that brought into existence mixed courts applying
European codes in the area of civil and commercial
law and extending their jurisdictions not only to
foreigners and non-Muslims but also to Ottoman
Muslims. Secular national courts eventually replaced
the mixed courts while mimicking their structural
and textual foundation. By the turn of the twenti-
eth century, Islamic law was left with only the fam-
ily to regulate.
In the post-Ottoman era (whether under Euro-
pean colonialism or later in the postcolonial
period), the nation-state emerged as the central and
dominant political unit. The historic autonomy of
law that characterized the premodern era was lost,
as all law, even God’s law, had to be legislated by
the state to become official. Courts became part of
a centralized legal system dominated by the powers
of the state. Courts administering Islamic law came
to be distinguished from those that did not, the for-
mer known as Sharì≠a courts and the latter as “reg-
ular” courts administering transplanted European
law. Eventually, most judges were graduates of law
schools which taught Islamic jurisprudence as part
of an otherwise secular curriculum concentrating
on transplanted law; they could adjudicate cases on
the family as well as other areas of secular law.
Some judges were trained in Sharì≠a faculties
(which came to be incorporated within the struc-
ture of secular universities) with degrees in Islamic
jurisprudence and theology and were only qualified
to sit in family courts.Family law reforms in the Arab
world: the first stage
Early reforms of family law, beginning in the first
half of the twentieth century and continued in the
early part of the second, aimed generally at trans-
forming the legal domestic unit from the “medieval
household” of Islamic jurisprudence into the mod-
ern “family” of the family code, without radically
departing from the premodern schools’ conceptual
legal structure of gendered reciprocity (husbands
maintain and wives obey). The idea behind these
early reforms was to chip away at the most cruel
aspects of gendered reciprocity by first, limiting the
scope of the wife’s obedience; second, expanding
the scope of the husband’s financial duties; and
third, limiting the range of powers in the family
these financial duties allowed him. Thus, wives’
financial rights whether during the marriage or
after divorce were increased; new grounds allow-
ing wives to exit from marriage were established;
and the husband’s right to no fault divorce and to
practice polygamy was constrained and limited.
Examples include the laws on the family passed in460 law: modern family law, 1800–present
Egypt (1920, 1929), Jordan (1917, 1951, 1976),
Syria (1953), Lebanon (1917), Iraq (1959), and
Palestine (1919, 1951, 1976). In addition, the
state’s power to mediate conflicts between hus-
bands and wives was consolidated through the
introduction of legal requirements of registration
and documentation of marriage and divorce. Early
reforms also targeted the law of procedure in
Sharì≠a courts to make it less dependent on oral tes-
timony (the rule in the premodern era) and to cre-
ate an official system of appellate review for the
first time in Islamic adjudication (Anderson 1976,
Coulson 1964, 163–4, Schacht 1982, 101).
Tunisia is notable in its attempt to realize radical
reform through abandonment of the principle of
gendered reciprocity. Instead of maintenance for
obedience, the Tunisian Majalla (Family Code
1957) advocates reciprocal good treatment by both
spouses and shared duty of maintenance (if the wife
has money). In exchange for the duty of mainte-
nance, the wife no longer has to obey her husband,
and has equal access to divorce, guardianship pow-
ers over her children, and the power to consent to a
minor child’s marriage. For the first time in Islamic
history, however, a husband can take his wife to
court demanding that she maintains the family if
she has money. Husband no longer, per reforms in
Tunisia, spares wife’s purse. The premodern princi-
ple of exempting wife from any duty of mainte-
nance was abandoned.Methods of reform
To create these doctrinal changes while still bas-
ing them on Islamic law, early reformers resorted to
acts of ijtihàd(devising a new rule based on a fresh
reading of the Qur±àn and the Prophetic traditions);
ikhtiyàr(choosing among the various opinions of
the premodern schools of jurisprudence, even those
considered minority schools); talfìq(creating a doc-
trine afresh through combining two rules derived
from two different schools); adoption of Shì≠ì
jurisprudence or opinions of schools long con-
sidered “dead”; and finally, the implementation of
rules on procedure that make a particular substan-
tive rule ineffective (through legislating statutory
limitations or registration requirements) (Hallaq
1997, 210–14). Approaching the doctrines of the
schools, alive and dead, Sunnìand Shì≠ì, including
majority and minority opinions within each, with-
out specific loyalty to the doctrine of any particular
school, has created for the first time in Islamic his-
tory a kind of supra-madhhablegal consciousness
that remains prevalent until today among the mod-
ern Muslim jurists/reformers/legal commentators
(Esposito 2001, 119–26). It should be noted, how-