1. A Complicated Process
Morocco gained its independence from France and Spain in 1956.39 Following independence, conservative clerics pushed to return the entire legal system to Islamic law.40 King Mohammed V compromised with the conservatives, modernizing the civil and criminal code, but allowing the Mudawana to remain the legal authority for family law.41 The Moroccan government codified the Mudawana in 1957.42 The same year, Mohammed V publicly unveiled his oldest daughter—but not his wife—signifying to the next generation of Moroccan women that Islam was compatible with modernization.43
King Hassan II ordered the first Mudawana reform in 1993 by dahir (royal decree), rather than reforming the code through the parliamentary process.44 As Laura Weingartner notes, King Hassan II’s commitment to human rights and social reform was a largely empty promise.45 Perhaps unsurprisingly, the majority of Moroccans considered the 1993 Mudawana reforms insufficient, failing to meet the expectation of meaningful reform.46
In 1999, King Hassan II died and his son Mohammed VI assumed the throne.47 In October 2003, King Mohammed VI proposed substantial reforms to the Mudawana, which the Moroccan parliament ratified in January 2004.48
The Mudawana is the only major area of the otherwise secular Moroccan legal system based on Shari’a and not civil law.49 This discrepancy stems fromFrance’s strategy for controlling Morocco during its colonial occupation.50 The French learned through their experiences with Algeria that ruling through local leaders and leaving cultural values relatively intact was more effective than attempting a wholesale subjugation of the country. Indeed, co-opting local leaders proved a more expeditious means to achieve economic and political control.51 Thus, during the colonial period, Moroccan family life and social structures went largely undisturbed, and family law and the regulation of women remained under the authority of Islamic law.52
When King Mohammed VI announced his intentions to reform the Mudawana, he encountered strong resistance from conservative Islamic groups.53 The conservative resistance to reforming the Mudawana viewed this reform as an illegitimate altering of a largely uncorrupted Islamic legal source.54 While the French occupation may have secularized much of Islamic law within Morocco, the Mudawana remained a final stronghold of Islamic authority.55 In addition, challenging well-defined patriarchal norms in any society typically provokes a response from the conservative aspects of the patriarchal hegemony. Challenges to intimate aspects of social and cultural life often produce the strongest response. Accordingly, strong conservative resistance to reforming the Mudawana was predictable.
King Mohammed VI’s strategy to overcome this resistance demonstrated considerable political acumen. Mohammed VI acted as a capable politician by reaching out to Moroccan women, particularly women’s rights organizations within Moroccan civil society.56 In doing so, he established public support from his constituents before enacting a controversial legal change. Mohammed VI was also careful to ground his justifications for reform in Islamic law.57 In his first public speech following the Mudawana reforms, Mohammed VI cited the Qur’an to support increasing women’s rights in marriage.58 He then used a similar justification to defend changes that restricted polygamy.59 Justifying social and legal reform through Islamic law was imperative to legitimizing these actions.60 As Weingartner writes, “[t]he need to find scriptural, or equivalentother religious support for reforms with regard to the position of women in Moroccan society cannot be underestimated.”61 Indeed, within Islamic states, legal reforms that do not have a strong basis in Islamic law are unlikely to succeed. For example, the reformed Mudawana does not recognize a marriage between a Muslim woman and non-Muslim man, as the Qur’an clearly prohibits this union.62
Reforming the Mudawana, and thus recognizing much stronger legal rights for women, illustrates a fundamental tension within Morocco and many Islamic states: the need and deep desire to modernize the state and society and the equally strong desire to retain a strong Muslim identity.63 As Weingartner writes, “[c]oncurrent with the goals of economic and social modernization, however, is a deeply-rooted and lasting desire on the part of the Moroccan people to maintain a distinctly Muslim identity—an identity that at once meshes with notions of democracy, plurality, secure political and legal rights and privileges.”64 As discussed above, King Mohammed VI succeeded in securing ambitious women’s rights reform largely by using Islamic law to legitimize his arguments65 and by characterizing these reforms as striking the balance between modernity and Islamic values that Moroccan society demands.66
Following the Casablanca bombings on May 16, 2003, Mohammed VI delayed instituting the Mudawana reforms after large public protests opposed them.67 Conservative critics accused the king of bowing to pressure from the United States and Europe.68 The close timing of the bombings to the implementation of the reforms allowed the conservative Islamist opposition to argue that expanded women’s rights were a Western value that Mohammed VI, a complicit political leader, was willing to impose on Moroccan society.69 This strategy ultimately failed, but it underscores a troubling pattern, where conservative Islamist parties that oppose strengthening women’s rights attempt to equate reform with Western appeasement.70 Instead of evaluating the merit of the proposed reforms, conservative opponents attempt to dismiss them by reflexively characterizing them as Western.71 Fortunately, in this example, this strategy failed.72 Most importantly, the Mudawana reforms suggest that by grounding reform in legitimate Islamic legal principles, the conservative strategy of dismissively labeling reform Western is defeatable.
Finally, while the Mudawana reforms would not have succeeded without strong support from the king, the work of women’s rights civil society organizations was also imperative to realizing this reform. Combined with the king’s top-down political support, women’s rights organizations created a bottom-up grassroots campaign that laid the foundation for this reform.73 Part IIA will discuss the role of these organizations.