This article contributes to a growing literature on the implementation of shariʿa-derived state legislation in Egypt by exploring how differently positioned divorced mothers navigate Egypt’s highly gendered personal status codes under circumstances where many men are increasingly unable to discharge their part of the ‘patriarchal bargain’ due to a shortage in affordable housing. We highlight two discrepancies between legislative rules and social practice: The first is the divergence between state law and everyday norms, and the second looks at the limits of implementation and compliance in terms of actions taken by courts and other officials. We consider how and why Muslim personal status law reforms have sought to enhance divorced women’s bargaining position in the family where the relevant laws often have unintended, unforeseen and contradictory consequences when it comes to divorced custodian mothers’ access to housing.
In most Muslim-majority countries, Islamic normativity underwent a process of “positivization” completely altering the sense which is made of these norms and the ways through which they are obtained. This article aims to deepen our understanding of this phenomenon through a comparative examination of an issue addressed in classical fiqh, partly legislated in modern statutes and codes, sensitive to the progress of scientific evidentiary methods, and largely at judges’ discretion. It proceeds, for each of the three countries under study (Indonesia, Egypt, and Morocco), to describe the situation, starting with the legal system, family law, and the question of paternal filiation (ithbât al-nasab, in Arabic), then paying attention to the “trajectory” of a recent case, from first-instance decisions to final rulings. In conclusion, it focuses on the room that the combination of fiqh principles and contemporary legal sources and thinking opens for creative analogy, radically innovative interpretation, and polycentric tensions between various jurisdictions.
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