Foreign and Comparative law
Comparative and Foreign Law
Law and Gender
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AbstractFamily law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and controversy. In general, this change has been considered one of "reform," defined loosely as the adoption of national laws to modify the rules of Islamic law (fiqh) that had been applicable and predominant in the particular country in an effort to improve the rights of women and children. In most Muslim-majority contexts, however, the rules of fiqh remain particularly (and in some jurisdictions uniquely) relevant in the area of family law, and the reform process is usually presented as taking place internally to Islamic law rather than something external to it. In early reform efforts, three main strategies were used to achieve substantive results (namely the strategies of exercising preference, patching, and jurisdiction stripping). To the extent that the scholarly literature on Muslim family law deals with types of internal strategies (rather than the actual substantive changes), these three strategies are typically the main or only ones discussed. Family law reform has been very active in recent years, however, and some advocates have developed creative and innovative ways to continue to push legal change that is presented as coming from within the Islamic legal tradition. This article, drawing mainly on examples from Egypt and Morocco, seeks to identify and examine the breadth of strategies in Sunni Islam that have been used beyond these well-known three. By naming and defining them, we hope to facilitate discussions and research in this area, among academics and those engaged in reform projects alike. Specifically we aim to encourage empirical studies of the practical impact of reforms; draw attention to the potential unintended consequences produced by each type of strategy; and contribute to a larger conversation about the benefits and disadvantages of internal approaches, on a case by case basis and as a whole, in comparison with other ways that might be used to achieve legal improvements for women and children.