While Islamic law was strong on issues related to property rights, commerce and trade, and contract enforcement, among others, Kuran argues that Islamic inheritance laws, which are geared to giving heirs an equitable share of a person’s fortune, resulted in the break-up of estates. By contrast, inheritance laws in the West, such as primogeniture which gave to the oldest son the entire estate, may have served as the basis of capital accumulation, economies of scale, and the retention of economic power across generations. Kuran also states that the “Islamic inheritance system benefited wives and daughters, who lacked inheritance rights in pre-Islamic [periods].” (p. 31) Long chastised for inequality of inheritance rights between men and women, such a statement is interesting. In fact, for long periods of time, Muslim women had more rights.
Ferguson’s book focuses on six crucial factors he calls “killer apps,” which gave Western societies a formidable push to develop faster than the rest of the world over several centuries. The apps are: competition, science, property, medicine, consumption, and work ethic.
My critique is that while nothing can be disputed about the importance of the points put forward by both of authors, both leave out an important element – namely women’s empowerment and the economic contribution this enabled. Until the start of the 20th century, the quality of life in much of Europe and America was little different from that in much of the rest of the world, measured in terms of access to water, energy, education, life expectancy, child and maternal mortality. The West jumped ahead of the rest only in the last century, after changes in the law began allowing women to make their full contribution to the economy.
The impact of liberating – albeit gradually and still incompletely – half a society should not be underestimated. As the Economist’s article of December 30, 2009, put it:“Women’s economic empowerment is arguably the biggest social change of our times….the economic empowerment of women across the rich world is one of the most remarkable revolutions of the past 50 years.” Similarly, the Economist’s cover story of Apr 12, 2006:
Forget China, India and the internet: economic growth is driven by women:… the increase in female employment in the rich world has been the main driving force of growth in the past couple of decades. Those women have contributed more to global GDP growth than have either new technology or the new giants, China and India. [1]
In much of the Western world, a misconception prevails that Western women have always had superior economic rights to their peers elsewhere, and that Christianity has been devoid of gender discrimination. Not so. On the contrary, women in much of the Muslim world were ahead of their counterparts in the West for much of the past 1400 years. They had an unequivocal right to inheritance – even if their share was only half that of men. They were further ensured total financial independence in the management of their assets, own property, enter into legal contracts, with no interference from any male kin (the Sharia forbids men to interfere if it is against a woman’s wish).
By contrast, women in Western societies had little claim to inheritance, financial independence, or property, as they were subject to the laws of coverture. From the early Middle Ages, traditional English common law divided women into two groups. Adult unmarried woman were considered to have the legal status of feme sole (femme seule), while married women had the status of feme covert (femme couverte). An unmarried woman had the right to own property and make contracts in her own name. But on marriage, a woman’s separate legal existence disappeared: it was subsumed into that of her husband, leaving her very few recognized individual rights of her own. A married woman could not own property, sign legal documents or enter into a contract, or obtain an education against her husband's wishes. If she worked, she was required to relinquish her wages to her husband. The husband could use, sell, or dispose of her property (unless pre-marital provisions had been made) without her permission. These restrictions had implications in practically all other legal domains, including child custody, nationality laws, labor regulations, and banking laws.
Coverture was enshrined not only in the common law of England but also in the laws of the United States and many other legal systems that were influenced by English common law. It persisted until the 19th century, when “married women's property acts” started to be passed in many English-speaking legal jurisdictions, setting the stage for further reforms. In the United States, many states passed such acts. One of the first was enacted by Connecticut in 1809, to allow women to write wills, but a few states kept the law of coverture on their books until early 20th century. Yet, coverture continued to influence other laws, only overturned bit by bit after the 1970s with the ACLU’s Women’s Rights Project. The time line of the strategic Supreme Court cases that slowly chipped away US women’s secondary status is an interesting and must read, because many of the changes that are now taken for granted, and assumed to exist for centuries, but only happened not too long ago.[2
Women, and most importantly wealthy fathers who did not have male heirs, did not sit idle throughout the ages. A host of schemes were put in place to circumvent coverture laws. In her article on ‘Coverture and Capitalism,’[3] Amy Louis Erickson suggests that:
The peculiarities of the laws of coverture had two consequences for the development of capitalism. First, the draconian nature of coverture necessitated the early development of complex private contracts and financial arrangements, accustoming people to complicated legal and financial concepts and establishing a climate in which the concept of legal security for notional concepts of property (the bedrock of capitalism) became commonplace. Second, without the inhibiting effect of legal guardianship, England had up to fifty per cent more people able to move capital purely because that market included the unmarried half of the female population in addition to the male population.
So, what happened in MENA? Starting in the early 19th century, MENA powers embarked on massive reform programs, e.g. thetanzimat in the Ottoman Empire, or the reforms in Iran. Embodied in these reforms were a number of Western legal and administrative concepts, and outright copying of laws. Many of these imported laws and regulations, on citizenship, pension, and labor laws etc., constitute the “civil status code” as opposed to the “personal status code,” the latter being Sharia-based.
As explained above, at the time of their importation to MENA countries these laws were heavily gendered in the West. But as the West stepped gradually away from them, MENA stepped into them in the name of modernization, and over time such Western-originated discrimination began to be justified and interpreted in the name of Islam.
The West’s removing barriers to half of its population and the ‘Rest’ not doing could not be an insignificant contributing factor in the “divergence.” While both Kuran and Ferguson have poignantly identified many key factors in the divergence, both overlook the important element of empowerment of women.
[1] (http://www.economist.com/node/6800723)
[2] (http://www.aclu.org/womens-rights/timeline-major-supreme-court-decisions-womens-rights)
[3] (History Workshop Journal - Issue 59, Spring 2005, pp 1-16)
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