The emphasis on the text serves one function. This is to detract from the personality of the person pronoucing a judgment as the source of the law. Hence, when in reality, however, different personalities -- whether as academic jurists or as judges, as a university sheikh ul islam or government appointed mufti as in the case of Egypt -- pronounce different interpretations of the same text, then there is the possibility that the personality becomes the source of the law, and the text becomes secondary. This of course worries jurists because this can undermine the primacy of the text as the source of law. It is believed to be important to keep the primacy of the text to serve what is thought to be one of the functions of law, which is to avoid arbitrariness. This concern is of equal importance in our European legal systems as in contemporary Islamic legal systems. So if there arises different interpretations of the text, jurists start searching for the source of this difference in the hope of eliminating it and thus eliminating the danger of arbitrariness. The difference they might find lies in the text itself. It is simply unclear, for example. The difference might in fact lie in the personality of the legislators or the judges. If the text is at fault, it will be changed. If the person is at fault, then the legislator or the judge will be substituted. At this point we see a divergence between the Islamic legal approach and the so-called secular Euro-approach. While the Islamic legislature can change the text of the legislated law, and this occurs in fact, such as amendments to family law codes in Tunisia, Egypt, Pakistan, etc., it cannot change the Quranic text which are named in the legislated law as supplementary text sources. From a legal point of view this is not really a very serious problem. This is because no text that serves as a source of law is regarded by jurists as a self-contained text in itself. That is to say, that each text contains references in it to something else outside it. The reader of the text has to go outside the text to other sources of information in order to understand what the text means. These other sources are primarily what we call sociological norms or phenomena, public morality and the general sense of what constitutes fairness. For example, when the German constitution refers to the protection of marriage, the courts have used the religious Christian norms to understand the phenomenon of marriage that exists outside the text. Marriage is a union rooted in the Christian norm of monogamy, although the word monogamy is not mentioned in the Constitution. Another example from British jurisprudence: As 7 sailors shipwrecked at sea and found themselves in a few days without provisions, they murdered one of their fellow sailors and ate him in order to stay alive. When rescued they were prosecuted for murder. The British courts found the sailors guilty. The reason was that this was morally so outrageous that it warranted punishment, even though the penal law regulating murder and self-defence had no reference to moral outrage. Or when we examine the Quranic text regulating polygamy, we see that there is reference to a psychological phenomenon, namely, just treatment in relation to the ability of the man to act equally to all his four wives. On the basis of this reference to the psychology of husband/wife relationships, the Tunisian executive Bourguiba convinced the legislature to abolish polygamy. This has also served in other countries such as Egypt to justify a law whereby the husband is obliged by what is known as Jehan Sedat's reformist law to at least inform each of his wives that they have co-wives. Other contemporary jurists have emphasized the references in the same Quranic text to demographic phenomena, namely, if there are too many women because of war, for example, then men being in the minority should take on extra responsibility by marrying more than one wife, just as this was proposed by a Protestant pastor after the war here in Germany. This demographic reference in the Quran, as some contemporary jurists point out, can also be taken to imply that if there comes a time when there is a surplus of men, then the woman will have to care for more than one man. But if most of the time the demographics are balanced by and large equally between men and women, then polygamy does not have to be permitted. On this basis most Islamic countries where the demographics allow it could follow the example of Tunisia by suspending the man's right to polygamy until such time that the demographic conditions require otherwise. At this point I repeat, the above cited examples are given to show that the fact the Quranic text as a source of law - even when found to be a source of difference of opinion -- cannot be changed does not pose a legal problem per se.
Now to return to our point above, that when the source of the difference in opinion lies not in the text itself, but in the personality of the legislator or judge interpreting the text, then the person has to be removed and replaced by those who will conform to one authoritative interpretation of the text. Certainly this is a phenomenon that happens in any legal system. In the USA as in Germany, when there is a change of government and there is a vacancy in the constitutional court, the person selected will reflect the politics of the new government. In the contemporary Islamic world, I observe that the Islamic extremists are overemphasizing the difference in personality as the source of difference understandings of the unchanageable Quranic text even though it is said that they rest solidly on the foundation of the Quranic text. A good example of this overemphasis on the personality of the judge can be found in Egypt. A few years ago judges under pressure from the Islamic extremists to prove their Muslim identity and faith were issuing criminal judgments ordering the cutting off of the hand of a theft on the basis of the Quranic text alone. They ignored the legislated penal law texts until the Egpytian government reprimanded them and brought them under control just as they are trying to contain the extremists. This, from a legal point of view that upholds the primacy of the text and the references to phenomena outside the text that are necessary to undertake the hermeneutics of the legal text, is particulary disturbing. The Islamic extremists are imposing the infallibility of the basic Quranic text on interpretations of the text. In effect a human interpretation is being made infallible. This can be taken as a blasphemy. Only God's Word is infallible, not a human interpretation of it, as Ibn Malik, the founder the Maliki school of law prevalent in North Africa, unsuccessfully tried to make clear to the political ruler at the time. This emphasis on the infallibility of the human interpretation is also underming the uniqueness of the Islamic identity , which the extremists believe they are stressing. They could be said to be emulating the notion of infallibility propagated by the European Roman Catholic Pope.
By way of contrast in Egypt, especially in Upper Egypt, the mahr is commonly given. It is of market value, more than symbolic value. It consists of gold, especially jewery. But the juridical importance of it to the woman in terms of her right to control it is lost on her. For her what is to be emphasized in the Quranic text on making and receiving a gift or remitting a gift is the reference in the text to the act outside the text of receiving, especially the subjective feelings of the receiver. What has become important to the woman since the availability of money from migrants' jobs in the Gulf and Libya are the personal bridal gifts, namely lingerie, glass goblets, stainless steel trays. The possession of these goods is symbolic of the onset of womanhood and independence that permits ownership of uxury goods. This dimension of marriage is relevant only to a completely feminine world. The trousseau embodies possessions which the woman can claim solely for herself. Her family and her husband may not take them away. Gold jewelry is different. It is not as personal as china and clothes. Gold becomes family property in times of crisis -- to buy land for the husband, to finance the husband's trip to Saudia Arabia, to buy a water buffalo, to pay for unexpected medical expenses. Some women are known to refuse to part with the mahr of gold -- they are labeled those who refused to sell their gold. With the recent deregulation of land in Egpyt the pressure on women will grow to remit their gold. The deregulation will so increase land rents that men are exhausting all means to buy a small plot, only a fraction of the rented lands they now farm. Thus, the woman's remittance of her gift of gold to her husband as her contribution to the family maintenance is, juridically seen, voluntary. Because of its individual voluntary nature, the act of remittance in Egypt could mean that the famly then is free to agree not to apply the strict inheritance rules and perhaps allow in individual cases the woman to receive a larger inheritance share recognizing her assuming an obligation that is ascribed normally exclusively to the husband.
The security of the Upper Egyptian woman thus lies elsewhere, not in her mahr. It lies rather in endogamous marriage within the family. A woman marries preferably her cousin. There is little security for a woman who marries a stranger. Only marriage within the family assures her fair treatment. The only way to secure relief from an abusive husband who is a stranger is through the court, but the woman tends to be reluctant to wash dirty linen in public with a stranger. When the husband is a stranger the fathers and kin of the woman do not rescue the woman; they feel they have no leverage with the stranger's family.
In Tunisia in this respect the situation differes. The Tunisian father's affection for his daughter is proverbial according to sociological and anthropological studies, regardless of whether she is married to a stranger or not. He gives more support to his daughter than his wife in terms of helping her find work whether she is married or divorced. Women do not have difficulties using the courts. They know they have the support of their families, and use of the courts is further reinforced in Tunisia, unlike in Egypt, with a legislated text that requires parties to register births -- which is important for school registration -- and marriages and gives to the court exclusive privilege to decide on divorce and custody. This different attitude -- different from Egypt -- towards the use of courts to get one's rights under a liberal legislature favouring women is rooted in the history of bureaucracy in Tunisia. Since Ottoman times Tunisia has enjoyed a well organized bureacracy which the French Protectorate allowed to further develop, unlike in Algeria or the British in Egypt. The Tunisian executive and legislature can guarantee a less restricitve interpretation of Islamic law regarding women -- such as abolishing polygamy -- because they know they can rely on the courts, the state prosecutors, and the juridical bureaucracy to uphold the legal text more or less (less in respect to the highest court becaus it is possessed by an older generation that tends to be restrictive in interpreting the legal text ) and to have the judgment enforced as intended by the legislature and executive. A woman who knows that she too can rely on a liberal Islamic legal text and executive of the judgment is more likely not to resist the state obliging her to use courts, unlike her sister, for example, in Egypt.
The evidence given in court revealed that the woman was working as a prostitute. The court found for that reason that she was not under the authority of the man, meaning that he did not have exclusive conjugal rights over her, and that she acccordingly could have no intent to marry. Only the man had the intent to marry. Yet they both intended that their children be treated as children of a marriage. There was no mention of whether the woman has an equal right to have autority over the sexual relations of her male partner. The family code's requirement of registration of a union as marriage was directed originally towards parties who intend to marry and marry under traditional circumstances but do not register the marriage. The court in the case at hand extended the scope of the penal provision of the family code to cover those who live together where it is difficult to determine if there be a mutual intent to marry.
In the second case I want to discuss the woman and man again were living together. They were trading partners, trading in animals (which is not clear). The man then used their common business profits to buy a plot of land. The woman thought that both would co-own the land. The man resold it and took all sale proceeds for himself. The woman sued for her share. She was in turn prosecuted with the man for not registering her living together as marriage. The lower court ordered a fine from both the woman and the man. But it allowed the woman to get her share of the sale proceeds. The Ministry of Justice raised objection -- she should as a woman who was penalized for entering into an illegal "marriage" not benefit in regard to the land.
The results of these two cases would have been different in Iran. The woman would have had the chance to bring evidence of a temporary marriage contract. The customary mahr would have been fixed by the court and prosecution thus avoided. The temporary marriage contract is the means by which living together and marriage can be treated equally -- which is even more liberal than here in Germany. The point I want to make here is that while the Tunisian state is supporting the women's rights movement in family law it has introduced a uniformized system that does not have the flexibility for women who wish for whatever reasons to live together with the man they love. The traditional system such as in Iran -- while not as liberal as Tunisia -- offers this flexibility for women.