Saturday, January 5, 2019
Islam Abdel Magid recently published an Article entitled, Gender Equality: Islamic Law and Legal Validity, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
The regularly heated debate on personal status issues, especially for its connection, with a broader discussion about Shari’a or Islamic law, and its relation to positive laws and legal practice usually run in a vicious cycle between two conflicting tendencies, the first sees Shari’a as a major impediment to modernizing family laws, according to the stander of gender equality, while the other rejects the reform of these laws under any consideration except in the context of maintaining the legal and moral particularism, which is reflected in the principles of Shari’a, or at least its peremptory provisions. Certainly, the committee of “Individual Freedoms and Equality Report ”(IFER), sponsored by the Republic of Tunisia President, where is charged with examining the legal reforms related to the most controversial issue, the equality of inheritance between women and men opens a broad horizon for readdressing the issue of gender equality in Arab countries, particular Tunisia and Egypt. Indeed, the conflicting two tendencies on the content and the border of legal reforms, ignore together the importance of social facts in determining the validity of laws, in favor of focusing on the one hand, stander of natural rights and the insistence on the relationship between ethics and Islamic law, from another hand. This trend in western academic circles represented by e.g. Wael Hallaq and Talal Asad. On the contrary, I attempt to reconsider the relationship between the Islamic Law and the legal positivism i.e. the thesis that law existence and content reflect in one way or another the social facts. And discuss the evolution of the contemporary Arab laws between attempts to revive Islamic law and receive Western/European laws. Finally, defend the basic hypothesis in this paper; that the validity of the laws, regardless of their moral sources, are linked to their suitability to the degree of development of social facts, noting that this relationship between laws and facts is not a compatible, but rather a matter of dialectic and emancipation.