tors. Whereas many women do make it to court –
in a number of countries women appear to be the
majority of litigants in family law at the primary
stage (Rosen 1997, 93, Würth 2000, 144) – they
only do so after overcoming cultural and social
negative images of court proceedings, especially
against a blood relative or spouse. This holds par-
ticularly true in family law, where the better off
favor out-of-court resolutions and only resort to
the courts if all else fails (Hill 1979, 15, Moors
1995, 140). For women, taking a family member to
court thus tends to signify cultural and social fail-
ure at settling the dispute, and ultimately speaks to
the lack of family standing. The repercussions
depend largely on the case at hand; taking a brother
or father to court for assault will obviously have
different effects in a woman’s family environment
than divorcing an abusive husband.
Women’s access to the criminal justice system is
likewise disadvantaged by political, cultural, and
legal factors. Many citizens are reluctant to report
crimes to the police to begin with, the lack of rights
awareness being one factor. In addition, Arab
police forces have a well established record for mis-
treatment and extortion. Reporting violence and
particularly domestic violence is risky, due to widely-
held cultural assumptions that women are to blame
if they become the victim of a violent crime. Ini-
tiatives like the Arab Women Court (http://www.
arabwomencourt.org/womenscourt/aboutus/abou
tus.htm) publicize testimonies of victims of domes-
tic violence to change these stereotypes. While
women can, in theory, invoke penal provisions of
assault against perpetrators of domestic violence,
marital rape is not defined as a criminal offense in
any Arab state. In theory, rape by unrelated men is
punished severely (Mohsen 1990 for Egypt). In
contrast, a rapist could marry his victim and avert
punishment in Egypt – only in 2000 were the
respective provisions repealed. This type of provi-
sion has contributed to severe under-reporting of
rape and impunity for those who physically and
sexually assault women.
Scholarship
The locus classicusfor the assumption on the
part of Islamic scholars that women fared badly in
premodern legal systems is J. N. D. Anderson’s
work, claiming that nineteenth- and twentieth-cen-
tury legal reforms came as a blessing to Muslim
women, who, due to the provisions of the £anafì
school, were unable to obtain a divorce should
their husband have left them for prolonged periods
(Anderson 1968, 224, 225 ff.). As Nahal (1979,
47) and Tucker (1998, 78–87) have shown, the
arab states 369Ottoman legal system was flexible enough to
accommodate women in this situation, and permit-
ted divorce rulings issued by Shàfi≠ìjudges.
If “immutable rigidity” was the catchword for
scholars’ perception of Islamic legal systems until
the 1970s, access to Ottoman archives (sijillàt) led
scholars to the contrary conclusion. Whatever the
legal text books said, the sijillàtdemonstrated a
high degree of flexibility and plurivocality, accom-
modating changing needs of the population, minor-
ities included, and particularly women’s needs.
Studies in Ottoman archives demonstrated that
women did indeed use urban and rural courts, to
secure property and financial rights, divorce their
husbands, and gain custody of their children (Dou-
mani 1985, Jennings 1999, Tucker 1985 and 1998).
These studies also demonstrated, rather surpris-
ingly, that minority women resorted to Muslim
courts frequently, requesting a divorce not available
to them under their denomination (al-Qattan 1999).
Studies based on a systematic reading of twen-
tieth-century family law archives and jurisprudence
have shown judges’ different interpretations of
relevant legal provisions (Shaham 1997), the selec-
tive reconstruction of Islamic legal concepts by
courts (Dennerlein 1998), the relevance of class in
the use of the courts (Hill 1979, Moors 1995,
Würth 2000), and the political nature of family law
reform (Welchman 2000).
But many intriguing social and legal questions
remain: were and are women using the legal system
representative of the larger female population or
rather an exception? What do women win if courts
rule in their favor and how can women secure the
implementation of rulings, particularly if financial
rights are involved? How do women fare in the
different layers in the legal process? How do gov-
ernments use legal and judicial reform and the ref-
erence to differing legal norms to enhance their
own legitimacy? How have social change and eco-
nomic crisis affected the use of courts and women’s
access to them?
These issues remain largely unresolved, but over-
all recent scholarship, often by women historians
and anthropologists, has shown that women’s
access to contemporary Arab legal systems is deter-
mined by patriarchal and class-based understand-
ings of proper behavior, by numerous factors
common to Third-World judiciaries and judicial
policies, and finally by women’s strategies, often,
but not always, mediated by their lawyers.Bibliography
J. N. D. Anderson, The eclipse of the patriarchal family in
contemporary Islamic law, in J. N. D. Anderson (ed.),
Family law in Asia and Africa, London 1968, 221–34.