Law on the Books vs. Law in Action: Under-Enforcement of Morocco's Reformed 2004 Family Law, the Moudawana

Abstract

Morocco shares cultural, religious, and linguistic roots with more conservative countries in the region, yet the Moroccan government has interpreted similar traditions to yield the starkly different stance that gender equality is desirable. Morocco’s Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women. Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its fidelity to other Islamic law principles in giving Moroccan women unprecedented rights. While the new Moudawana has provisions addressing inheritance, children’s rights, and assets within a marriage, this Note focuses on the provisions on marriage and divorce because they provide the simplest and most accessible illustrations of the law’s effects in practice. Part II, with the aid of original, qualitative data gathered in rural Morocco, posits that the Moudawana is not enforced universally, and that under-enforcement likely results from deeply entrenched societal factors, as well as more immediate influences. Part III proposes steps for further reform which would better account for the complex realities of rural life in Morocco, as well as the fact that the Moudawana affronts many local value systems, undermining its efficacy. A basis for the proposed reforms is one human rights NGO’s experimental paralegal program in Sierra Leone, which works to reconcile rights-based law with rural cultural norms.

Keywords: international law, women's rights, human rights, Islamic law, law and religion, rural development

JEL Classification: 130