Despite its relative neglect in the field of political science, family law presents a number of fruitful opportunities for exploring the ways in which history, institutional origin and design, path dependence, ideology, regime type, bureaucracy, social activism, language, and political performance matter for the study of law, legal institutions, and legal change. This comparative study of family law reform in Morocco and Jordan undertakes to clarify the impact of these factors, with a particular focus on institutional history; it is based on fieldwork in both countries, textual and archival sources, and interviews. Through the application of comparative case methods, textual and legal analysis, and state-in-society approaches at the domestic and international level, Dörthe Engelcke provides a rich methodological and analytic model for political and social scientists working at the intersection of law, politics, and religion.
Engelcke begins with the argument that an analysis of contemporary legal change requires an understanding of structural foundations laid during the French (in Morocco) and British (in Jordan) colonial periods, as well as institutional arrangements and political compacts made at the moment of independence and thereafter. Family law, in this historical analysis, was part of a larger project of state power, underwritten less by logics of tradition and religion than by questions of the type and degree of autonomy apportioned to judicial fields. A discussion of both national legal systems, in terms of legal reform and cultural capital, is followed by their contextualization within an increasingly loaded international legal climate. Here, Engelcke considers the impact of the Convention for the Elimination of All forms of Discrimination Against Women (CEDAW) on domestic laws in Jordan and Morocco, as well as divergent political responses to CEDAW. The book then goes into rich detail on the fate of law reform efforts in each case, paying attention not simply to codes but also to the work of legal and social actors, to state efforts at implementation and enforcement, to mobilization by NGOs, and back to engagements with the international.
Engelcke presents a remarkably rich, detailed, and context-laden account of continuity and change in both legal systems, made more admirable by its clarity of structure and narrative. In addition to its empirical matter, which is impressive, its particular analytic contribution is modeling an approach to the study of law that takes seriously its complexity. In this treatment of law, the text is neither the start nor the end of the analysis, but one component of a dynamic system with a range of actors, institutions, logics, languages, and effects, both domestic and international. Drawing on Pierre Bourdieu’s concept of “field,” Engelcke posits that interactions between the field of (executive) power and the juridical field explain the timing and nature of legal change. Thus, legal reform should be understood not simply as progress in a normative direction, but as change based on reconfigurations within and between fields. Engagement with CEDAW might also be read in terms of reconfigurations of cultural and political capital that did not routinely lead to the increased legal provision of gender equality.
In addition, Engelcke points out that the inclusion of a greater diversity of voices in the debate on law reform, beyond those of Islamic religious elites, similarly did not translate into policy impact in either case. In both cases, family law reforms achieved a greater degree of state control and intervention in social and family life, and both the process and texts of recent reform processes consolidated—and extended—the normative reach of Islamic terms and hierarchies, reaffirming the identification of family not merely as state law but also as Islamic law. Drawing on Talal Asad (Formations of the Secular: Christianity, Islam, 2003), Engelcke observes that the same process might be seen with regard to other religious communities, resulting in the equation of family law with religious law. For Englecke, this has consequences not only for the content of the law and its institutional instantiations but also for cultural capital. “Multi-religious societies with family law systems that are institutionalized along communal lines are not more socially conservative by default…these systems have become bastions of conservatism because they link communal privileges to a specific type of family law system” (p. 227).
Yet the legislative and textual picture is complicated by what happens when laws hit the ground, revealing the limitations of authoritarian states and normative hierarchies in light of competition between agencies of the state, multiple interpretations of the law text, and contestations by different women’s groups and social movements. “The state is not a unified actor that simply contests norms within society that are at odds with the state’s statutory law. Instead, different state agencies emphasize different aspects of the law” (p. 223). The same is true for different nonstate actors and groups.
The overall narrative raises important questions about the expansionism of the state into the field of Islamic law and the limits of that expansion, but here, a reader might have wished to see more of Engelcke’s rich material to further illuminate the ways in which the ambiguity of law and its complex social and political dynamics might facilitate or forestall efforts to achieve better outcomes for women. Perhaps a closer engagement with growing debates on the ability of legal change coded as “liberal” or “progressive” might have provided more insight into the practical and normative ambiguities of legal reform and of conservatism. This in turn might have allowed for more exploration of the critical questions that Engelcke raises in her concluding chapter about the complex links between the normative content of law, political and economic concerns at the national level, authoritarian negotiation, desires for stability, and interconnections with the international.
Engelcke concludes by making the case for further comparison beyond the MENA region, arguing against the prevailing exceptionalization of Islam and the Middle East in the study of family law. This study, by providing a clear methodological model that also delivers theoretically, makes clear the payoff for such work and raises a range of important questions to investigate.
