteenth century, the sultans of Istanbul, under European influence, introduced a series of far-reaching administrative, military, economic and legal reforms to meet the challenges of a rapidly changing society. The Tanzimat period (1839–76) started with the proclamation of the Edict of Gülhane in 1839 by Sultan Abdulmecid. The Edict of Gülhane emphasised equal rights for Muslims and non-Muslims alike. The Edict of Humayun, issued in 1856, took it a step further and stated that all Ottoman citizens were regarded equal before the law, in taxes, government positions and military service, regardless of their religion. The restrictions imposed on non-Muslim Ottomans were officially lifted; they could now be admitted to political and military posts. In addition, the poll-tax and the distinction between Muslim and non-Muslim testimony in court were abolished.¹⁰

Hence, the Ottoman state introduced the concept of ‘citizenship’¹¹ and with that the millet regime was – at least on a national level – abolished.¹² However, the separate status of Muslims and non-Muslims in family law matters continued to exist, for the Edict of Humayun reaffirmed that the privileges granted to all the non-Muslim communities would be maintained.¹³ This meant that they could continue to apply their own religious laws in personal status matters. This plurality in legal status or national citizenship, on the one hand, and denominational membership as the decisive feature in personal status matters, on the other hand, created a complexity in the legal system – a complexity which not only Syrians but also Egyptians and Jordanians continue to grapple with today.

The 1856 Edict, however, also required each denomination to reach consensus on inheritance law: if they failed to do so, then this area of law would fall under the state's jurisdiction, the qadi courts. Since many of them failed to reach such a consensus, the patriarchs and rabbis lost this part of their jurisdiction to the state, as a result of which Christians (and Jews) were governed by the Islamic inheritance rules.¹⁴ As a matter of fact, Christian denominations in contemporary Syria were governed by shari‘a inheritance law until 2010: it was only then that Christian communities regained this lost jurisdiction (see Chapter 3).

The Tanzimat reforms were not accepted and implemented in all parts of the Empire; a large segment of the Sunni Muslim majority did not welcome the reforms. In combination with a general deteriorating economic situation, the newly obtained rights of, in particular, Christians stirred up violent sectarian clashes in Mount Lebanon (1840 and 1860), Aleppo (1850) and Damascus (1860). Massacres of Christians at the hands of Muslims in Aleppo and Damascus followed from Muslim resentment against the reforms, particularly because they were perceived as the outcome of European interference for the benefit and protection of the Christian populations.¹⁵

In spite of the official abolishment of the dhimmi status and, perhaps, because of the emotionally charged responses, the millet system was never completely erased in all parts of the Empire. Remnants of the Ottoman millet system can still be found to varying degrees in Egypt, Lebanon, Israel and Syria today, as will become evident in the subsequent sections and chapters.

Ottoman codifications of Islamic (family) law

The Western-inspired Tanzimat reforms not only overhauled the legal system but also fundamentally altered the status of shari‘a and of its authorised interpreters, the religious scholars (‘ulama’). The Ottoman sultans introduced European-style law codes¹⁶ which were presented as additional to shari‘a law, but, in fact, these (secular) laws came to dominate shari‘a law in the nineteenth century.¹⁷ This meant that Islamic law now had to compete with these new laws and saw its scope reduced to the domain of family law.

Before the Tanzimat reforms, the qadi courts had general jurisdiction over all matters of civil, criminal, commercial and other areas of law. From the 1860s, the Ottoman government set up ‘regular’ (nizamiyya) courts to apply the new legislation. This meant that the jurisdiction of the already existing qadi courts became limited to matters related to Islamic endowment (waqf) and what was now called personal status matters, most importantly, matters of marriage, divorce and inheritance.¹⁸ This created a dichotomy in the legal system: qadi courts applying shari‘a-based personal status law on the one hand, and ‘regular’ or European-style courts¹⁹ applying European-based law codes on the other. This dichotomy remains a typical feature of today's legal systems of the former Ottoman provinces.

Another significant reform of the Tanzimat project was the codification of shari‘a law in the Ottoman Civil Code, the Mecelle (1869–76). For the first time in history an Islamic state codified shari‘a rules and principles in a statutory law code.²⁰ This process of codification was an apparent break with the Islamic legal tradition, a process in which scholars and traditional judges gradually lost their legal authority to the state.²¹

The Mecelle was arranged as a Western-style law code and was a codification of Hanafi opinions on matters of contract, tort and civil procedures, combined with general established principles of law. It did not, however, contain rules and regulations pertaining to family matters, such as marriage, divorce and inheritance.²² Its enactment was a break with Islamic legal tradition for it abandoned the doctrine of taqlid, the practice of following the authoritative opinions of one's school of law. The Mecelle was compiled differently; it consisted of an eclectic selection of opinions (takhayyur) of Hanafi jurists.

The Mecelle was enacted between 1870 and 1877. The civil code applied to both Muslim and non-Muslim subjects of the Ottoman Empire. It was intended to be applied in the nizamiyya courts as well as in the qadi courts, but in the end only the judges of the nizamiyya courts resorted to the Mecelle in civil law cases.²³ The judges in the qadi courts, on the other hand, continued to resort to the various fiqh books for personal status matters and Islamic waqf.²⁴

In the early twentieth century, the Ottoman authorities again took it a step further and drafted a law code that was composed of a variety of legal rules and juristic opinions, modelled on a Western-style law code. In 1917, the Ottoman Law of Family Rights (hereafter OLFR) was enacted; it governed the family relations of Muslims and also included special sections for Jews and Christians.²⁵ The OLFR contained not only Islamic legal provisions derived from the Hanafi tradition but also drew on rules from other schools of law. Furthermore, in addition to shari‘a provisions, the OLFR included European notions of marriage and ...

Table of contents

• Front Cover
• Title Page
• Copyright
• Dedication
• Contents
• Note on Transliteration
• List of Abbreviations
• Acknowledgements
• Introduction
• Part I The Plural Legal Landscape
• Part II Unity in Multiplicity
• Conclusions
• Appendix Marriage and Divorce according to the Syrian Law of Personal Status
• Notes
• Bibliography