Religious PoliciesResearchThe Family Code: Balancing Religious Interpretations and the Demands of Women’s Rights

A significant portion of both modernists and conservatives tend to resort to the mechanism of ijtihad (independent reasoning) as a methodology for bridging differing perspectives and for granting religious legitimacy to demands that may be derived from the universal framework of human rights.

 

Introduction

The 2024 amendment to Morocco’s Family Code is a subject of great interest, given the intertwining of religious and political factors in this context. After King Mohammed VI referred certain proposals, submitted by the committee overseeing the review of the Family Code, to the Supreme Council of Religious Scholars on June 28, 2024, there has been increased engagement from various stakeholders and commentators, highlighting the importance of studying the relationship between religious interpretations and women’s demands in Morocco. As the decision on these proposals approaches, it becomes essential to examine the legal, constitutional, and religious foundations of the anticipated amendments to reveal the extent of their alignment and to understand the dynamics between the contributors involved in shaping the law that will govern Moroccan family affairs.

Who are the key stakeholders involved in the development and amendment of Morocco’s Family Code? Does their relationship culminate in a winner and a loser? What shapes the views and positions of these religious and women’s groups in Morocco? On what issues do they disagree? How closely are the interpretation of religious texts and the drafting of family laws linked? What role do the monarchy and the constants of Moroccan religious tradition play in shaping the upcoming changes?

Addressing these questions underscores the importance of understanding the relationship between the religious and women’s spheres in Morocco, providing a clear picture of the factors that will shape the imminent changes. This paper begins by exploring the significance of King Mohammed VI’s referral of some of the proposals from the committee overseeing the Family Code review to the Supreme Council of Religious Scholars, and how various women’s groups and activists have responded to this. The paper then examines women’s demands in light of the scope of ijtihad (independent reasoning) in interpreting religious texts, highlighting the pivotal role of interpretation, especially by the “Third Way” feminists[1] and state-affiliated scholars, in formulating new laws that accommodate Moroccan particularities while safeguarding the interests of family members.

 

The Significance of the Referral and the Specificities of Moroccan Religious Tradition

The referral of the proposals received by King Mohammed VI from the committee responsible for reviewing the Family Code to the Supreme Council of Religious Scholars can be understood as follows:

1. First, this referral indicates that there are issues within some of the committee’s proposals that require the input of religious scholars to assess.
2. Second, the referral sends a message to the general public that religious opinion holds a significant place in shaping the final version of the Family Code revision. This was reaffirmed by the King in his 2022 Throne Speech when he stated, “As Commander of the Faithful, and as I said in my speech presenting the Code to Parliament, I will not permit what God has forbidden, nor will I forbid what God has permitted, particularly in matters governed by unequivocal Qur’anic texts”[2].
3. Third, the referral aligns with the provisions of Article 41 of the Constitution, which designates the Supreme Council of Religious Scholars as the sole body authorized to issue official fatwas. This sends a clear signal to all other parties—both modernist and conservative—that the ultimate and final authority rests with official religious institutions, not with individual opinions or fatwas issued by various associations or organizations.

With these implications, official religious scholars now face the challenge of reviewing the issues presented in the proposals and determining whether they conform to or contradict Islamic law. After the process has passed through the practical oversight of the Ministry of Justice, the Higher Council of the Judiciary, and the Public Prosecution, due to the legal and judicial dimensions of the issue, religious scholars and state jurists are now tasked with scrutinizing and subjecting some of the review’s provisions to religious examination. In doing so, they are expected to translate the word of God and the teachings of His Prophet into laws that will govern and regulate the relationship between spouses in the Muslim Moroccan family in the 21st century. How will this interpretation be conducted? What methodology will they adopt to ensure a correct understanding of religion? And to what extent is there a possibility of reconciling religious and feminist perspectives in the amendment of the Family Code?

What many advocates of applying Islamic law in amending the Family Code overlook is that the understanding and application of Sharia has always been subject to disagreement throughout different eras and regions, across various theological, sectarian, and political/religious orientations. Morocco, in particular, has its own religious principles that form the cohesive framework of what can be called “Moroccan Islam.” Therefore, the official religious scholars will be guided by the constants of Moroccan religiosity, which are based on the institution of the Commander of the Faithful, the Sunni madhhab, Ash‘ari theology, Maliki jurisprudence, and Junaid’s Sufism[3].

These characteristics grant Morocco a distinct status, reflected in political and religious stability under the banner of the Commander of the Faithful, who is considered a descendant of the Prophet Muhammad (peace be upon him). This stability is rooted in the Qur’an and Sunnah through the Sunni madhhab, balanced interpretation through Ash‘ari theology—which harmonizes reason and revelation[4]—and moderation and flexibility in application through Maliki jurisprudence, which links Sharia rulings with achieving contextual relevance and the higher objectives of Islamic law (maqasid al-sharia)[5]. Junaid’s Sufism adds a dimension of spiritual refinement, connecting religious practices with self-purification and the spiritual depth of Islam[6].

In large part, these religious principles of Morocco align with the directives of His Majesty the King, who, in his capacity as Commander of the Faithful, has called for “the adoption of the virtues of moderation and constructive, open ijtihad, within the framework of the principle His Majesty has always emphasized: not permitting the forbidden, nor forbidding the permitted”[7]. On another level, scholars will also consider His Majesty’s directive that “the Family Code is not a code for men, nor is it exclusively for women; rather, it is a code for the entire family. The Code is based on balance, as it grants women their rights, gives men their rights, and considers the interests of children”[8].

Given these considerations that will guide the scholars of the Supreme Council of Religious Scholars, it is also useful to understand how women’s groups view the state’s approach to religious guidelines on women’s rights and the challenges that might arise when applying ijtihad within the boundaries of the Moroccan model.

 

Scholars and Feminists: Points of Agreement and Divergence

The term “feminism” can be likened to an umbrella that covers a wide range of ideas and perspectives on women’s rights, which can sometimes be at odds with one another. Thus, the feminist movement, whether in Morocco or elsewhere, cannot be placed into a single category or judged with a single lens. While some secular feminists adhere strictly to international conventions as the sole reference for any change and reject Islam based on a simplistic view that portrays it as perpetuating the oppression of women, other feminists from the modernist stream argue that advocating for ijtihad (independent reasoning) can open the door to achieving some of the demands they have long called for outside the religious framework. In their article, Rabia Nasiri and Alexandra Pitman explain that secular feminist movements have begun to shift their strategy by highlighting “the Islamic tool of ijtihad as a potential foundation for advancing women’s rights in a Muslim-majority country like Morocco”[9].

In this context, and to lend religious legitimacy to their demands, several women’s organizations have invited scholars and experts in Islamic studies, such as Dr. Ahmed Khamlichi in 2003 and Mohamed Abdelwahab Rafiki more recently, because their ideas align or closely correspond with these organizations’ demands. It is worth noting that many secular feminists make a distinction between Islam and Islamic jurisprudence, considering that anything that does not align with their ‘logical’ demands—based on full equality—is “Islamic jurisprudence that has adapted Islam to standards that are inherently outdated and unsuitable for our current human reality, which has undergone significant transformations on all fronts”[10].

To strengthen advocacy and influence the process of changing the Family Code, a group of women’s associations announced the formation of a coalition called “The Women’s Coordination for Comprehensive and Deep Change of the Family Code” on November 30, 2022[11]. On July 1, 2024, the members of this coordination gathered to discuss the significance of King Mohammed VI’s referral of some of the proposals received from the committee overseeing the Family Code review to the Supreme Council of Religious Scholars. The coalition’s statement praised the King’s referral as “a strong signal of respect for the Constitution as the supreme law governing legislative work, which necessitates considering all of its provisions and adopting an open and constructive ijtihad to ensure the implementation of all the principles it enshrines, most notably the principle of equality, non-discrimination, and the need to uphold the irreversible democratic choice”[12].

In contrast, a certain conservative Islamic discourseviews the fact that issues raised by the committee’s proposals have been placed in the hands of official religious scholars as a reassurance that these scholars will uphold religious jurisprudential opinions and will not be swayed by pressures to “Islamize” feminist demands. The Islamic discourseis not limited to the conservative Salafi stream, which opposes any changes to the Family Code, arguing that such changes would lead to increased divorce rates and family breakdowns[13]. There is also the Islamic feminist discourse, represented by movements like the Zahra Forum, which takes a less rigid stance, relying on the Qur’an and authentic Sunnah as foundational, pragmatic, and ijtihad-based references that consider the objectives of Islamic law (maqasid al-sharia). This view sees equality within the framework of the principle of complementarity between the sexes, which differs from the concept of equality espoused by some contemporary Western philosophies[14].

There is another Islamic discourse, known as the “Third Way,” which adopts a non-political, interpretive, and conciliatory academic approach. This stream attempts to reconcile Islamic values with the “universal” values of human rights by re-reading religious texts from a feminist perspective[15]. This discourseappears more open to expanding ijtihad within the religious framework to meet certain demands[16].

In summary, it can be said that the common ground between feminists, despite their differences, and religious scholars is the shared goal of enhancing women’s rights and the status of the family through the new Family Code. However, there are many points of divergence, which vary among these actors based on their references, approaches, and methods. While secular feminists base their reference on international conventions, Islamic feminists adhere to religious foundations. Secular feminists adopt a legal approach to the concept of full equality as the basis for all laws, while Islamic feminists present a social approach focused on family cohesion. This is why we observe the establishment of listening centers within secular feminist organizations and family counseling centers within Islamic feminist organizations[17]. It is worth noting that there are independent women’s associations that do not belong to any ideological current and that the feminist movement as a whole takes multiple forms, including political activism, civil society work, academic writing, and more.

While all feminists acknowledge the progressive nature of the 2004 Family Code, the review of this Code after 20 years has brought forth contentious issues. As highlighted by the King’s referral of the proposals to the Supreme Council of Religious Scholars, the most prominent of these issues revolves around the interpretation of religious texts and their translation into laws. What are these issues? And how can they be viewed from both feminist human rights and religious interpretive perspectives?

 

Contentious Issues and the Interpretation of Religious Texts

The Royal Court’s communiqué did not specify the topics referred to the Supreme Council of Religious Scholars for fatwa issuance, but we can speculate on some contentious issues between the two camps that require religious adjudication. This represents a legal minefield due to the complexities involved, where religious, legal, and social considerations overlap.

 

Use of DNA Testing in Establishing Paternity for Children Born Outside of Marriage

The current Family Code relies on the Prophet Muhammad’s hadith, “The child belongs to the bed, and for the adulterer, there is the stone”[18], as stated in Article 153: “Paternity is established through marriage.” This means that legitimate paternity is only recognized if it results from a marital relationship, and any child conceived outside of marriage, whether from an illicit relationship or rape, is not granted paternity rights under the Code. A judicial precedent from the Tangier Court of First Instance in 2017 highlights the complexity of this issue, blending religious and legal elements. The court ruled to establish the paternity of a child to her biological father, but the Court of Appeals overturned the ruling. The First Instance Court then appealed the decision, arguing that rejecting the ruling violated the principle of equality outlined in the Constitution, as well as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The court also referred to Article 7 of the Convention on the Rights of the Child, which grants children the right to know their parents[19].

The Supreme Court, however, upheld the Appeals Court’s decision, stating that the primacy of international treaties, as recognized in the Constitution, is conditional upon aligning those treaties with the process required for ratification. The ruling emphasized that “the family, founded on a legitimate marital relationship, is the basic unit of society[20],” and that “illegitimate paternity concerning the father does not produce any of the effects of legitimate paternity[21].” Additionally, Article 32 of the Constitution ensures equality in civil rights but within the framework set by law. The Appeals Court applied both legal principles and Islamic jurisprudence, which, being part of the legal framework, states that a child born out of wedlock is only connected to the mother, regardless of the circumstances of conception, and is not connected to the father[22].

Naturally, this ruling sparked outrage among many feminists, who argued that it would harm women by not granting paternity rights to a child born of an illicit relationship, even though it was conceived through such a relationship. However, judicial rulings have shown a tendency to strictly adhere to the literal text of the law, grounded in jurisprudential principles that emphasize protecting one of Islam’s five main objectives: lineage and honor. This is done by maintaining a firm stance against out-of-wedlock relationships and avoiding the conflation of zina (adultery) with the establishment of paternity.

The position of Forum Zahraa for the Moroccan Woman, an organization ideologically linked to the Islamic movement Al-Tawhid wa al-Islah but organizationally independent, aligns with Islamic principles and objectives. However, it also engages in scholarly debates, such as those inspired by Dr. Ahmed Raissouni’sworkAl-Taqribwa Al-Taghlib. Raissouni argues that “there is no contradiction in associating a child born out of wedlock with their father and the hadith: ‘The child belongs to the bed, and for the adulterer, there is the stone.’” He explains that “the adulterer in the hadith refers to the one who committed adultery, and it means he does not claim the child or have any right over it, but it does not prevent paternity from being established through evidence”[23]. Based on this, the Forum proposes “adopting DNA testing as a means of establishing paternity, considering it does not contradict Islamic jurisprudence or the texts of the Family Code.”

It is important to note that adopting DNA testing from an Islamic perspective does not imply recognizing the paternity of children born out of wedlock, but rather serves as a tool for identifying biological lineage, particularly when the biological father denies responsibility. Accordingly, it is suggested that a clause be added to the Family Code requiring a father who denies paternity to undergo genetic testing to verify lineage and bear the consequences of his actions, reducing the harm to the mother.

 

Child Marriage and the Call for Criminalization

For a long time, most feminist groups have expressed their dissatisfaction with the exceptions allowed for child marriage under Articles 20 and 21 of the Family Code. Today, they demand the removal of these exceptions and the criminalization of child marriage, as international conventions consider all girls under the age of 18 to be children whose place is in school[24]. Feminist discourse also relies on statistical evidence, citing studies and data that paint a grim picture of the harms associated with child marriage[25].

Although no clear religious text specifies an appropriate age for marriage, some religious scholars, like Mohamed Al-Maghraoui in 2009, have advocated for following the example of Aisha’s age when she married the Prophet Muhammad[26]. The Supreme Council of Scholars opposed this view at the time, emphasizing that “none of the early scholars used the Prophet’s actions in this regard as a basis for legal rulings, considering it unique to the Prophet.” They further stated that “the current legal system in Morocco, concerning the legal age for marriage, is based on a law that was passed with the consent of the nation’s components, and scholars participated in drafting it”[27].

Researcher in Quranic studies, Mounia Al-Taraz, notes in her thesis that a thorough examination of jurisprudential approaches to child marriage indicates that “minors are often incapable of fulfilling the objectives of marriage. The age of eligibility for marriage is variable, influenced by circumstances and complexities of life. This fluidity has historically led to disagreements about the legitimacy of child marriage”[28]. She further argues that “the required eligibility for marriage must consider the roles of both spouses in raising morally responsible individuals and in building a conscious and resilient family structure”[29].

From this perspective, it appears that Morocco’s balanced and moderate Islamic framework, reflected in its law, strives to achieve equilibrium by not completely closing the door to child marriage, while simultaneously restricting its practice. The key criterion is the girl’s capability for marriage, referred to as “eligibility” by Mounia Al-Taraz. To safeguard this principle, Article 20 was added, allowing for exceptions to the legal marriage age through a justified court ruling that outlines the interests and reasons for such an exception, after hearing the parents or guardians of the minor and consulting medical expertise or conducting a social investigation.

This intersection of religious, legal, social, and political considerations is also reflected in a report by the Economic, Social, and Environmental Council. The report highlighted the negative impact of early marriage on girls’ economic and social status and pointed out the increase in child marriages from 12,000 cases in 2020 to 19,000 in 2021. The Council, thus, recommended repealing Articles 20, 21, and 22 of the Family Code, which open the door to exceptions in the legal age of marriage. It justified this recommendation by the need to align Morocco’s legal framework with the Constitution and international agreements[30].

It is worth noting, however, that the same report identified weaknesses in the enforcement of conditions for granting exceptions rather than criticizing the exceptions themselves. This implies that addressing issues like the inconsistent application of social and medical assessments by judges could mitigate the negative effects of child marriage. Additionally, stricter enforcement is needed to prevent legal loopholes that allow underage marriages, such as informal marriages (Zawaj Al-Fatiha), which often result in children and later force the court to retroactively approve the marriage.

 

Polygamy

There have been increasing demands to completely prohibit polygamy, as it is seen as violating the principle of equality and causing harm to women. Some also argue that the low percentage of polygamous marriages in Morocco (0.66% of total marriage permits) is a justification for banning it entirely[31]. Many Muslims interpret the Quranic verse on polygamy as an unconditional permission for men to marry up to four women. However, Moroccan legislation references the well-known verse:
“And if you fear that you will not deal justly with the orphans, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]” [32].

Researcher Saeed Khanoush explored the alignment between the legal restrictions on polygamy in Morocco’s Family Code and the objectives of Islamic law. He argued that the permission for polygamy is linked to achieving justice between wives, which is difficult to guarantee. Therefore, if a man fears he cannot fulfill this condition, he is instructed to marry only one. Thus, Moroccan law aligns with the Islamic legislative intent and its principles[33].

Unlike the 1957 Personal Status Code, which did not impose restrictions on polygamy, the 2004 Family Code ensures the condition of justice by prohibiting polygamy in two cases: first, if the court does not find a valid and exceptional justification, and second, if the man does not have sufficient financial means to support both families and guarantee equal rights in terms of maintenance, housing, and fairness in all aspects of life. Additionally, the first wife must be informed, and she has the right to include a condition in the marriage contract prohibiting her husband from marrying another woman[34].

Some feminist activists argue that polygamy represents discrimination against women, as it disrupts gender equality, particularly in light of Article 5 of the International Covenant, which calls on states to “modify the social and cultural patterns of conduct of men and women, to achieve the elimination of prejudices and customary practices based on the idea of the inferiority or superiority of either sex”[35]. On the other hand, certain Islamic feminist groups view polygamy from a religious and social perspective. A study conducted by the Center for Family Studies and Research on Values and Law indicated that 80% of Moroccans support polygamy. The main reasons women accept polygamy include delayed marriage, economic vulnerability, “love between the two parties,” and men’s inability to bear the financial burden of marriage[36].

The study also highlighted instances of individuals circumventing the law to practice polygamy without legal grounds, such as falsifying bachelor certificates, engaging in unofficial marriages by changing residential addresses, or resorting to unregistered marriages (Zawaj Al-Fatiha).

From a religious standpoint, the Quranic text on polygamy was previously interpreted in a way that was influenced by dominant patriarchal cultures, allowing men to exploit their authority without restrictions. However, a more holistic and intentional interpretation of the same religious text has led scholars to establish legal frameworks that link the permission for polygamy to legitimate reasons and the fulfillment of justice. Despite this, challenges remain in aligning national laws with Morocco’s international commitments, as well as in the proper application of the legal exceptions that allow polygamy under certain conditions.

 

Child Custody

In the event of divorce, the law grants priority custody of children to the mother, followed by the father and then the maternal grandmother, until the children reach 15 years old. Afterward, the child is allowed to choose whether to live with the mother or father. The mother risks losing custody if she remarries and her new husband is not a relative of the child or the legal representative[37]. Feminist groups oppose Article 174, which revokes the mother’s custody upon remarriage, while the father retains custody rights even if he remarries. The mother can retain custody after remarriage, but only under conditions outlined in Article 175.

From a religious perspective, “the different schools of thought generally agree that women, particularly mothers, and grandmothers, have the right to custody of children in principle, though they differ on who has the greater right if a dispute arises between the parents”[38]. The Family Code provisions seem to align with the opinions of scholars, and the judicial precedent set by the Court of Cassation in El Jadida in 2011 upheld the best interests of the child. In that case, the court based its decision on Article 175, taking into account the strong attachment of the child to his mother and his medical condition (anemia), ruling that the child’s best interest was to remain with his mother despite her remarriage and the child being over seven years old[39].

Despite not sharing the same ideological foundations, it appears that both secular and Islamic feminist movements agree on not restricting a mother’s custody rights over her children. The Forum of Zahraa for the Moroccan Woman, in its memorandum, argued that “there is no justification for restricting women’s, particularly mothers’, right to custody because they are married to a non-relative.” The forum cited reasons such as the fact that the mother’s husband is considered a mahram (unmarriageable kin) to the child, which permits the child to remain with her mother and stepfather. The forum also highlighted the nurturing care of the mother versus the potential harshness of a stepmother as a reason why the father may not deserve custody. Additionally, it called for amending Article 182, which pertains to visitation arrangements, proposing that courts listen to both parents and appoint a social assistant if necessary to agree on a visitation schedule for the child[40].

 

Equality in Legal Guardianship over Children

Feminists denounce the discrimination in legal guardianship over children after divorce, pointing to the struggles many mothers face in obtaining documents or accomplishing tasks for their minor children due to the requirement of securing the father’s approval as the legal guardian. Religious scholars may base their stance on the concept of qiwama (guardianship) and the Hadith, “Each of you is a shepherd, and each of you is responsible for his flock,” to justify that legal guardianship and representation should rest with the father. Consequently, Article 236 of the Family Code states that “the father is the guardian of his children under Sharia, unless he is stripped of his guardianship by a court ruling, and the mother may attend to urgent matters for her children if the father is unable.”

While secular feminist movements base their arguments on the principle of equality between spouses, which implies equal rights and duties, including legal guardianship over children, some Islamic feminist groups argue that the issue lies with many neglectful fathers who refuse to cooperate with the mother out of spite, revenge, or as a bargaining tool, often making it difficult for her to fulfill administrative tasks for the children. Thus, the Forum proposed amending Article 231 to grant the mother custodial legal representation over her children, especially if it is proven that the father is being unreasonable in fulfilling his responsibilities.

Naturally, there may be occasional disagreements between divorced parents regarding the children’s best interests (such as changing schools). In such cases, resorting to the court can resolve the issue. This was demonstrated in Maysur in 2021 when the Deputy Public Prosecutor at the Court of First Instance granted a mother permission to transfer her children from one school to another (after the school principal had required the father’s presence as the legal guardian). The mother cited her disagreement with her ex-husband and explained that she had to move from the marital home to her family’s residence with her two children, necessitating the transfer of their academic records to a nearby school[41].

 

Division of Assets between Spouses After Divorce

The issue of asset division between spouses in the family system stems from the fact that, in most households, the husband is the primary provider. There is no legal requirement for the wife to contribute financially to the household, whether she works outside the home or not. Although the current Family Code suggests that the Moroccan family is based on shared responsibility, many of its provisions mandate that the husband is responsible for financial support [42]. The verse on qiwama (guardianship): “Men are the caretakers of women, as men have been provisioned by Allah over women and tasked with supporting them financially.” [43], reflects the Islamic conception of the family structure, defining the roles of men and women, and thus influencing the division of assets acquired during marriage in the case of divorce.

While the verse on qiwama has produced various interpretations among scholars, ranging from traditionalist to reformist and modernist, offering a broad spectrum of perspectives within the Islamic framework [44], secular feminists view qiwama as an obstacle to women’s empowerment, perpetuating their dependency on men. In this regard, Khadija Tahri, a member of the Free Women’s Union and a former parliamentarian from the Party of Progress and Socialism, stated: “We have called for the abolition of the concept of qiwama that governs the Family Code and all other laws because its continuation means maintaining provisions that reinforce women’s dependency on men, whether in financial support, divorce, marriage, or asset division” [45].

Legally, the challenge of asset division centers on determining what each spouse is entitled to after divorce. Should a woman’s work inside the home be considered a contribution to the accumulation of assets during the marriage? Does a wife who worked outside the home deserve the same as one who worked inside it? On what basis should each party’s contribution be calculated? Recently, rumors have circulated on social media that the law would allow for the equal division of assets between spouses. Abdelilah Benkirane, Secretary-General of the Justice and Development Party, warned that such a law would encourage women to create discord, prompting men to divorce them so they could claim half the assets, instead of waiting for their husband’s death to receive only a portion, especially if the wife worked outside the home. He cautioned that this could turn marriage into a form of business, rather than a relationship based on mutual respect as intended in Islamic teachings [46].

On the other hand, the Zahraa Forum pointed out that injustice often befalls women who work as housewives, as society and sometimes even the courts fail to recognize their contribution after divorce. This contradicts the Maliki legal opinion based on the principle of kadd wa sa’aya(joint effort and earnings), rooted in Ibn Ardoun’s fatwa, which is considered fair to women [47]. Despite differing legal frameworks, Bouchra Abdo, President of the Challenge for Equality and Citizenship Association, similarly called for recognizing women’s work at home as a financial contribution, emphasizing that this aligns with the “decisive direction of the 2011 Constitution concerning full equality between men and women” [48].

From the standpoint of equality promoted by secular movements, recent remarks by Minister of Justice Abdellatif Ouahbi stirred controversy when he emphasized that financial responsibility within the family should be shared between spouses and suggested that a financially capable wife should contribute to household expenses [49]. Nabila Mounib, Secretary-General of the Unified Socialist Party, echoed this view, arguing that since both men and women work today, and with the rising cost of living, wives must assist their husbands with expenses in a spirit of cooperation [50].

According to the Moroccan Family Code, one of the primary rights women retain after divorce is alimony during the waiting period (idda), as well as compensation (mut’a), although feminists reject this term as it objectifies women. The compensation amount is calculated based on the duration of the marriage, the husband’s financial capacity, and the reasons for the divorce. When it comes to assets, there is no clear legal concept of joint marital property, as Article 49 indicates that each spouse has an independent financial estate.

However, Article 49 also provides the option for spouses to enter into a separate written agreement, apart from the marriage contract, on how to manage, invest, and distribute assets acquired during the marriage. Statistics indicate that only 0.5% of couples sign this optional document [51]. In the absence of such an agreement, the matter is left to the discretion of the judge, who refers to the provisions of Article 49: “If there is no agreement, the general rules of evidence apply, considering the work and efforts of each spouse and the burdens they have shouldered in the growth of the family’s wealth.”

The consensus among many stakeholders is that amendments should focus on making it mandatory to sign an asset-sharing agreement at the time of marriage to prevent potential unfairness when the marriage dissolves. At the same time, there are calls to reconsider the current means of proof, which do not align with the intimate nature of a marital relationship, unlike other contractual relationships [52]. Achieving justice and equality in asset division after divorce remains largely within the judge’s discretion, as it is difficult to establish a uniform legal standard for all cases.

 

Review of Inheritance Laws

Some feminists explicitly demand “complete equality in inheritance, the abolition of ta’sib(agnatic succession), and the removal of religious differences as a barrier to inheritance” [53]. Many people simplify the issue of inheritance to the rule that “a male receives the share of two females” when it comes to siblings, reflecting the male’s financial responsibility and obligation to support his sister in the ideal Islamic family model. It is important to note that Islamic inheritance laws are not based solely on gender but rather on three key factors: the degree of kinship to the deceased, the generational level of the heir, and financial responsibility. This leads to the following outcomes: (1) In only four cases does a male receive double the share of a female; (2) There are numerous cases where females inherit the same as males; (3) In over ten instances, women inherit more than men; (4) There are cases where women inherit, and men receive nothing [54].

While the Family Code derives its inheritance laws from religious texts, civil and human rights advocates continue to express their views on the desired amendments. The issue of reviewing inheritance laws sparked significant debate in 2015 when the National Human Rights Council included a recommendation in one of its reports to “grant women equal rights in marriage, divorce, relations with children, and inheritance, following Article 19 of the Constitution and Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women” [55]. In 2022, the Council’s new president, Amina Bouayach, reiterated “the need for a rights-based framework for the issue of inheritance in Morocco, which could lead to new interpretations that support equality” [56].

It is noteworthy that the mechanism of ijtihad is present even among those advocating for the supremacy of international conventions, in an attempt to reconcile both references. This is reflected in the position of the Coordination for Equality, which states on its website that it is essential to “update the provisions of the Family Code related to wills and the distribution of inheritance in light of the permissive teachings of Islam, in line with the provisions of the Moroccan Constitution and the international agreements ratified by Morocco in this regard, and following the recommendations of our memorandum.” It is particularly striking that this coordination has provided an extensive discussion on the topic of inheritance, addressing various aspects and ultimately calling for a study of the Quran from a purposive perspective [57].

From the same Islamic standpoint, Amina el-Morabit, one of the prominent figures of Islamic feminism in Morocco, argues that the verse “a male receives the share of two females” is not equal in its division but is just in its intent, as it ties the brother’s share to his financial responsibility towards his sisters, while the sisters remain free to manage their own finances. Therefore, she suggests that this Quranic logic should be interpreted within its initial context, where the family structure is extended and traditional, placing the financial responsibility on the brother towards his sister [58].

In contrast, Mustafa Benhamza, the president of the Scientific Council in Oujda, rejects feminist calls to revise inheritance laws, viewing them as part of a larger societal, Islamic, and legal system that honors women and grants them many privileges compared to men. These include Articles 26 and 29 regarding the woman’s dowry, as well as Articles 167, 171, 102, 193, 194, and 198 concerning family maintenance, divorce, custody, and other secondary provisions that highlight discrimination in favor of women in rights and obligations before, during, and after marriage. Therefore, Benhamza believes that these are reasonable justifications for the unequal share that women receive, based on justice rather than equality [59].

Buthayna Qoruri, the head of the Zahra Forum for Moroccan Women, shares a similar viewpoint to Benhamza, asserting that the inheritance system relates to the overarching philosophy of Islam regarding family. However, she notes that the companions of the Prophet were more open to ijtihad in applying the rules of inheritance (as seen in the disagreement between Ibn Abbas and Ibn Mas’ud regarding the mother’s share). In general, Qoruri believes that ijtihad should depend on whether the verses are definitive in meaning or ambiguous, requiring interpretation. She contends that, upon examining reality, if there are provisions that result in injustice to either men or women, this necessitates the exercise of ijtihad by scholars to achieve justice. Furthermore, ijtihad in Morocco is a collective process involving all specialists who adhere to principles within the Islamic framework [60].

Alongside the demand for equality between male and female siblings in inheritance, the issue of ta’sib (agnatic succession) raises another dilemma. Feminist scholars, for instance, cannot accept that a deceased person’s brother can inherit a share if there are only daughters, despite his lack of contribution to the estate. Consequently, some fathers resort to registering their assets in their daughters’ names before passing away or writing a will regarding the distribution of their estate. In reality, cases of ta’sib do not only apply to males over females, as they are varied and subject to multiple considerations. Dr. Mohamed Ekij suggests that some inherited ta’sib matters should be subjected to ijtihad to align with contemporary challenges and ensure fairness for all family and community members, regardless of gender [61].

While the Islamic feminist movement emphasizes adherence to Islamic references and calls for “finding solutions to cases without clear, definitive legal texts to eliminate injustice and achieve equity” [62], some actors within the secular movement argue that the scope of ijtihad is broad. They advocate for modern interpretations of Quranic texts from figures like Mohammed Shahrour, Rifiq Abu Hafs, Rashid Ilal, and Said Kahl (the latter two participated in drafting a memorandum for the Coordination for Equality), which can bridge the gap between the two references. This encouraged them to propose the following recommendations to the committee reviewing the Family Code: 1) Allowing the owner of a property to distribute their estate among heirs through will, gift, or charity, and legally framing it to protect against judicial challenges; 2) Adopting equality as a general rule in the Family Code for dividing inheritance between males and females, using wills for those who adhere to the principle of “a male receives the share of two females”; 3) Abolishing ta’sib and adopting the principle of “reversion” in estate division when there are daughters in families without male offspring; 4) Legally stating that kinship is the criterion for the right to inheritance, not religious beliefs [63].

To frame the discussion on inheritance in Morocco, Mariam Yafout, a researcher in law and sociology, proposed a conceptual framework comprising three circles for dialogue among the different movements. The first circle utilizes religious and social arguments discussing aspects of the issue, ultimately concluding that while religion is just, society has changed. The second circle is typically secular, using legal and human rights arguments against religious arguments, creating a division and polarization of ideas without room for convergence. Thus, the third circle attempts to combine the two circles and models by invoking the objectives of Islamic law, which promotes justice and equity, alongside the current changing socio-economic context to create a common ground between the two thought binaries [64].

It is noteworthy that the aforementioned contentious issues relate to the challenges of the relationship between religious interpretations and feminist demands. However, the technical aspects play a significant role in achieving the objectives and goals that intersect both the religious and legal spheres. Overall, it appears that there is a consensus on recognizing that religious texts are key and cannot be overlooked in enacting any change, despite the multiple mechanisms and means of action that include legal advocacy, political activity, and civil society work, which are meaningful and have considerable influence.

 

From Religious Texts to the Family Code

In the context of the ongoing review presented to the Higher Scientific Council concerning the interpretation of religious texts and their applications to the Family Code, the “third current” of Islamic feminism emerges. This current is characterized by its detachment from political polarizations and its focus on the academic and theological fields to bridge differing viewpoints, serving as a significant expression of the need to reinterpret religious texts from a feminist perspective. In one of my previous articles, I noted that this process (the review of religious readings related to women), led by Dr. Asma Lamrabet in Morocco, faces two main challenges:

Legitimacy: This is evident considering that religious authority is concentrated in the hands of the state, which has institutions and mechanisms for producing and reproducing religious discourse, including the Ministry of Awqaf, the Mohammed VI Foundation for Imams and Guides, Al Quaraouiyine University, and the Mohammedan League of Scholars. Although Dr. Lamrabet previously headed one of the centers within the Mohammedan League of Scholars, her tenure was short-lived due to internal considerations that hint at a struggle and contention over sensitive issues like inheritance in Islam.

Credibility: This refers to the qualities possessed by those advocating for a rereading of religious texts. Dr. Asma Lamrabet is a doctor, and her writings (often in French) stem from her interest in women’s rights in Islam rather than from specialized training. As a result, some accuse her of intruding into the field to critique Islam from within, focusing on topics like gender mixing in mosques, hijab, and inheritance. Notably, most critics resort to attacking Dr. Lamrabet’s credentials as a non-specialist in Islamic jurisprudence rather than engaging with her ideas.

Dr. Lamrabet argues that jurisprudence is predominantly male-oriented in most religious texts concerning women, especially regarding marriage contracts, which are viewed as contracts of possession or ownership, linking male guardianship to women’s obedience. She found this perspective in the book of jurisprudence on the four schools of thought and noted that the Family Code of 1957 was influenced by it, particularly in its definition of the family as being under the husband’s care, restricting divorce to the husband except in cases of khula, not regulating polygamy, and failing to criminalize domestic violence. Dr. Lamrabet believes that this jurisprudence diverges from the moral vision of Islam. It is highly likely that she invoked this idea and published it in a Facebook post to encourage the Higher Scientific Council to try to distance itself from “male” legal opinions and to consider what she refers to as “the moral and egalitarian message in Islam.”

 

From Religious Texts to the Family Code

In the context of the ongoing review currently presented to the Higher Scientific Council regarding the interpretation of religious texts and their applications to the Family Code, the “third current” of Islamic feminism emerges. This current is characterized by its detachment from political polarizations and its focus on the academic and theological domains to bridge differing viewpoints, serving as a significant expression of the need to reinterpret religious texts from a feminist perspective. In one of my previous articles, [65] I noted that this process (the review of religious readings related to women), led by Dr. Asma Lamrabet in Morocco, faces two main challenges:

Legitimacy: This is evident considering that religious authority is concentrated in the hands of the state, which has institutions and mechanisms for producing and reproducing religious discourse, including the Ministry of Awqaf, the Mohammed VI Foundation for Imams and Guides, Al Quaraouiyine University, and the Mohammedan League of Scholars. Although Dr. Lamrabet previously headed one of the centers within the Mohammedan League of Scholars, her tenure was short-lived due to internal considerations that hint at a struggle and contention over sensitive issues like inheritance in Islam. [66]

Credibility: This refers to the qualities possessed by those advocating for a rereading of religious texts. Dr. Asma Lamrabet is a doctor, and her writings (often in French) stem from her interest in women’s rights in Islam rather than from specialized training. As a result, some accuse her of intruding into the field to critique Islam from within, focusing on topics like gender mixing in mosques, hijab, and inheritance. [67] Notably, most critics resort to attacking Dr. Lamrabet’s credentials as a non-specialist in Islamic jurisprudence rather than engaging with her ideas.

Dr. Lamrabet argues that jurisprudence is predominantly male-oriented in most religious texts concerning women, especially regarding marriage contracts, which are viewed as contracts of possession or ownership, linking male guardianship to women’s obedience. She found this perspective in the book of jurisprudence on the four schools of thought [68] and noted that the Family Code of 1957 was influenced by it, particularly in its definition of the family as being under the husband’s care, restricting divorce to the husband except in cases of khula, not regulating polygamy, and failing to criminalize domestic violence. Dr. Lamrabet believes that this jurisprudence diverges from the moral vision of Islam. [69] It is highly likely that she invoked this idea and published it in a Facebook post to encourage the Higher Scientific Council to try to distance itself from “male” legal opinions and to consider what she refers to as “the moral and egalitarian message in Islam.”

What poses a challenge for the scholars of the Higher Scientific Council is not simply classifying jurisprudence into two categories: one for “male” jurisprudence and another for “liberatory” jurisprudence. Rather, the challenge lies in determining the methodology adopted and the “correct” way to derive God’s intent from His verses, and in delineating the boundaries of permissible ijtihad (juristic reasoning) within the Islamic framework, so as not to undermine the Islamic reference on one hand, nor to fall into what is termed “rigid male jurisprudence” on the other.

To clarify, we initially acknowledge that Muslim societies throughout history and across locations have relied on Islam as a reference, but they have differed in understanding and applying religious texts according to various schools of thought, beliefs, and policies, resulting in different and sometimes contradictory laws and customs. In this context, we can invoke the problematic issue of the “correct” understanding of the verse concerning guardianship (qawamah) and its implications for law and society. This verse, “Men are qawamun (guardians) over women by [right of] what Allah has bestowed upon some over others and what they spend from their wealth” [70], has been subjected to interpretations that range from the traditional current, which sees it as implying the superiority of men over women absolutely under financial maintenance (as stated by Sheikh Ibn Baz) [71], to the reformist current, which attempts to assert that qawamah does not mean absolute authority and superiority for men, but rather a duty and responsibility (as advocated by scholars such as Sheikh Yusuf al-Qaradawi [72] and Muhammad al-Ghazali [73]), and finally to the modernist current, which seeks to enhance the status of women and empower them to be equal to men in rights and duties, in line with internationally recognized values with secular origins (represented by figures like Muhammad Shahrour [74]).

This variation in understanding the same verse is what keeps the door of ijtihad open, as researcher Mounia Talraz expressed: “As long as disagreement exists regarding the issue of qawamah, this means that the door to understanding is wide open for anyone who meets the conditions for reflection and ijtihad, and is available for research and deliberation for anyone qualified for this matter. If the demand for ijtihad is hindered, this signals a stagnation that particularly harms women, the family, and thereby the entire nation” [75].

Therefore, in connection with the current context and the Moroccan reality, we can speculate that the scholars of the Higher Scientific Council will be obligated to present a new understanding of qawamah, which the Iranian researcher Ziba Mir-Hosseini has described as “the backbone of the male model in traditional jurisprudence that influences all aspects of the spousal relationship within the family” [76], in alignment with royal directives, constitutional provisions, and in consideration of social transformations.

Scholars will certainly rely on Morocco’s religious constants to derive legal rulings on every issue, but this may not preclude openness to other schools of thought in ijtihad, as has occurred in several matters, including the ability of a mature woman to marry herself without a guardian, where the Hanafi opinion was partially referenced while the Maliki opinion was excluded [77]. Even within the Qur’anic text, women could not divorce themselves except through the process of khula, but with the advent of the 2004 Code, reliance was placed on the verse “And if you fear dissension between them, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause [their] reconciliation” [78], to establish the process of divorce due to irreconcilable differences, defined as “a deep and persistent disagreement between the spouses to the extent that it becomes impossible for the marital relationship to continue” [79]. Thus, it becomes clear that the Moroccan legislator extracted from the Qur’anic text what could be relied upon to achieve ijtihad in its laws. Consequently, many women were able to obtain divorce after it had been nearly impossible for wives, but accessible for husbands prior to 2004 (which increased divorce rates).

This paper argues that there exists a significant area of agreement between the general orientations of official Moroccan scholars and the Islamic feminist perspective advocating for a rereading of religious texts (the third path). This is evident through the four approaches adopted by most interpretive feminists, as summarized by researcher Aisha Hayat Allah in her book “Feminist Edges of the Qur’an,” where she contended that gender equality and religious texts are not governed by fixed and final understandings, but are always discursive, as they are derived from the reader’s experiences [80].

1. The Unifying Reading: This is a call to reflect on the creation of humans (male and female) based on equality before God, who should be unified and not associated with partners. Thus, placing men at a higher degree than women (and they have a degree over them) [81] or favoring the male gender (by what Allah has favored some over others) [82] is a form of association that creates a barrier between the servant (the female) and God Almighty. Therefore, the distinction between the genders should start from recognizing biological differences, rather than from preference or hierarchy. This is what Amina Wadud defended when she led men in Friday prayers at a mosque in New York in 2005, relying on the concept of “horizontal equality” in one of her writings [83]. Aziza al-Hibri emphasizes this idea, stating that “the principle of unification provides the foundation for the basic metaphysical similarity among all humans as God’s creations” [84].
2. The Comprehensive Reading: This calls for viewing religious texts as an integrated unit, where they explain each other to yield the correct outcome. For instance, it is unreasonable to extract the verse “So marry those that please you of [other] women, two or three or four” from the preceding and following verses that call for justice, “And you will never be able to be equal among wives, even if you strive to do so” [85]; justice is a condition for polygamy. It is also inappropriate to extract the verse about beating, “And strike them” [86], from the overall vision of the relationship between spouses in Islam, which states, “And among His signs is that He created for you from yourselves spouses that you may find tranquility in them, and He placed between you affection and mercy” [87].

This point was noted by Fazlur Rahman in his reference to Ibn Taymiyyah, who encouraged what is called “interpreting the Qur’an with the Qur’an” [88]. Fatima Mernissi proposed that there is a need for a synthetic perspective on religious texts, combining the principles of the Qur’an and the guidance of the Sunnah to uncover the true meaning of Islam. She argues that if traditional scholars had identified these principles, “perhaps they would have allowed Islam, as a civilization of the written word, to logically arrive at some kind of declaration of human rights” [89].

3. Contextual Reading: This involves a call to investigate the reasons for revelation and the circumstances surrounding the issuance of any ruling, as well as the feasibility of applying it to changing contexts, in addition to distinguishing between verses related to general wording or specific causes. In this regard, Asma al-Mirabit argues that Qur’anic verses can be divided into three types: 1) verses with universal objectives (calling for justice, equality, fairness, and dignity), 2) verses applicable only within the context of revelation (i.e., verses concerning issues such as slavery, capital punishment, or war captives), and 3) verses that need reinterpretation in new social contexts (such as those addressing women’s issues) [90]. Therefore, ijtihad is considered a key to finding solutions derived from religion that align with contemporary reality, forming the distinguishing element between tradition and renewal.

This contextual reading of Islam, advocated by many scholars and feminists, raises a profound issue as it intersects in some way with the ‘historical’ approach adopted by many proponents of contemporary readings of Islam, based on the notion that rulings change with the times [91]. This methodology is criticized for undermining the religious authority of the texts by failing to connect the past with the present, opening the door to interpretations that may justify bypassing definitive texts. Researcher WafaRouigel addressed this issue in her thesis, noting that extremism arises either among historical scholars who make revelation dependent on events or among conservatives who dismiss considering biography and history in interpretation [92]. Generally, the contextual reading remains significant as it is acknowledged by fundamentalists, who argue that a text has no meaning without context [93]. Additionally, this reading helps avoid incorrect interpretations through unjust projections [94] and enriches juristic reasoning by adapting to temporal changes, which ensures that Islam applies to all times and places, especially since it is linked to religious constants (the objectives of Sharia) [95].

4. The Objectives-Based Reading: This is inseparable from the demand for ijtihad connected to context, as there are stable objectives that remain constant despite varying circumstances, which must be achieved. Proponents of this reading, including Sheikh Ishaq al-Shatibi in his book “Al-Muwafaqat fi Usul al-Shari’a” [96], call for contemplation of the purposes of Sharia behind any ruling rather than focusing on the literal meaning. Based on this reading, many Islamic feminists, such as Asma al-Mirabit, argue that there is a need to distinguish between the sacred text from God (Sharia), which includes objectives and ethical guidelines for all Muslims, and human interpretations of this text in different contexts (fiqh), which often reduce sacred texts to rigid and unjust prescriptions [97]. One application of the objectives-based reading of Sharia aimed at achieving justice in inheritance, for example, is a case I heard about in which one male heir of two shares decided not to provide for his sister (which is a condition for receiving his two shares according to his interpretation). Out of his Islamic ethics, he decided to grant her a right that ensures her a dignified life instead of seizing both shares and leaving her dependent on others, justifying his actions by claiming that this is God’s law.

 

Conclusion

 In conclusion, this paper aimed to highlight the interactions occurring between religious readings and women’s demands in Morocco within the context of the High Scientific Council’s preparation to issue its opinion on matters raised in some proposals from the body overseeing the revision of the Family Code. It has become evident that the involvement of the High Scientific Council in this process carries a clear significance, referring to the pivotal role of Islamic reference in resolving certain contentious issues. The official religiosity represented by this council, through royal directives and the characteristics of Moroccan religiosity, will have the final word in maintaining control over the balance between different currents [98].

However, it is important to clarify that the situation transcends the reductive view that one side will triumph over the other in the ‘battle’ to amend the Family Code. The relationship between secular and conservative currents in Morocco is not one of binary opposition; rather, it manifests in various forms ranging from conflict to overlap and even fusion at times, despite fundamental differences in their references. This represents the awareness among all actors in the women’s domain regarding the centrality of Islam in resolving the controversies surrounding the previously discussed contentious issues. Therefore, one can observe a significant inclination among both modernists and conservatives to resort to the mechanism of ijtihad as a methodology to bridge viewpoints and confer religious legitimacy on demands that may derive from the ‘universal’ framework of human rights.

Given these factors, one can foresee that the role of the scholars in the High Scientific Council is to represent religious opinions concerning the disagreements among political factions, to bridge the gap between them on one hand, and to maintain the legitimacy and credibility they enjoy on the other hand. However, this role presents a genuine challenge akin to navigating through a minefield, requiring attention to the explicit wording of religious texts and their implications, in connection with the constitutional text and its manifestations in other laws, while also extrapolating the reality of Moroccan society to arrive at religious opinions that are not detached from their context and environment.

These elements form a puzzle that must be carefully pieced together to formulate responses that draw from Islamic references, harmonize with Morocco’s legal framework, and address real social issues. This challenge significantly involves achieving a consensus among references, given that Morocco has included in its constitution articles related to gender equality and has ratified several international agreements and protocols concerning women’s rights, yet remains deeply rooted in its religious references both constitutionally and through the king’s role as Commander of the Faithful.

The concept of equality reflects this dilemma at the legal level and its implications. Whether one considers its Western cultural connotation (complete equality), as summarized in Article 16 of the CEDAW Convention [99] ratified by Morocco, or its positioning in the Moroccan constitution linked to “the provisions of the constitution, the constants of the Kingdom, and its laws” in Article 19, it adds a level of ambiguity and vagueness to the topic, making the reconciliation between Islamic references and human rights treaties a complex matter. This complexity has manifested in most of the contentious issues we discussed, which do not have a single determinative reference in the Constitution. The latter states in its preamble that “international agreements, as ratified by Morocco, shall, under the provisions of the constitution and the laws of the Kingdom and its established national identity, take precedence over national legislation upon their publication, and efforts shall be made to harmonize this legislation with what such ratification requires.”

While Article 16 of the CEDAW Convention stipulates complete equality in rights and duties before, during, and after marriage, Islamic references entail distinctions in favor of women regarding dowry, maintenance, custody, and enjoyment, counterbalanced by inequalities in guardianship and inheritance. This can be understood as both an honor for women and a reinforcement of their dependency on men [100].

Regarding this topic, the outcomes of the scholars’ consultations in issuing their final opinion will take into account the social transformations within Moroccan society, which is characterized by diversity, intermingling, and even contradiction in its value orientations and behaviors. This subject was addressed in my doctoral thesis through a study of the representations of the values of equality and family cohesion among women’s organizations and Moroccan society, based on field research conducted in the Rabat region [101]. The issue of the relationship between societal transformations and the extent to which the legal system keeps pace with them remains relevant under the slogan “What Family Code for What Society,” as it is challenging to formulate laws that a society with diverse and contradictory perceptions and practices can adhere to—drawn sometimes from religion, sometimes from culture, and sometimes from Western values—resulting in a blend that social scientists have termed ‘patchwork’ or (bricolage), which the state may also adopt through Abdul Rahim Al-Atari’s phrase, “Modern institutions but with traditional practices, perceptions, and relationships” [102].

Consequently, what can be recommended is for the Moroccan legislator, the body overseeing the review of the Family Code, and especially the scholars of the High Scientific Council, to develop a clear vision on how to create the required harmony within the Moroccan social fabric without generating glaring contradictions that complicate the formulation of family laws. Concurrently, Morocco is required to find a compatible formula to align with the agreements it has ratified, but not under the logic of dependency and submission to Western recommendations, while also preserving Islamic references in the formulation of family laws, but not in a spirit of closure and imitation.

Here lies the role of reading the religious text; it is known that scholars will be confronted with definitive rulings in Islam, but also with a space (which they define the limits of) that allows them to exercise ijtihad. Moreover, this entails an awareness that the transition from text to meaning and then to laws resembles precision engineering or surgical operations, as it requires the application of methodologies and cognitive tools, some of which we have referred to (the unifying, comprehensive, contextual, and objectives-based readings). These readings encompass awareness of several internal and external considerations that can guide them in providing religious opinions regarding the contentious issues presented to them, which are seen as building blocks in constructing the new Family Code for 2024, pending the refinement of mechanisms and methods of implementation and practice.

 

Footnotes

 [1] The concept of the ‘third way’ originally pertained to political and economic fields, signifying a reconciliation between socialist extremism and capitalist extremism at the end of the twentieth century. However, it has been adopted in the women’s field to refer to the reconciliation between Islamic women’s extremism and secular women’s extremism by relying on a reinterpretation of religious texts. This concept will be detailed further in the body of the paper. [2] Kingdom of Morocco, “Throne Speech 2022.” Accessed on 02/09/2024, athttps://shorturl.at/IDHRP
 [3] Ahmed Chaouf. “The Religious Constants of Morocco: A Conceptual Introduction.” Website of Moroccan Religious Constants in Africa. Accessed on June 25, 2024, athttps://shorturl.at/SpELx. [4] Mohammed Amin Al-Saqa. “Rational Judgment in the Ash’ari School.” Portal of the Mohammadia League of Scholars. Accessed on June 25, 2024, at https://shorturl.at/HpdPi. [5] Farid Chakri. “Jurisdictional Ijtihad from Induction to Implementation: The Jurisprudence of Realizing the Context as a Model.” Portal of the Mohammadia League of Scholars. Accessed on June 25, 2024, at https://shorturl.at/MqXal. [6] “Sufi Sunni According to Imam Al-Junaid.” Mohammed VI Foundation for African Scholars. Accessed on June 25, 2024, at https://shorturl.at/Mdwe5. [7] “Statement from the Royal Cabinet.” Ministry of Justice. Accessed on June 28, 2024, athttps://shorturl.at/NpUUk. [8] From the Throne Day Speech on July 30, 2022. Accessed on June 29, 2024, athttps://shorturl.at/1wT6W. [9] Alexandra Pittman and Rabéa Naciri. “Winning Women’s Rights in Morocco: Cultural Adaptations and Islamic Family Law,” in Gaventa, John, and Rosemary McGee, Citizen Action and National Policy Reform: Making Change Happen. London: Zed, 2010, p. 176. [10] This was expressed by Samira Mouhia, president of the Federation of Women’s Rights Associations, in a statement to the newspaper Hespress. “The Moroccan Women’s Movement Urges Urgent Amendments to the Provisions of the Family Code.” Accessed on June 25, 2024, at https://shorturl.at/JUPRo. [11] See “For Comprehensive and Profound Change in the Family Code: Initiation of Consultations on Revising the Family Code.” Accessed on September 10, 2024, athttps://tanmia.ma/09-10-2023/59439/. [12] See https://shorturl.at/59KSo. [13] Hassan Al-Kattani. “Sheikh Al-Kattani Writes About: The Historical Development of the Moroccan Family Code.” (Website of Identity Press). Accessed on June 25, 2024, athttps://rb.gy/sh4ze0. [14] Memorandum from the Zahra Forum for Moroccan Women. “Our Vision for Amending the Family Code to Achieve Justice, Equity, and Family Balance and Stability.” Accessed on June 26, 2024, available for download at https://fz.ma/fileattach/1721302205.pdf. [15] See: Montasser Hamada, 2019, “Asma Al-Mourabit: A Third Option in Reading Muslim Women’s Issues.” (Website of Al-Dar). (https://aldar.ma/30085.html). [16] For more on this feminist trend, see: Ilyas Bouzghaya. “Women’s Rights and the Reconfiguration of the Relationship Between the State and Feminism in Morocco.” Accessed on June 26, 2024, at https://mipa.institute/8596. [17] See the published Master’s research: Ilyass Bouzghaia, The Feminist Movement and Social Change in Morocco: Trends and Impacts, by LAP LAMBERT Academic Publishing. Germany, 2012. [18] The meaning of the hadith “The child belongs to the bed and the adulterer is stoned.” Accessed on June 25, 2024, at https://shorturl.at/KRvpp. [19] From the ruling of the Court of Cassation “The Court of Cassation in Morocco Rules Negatively on the Parentage of the Natural Child.” Accessed on June 25, 2024, athttps://shorturl.at/Ljb2Q. [20] Article 32 of the Constitution. [21] Article 148 of the Family Code. [22] From the ruling of the Court of Cassation “The Court of Cassation in Morocco Rules Negatively on the Parentage of the Natural Child.” Legal Agenda (legal-agenda.com). [23] Memorandum from the Zahra Forum for Moroccan Women. “Our Vision for Amending the Family Code to Achieve Justice, Equity, and Family Balance and Stability.” Accessed on June 30, 2024, available for download at https://fz.ma/fileattach/1721302205.pdf. [24] Article 16 of the Convention on the Rights of the Child stipulates the need to protect children from early marriage and encourage the establishment of a legal marriage age for children. [25] Among the studies relied upon in the argumentation are those initiated by the Association for Rights and Justice and the Danish Centre for Research on Women and Gender (KVINFO). A report on the study is available at the link:. Accessed on October 2, 2024. [26] The fatwa on Sheikh Mohammed Al-Maghrabi’s site net.darcoran://http Fatwa section No. 371, and his statement “In response to secular newspapers and magazines that criticized God’s law regarding the permissibility of marrying a capable minor by Sheikh Al-Maghrabi.” Accessed on August 8, 2024, at https://shorturl.at/RNxiU. [27] “Marrying Minors… What Do Sharia Scholars Say?” Accessed on June 25, 2024, athttps://shorturl.at/hhOse. [28] “A Researcher in Qur’anic Studies: The Jurisprudential Discourse Confuses ‘Marrying a Minor’ with a Minor.” Accessed on August 8, 2024, at https://shorturl.at/0YkCQ. [29] Same source. [30] The Economic, Social, and Environmental Council. Opinion Report on “Child Marriage and Its Harmful Effects on Their Economic and Social Status.” Accessed on August 8, 2024, athttps://shorturl.at/Oaa6m.

[31] See the Women’s Labor Union website. “National Campaign for Updating and Revising the Family Code.” Accessed on September 10, 2024, at https://shorturl.at/D6UF5
 [32] Surah An-Nisa, verse 3 [33] Said K. (2020). Polygamy between Shari’a Controls and Legal Restrictions: A Comparative Study. Annales de l’universitéd’Alger, 34(1), 465-478.https://www.asjp.cerist.dz/en/article/114196
 [34] Article 44 of the Family Code [35] Abdel Salam Adib. “Moroccan Women Between the Family Code and International Human Rights Instruments.” Accessed on September 10, 2024, at https://shorturl.at/jobcO
 [36] See “Study: 80% of Moroccans Support Polygamy.” Accessed on September 10, 2024, athttps://shorturl.at/nk15x
 [37] Article 166 of the Family Code [38] “Who Has the Right to Custody of the Child in Islam?” – Islam Question and Answer (islamqa.info). https://shorturl.at/5bV0n. June 25, 2024 [39] See “Court of Cassation: The Marriage of the Custodial Mother Does Not Disqualify Her from Custody of Her Sick Child.” Accessed on September 10, 2024, athttps://shorturl.at/0ZAeS
 [40] Memo of the Zahra Forum for Moroccan Women. “Our Vision for Amending the Family Code to Achieve Justice and Equity, Balance in the Family, and Its Stability.” Accessed on June 30, 2024, available for download at https://fz.ma/fileattach/1721302205.pdf
 [41] Legal Memo Website. “The Public Prosecution Authorizes a Mother to Change Her Children’s School in Morocco.” https://rb.gy/j6t8eb. June 25, 2024 [42] For example, Article 102, which states “The wife may request divorce due to the husband’s failure to fulfill his obligatory maintenance.” [43] Verse 34 of Surah An-Nisa [44] Some interpretations of guardianship will be addressed in a later section. [45] “Proposals for Amending the Family Code… ‘Women’s Coalition’ Supports Equality in Inheritance.” Accessed on September 12, 2024, at https://shorturl.at/3ZFj3
 [46] A speech by Abdelilah Benkirane. Accessed on September 12, 2024, athttps://shorturl.at/EEvVv
 [47] The Wife’s Right to Labor and Contribution: A Study in Maliki Jurisprudence – Rabita Al-Mohammedia Scholars Portal (arrabita.ma). https://shorturl.at/OzPkF. June 25, 2024 [48] “A Women’s Body Demands Recognition of Women’s Domestic Work as a Contribution to Maintenance.” Accessed on September 12, 2024, at https://shorturl.at/UeEcZ
 [49] An interview with Abdel Latif Wahbi in the program “Special Dialogue” on Channel Two. Accessed on September 12, 2024, at https://shorturl.at/osTHp
 [50] “Monib: Millions as Deferred Dowry Left Behind and I Am with ‘Louiza’ and the Wife Must Help the Husband with Expenses.” Accessed on September 15, 2024, athttps://shorturl.at/J5ga9
 [51] Mohamed Al-Raji. “A Forum Supports the Idea of Sharing Common Property Upon Divorce.” Hespress Newspaper. December 24, 2020. Available at: https://shorturl.at/RvOEU
 [52] Mohamed Rachaaouch and Zainab Al-Janaini. Management of Funds Acquired During Marriage in Light of Law and Judicial Work. Zahra Series, Issue Ten. Available for download athttps://shorturl.at/ggkiI
 [53] Rights Advocates Insist on Amending Provisions of Inheritance, Marriage, and Divorce in the Family Code (hespress.com). https://rb.gy/nv33dg. June 25, 2024 [54] The Egyptian Fatwa House Website. “Can a Woman Have Unequal Shares in Inheritance in Islam?” Available at: http://eng.dar-alifta.org/foreign/ViewArticle.aspx?ID=120
 [55] “Equality and Gender Equity in Morocco: Maintaining and Implementing Constitutional Goals and Objectives.” Executive Summary – July 2015. National Human Rights Council Website. Available in English at https://shorturl.at/IfQy1
 [56] “Ms. Bouayach Calls for Legal Framework for Inheritance System in Morocco and Its Potential Implications for Promoting Equality.” National Human Rights Council Website. Accessed on September 13, 2024, at https://shorturl.at/ky16L
 [57] Equality Coordination. Memo for Inheritance Equality. Accessed on September 13, 2024, at https://shorturl.at/xjeMT
 [58] Asma Lamrabet. “The Justice Requirement Between Men and Women in Islam: The Inheritance Case.” In: Women’s Inheritance: A Multidisciplinary Perspective on Inheritance in Morocco. Siham Benchekroun (ed.). Trans. Empreintes Editions. 2017. p. 53 [59] Mustafa Ben Hamza. “Ben Hamza: The Happiness of Women in Choosing the Islamic Inheritance System.” Accessed on September 13, 2024, at https://shorturl.at/J5XBz
 [60] “Dr. Bouthaina Al-Qarouri, President of the Zahra Forum for Women Participates in a Debate on Inheritance.” Accessed on September 13, 2024, at https://shorturl.at/LxdfX
 [61] Mohamed Ikij. “Nassib in the Family Code: Objective and Methodological Observations – Din Press (dinpresse.net). https://rb.gy/m9s4zr. June 25, 2024 [62] Previous reference: Zahra Forum Memo [63] Previous reference: Equality Coordination. Memo for Inheritance Equality [64] MeriemeYafout. “The Debate Around Inheritance in Morocco: Strategies of Religious and Secular Argumentation.” In: Hassan Rachik (dir.), “Contesting Law: Communities, Families, and Inheritance in Morocco.” Casablanca: La Croisée des Chemins. 2016. [65] Ilyass Bouzghaia. “Islamic Feminism: Texts and Contexts, Cross Paths and Prospects” Published in 2016 within the proceedings of an international conference “Islamic Feminism in the Context of North Africa.” Organized by Mohamed I University in Oujda and the Center for Human and Social Studies and Research on May 17 – 18, 2013. [66] In an interview, Asma Al-Murabit stated that “the ‘Association’ was afraid that I would formally demand this request (reviewing inheritance provisions) in its name. For this reason, the conservative circles in the institution wanted me to officially relinquish my position or retract my statements. But I refused. I cannot say the opposite of what I write in my books and what I believe.” Accessed on September 15, 2024, at https://shorturl.at/BDXD6
 [67] “Asma Al-Murabit: A Lady of ‘Shock Therapy’ for Achieving Religious Reform.” Accessed on September 15, 2024, at https://shorturl.at/4dK1V

[68] Abd al-Rahman ibn ‘Awad al-Jazairi. “The Book of Jurisprudence According to the Four Schools,” Dar al-Kitab al-Arabi, 2005, Beirut, Book of Marriage. This book has been reviewed by a group of scholars from Al-Azhar. [69] Asma Lamrabet. “The Discrepancy Between the Ethics of Marriage in the Holy Quran and Jurisprudential Interpretations, Part One.” Accessed on September 15, 2024, athttps://shorturl.at/UgtuM
 [70] Surah An-Nisa, verse 34 [71] Ibn Baz. “What Does It Mean: {Men Are Guardians Over Women} and {He Chose Daughters Over Sons}?” Accessed on September 15, 2024, at https://shorturl.at/7SQdx
 [72] Yusuf al-Qaradawi on the program Sharia and Life, Al-Jazeera Channel, episode date 1997. Accessed on September 15, 2024, at https://t.ly/-hLJA
 [73] “Women’s Issues Between Stagnant and Incoming Traditions” by Muhammad al-Ghazali, pp. 155-156. [74] Muhammad Shahrour. “Towards New Foundations for Islamic Jurisprudence,” Contemporary Islamic Studies Series, No. 4, pp. 315 and onwards. [75] Mounia Al-Tiraz. “Towards a Sound Understanding of the Concept and Practice of Qiwamah.” Accessed on September 12, 2024, at https://shorturl.at/hBCJL
 [76] Ziba Mir-Hosseini. “Justice, Equality, and Muslim Family Laws: New Ideas, New Prospects.” In Ziba Mir-Hosseini et al. (eds), Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition. London: I.B. Tauris; New York, NY: Distributed in the U.S. and Canada by Palgrave Macmillan, 2013. Available at: https://shorturl.at/7HPnb
 [77] See the book “The Clear in the Family Code” by Muhammad al-Kashbour, Part One – Marriage. Third edition 2005. Al-Najah Al-Jadida Press. Casablanca. Page 30 [78] Surah An-Nisa, verse 35 [79] For more on this type of divorce, see: Amal Al-Murshidi. “Divorce Due to Discord According to Moroccan Family Law.” December 20, 2016. Accessed on October 5, 2024, athttps://shorturl.at/ZMPyD
 [80] Aysha A. Hidayatullah, Feminist Edges of the Qur’an. Oxford: Oxford University Press, 2014. [81] Surah An-Nisa, verse 34 [82] The same verse. [83] El-Farouk Khaki, “Expanding the Gender Jihad: Connecting the Dots.” In K. Ali, J. Hammer, and L. Silvers (eds), A Jihad for Justice: Honoring the Work and Life of Amina Wadud, (USA: 48HrBooks, Boston University Website). [84] Azizah Y. Al-Hibri, “An Introduction to Muslim Women’s Rights” in (ed) Gizela Webb, Windows of Faith: Muslim Women Scholar Activists in North America, New York: Syracuse University Press, 2000, pp. 51-54. [85] Surah An-Nisa, verse 3 [86] Surah An-Nisa, verse 34 [87] Surah Ar-Rum, verse 21 [88] Tamara Sonn, “Fazlur Rahman’s Islamic Methodology,” The Muslim World, volume 81, numbers 3-4, July-October 1991, pp. 212-230. [89] Cited in: Ghosh Huma, Ahmed. “Dilemmas of Islamic and Secular Feminists and Feminism.” Journal of International Women’s Studies, Vol. 9-3, May 2008, p. 65. [90] Asma Lamrabet, “An Egalitarian Reading of the Concepts of Khilafah, Wilayah, and Qiwamah,” in Men in Charge: Rethinking Authority in Muslim Legal Tradition, edited by Ziba Mir-Hosseini, Mulki Al-Sharmani, Jana Rumminger, (Oneworld Publications, 2015). [91] Marzouq Al-Amri. “The Historicizing Reading of the Prophetic Sunnah.” Volume 26, Issue 101 (2021). Contemporary Islamic Thought Journal. Available for download at:https://shorturl.at/CNa0E
 [92] WafaRouigel. “The Contextual and Situational Study of the Holy Quran Through Biography and History and Its Impact on Interpretation – An Applied Theoretical Research.” Originally a thesis was defended at the Dar Al-Hekma Foundation in Rabat on June 7, 2022, currently in publication. [93] Yahya Ramadan. “Contextual Reading Among Usuliyyin: A Reading in the Concept of Arab Habitus According to Al-Shatibi.” Accessed on September 15, 2024, athttps://shorturl.at/P9MBB
 [94] As occurred in the Hadith “A people will not succeed who entrust their affairs to a woman,” where the Hadith was said about the daughter of the Persian king, of whom the Prophet (peace be upon him) prophesied that she would not succeed in war. [95] Al-Muthanna Abd al-Fattah Mahmoud. “The Theory of Quranic Context: A Critical Denotation Study.” Dar Al-Nafaes for Publishing and Distribution – Jordan, 2022. [96] Al-Shatibi, Al-Muwafaqat fi Usul al-Sharia, Beirut: Dar al-Kutub al-‘Ilmiyya/Lebanon, 2004. p. 8 [97] Asma Lamrabet. “The Discrepancy Between the Ethics of Marriage in the Holy Quran and Jurisprudential Interpretations, Part One.” Accessed on September 17, 2024, athttps://shorturl.at/vCEIP
 [98] See: Ilyass Bouzghaia. “Women’s Studies of the Monarchy: Rearranging the Relationship Between the State and Feminism in Morocco.” Article published on the Moroccan Institute for Policy Analysis website (2021). Accessed on September 17, 2024, athttps://mipa.institute/8596
 [99] To download the convention: https://www.ohchr.org/sites/default/files/cedaw.pdf
 [100] For more on the topic, you can read my article “The Moroccan Women’s Movement, Qiwamah, and Equality.” Available for download: https://shorturl.at/a6UnH
 [101] An overview of the thesis: Ilyass Bouzghaia. “Discussion of the Doctoral Thesis of Researcher Ilyass Bouzghaia on Gender Equality and Family Cohesion Between Islamic Values and Feminist Agendas.” Accessed on October 5, 2024, at https://shorturl.at/VzVhX
 [102] Abd al-Rahim al-‘Atari. “Possibilities of Value Transformation: Negotiation Formats and Bricolage.” Accessed on September 18, 2024, at https://shorturl.at/M5awA