A. The Impact of Custom and Islamic Heritage on Women's Rights

1. Customary Law

This subpart analyzes the role of customary law in the Palestinian community, in particular with respect to women's rights in the period prior to the beginning of the intifada. There are a whole range of offenses concerning the status of women, who are considered repositories of family and clan honor. Female chastity and purity must be maintained or it is a great disgrace to the family and clan. These norms must be understood in the Palestinian social context where custom and religion are intermingled. Historically, women, particularly upper and middle class women, were ideally to be secluded in their homes, behind veils, or more recently hijab (headscarves). The clothing and the seclusion protected the woman and man from her sexuality, which was seen as the cause of fitna or disorder. Woman "is the polarization of what can not be controlled: her sexuality is a lurking danger with a threatening potential." Therefore, fitna means both beauty and turmoil at the same time.

The birth of a girl was not a joyous occasion, since it is through the birth of sons that the father's line is continued. Education was very limited for most girls, and was separate from boys. After puberty, clothing had to cover most of the body, including hijab (head scarves) and long skirts. Girls were customarily married soon after puberty in an arranged marriage, often to someone in the same hamula, since marriage was the uniting of families, not only individuals. This kind of marriage reinforced kinship ties, kept land in the family, and also entailed paying a lower bride price (mahr) to the woman. Mahr is an amount of money given by the bridegroom to his wife that she keeps for her own use. It is not the sale of the bride to the husband. He does not get to keep or control the money. There was no equivalent of the western adolescence involving dating and social fraternization with the opposite sex. Failure to prove virginity after the wedding night would be a family embarrassment. A wife's status would be enhanced in the new family and the community by the birth of a son, ideally within a year after the wedding. She becomes known as Um (mother of) her oldest son's name, i.e. Um Khalil. The subsequent production of more sons further embellished her status. An adult woman could not live independently, and had to live either with her father's family or her husband's family. If divorced, she had to return in disgrace to the father's home. She had to be always under the authority of a male relative. Depending upon the family or the area, many of these customs still apply today.

A case of honor (qadiyat arad) is synonymous with sexual assault against women. These cases are heard by special customary adjudicators known as manshad (one who is implored). There are only three manshads in the West Bank and the position tends to be retained within certain families. The judgments can run into the thousands of Jordanian dinars, which is still the currency of the West Bank. The amount depends upon such factors as whether the violation was physical or verbal, whether she was fondled through her clothing, or her dress was actually lifted, and the distance the violation occurred from her home. If the violation is felt to be the woman's fault, the men in her "dishonored" family would feel customarily justified in severely punishing her or even killing her. While the jurisprudence is urf, it is represented as being consistent if not identical to Islamic law, an example of the intertwined nature of the two traditions. Actually, none of these arad determinations are covered by Islamic law.

In the view of feminist scholars, the differential treatment of women under custom is due to the ongoing existence of patriarchy. This stems from historical realities where the physically strongest were responsible for the protection of the family. Thus, gender roles were consigned in such a way as that men were the protectors and providers and women were the child rearers and nurturers.

This customary condition intensified in the context of various occupatby Ottomen, British, Jordanians, Egyptians, and Israelis. Custom and religion became psychological and social refuges against foreign penetration, providing the basis to confront or at least survive the incursions. These also were traditions with which the occupiers tampered the least, being primarily concerned with areas affecting their ability to physically or militarily control the population.

This history of multiple occupations has further reinforced the subservient role of women. One of the few areas within the purview of the subordinated men was oversight of their women. For example, if men were asked why they would not let women have more freedom they would say, "What is left for us? We don't have land, homes or identity - at least let's have our honor." Additionally, the protection of arad (honor) was intertwined with the protection of ard (land). According to Egyptian feminist Dr. Nawal el Saadawi, one of the factors that caused some Palestinians to leave the West Bank during the 1967 war was the perceived need to protect the honor of their women. Thus, loss of control over the all important public aspects of male lives, including land, was counterbalanced by the maintenance and strengthening of male control over private aspects, including female lives. The centrality of honor thus could remain intact in the private sphere.

Women have often supported the notion of their own subordination, especially in the context of foreign occupation that threatens the entire social fabric. While a few may see female liberation from male patriarchy as inextricably linked with the national liberation struggle, many more women, including the politically active, may be concerned with day to day physical and mental survival under the combined impact of both patriarchy and foreign domination. Like many men, these women will find reliance on custom as both necessary and desirable, one area where their own culture is reaffirmed. As one female political activist said, "If a family can not educate all the children, the man must be chosen, because he will be the breadwinner and the head of the household."

In conclusion, custom and customary law in the Palestinian community are based upon patriarchy that has resulted in women's continued social and legal subordination. Men govern the public and private lives of women, often limiting them to their historical roles as nurturers and repositories of family honor. The intifada has somewhat affected this situation.

2. Islamic Religious Law

This subpart adds to the above analysis of the role of custom by detailing the impact of the Islamic heritage on women's rights in the period prior to the intifada. With respect to the rights of women, the sharia was a vast improvement over seventh century customary law. Rather than being regarded as the mere chattel of their husbands, women were given an independent legal personality, and allowed to own and inherit property in their own right. The sharia also restricted polygamy to four wives, permitted women to obtain divorces on certain grounds, and provided for maintenance. While these rights may not currently appear significant in the western world, they must be viewed in an international historical context in which they compared quite favorably, up until the nineteenth century.

On the negative side, the sharia sanctions differential treatment of women. They only receive half the inheritance share of a man of the same degree of relationship to the deceased. A man can have up to four wives, but a woman only one husband. As long as polygamy or the threat of it exists, women are constrained to agree with the husband and his family. An "offensive" woman may find a new wife in the home sharing the resources and the affections of the husband. Under custom, she also must reproduce the desired sons as quickly as possible, so that she will not be replaced. A man can divorce his wife at will, while the wife must have grounds. An example of a disagreement between the four jurisprudential schools concerns the ability of a wife to divorce her husband. The Hanbali school limits this option to the man's inability to consummate the marriage or his vanishing for so long that he would be ninety years old if he returned. The other schools are more liberal and permit the wife to divorce if the spouse has a disease, is cruel, or deserts her. There are other differences among the schools. Hanafi and Shiite are more progressive on the rights of women to contract marriage, whereas Malikite is more progressive on the issue of women obtaining divorces.

Men have the right to beat their wives if they do not submit, and the wives must submit and endure his punishments. Muslim women must marry a Muslim man, but a Muslim man can marry Muslim, Christian or Jewish women. Custody is only awarded to women if the children are very young. The notion of qawama, or guardianship also has affected the status of women. It has meant that women could not have authority over their own lives and could not hold general public office because they would supervise men.

In the Middle East, sharia courts do not independently interpret personal status matters directly based on the Koranic sources. Most countries have adopted the European Civil Code model and have personal status codes that are at least partially based on the pre-existing jurisprudential school. Since Jordanian law still generally applies in the West Bank, the sharia courts there are utilizing the 1976 Jordanian Law of Personal Status which is based upon the Hanafi school of jurisprudence.

Since it is this code which Palestinian decisionmakers will have as their starting point for making future modifications in women's rights, an overview of its provisions is appropriate. The law determines that the age of legal capacity for marriage is fifteen for women and sixteen for men. Following the qawama concept, a woman marrying for the first time must obtain the consent of her closest male relative from her father's side, regardless of her age. A woman must also have a male guardian, or wali, contract the marriage, whereas a man can do it for himself. If there is no male relative, the sharia judge may act as guardian. The law also reiterates the principle that Muslim women may not marry non-Muslim men. Also, the marriage contract must have at least one male witness, and it takes the testimony of two women in lieu of one man. The mahr, which exists under both custom and religion, must be paid to the woman, and she does not have to use it to furnish the home. One of the problems, however, is that the father or grandfather is authorized to receive the amount on behalf of the bride, which clearly invites abuse and incidents where women do not receive their mahr.

The law provides that the husband has the obligation to support his wife, and she has the corresponding duty to obey him (taa). The husband does have the duty to provide for the wife items such as housing, food, clothing, and medication. Polygamy is permitted, and the man does not even have to inform his other wives of his intent. He cannot, however, house them on the same premises without their specific consent. It has been estimated that the rate of polygamy is 5-10% in some villages. The wife must move wherever the husband specifies, and loses her maintenance rights if she disobeys. She cannot leave the house, even to work, without permission, or she loses her maintenance as well.

With respect to divorce, the law permits the husband to unilaterally divorce his wife with no judicial action (talaq). Divorce starts as a revocable event and later becomes permanent. Husbands can divorce a wife three times without fully terminating the marriage, just by the oral announcement, "I divorce you." The wife must wait a three month period (idda) before she can remarry, but if the husband changes his mind within the three months, she must resume the marriage. The divorce is final only if he divorces her three times on three separate occasions. Each time a husband dia wife, she has to leave the house since it belongs only to him. The wife is entitled to alimony to meet minimal needs. If the sharia judge with whom the husband registered the divorce thinks the divorce was arbitrary, he can order compensation of up to one year's alimony. Needless to say, the divorced woman is often in a financially precarious position. As previously stated, custom dictates that she return to her father's home in disgrace.

As under general sharia principles, Palestinian women can only divorce under Jordanian law if they meet one of the authorized grounds: impiety; incurable skin or sexual disease; mental disease; desertion of more than one year; inability to pay mahr; inability to provide maintenance; or inability of the wife to live with the husband. If the divorce is requested on medical grounds, the husband is given one year to get medical advice. The divorce is only granted if the husband does not recover during the year. Unlike the traditional doctrine, beating also constitutes a grounds for divorce. The law does allow the wife to specify in the marriage contract that she can get divorced without judicial process. She can also stipulate that polygamy is a grounds for divorce or that she has the right to work. Such stipulations are rarely made, indicating either a reluctance to defy local custom or a lack of knowledge about this option.

With respect to child custody, the purpose is to insure that the children remain in control of the family of the father. The ex-wife can keep the children until they reach puberty, unless she remarries before then to someone outside her husband's family. Then she may lose custody of a son at age nine and a daughter at age eleven.

Since religious courts have often been ineffectual due to an Israeli military prohibition on enforcement of their orders, much of the work of the courts in the Territories has been currently supplanted by institutions of the intifada. Women activists see replacement of the sharia norms with egalitarian civil legislation as a critical step that would improve the status of women. On the other hand, more traditional women have said: "Our role as women is clear . . . We are able to raise scores of courageous men . . . It is the women's obligation to bring up her children in the true Islamic way - to spur them on to Jihad in the path of God to elevate the glory of their religion."

In conclusion, the sharia as codified by the Jordanian Personal Status Law and intermixed with customary practice has contributed to the continued legal and social subservience of women. As is the case with custom, the status quo has been altered to some degree by the intifada. The next part of the article addresses three interrelated ways that custom and religion can be modified to meet the professed national goal of ameliorating women's status constitutionally.