Keeping Women at Home: Colonialism and the Development of Modern Islamic Law

This paper proposes an approach to the history of family law reform in the Muslim world that takes account of the colonial context in which the modern construction of judicial structures and the codification of Islamic law had its beginnings. As Robert Crews argued for Russian Central Asia, so in French North Africa and British South Asia the colonial state did not preserve an unchanging Islam. Rather, the interaction of colonial officials with Muslim religious authorities “produced novel understandings of the sacred law.” The enforcement of marital cohabitation, a practice alien to Islamic law, illustrates how European ideas influenced the (re-)formation of modern Islamic family law. This paper documents the establishment of enforced cohabitation as a feature of Islamic family law in parts of the colonial Muslim world and beyond. In Egypt, however, enforced cohabitation was written into the law by reforming jurists, not colonial administrators, whence it influenced the development of family law codes in other Arab countries. Enforced marital cohabitation is known in the Middle East as “the house of obedience,” or bayt al-ta`a in Arabic. Though no longer in force, among Arab women bayt al-ta`a still exemplifies the worst of the traditional patriarchal order, and it is consistently described as a harmful custom inconsistent with Islam. The European origins of it have been thoroughly obscured. The aim of this paper is not to condemn colonialism nor to extol Islam, but to leave binaries such as these behind. The history of enforced marital cohabitation will be used to support the argument that the activities of Muslim reformers and conservatives in shaping modern Islamic family law cannot be studied in isolation, and that they should be understood in the context of colonialism.