By Imen Neffati
Located on the Western tip of the Arab world, Tunisia shares with Algeria and Morocco certain historical and cultural characteristics. They are all Arab Islamic societies of Berber ancestry. They all experienced a period of French colonization before becoming independent nation-states in the mid 1950s to the early 1960s. And, crucially, nowhere in the Maghreb was there a broad-based, grassroots women’s movement demanding the expansion of women’s rights; rather, such action came from the top.
In Tunisia, national family law took the form of the Code of Personal Status (CPS) in 1957, a series of progressive laws aiming to establish equality between women and men in the public and the private domains, and instituted by Habib Bourguiba, the first President of Tunisia after independence in 1956. 
The Code, drafted (even before the Constitution) by fifteen jurists —all Arabic speakers, under the supervision of the Minister of Justice Ahmed Mestiri— outlawed polygamy and abolished repudiation. It entitled women to file for divorce on the same grounds as men, and increased mothers’ custody rights. In the years following independence, women obtained the right to work, move, open bank accounts, and establish businesses without the permission of their husbands. The Code was followed by other endorsing measures: the contraceptive pill was made freely accessible throughout the country. July 1st 1965 saw a law allowing abortion, for social as well as medical reasons. Wearing the veil at school was also forbidden.
High-profile religious leaders protested. A fatwa of fourteen members of the former Islamic tribunal denounced the new policies as ‘religiously reprehensible and incompatible with the Quran’, to which Bourguiba responded that ‘this change represented a choice in favour of progress …the end of a barbaric age and the beginning of an era of social equilibrium and civilization, [we must] fight anachronistic traditions and backward mentalities.’
The Code was thus revolutionary, with one exception: inheritance law, which remained unchanged and based upon Islamic principles. Bourguiba yielded to conservative wishes, ignoring pressure from his entourage and members of his government who wanted to reform inequality in heritage. Muslim scholars explain this by looking at Islamic law in its entirety, which bestows the responsibility and accountability on men to provide for women.
Another explanation is that Islam decrees that women, upon marriage are entitled to a ‘dowry’ from the husband (in addition to any provision by her parents). The ‘dowry’ is, therefore, essentially an advance of inheritance rights from her husband’s estate (the CPS clearly kept the dowry as it was).
In 1956, upon gaining sovereignty, Tunisia faced pressure from two authoritative spheres when it came to developing its national institutions: the immediate kin-based community or tribe,and the world Islamic community. I believe that the kin-based structure of Tunisian society in the pre-colonial and colonial periods was an important factor in the failure of the CPS to modernize inheritance/property law.
In fact, until the beginning of the twentieth century there had been a history of tension between whichever social group held power in the political centre, and autonomous local collectivities resisting its control. Pre-colonial states, with varying degrees of administrative capacity, expanded and contracted depending on how much control they could have over tribal areas on the periphery. The resistive nomadic way of life is often glorified in Maghribi culture, and even today, it is not uncommon to hear that whoever has Bedouin blood (i.e., nomadic ancestors), belongs to the authentic core of Maghreb society.
Reflecting on the importance of kin-based solidarities in the Maghreb, there has recently been a revival of the work of Ibn Khaldun (1332–1406), who was concerned with what held a collectivity together, gave it strength and power, and prevented its atomization. His concept of asabiyya, is useful for the analysis of Maghrebin society. Asabiyya is often translated as “solidarity” with an emphasis on unity and group consciousness. A more accurate translation, proposed by David Hart, is ‘unifying structural cohesion’ or ‘agnation in action’.
What mattered for the history of any group was the strength of its asabiyya: its ‘unifying structural cohesion’ based on ties among agnates, or male kin in the paternal line. The groups with the greatest asabiyya were those best capable of resisting control by others, including central authority, sometimes even displacing central authority altogether. The French anthropologist Germaine Tillion captures this linkage between kinship and politics effectively, referring to the many ‘republics of cousins’ in the traditional political order of the Maghreb. Throughout the Maghreb after independence, political leaders faced the challenge of transforming locally based societies into centrally integrated nation-states.
As is the case with other world religions, Islamic principles and local cultures have intermingled over the course of history. This has combined with various interpretations of the original texts by religious scholars to give rise to different schools of thought within Islam.
The school called Maliki has historically predominated in the Maghreb because it has been the best adapted to the social structure of Maghribi societies, allowing them to adopt Islam with minimal adjustments to kinship structure so that it conforms to the extended patrilineage. According to Emile Felix Gautier : ‘It is not the Maghreb that ‘Islamized itself . . . it is Islam that ‘maghrebized’ itself.’
As the old Tunisian saying goes: ‘Angels and men work towards unity. The devil and women work towards division’. This captures the culture of kinship in the country. Two contradictory principles have historically operated: a principle of unity, based on ties among men in the agnatic lineage, and a principle of division, introduced by the necessity of accepting into the kin group a number of women from other lineages.
The particularism of conjugal units represents a potential threat to the solidarity of the agnatic kin group, since conjugal units may break away and thus bring division. Many of the social norms governing kin and gender relations have functioned to strengthen the unity among the men of a lineage and to keep at bay the threat of division, symbolized by women. Clearly, when women marry into a different family, they should be restricted on how much property they are allowed to take out of their own lineage and in to the husband’s lineage.
In one of his most famous speeches in Jericho in 1965, Bourguiba explained his policy as follows: ‘It often happened to me to resort to the “policy of stages” when I found myself in the obligation to be the master of certain situations’. Bourguiba is famous for refuting the policy of the ‘whole or nothing’ that characterised the Arab world political vision for a long time – particularly in the Israeli-Palestinian conflict.
CPS did not radically change the inheritance law but it did eradicate the vision of the family as an extended kinship group built on strong ties crisscrossing a community of male relatives, and replaced it with the vision of a conjugal unit. Bourguiba never pretended to be a radical.
Imen Neffati is a PhD student currently at the end of her first year of study. Her thesis, Beyond Charlie: Anticlericalism and Freedom of Speech, explores how stock themes and images migrate across the anticlerical press, challenging contemporary boundaries of good taste and ideas of radical and moderate politics. She has previously been awarded the Fulbright Scholarship 2012-13 at the University of Scranton Pennsylvania, where she also taught Arabic at intermediate level. Imen has also taught EFL with the Ministry of Tunisia. Find her on Twitter at @Carmen_2505.
 Habib Bourguiba, Tunisia’s first president, argued that family laws in Tunisia were a ‘state matter, an act that must be supervised by public law and society in its entirety’.
 After independence, Bourgiba ruled until 1987. He is known as the liberator and negotiator of independence from French colonisation. He was very progressive, and made Tunisia an exception in the Arab world in terms of liberties. In my own opinion, he turned into a dictator in the 1970s and 80s.
 The term ‘fatwa’ means a ‘formal legal opinion’. Although in the West the term is frequently understood as a death sentence against those who blaspheme, its actual definition is much broader.
 The Koranic text was clear: ‘A male’s share shall equal that of two females’. Surat Al-Nisaa (fourth chapter) verse 11.
 The term “tribe” refers to the social organisation based on kin grouping which constituted the basic community in the Maghreb, where there are entire regions in which individuals continue to identify themselves as members of a tribe.
 The tracing of common descent exclusively through the male line.
 Four major legal schools have developed within the dominant Islamic Sunni tradition. They present slight, yet noteworthy, variations in legal regulations pertaining to women, family, and kinship. The four schools are also called the four “rites” of Islam. Imam Abu Hanifa of Kufa, Imam Malik bin Anas of Medinah, Imam Muhammad al-Shafi of Medinah, Imam Ahmad bin Hanbal of Baghdad. Religious authorities within each school consider different scholastic interpretations of the doctrine acceptable and trustworthy.
 A group of descendants traced through men on the paternal side of the family
President Habib Bourguiba: Wikicommons
Bourguiba removes veil: ina.fr
Bourguiba surrounded by women: Wikicommons