Tunisia continues its path-breaking role in the Arab-Muslim world. At the initiative of President Beji Caid Essebsi, a draft law will soon be submitted to Parliament amending the Personal Status Code (PSC), which was 62 years old last 13 August, in order to establish inheritance equality between men and women of the same degree of relationship to the deceased. Such a law would represent a break with a Coranic directive, still in force today and which classical Islamic jurisprudence deems unambiguous and not subject to interpretation, whereby a woman’s share is only half of what a man receives. The Tunisian PSC is regarded as the legislative text which departs the furthest from the Islamic norms that previously governed personal status and the most favourable to women’s rights in any Arab-Muslim country1. Yet in 1956, Habib Bourguiba, wishing to spare the religious feelings of the Tunisian people had not chosen to do away with that rule. Nonetheless, the redactors of the PSC did borrow one proviso from Twelver Shiism jurisprudence which, in the absence of any male heirs, gave precedence to the sisters of the deceased over the brothers, unlike Sunni jurisprudence.
Beji Caid Essebsi intends thus to carry on the work of secularisation begun by the man he regards as his model by satisfying a long-standing demand from the women’s associations. However, in order to take into account like his predecessor the religious feelings of so many, he has proposed that the future law should allow for a will maker the option of rejecting inheritance equality and reverting to the earlier system. This was in response to a proposition from the Individual Freedoms and Equality Committee (IFEC) chaired by Bochra Hadj Hmida, to whom the president had given the task last year of singling out any legislative dispositions contrary to the principles of liberty and equality, as set forth in the 2014 constitution, and suggesting possible amendments.
Her report contains some hundred proposals: abolishing the death penalty or at least a limiting of its application; decriminalising homosexuality or at least doing away with prison sentences; providing stricter definitions of the notions of public order and morality as mentioned in the Penal Code; banning the practice of the dowry, largely symbolic today, or at least preventing its absence from becoming grounds for marriage annulment; doing away with the husband’s status as family head. . . The President has referred all of these proposals to a future commission.
The Resurgence of Identity Preoccupations
The Western media paid tribute to this daring announcement. It fuelled the impression that Tunisia was pursuing its separation of Church and State. It caused rejoicing among a part of the Tunisian population, but exacerbated tensions that were already in the air. Ever since the publication of the IFEC report on 12 June of this year, the public debate in Tunisia has seen a revival of the obsessions with identity and the virulence of the 2012-2013 polemics when Ennahda, the Islamist party, was in power and the opposition panicked at the idea that Tunisia was in danger of becoming a Muslim theocracy. Tensions were eased for more than four years but have again become polarised, pitting secular modernism against Islamist identitarianism. In response to the fear of seeing the Islamists infiltrating the government and subjecting the country to sharia law, there has arisen the fear of seeing Tunisian society purged of Islam by an elite in the grip of Western interests. Many imams even use their Friday sermons to spread the unlikeliest rumours concerning IFEC’s intentions: banning circumcision under penalty of twelve years in prison, legalising marriage between homosexuals, eliminating all references to Islam from the Constitution, etc. Insults and threats rain down on the members of IFEC, especially its chairwoman.
If passions are unleashed once again, it is because the President’s intention to reform the inheritance laws raises two fundamental issues which have yet to find a permanent solution in Tunisia. First of all, what should be the role of religion in positive law considering the impossibility of ignoring its importance in society? And secondly, how are reforms to be conducted under a regime which is now democratic and where it is no longer conceivable to do so without the people’s consent? Though quantitatively minor, the proposal to reform the inheritance law foregrounds major controversies, concerning the symbolic order which unifies society and the mode of governance.
Juridical Schizophrenia
In an attempt to temper the debate, Wahid Ferchichi, chairman of the Tunisian Association Defending Individual Liberties (ADLI) and spokesperson for the coalition of organisations supporting the IFEC proposals, says: “We must develop a complex approach to the notion of a deeply Islamic society. The feelings of the majority are certainly religious, but individuals have extremely varied relationships to their faith and at each stage in the construction of a modern state, Tunisian laws have departed from Islamic principles.”
As for the influential journalist, Salaheddine Jouchi, he opines that “It has taken a long time, with many cultural tensions and confrontations, to open up a space between religion and the State and to build a new, modern society. But with each step forward in that direction, the same question arises: what should be the role of religion? And in this respect, the inheritance laws are one of the last areas governed by Islamic tradition, which makes them a marker of identity.” And a fortress to be conquered.
By removing the personal status from the grip of Islamic law and entrusting it to the State in 1956, Habib Bourguiba accomplished an important qualitative leap in the secularisation of Tunisian law. But he had not wished to make a clean break with the reference to religion. He had on the contrary opted in favour of a “normative ambivalence” and made himself a mujtahid (exegete) to justify changes in the Code. “Bourguiba was aware that secularisation could only be carried out in part, especially in an area as delicate as the family where religious identity is constructed and asserted,” as Faïza Tobich, author of an in-depth study, has analysed. Yet he was not spared virulent criticism from Tunisian and international Islamic authorities, including an accusation of apostasy by an Egyptian imam, Al-Qaradawi (future star preacher on Al-Jazeera).
Thus the PSC’s legacy in Tunisian society is “a juridical schizophrenia, generating identity disturbances” as Faiza Tobich has phrased it. Organisations belonging to the modernising movement have been demanding for twenty years now that this ambivalence be done away with and that the laws governing the family and personal freedom be based on the universal values of human rights as defined in the 2014 Constitution. Although the IFEC did allude to the “ultimate goals” (maqasid), its work is carried out in that spirit. In his 13 August announcement, Beji Caid Essebsi made no attempt to base his decision on a reinterpretation of Islamic scriptures but stressed the civic nature of the State as laid down in Article 2 of the Constitution. By the same token, he obliged Ennahda, the conservative Islamist party, to demonstrate its conversion to the principles of a secular state.
Ennahda Put to the Test
Now, according to Ennahda, while a secular state has complete control over law-making, there is nothing to prevent its drawing inspiration from Islamic tradition. The Constitution, insofar as it makes the State “the guardian of religion” (art. 6) is even invoked by the opponents of the IFEC report in their effort to keep the definitions of freedom and equality within the Islamic framework, even if it must be reinterpreted. The ideal solution for Ennahda would have been to evolve towards inheritance equality on the basis of a new exegesis. Even though there is no guarantee that such a reinterpretation of the scriptures would not be seen by the guardians of orthodoxy and identity as a political expedient.
“The poverty of religious life is largely responsible for this defensive reaction in regard to identity,” Salaheddine Jourchi observes. “Religious schools across the Sunni world are undergoing a structural crisis and the situation was made worse by the dislocation of religious institutions in Tunisia following the country’s independence. Few ulema are willing to revise the age-old interpretations, nor are they capable of developing a rhetoric built on what it means to be a Muslim in the twenty-first century.”
Moreover, while the Ennahda movement is indeed undergoing fundamental doctrinal changes in keeping with its availability for government coalitions it still cannot possibly take on board the new challenges, especially the economic and social ones. This would be to abandon its historical grounding in cultural issues and rub the wrong way its grass-roots activists and the hard core of its electorate. Besides which, confident as it is in the attachment of most Tunisians to religious references, it knows that it can count on winning votes from the many opponents of overzealous secularisation. However, to come out against Beji Caid Essebsi’s initiative would be to threaten the gains it has made in terms of institutional integration and international respectability.
Does the option open to will-makers offer Beji Caid Essebsi a way out of this dilemma? “In religion, a choice between the law and personal preference is perfectly admissible,” Meherzia Laabidi freely admits. She is an Ennahda MP and sits on the rights and liberties committee. But which is to be the rule and which the exception, the religious reference or the secular? This “detail” sums up in essence the identity choice facing Tunisians. To raise the question in such clear-cut terms places the entire burden of an ideological concept on the family. Now this symbolic burden tends to obfuscate the meanderings in practical family relations and in the contradictory dynamics which affect them.
The Family, a Borderline Institution
“At a time when our society is undergoing profound upheavals, when a person’s social standing is becoming insecure, the family remains not only a symbolic reference but also an important source of solidarity. So we must deal with it very carefully,” Meherzia Laabdi suggests. According to Article 7 of the Constitution, “The family is the essential unit of society and the State must ensure its protection.” Even if it is the seat of patriarchy par excellence, it is nonetheless affected by the trends of our time: the decline of the birthrate and “the increasing number of educated women with college degrees in the labour market are challenging the traditional patriarchal system [. . .] based on our religious institutions,” wrote Karima Direche-Slimani. Family models evolve, women’s role in the family economy is changing but the mindsets and traditional ways resist. The situation was summed up in one of the testimonies collected by the sociologist Ilhem Marzouki for a study she made of what women really want: “we are faced with a refusal by the family and by our husbands to acknowledge what we have become.”
And one of the most tangible forms of this resistance concerns indeed the issue of inheritance and the right to own property: many women turn their share of a succession over to their brothers, especially in rural areas where land is at stake. “Today, only 3.2% of rural women are property owners, of the land they work or the home they live in,” says Bochra Bel Hadj Hmida, indignantly. “Many women have plans for the land which they work, but they can’t get a loan because they don’t own the title deed.”
The law also upholds the patriarchal family model: the husband is head of the family and has the legal obligation to provide for it, whereas more and more wives earn an income which they either use to contribute to the upkeep of their household, without the legal status corresponding to this role, or else to provide for the needs of their own family. This clash between two family models is a source of tensions. Introducing inheritance equality without amending the other provisions of the PSC which maintain inequality in the couple and bind it to the traditional model would accentuate individualisation and the nuclear nature of the family and is likely to increase these tensions and widen the gap between the law and actual practice.
The family lies at the intersection of culture, religion, economics, and politics. Tampering with the laws that govern it and especially its economic aspect is a delicate affair which demands coming to grips with contradictory temporalities: the long-term evolution of mentalities and learning processes on which the law can have no direct influence; the frozen time of religious doctrine; the changes in economic roles, already well ahead of the law and paced by the fluctuating balance of political power which opens and closes windows of opportunity; the proximity of elections which sharpens ulterior motives and in the present instance the imminent end of a presidential term of office. So keeping abreast of the rhythm of society really makes no sense. There is no such thing as a right time to reform, there are only appropriate dispositions.
Rethinking Modernist Beliefs
In this area, the new Tunisian democracy is still feeling its way. Its only reference is Bourguiba’s “gradualism”: reform in stages, according to what seems possible in terms of the state of society and the balance of political power. However realistic this method, it depends on power being concentrated in the hands of one leader who weighs the relative degree of daring and restraint, in this case the secular and the religious, with the backing of a narrow but “enlightened” elite. Since the middle of the 19th century, reforms have been carried out by circles perceived as foreign to the country, Mameluks educated in the Ottoman palaces prior to the French protectorate (1881), after independence a French-speaking elite trained in European schools of higher education. “Even if the conservative elite did once again participate in the public debate, the IFEC initiative remains a proposal from above,” Wahid Ferchichi concedes.
The democratic promise calls for different models. There are those who advocate an approach that might be called “accelerationist”2 which would consist of putting immediately into practice the universalist and secular principles referred to in the new Constitution. From this point of view, arguments based on the complexity of the real world are seen as an essentialist and “Orientalist” complacency towards old-fashioned habits. But both Meherzia Laabidi and Bocha Belhadi Hmida agree in pretty much the same terms that “in a period of extension of freedoms, going against religious feelings is likely to rile public opinion and endanger the whole process.” Salaheddine Jourchi is even worried that the present tensions “in a period of economic crisis, political uncertainty and distrust of the ruling class will give Salafist predicators a golden opportunity to widen their audience”.
The creation of new communication forums enables the civil society to transgress taboos, change the game and force politicians to come to grips with the problem. But this doesn’t relieve them of their responsibility for organising suitable deliberations, identifying priorities and taking decisions capable of favourably influencing a given situation and accompanying a new law with pedagogical measures to counteract the influence of ideologists. Modernisation must cease to be a goal promoted by an elite over the heads of the people and become the expression of the needs and desires of the masses, which is after all the essence of the democratic project.
This new imperative should urge the modernisers to question their own belief in the virtues of the law for transforming society. In his essay, Ilhem Marzouki pointed out the limitations of the “belief [. . .]that revolution by the law is the only possible lever of change [. . .] the dogma of ‘advance’ over the rest of society.” Of course changes in society have taken place, but “these are not such as to legitimate a pompous rhetoric vaunting the exceptionality of the Tunisian situation, they are only slow modifications behind the scenes and almost imperceptible.” Jurists have long claimed it was their mission to write Tunisian history. It would be a good idea to call upon the knowledge of sociologists to help them if the errors of the past are to be avoided.
For the moment Beji Caid Essebsi’s 13 August announcement seems little more than a fragment of a reform, with no assurance of a parliamentary majority, vitiated by ulterior political motives, an agitation around proposals on sensitive subjects with no clear intention of following them up. For a transformation that would improve the condition of women within the family, most of the work has yet to be done.
1At least until the enactment, in 2004, of the Mudawanan, the Moroccan Family Code, more favourable to women in some respects.
2To borrow a term used in another context by Nick Srnicek and Alex Williams, Accelerationist Manifesto for an Accelerationist Politics.