gave her the most freedom. The present-day Tuni-
sian Code of Personal Status, for example, ex-
plicitly allows courts to apply customary law in
disputes over division of expensive gifts brought
into the marriage by the wife and her family, such
as shirts for the husband, household goods, and
linens (Art. 28).
The guarantees in treaties initially concluded
with the conquered non-Muslim populations were
sustained throughout the centuries. Christians and
Jews continued to choose to go to their own faith-
based courts, including appealing to the Jewish high
court in Jerusalem. This pattern prevails to this day
in most Arab jurisdictions, for example, among the
Copts in Egypt and the Orthodox Christians in
Lebanon. The major change under Islamic imperial
rule occurred in criminal matters. Islamic penal law
became the law of the land, applicable to Muslims
as well as non-Muslims, but with some modifica-
tions in terms of penalties. Market practices and
professions also became subject to Islamic law.
For example, midwives, whether Muslim or not,
were under the control of the Islamic market
administrator.
Contact during the Ottoman era with Europeans
harboring imperial and colonial ambitions began
to spur new approaches as to how Islamic law was
going to synthesize the notion of a non-faith based
legal concept, that is, a law applicable to all. The
first step was to codify all the laws of the Ottoman
Empire into one book known as the Mecelle or
Majalla. This process raised issues about what
options a Muslim ruler had: to codify the religious
law of each and every community; to combine all
non-Muslim laws with Islamic law into one code;
or to formulate entirely new laws independent of
faith. Before these questions could be resolved, the
European conquest of the Arab regions of the Otto-
man Empire was sealed. The Europeans found a
collection of semi-autonomous faith based legal
systems alongside overarching codes regulating
criminal, commercial, and property matters, all the
result of centuries of the Islamic process of synthe-
sizing and syncretizing. The Europeans did not
sweep the system away. They added a new dimen-
sion. The court system became divided along lines
of discrimination. The European rulers, though
Christians, did not go to the indigenous Christian
courts created by their Muslim predecessors. They
set up separate courts for themselves as Europeans,
though not exclusively. The Mixed Court system of
Egypt and the French courts in North Africa were
established as “universal” courts, available to non-
Muslims and Muslims alike. While Muslims were
thus offered a choice, the local system was depre-388 law: articulation of islamic and non-islamic systems
cated as beneath the dignity of a European, who
was not given the choice of going to pre-European
courts.
Colonial influence and rule resulted in the next
50 to 70 years in a more formalized and hierarchi-
cal syncretic court system which regulated the rela-
tion between Sharì≠a and other faith based courts
and the new state courts. The European rulers con-
tinued codifying laws. The law of the land was,
however, no longer Islamic, but rather state law
which fused European and Islamic law. The law of
procedure and evidence was codified along Euro-
pean lines. Islamic law was confined mainly to per-
sonal status. The nascent appellate system of the
Ottomans evolved into a model based on the Euro-
pean notion of a strict hierarchy of courts.
Since the 1930s women have not hesitated to use
and manipulate the system. For example, in Tuni-
sia, when Muslim women with a Sharì≠a court order
of child support could not get an enforcement
order, they relied on the European-style courts. In
Egypt, abused wives sued in government courts
rather than in the Sharì≠a courts because of expe-
dited enforcement of penalties against the husbands.
Today in Egypt, non-Muslim women likewise cross
lines (in 1998 and 2003) to find the justice most
favorable to them, for example, seeking divorce
relief from the Sharì≠a chamber of the national
courts because under Coptic law adultery is the
only ground for divorce for a woman.
On the periphery of the evolution of legal systems
under the Ottomans and Europeans were the Ara-
bian Peninsula and the Gulf states. Tribal custom
allowed alternative approaches to mainstream
Islamic rules, for example punishing adulterers
with social ostracism and a symbolic pile of stones
in front of their houses, or agreeing to very high
rates of compensation for physical abuse or death
of a woman, presumably because of her high labor
value for the family and to discourage men from
taking advantage of her exposure while tending
family herds without a male protector.
Decolonialization in the 1950s and 1960s ush-
ered in an era of consolidation of centuries of
syncretic evolution. Official legislation and/or pres-
idential, or kingly, decrees, even in the Saudi and
Gulf regions continue the codification of the law.
The classically trained jurists (≠ulamà±) lost their
monopoly over the formulation and interpretation
of Islamic legal sources. The state became the source
of ijtihàd, the process of reinterpreting Islamic law
in light of new social circumstances and values.
Constitutions were written according to interna-
tional standards and included guarantees for gen-
der equality as well as a Muslim identity. Arab