State power, religion, and women's rights: a comparative analysis of family law.(Symposium)

INTRODUCTION

Family law--also called personal status law--shapes virtually every aspect of a woman's life. It determines her status at birth; her capacity to own, inherit, and manage property; her freedom to work, marry, divorce, and remarry; and her relationship with her children. Unfortunately, family laws in most of the world tend to maximize men's power over women and limit women's ability to make decisions and take independent action.

In much of Europe and North America, family laws were historically patriarchal. Women's rights began to expand only at the end of the nineteenth and the beginning of the twentieth century as Anglo-American countries adopted married women's property acts and as Nordic countries introduced mutual consent and eliminated fault grounds for divorce. (1) Yet family law was fully liberalized only in the last third of the twentieth century, under pressure from women's growing economic independence and the rise of fresh ideas about their social status and rights. (2) Communist countries in the West and East also liberalized family law at various points during the twentieth century in part to free women to participate in the workforce and in part to curtail the sphere of religious influence. (3)

In other places, such as the Middle East and parts of South Asia, trends toward family law liberalization are more uneven. In spite of the growth of the feminist movement, worldwide trends toward democracy, and the diffusion of international norms on human rights, family, and personal status laws have remained discriminatory in many countries. These restrictions are consequential for more than women's autonomy and dignity, as they have broader implications. Societies that subordinate women are more likely to be authoritarian, and their populations poor, uneducated, unhealthy, and demographically imbalanced, with high rates of population growth. (4)

This article offers a picture of the global variation in family law. We show that cross-national differences are significant: a large group of countries have eliminated sex discrimination while a handful, including Saudi Arabia, Egypt, and Iran, continue to disadvantage women in numerous ways. In this latter group, religious personal status laws have held sway. Indeed, we find that the status of women in family law is roughly correlated with a country's traditional legal system. Civil law, common law, socialist and postsocialist, and Nordic countries have done the most to eliminate discrimination while countries with religiously inspired family law--particularly those based on Shariah law--have done the least. Postcolonial states with multiple legal systems are somewhere in the middle.

The strong influence of religious authority and institutional legacies on family law offers a contrast with other areas of women's rights such as violence against women and political representation. (5) In these latter areas, countries from diverse cultures and regions made common progress toward reform. Developing countries including India, Bangladesh, and Indonesia have introduced measures to combat violence against women and promote their political leadership, but have maintained restrictive family laws. Yet religious and legal traditions do not wholly determine outcomes. Some countries--including Morocco, Turkey, and Botswana--changed legislation virtually overnight, catapulting them from the group of most discriminatory countries to among the least.

What accounts for these divergent approaches to family law? Why are laws of personal status so seemingly resistant to change in some places? How can we explain both this resistance and the overall trend toward sex equality? (6)

By presenting some preliminary evidence of worldwide trends in family law, we hope to begin to answer these questions. Until now, there has been little worldwide comparative analysis of family law. (7) Many existing studies focus on single regions (particularly the West),8 or detailed analyses of particular cases, (9) or are more theoretical than explanatory. (10) From these works we know that family law varies dramatically, but we lack a systematic, side-to-side comparison enabling us to test hypotheses about the causes of difference and the reasons for change. This is the purpose of the present study.

I. BACKGROUND

Historically, churches, clans, and cultural groups administered matters related to birth and death, partnering and procreation, property and inheritance, and the other myriad affairs that we today call family law. The modern state's claim over this domain is relatively recent, uneven, and, in much of the world, still incomplete. (11) Prospects for family law reform thus touch upon the delicate balance between state power and the status of subnational groups. Trends in family law are intimately connected to church-state relations, the consolidation of state power, and the assertion of cultural and national identity.

Though most states have codified family law, much of it conforms to religious principles, at least partially, if not entirely. Early marriage laws in Western Europe, for example, were largely copied from canon law and other Christian teachings. (12) Religious influences persisted in Western law well into the twentieth century. For example, divorce remained illegal in Italy until 1970; in Spain, until 1981; and in Argentina, until 1987. In Brazil and in Ireland, the principle of marital indissolubility remained in the constitution until 1977 and 1995, respectively. (13)

In parts of the Middle East, Northern Africa, and Southeast Asia, state-administered family law has continued to conform closely to religious teachings. Laws of personal status codified in Morocco in 1958, Iraq in 1959, Pakistan in 1961, Jordan in 1976, and Algeria in 1984, for example, are based largely on classical Shariah, albeit with variation and with some modifications designed to protect women. (14)

In other parts of the world, cultural traditions and inherited practices--also called customary law, African jurisprudence, and usos y costumbres--reign alongside state-sanctioned family law or religious law. In these countries with multiple legal systems--most of which are former British colonies--different family laws apply, at least in theory, to different categories of people. In India, for example, Hindu law applies to Hindus and Muslim law to Muslims. (15) Kenya recognizes four different legal regimes: civil statutes, Hindu law, Muslim law, and customary law. (16) The demarcation of these spheres of legal authority can also be geographical, such as in Nigeria, where Shariah is commonly applied in the North, and customary and statutory law in the South. (17)

Notwithstanding these enduring religious influences--which persist even in countries found to be relatively secular by the World Values Survey (18) --many countries eliminated sex discrimination in family law over the course of the twentieth century. Nordic countries began to change first, followed by continental European and Anglo-American counterparts. Latin American countries, strongly influenced by the European trends, changed later.

In these regions, provisions granting women equal rights over property and parenting replaced laws upholding male power and prerogatives. Rules obliging wives to obey their husbands were eliminated, as were requirements that wives seek their husbands' permission to work, open a bank account, and …