By Nathan J. Brown

1996:  Preliminary draft

 

At least since the days of European imperialism, treatment of women in the Arab world (and the Muslim world more broadly) has been portrayed as both a major feature and cause of social retrogression.  Islamic law in particular is often depicted as operating on women in particularly unfavorable ways. While such images are not always inaccurate they are incomplete.  In recent years, our understanding of the Arab world has been enriched by new attempts to understand women as agents who craft their own lives and history, even as they operate within sharp social, cultural, and legal constraints.[2]  Yet this newer approach has yet to penetrate our understanding of how law operates in the Arab world.  Writings on law and gender are varied and rich but they suffer from silence on two issues. 

First, Islamic law receives extensive attention at the expense of other legal systems.  The attention given to Islamic law is understandable.  It generally informs personal status law even in countries that have adopted European-inspired law codes.  Since personal status law governs areas like marriage, divorce and custody, it is often the only area of law that treats women specifically and deliberately as women; other areas of law are generally gender-blind in their explicit language (though not necessarily in their application).  Yet personal status law, while critical in women’s lives, does not wholly define their legal position.  Civil and criminal law are based far more on European than Islamic sources in almost all of the Arab world; considerations of law and gender that focus exclusively on Islamic law and personal status thus miss much of the legal environment that governs women.[3]

Second, writings on gender and law in the Arab world often focus on the law as it is written less than the law as it is applied; even when the latter draws attention the law is seen as something that operates upon women.[4]  Since all civil and most criminal legal actions require an aggrieved party to bring a dispute to a court, the police, or a prosecutor, the paucity of research that examines women as potential legal actors is puzzling.[5]   This silence is even more striking given the tremendous interest in law-and-society scholarship on matters like litigant strategies, forum shopping, and resistance to or through the law.[6]

My purpose in this essay is to bring some of the newer approaches on women as agents to bear on our understanding of law in the Arab world.  In particular, I wish to pursue two arguments that are contrary to much of the tone of writings on law and gender in the Arab world.  First, law in the Arab world allows women substantial latitude for negotiation.  Even when the legal system places them on unfavorable terrain (as it frequently does), women have a part to play in defining their position.  Second, women often maximize their positions by exploiting the operation of several different areas of law.  They do so not simply by shopping for the most favorable legal (or non-legal) forum to resolve their problem, but by resorting to several fora simultaneously in order to improve their bargaining position.

I have selected two areas where women would seem to (and indeed do) operate on particularly unfavorable legal ground:  marital disputes in Egypt and mistreatment of domestic workers in Kuwait.  For unhappy wives in Egypt and mistreated domestic workers in Kuwait, the legal system holds out limited protection.  It does, however, also hold out choices.  Understanding how the law works depends on understanding how women make choices and exploit the limited opportunities available to them.

Women, Divorce, and the Law in Egypt

Egyptian marriages are of course very often based primarily on love, but they can never escape economics; if they become troubled they often do not escape the courts.  A web of personal- status law, customs (some based on the law, others designed to minimize its effects), and intensive pre-marital bargaining forms the backdrop to all marriages.  Divorces occur within the same framework, but it is not at all unusual for informal family intervention and the criminal law to play roles as well.  (The law and practice for Egyptian Christians are very different, and divorce is extremely difficult.  This section concerns only Egyptian Muslims.)

Egyptian personal-status law is based on Islamic law and an Islamic conceptions of marriage as a contractual agreement between a husband who pledges support and a woman who pledges obedience.[7]  The law in Egypt thus shares essential features with personal-status law in other predominantly Muslim countries.  But the law has been codified since 1929 (with a law of procedure actually codified earlier in 1897) and has undergone some substantial changes since then.[8]  Even as codified in 1929, the law gave substantial rights to a wife to divorce from her husband if he failed to provide support or caused her harm.  The husband’s right to divorce his wife is virtually without legal restriction, although Egyptian personal-status law does include procedural requirements designed to insure that he will not do so recklessly.  (Technically, a husband can directly divorce his wife; a wife does not directly divorce her husband but asks a court to order divorce.)  In 1979, President Anwar al-Sadat issued a decree-law giving the wife stronger guarantees; when the Supreme Constitutional Court ruled in 1985 that al-Sadat had exceeded his constitutional powers by failing to submit the decree to parliament, a new, slightly diluted law, was duly passed.  Two of the principle changes adopted in 1979 and 1985 were to make it easier for a wife to claim harm (and thus demand a court-ordered divorce) if her husband married a second wife and to require that the husband provide housing for his divorced wife and children still under her care.  A further change implemented gradually in the 1960s and 1970s related to bayt al-ta‘a [literally, “house of obedience”].  A husband whose wife has left his house (as will be seen, joint property is virtually unknown and housing is usually is provided by—and belongs to—the husband) can ask a court to order her return.  Formerly, such an order could be forcibly implemented by the police.  Over the past three decades that practice has virtually disappeared, but a wife who ignores a bayt al-ta‘a order will forfeit many of her legal rights.

The impact of the law can only be understood in the context of Egyptian customs and bargaining related to marriage.  Since husband and wife retain separate ownership, much of the pre-marital bargaining concerns what each side will bring to the marriage or pledge to the other.  In general, a husband is expected to provide an apartment and major appliances.  A wife may provide some of the furnishings for the apartment.  A husband also is required to pay a mahr [bride-price] to his wife (or to her family to hold in trust for her), often consisting of two separate amounts.  The mahr muqaddim [advance bride-price] is paid at the time of the wedding.  A mahr mu’akhkhar [delayed bride-price] is also sometimes pledged to be paid in the event of divorce (or death).  A husband is also expected (and required by law) to provide financial support for the family; so long as the husband provides the proper home and support, a wife is expected (and required by law) to live with her husband.

These arrangements leave tremendous room for bargaining and protracted financial negotiations to precede (and often prevent) a wedding.  With housing scarce and expensive and financial resources tight for all but the very affluent, the families of the bride and groom are generally very anxious to ensure that the needs and interests of their side are guaranteed; they are also careful to safeguard the interests and property of their side should the marriage end in divorce.  The social standing of the two sides, the earning power of the groom, and quality of housing he can provide all affect the outcome.  As a result, although the law would seem to give a husband far greater divorce rights than a wife, the situation in practice often depends on the arrangements made in advance of the marriage and the nature of the marital difficulties.  If a wife can show harm—perhaps because of physical or verbal abuse (or, since 1979, because the husband marries a second wife)--she will not only be able to divorce her husband, but may also be able to demand the mahr mu’akhkhar, child support, and housing.  If, however, she leaves her husband and is unable to satisfy a court that she is justified, she may face a bayt al-ta‘a order giving her the choice of returning to the home she fled or forfeiting most of her financial rights.

The result is that a troubled marriage often erupts in a tangled web of lawsuits and even criminal charges, which in turn provoke formal and informal attempts at mediation.  For instance, in order to substantiate charges of harm, a wife will sometimes go to the police to swear a statement that she was subject to physical or verbal abuse.  A husband will seek to gain an advantageous legal position by filing a bayt al-ta‘a suit to make clear to the wife that she will face potentially disastrous financial consequences unless she returns.  A creative spouse can find a variety of ways to invoke personal-status, civil, and criminal law on his or her behalf; such attempts generally provoke a similar set of moves by the other spouse.[9]  What is especially noteworthy is the wide variety of fora that are employed, often simultaneously.  Husbands and wives will deal directly with each other, use the mediation of relatives and friends, and use the criminal, civil, and personal-status courts in complex strategies to obtain (or prevent) a divorce on the most favorable terms.

The following case illustrates how litigants can use the courts and informal mediation (and even physical violence) in a protracted and bitter breakup of a marriage.

Case 1 (Informant:  Friend of husband; relative of wife[10])

A friend of mine married my relative; she was studying to be a teacher.  He was from a poor family, from a sha‘bi [popular] neighborhood.  After the engagement they quarreled over money and over her friends.  He lived with her for about two months after the wedding.  He lived in the same apartment building as his father.  Whenever somebody would visit her, his relatives would look on.  That annoyed her.  She liked to go out with her friends and he forbade that.  She wanted to help out her family because her father was old.  He refused to help.  They had a bad quarrel, and her family intervened.  Then things really got bad—he was barred from her family’s house.  Not even the police could help.  After the end of the school year he was beating her every day.  She wanted to go out; he did not want her to go out.  She left him.  She demanded a divorce from him but he refused.  He filed a ta‘a suit against her and charged her with khiyana [betrayal, in this case infidelity].  She filed a suit demanding divorce and possession of the furnishings [that she had provided], claiming that he had taken them.  He denied that he had them.  We tried two or three times [to settle], but she wanted her furnishings.  One of her relatives, a good, older man, was helping.  They [the husband’s family] attacked him [verbally] in the street.  He raised a slander suit.  Once the husband saw his wife in the street and quarrelled with her.  He grabbed her.  He had to pay a fine.

The suits went on for four or five years or more.  A session, another session, the lawyer did not show up, then the lawyer would come but the witnesses did not show up, then they came but the judges delayed the case.  It was delayed once or twice a month.  At the end he won the ta‘a suit [requiring her to return], but she refused [to return] unless they would find a new house far away from his family.  He refused.  They [the wife’s family] appealed to the High Court for divorce.  She did not abandon the suit for the furnishings, but he won it because she did not return to his house.  They kept on going for more than seven years.  She would file a case, he would file a case; from one case to another all the way to the High Court.  After seven years, the court ruled for divorce.

While it is impossible to ascertain the extent of physical violence in family relationships, the courts tend to take the matter extremely seriously.  Battery is not simply grounds for divorce but also a criminal offense; if a wife charges battery she exposes her husband to criminal charges even while strengthening her rights to a divorce.  A husband might also charge that a wife’s family has beaten him.  Thus, criminal and civil cases often are intertwined, as the following case demonstrates.

Case 2 (Informant: Husband’s uncle)

A young man, a house painter, fell madly in love.  He was a youth, with all those feelings.  They got married.  He got a simple apartment with simple furnishings.  There were problems, but there was love.  Her mother would come to stay for a week or a month.  Naturally, a man wants to stay in a house by himself.  Then her sister came.  That is where the problem began.  So she went to her mother and siblings for a month.  He said he would not give her money for household expenses.  She left him [for good].  He filed a [bayt al-ta‘a] suit against her.  She swore a mahdar [statement] that he had beat her and had not been paying household expenses.  They went to the police station.  He denied beating her and withholding the money, but he hit her in front of the police officer.  They made out a mahdar there.  Later he saw her walking in the street with a man.  He then agreed with a friend to go to the police station and complain that the friend had been having an affair with his wife.  The officer did not believe the story; the husband went crazy and hit the officer.  He was summoned to the police station [for having hit the officer].  He went to another officer, whose house he had painted, to intervene.  They dropped the complaint after he apologized.

I went with him to his apartment.  There was nothing there—even the pictures on the wall were gone.  He asked his friend who had a shop in the building about it, and he told him that his wife had come and taken everything.  He asked his friend how he could sit back and watch that happen.  Then he insulted and hit his friend.  He went on to his wife’s relatives.  They were butchers.  There was a fight.  When he got home he found threats written in blood on the walls.  He did not complain to the police because he wanted to get even.

He divorced her and paid support [nafaqa] of LE 60.  They had a son.  When he turned 12, the husband filed suit to obtain guardianship, as was his right.  He wanted to get the boy so that he would no longer have to pay support to his wife.  But the boy did not want to go, so the judge ruled that the boy would stay with his mother.  The husband still pays the support.  He has brought suit to reduce it.  The ex-wife wants to get remarried but does not want to lose the support payments.  That case is still going on.  She brought proof of poverty, and he brought proof that she is living well.

The husband filed a suit to gain the furnishings [from the apartment the couple had lived in].  They inspected the apartment to make sure it was empty.  His friend the police officer advised him to get witnesses that she had taken what was there.  But he could not get evidence.  Everyone was scared of her family.  The case is still going on.  It has lasted five years.  The case about the beating is still going on as well.  The ex-wife has also sworn a mahdar that he brought women to the apartment.  She has said she would drop her cases if he drops his regarding the furnishings and guardianship of the son.  He wants to get rid of the case.  He wanted to get married again, but the ex-wife’s family went to his prospective bride’s family, and the marriage fell through.

Working-class and middle-class Cairenes tend to be very aware of the provisions of the personal-status (and other relevant) law, and this affects their actions both before a marriage and in the course of a marital conflict.  Thus some of their strategies are essentially preemptive—to gain stronger bargaining position in case marital difficulties occur.  This takes the fairly obvious form of carefully recording the material obligations of both sides in a written marriage contract, but it can also take more subtle forms.  In one instance, a fiancee’s engagement seemed about to collapse in an argument over finances and her prospective groom’s wish to travel to Saudi Arabia to work.  She therefore insisted that he write her a check for the value of the household furnishings he had pledged to provide.  (In Egypt checks are often used not to exchange money but as guarantees of good faith, or they are post-dated and used as promissory notes.)  He agreed, but when the engagement finally collapsed he withdrew the money from the bank account.  She then took the matter to the police, because writing a check without sufficient funds is a criminal offense punishable by a jail sentence.  Her family then used the criminal case to increase their bargaining power.

The extensive use of the courts by working- and middle-class Cairenes in marital disputes suggests that the formal legal system is hardly seen as the forum of last resort.  With the prolonged nature of litigation surrounding divorce (according to one estimate, the average life of a divorce case in the courts is seven years[11]) early resort to the courts is almost necessary.  Yet the courts are hardly seen as a forum of first resort either.  The various methods for settling marital problems—formal and informal, direct and manipulative, obvious and inventive—are all used, very often simultaneously.  The courts and the legal system have become part of the social landscape, not simply accepted but actively sought out by those with severe marital difficulties.[12]  Indeed, it is probably the affluent who can afford to take a more reticent attitude towards the courts.  When difficulties in a marriage occur, the material conflicts of less wealthy Cairenes (over apartments, furniture, and child support) can be less pressing and more easily resolved informally outside of a legal framework.[13]  Once the courts have been introduced into a dispute, their role tends to escalate partly because of the actions of the parties themselves:  suits provoke countersuits; criminal charges are filed to buttress a civil claim; appeals and delaying tactics insure that the matter can be postponed for a momentarily disadvantaged party.  And Egyptians are aware not only of the provisions of the personal-status law available to them but also other legal provisions (including the criminal code) whose relevance to marital dispute is made obvious only by the ability of litigants to invoke them.  Hardly passive actors, even those with a relatively weak legal position devise tactics to make their claims on property, spouses, or custody of children.

For Cairenes involved in marital problems, the legal system is not an alien, hostile, or terrifying presence but a potential ally or a set of tools.  Some of these tools are generally helpful to one side and some to the other, but all are used, sometimes early and sometimes often.

Domestic Workers and the Law in Kuwait

While the use of domestic labor has been fairly common since the beginning of the oil era, initially it was most common to hire males from other Arabian peninsula states where there were bonds of language, culture and religion.  Yet with the spread of oil wealth throughout the peninsula, other sources of domestic labor were found.  Initially males from the Indian subcontinent were most common but in recent years (especially with the increasing child care responsibilities given to domestic labor) women, especially from South Asia and the Philippines, have been brought into Kuwaiti homes.[14]  The cultural, linguistic, and sometimes religious gaps between employer and employee can be great, and the effects of use of such labor on domestic society is a frequent topic of discussion in the Kuwaiti press.[15]  By 1993 the number of domestic workers in Kuwait exceeded 168,000.[16]  Incoming domestic workers were split almost evenly between males and females.[17]  About 35,000 were from India and 22,000 from the Philippines.[18]  Sri Lanka and Bangladesh are other major sources of domestic labor.

Domestic workers throughout the world have few legal and non-legal protections available to them, and their situation in Kuwait is no exception.  At first glance, in fact, Kuwaiti society would seem to offer even fewer tools to domestic workers than is the norm.  Labor legislation offers little to domestic workers and contracts are extremely difficult to enforce.  This situation is very common globally, even in industrialized countries with wide-ranging labor legislation.[19]  Kuwaiti domestic workers appear to be at an unusual disadvantage, however, in the absence of any cultural, linguistic, and even religious ties (though a small number are Muslim) with their employers.  Indeed, while domestic workers are entrusted with significant household responsibilities, Kuwaitis have generally ben ambivalent about the heavy reliance on foreign labor.  This is especially the case with child care where domestic workers play a prominent role despite strong reservations among most Kuwaitis.[20]  Few Kuwaitis refer to domestic workers as “members of the family;” it thus would seem that for both parties the relationship between employer and employee is primarily economic.  Yet past research on domestic labor elsewhere has revealed that personalistic relations in such an asymmetrical situation often works to the detriment of the employee who may be called upon to perform extra or uncompensated chores.[21]  And the lack of paternalistic (and maternalistic) bonds might help forge a sense of community among domestic workers, at least among those who share the same nationality (such seems to be especially the case with Filipinos).

The situation of domestic workers in Kuwait is thus little determined by custom, contract, and labor law.  Instead, the critical determining factors are immigration law, criminal law, and the actions of domestic workers and their employers.  Far from their home countries and with few legal tools available, domestic workers would seem to be the least likely to resort to the courts.  Yet when offered tools some do use them, again not in an attempt to obtain justice in an abstract sense but to compensate for a weak economic and social position.  Even those exposed to physical abuse (including rape) have a weaker legal position than wives seeking divorce or tenants seeking to avoid eviction in Egypt.  Yet as in Egypt, their legal status is the outcome of the interaction of several different kinds of law.  In general, immigration law combined with criminal law define the position of abused domestic labor; that definition leaves them in a weak position but with room for bargaining and maneuver.

Domestic laborers can enter and work in Kuwait in one of two ways.  First, they may be recruited directly from their country of origin and granted a visa specifically for the purpose of domestic labor.  These workers are far more likely to have written contracts.  A model labor contract suggested by the Ministry of Interior Office of Household Labor requires the sponsor to provide housing, clothes, medical care, and a return ticket at the end of the contract period.  (The Interior Ministry contract does not require a weekly day off, though it does require an annual paid vacation of one month.)  Disputes are to be referred to Kuwaiti courts.  A different model contract recommended by the Philippine embassy guarantees at least one day of rest a week, food and housing without charge, fifteen days of vacation per year, and a round trip ticket to the Philippines if the contract is renewed (generally after two years).  Laborers are required to attend an orientation session that covers their obligations, rights and household duties before leaving the Philippines.  The contract also mandates mediation by the embassy before the dispute is referred to local authorities.  Yet the Philippine government, mindful of complaints from laborers in Kuwait and of reports of unscrupulous employment agencies, took action in September 1988 to ban hiring domestic workers except in restricted circumstances.  Philippine and Kuwaiti authorities in Kuwait, however, acknowledge that the ban is easily circumvented.  In fact, given the valuable remittances sent home by domestic laborers (Filipinos in Kuwait send home an estimated $97 million annually), governments are hesitant to press the issue of treatment of their workers too aggressively.

Second, domestic laborers may come to Kuwait in ways that are at best indirect and are often deceptive of both officials and laborers.  Since measures have been taken to limit and regulate hiring of domestic labor directly from the Philippines, they may be brought first to other Gulf countries and then to Kuwait.  They may also be brought as nurses, tutors, or non-domestic labor (and even be promised such work) in order to evade visa restrictions on household labor.  Employment agencies are even rumored to trade in large numbers of such laborers so that a woman who has been hired as a nurse in Bahrain may find that her contract has been sold to an agency that intends to have her to travel on to Kuwait to work as a domestic worker.[22]

Workers in the second category have very few legal protections.  They generally have no written contracts and any arrangements they may have agreed to orally were generally discussed in their country of origin.  It should be no surprise that their Kuwaiti employers cannot be held accountable in Kuwaiti courts for oral arrangements the laborers made with distant agencies.  Once in Kuwait they are governed by local visa and labor laws and regulations.  While the Kuwaiti labor law does provide some protection to workers, domestic labor and low-wage employees are not effectively covered.  If they are dissatisfied with their employers or convinced that their contracts are being violated, they thus have little recourse.  Nor can they leave their employers easily—they must complete two years of employment with their sponsor before they may be legally hired by another employer.  A worker who leaves before this period is considered a runaway and can be arrested.[23]

While other workers will often complain about deceptive practices by employment agencies and ill-treatment by employers, domestic workers, especially females from the Philippines, have attracted particular (even global) attention, largely because of the number of Filipino domestic workers seeking refuge in their embassy.  During 1994, 1488 Philippine citizens went to the embassy; only 53 of these had complaints unrelated to their employers (such as illness, pregnancy and homesickness).  908 complained of maltreatment or verbal abuse, 23 charged that they had been raped, 81 cited other forms of molestation.  The remainder complained of other conditions relating to their work (such as delayed payment or contract substitution).[24]

Most Kuwaitis feel that their society has been unfairly singled out for criticism.  Since Kuwait is generally more open than other Gulf societies, it is probably the case that those interested in the issue can investigate it more fully than Kuwait than elsewhere.[25]  The problem has hardly been ignored inside the country.  Indeed, extensive press and parliamentary discussions have been joined by a strong official response.[26]  In 1992 a law was enacted by amiri decree which required that household labor agencies obtain a permit to continue operating and established an office to regulate their conduct and inspect their operations.[27]  A police station (al-Dasma) has been designated to handle most of the cases.  Police officials have cooperated with the Philippine embassy (and other relevant embassies), and there is generally an official from the embassy present when a complaint is investigated.  The official procedure is very clear:  if a criminal offense is alleged, the matter is turned over to the niyaba immediately. (Kuwaiti law distinguishes between a junha, a crime punishable by less than three years in prison, and a jinaya, punishable by more than three years.  In Kuwait a crime classified as a jinaya—such as rape or a serious assault—is investigated by the prosecutor’s office whereas a junha is handled by the police.)  If the complaint does not involve a major crime an attempt is to be made to bring the laborer together with the employer, in the presence of the police and an embassy official.  In the event of a serious crime, officials are neither to participate in nor obstruct negotiations between the parties.[28]  And if an amicable solution is reached, the issue still must generally be presented to a court before charges are dropped.  (As will become clear below, police procedures differ from what is officially mandated.)  While investigation and negotiations are proceeding, Philippine domestic workers are generally allowed to continue to stay at the embassy.  The result is that there are, on average, two hundred women using the embassy as a refuge at any given time. 

Yet even if they do seek refuge in the embassy the legal position of domestic workers is weak.  If their complaints stem from contract violations or work conditions, they can do little to substantiate their claims and can not leave their employer without permission until they have completed two years of work.  If their complaints are related to physical or verbal abuse, they will likely be able to produce no witnesses.  And while cases of rape may be treated seriously, there are again rarely witnesses.  In cases where they claim more than one rape, skeptical authorities will probably question them on why they did not escape after the first occurrence.  In this way, a victim of multiple rape can often be treated less seriously than the victim of a single rape.[29]

Yet while domestic workers still find obstacles when resorting to the legal system, the official actions taken on their behalf have given them some legal tools.  There is every evidence that they use them.  As in marital and housing disputes in Egypt, however, legal tools are used in the bargaining process, not to supplant it.  And police procedure, while it may actually weaken the position of the domestic worker alleging abuse, facilitates bargaining.

A charge of battery, verbal abuse, or rape rarely results in a prosecution in Kuwait (although there have been some highly publicized trials in the past few years).  Instead it results in direct and indirect bargaining between accuser and accused.  Before proceeding with investigation (or referring a case to the niyaba), police at the al-Dasma station ask the domestic laborer for his or her preferences.[30]  Options include returning to the home country, finding a new employer, returning to the employment agency, returning to the original employer, and prosecuting the case.  These options are not exclusive, but unless a laborer clearly and specifically states that they wish the case prosecuted, police will try to arrange an informal solution.  And even if charges are filed the option to bargain for an informal solution still exists.  Officials justify this practice with the argument that they cannot prosecute a crime without the cooperation of the victim (though they make no effort to secure such cooperation) and that they wish only to follow the wishes of the victim.[31]  Delaying a formal charge circumvents the law which requires that even a dropped charge be presented to a court before an acquittal is registered.  In short the matter is generally resolved with substantial official involvement but without triggering officially-mandated procedures.

Kuwaiti families in such situations generally have two concerns.  First, and most seriously, is the criminal charge itself.  Second is the shame involved in being accused of such a crime.  Third, families who employ domestic labor generally pay a substantial fee to the agency which covers the laborer’s trip to Kuwait.  If a domestic laborer leaves their employment they will have to pay this fee again in order to secure a replacement (unless the departure takes place in the first few months of employment, in which case they can usually demand that the agency supply a replacement without payment of the fee).  Thus they will typically seek to have the charges dropped and to recover the fee if the domestic worker will not return.  Domestic workers will want either to find new employment in Kuwait or to return to their country of origin.  (In cases where their complaints relate to working conditions rather than physical abuse, many will also agree to return to the original place of employment as long as their complaints are addressed.)

In Egypt, marital problems, if they result in the wife leaving the house, will often result in the husband filing a bayt al-ta‘a suit while the wife makes criminal charges of battery or mistreatment.  Similarly, in cases involving domestic workers in Kuwait, an employee will make often criminal charges while the employer complains to the police that the worker has deserted the family (in violation of immigration and labor law).  Having resorted to their legal tools, the two sides will then bargain.

Once the bargaining begins, it is extremely rare for the legal issues to go to court.  If the Kuwaiti family feels the charges are strong, they may offer to pay for the laborer’s return to the country of origin or to allow the transfer to a new sponsor.  If the charges are weak, they may demand that the initial fee they paid the agency be repaid—if not by the agency than by anybody wishing to hire the worker and assume sponsorship.  Of the  domestic workers who sought refuge in the Philippine embassy in 1994, roughly one-third were repatriated, a second third returned to the original place of employment, and the remainder found new employment (either with the assistance of the embassy or by returning to the agency).  The total number alleging criminal violations to an embassy official was over one thousand; there were only twelve prosecutions.  The courts and the legal system were hardly inert on the issue, but their chief role (sometimes intentionally and sometimes not) was to establish more clearly the bargaining position of the two parties.  Indeed, bargaining does not even necessarily stop if a case does go to court.  In 1994 a Kuwaiti couple accused in the beating death of their maid offered to pay diya [in Islamic law a payment in the event of death that the family of a victim may accept in return for dropping criminal penalties].[32]  Kuwaiti courts are not obliged to accept the payment of diya as are some Islamic-based courts, but the payment of diya often results (as it did in this instance) in a reduced sentence.

Unless criminal charges are made the bargaining position of the laborer is quite weak.  Kuwaitis involved in the issue often claim that criminal charges are made falsely because a laborer is simply dissatisfied with working conditions or wishes to find more lucrative employment elsewhere in the country.[33]  This is very difficult to substantiate, but it must be recognized that immigration and labor law give a laborer few tools to change employment other than criminal charges; it should be no surprise if some use the only tools at their disposal.  Kuwaitis often claim that they are the victims of crimes by domestic workers (especially theft).  But their bargaining power is so strong—since they are the worker’s sponsor and often hold his or her passport as well in defiance of official policy—that there is little need to resort to the police in such cases.  In 1994, only thirty-three Kuwaiti families made criminal complaints against Filipino workers.[34]

The low prosecution rate in charges domestic workers make against their employers is thus related not to the attitudes of the niyaba or the courts.  Instead it is directly related to labor and immigration law.  Reforms currently under discussion would do much to alleviate some of the sources of inequality.  Among those ideas sometimes discussed by government officials and parliamentarians involve easing restrictions on changing sponsors (allowing the laborer—or the new sponsor—to pay a fee rather than wait two years or obtain the consent of the existing sponsor) and still greater regulation of employment agencies operating in Kuwait.  Such changes, if implemented, would probably result not simply in better working conditions for domestic labor but also in fewer false criminal allegations and a higher rate of prosecutions.

Conclusion

Studies of women and law in the Arab world have generally removed (or evinced little interest in) agency from women because of a series of underlying assumptions:  the law puts women in a weak position; the weak political and social position of women would make legal protections ineffective even if they did exist; and participation in such a system can only reinforce such subordination.  In fact, while women’s weakness is generally difficult to deny it does not erase the ability of women to use the law to negotiate their relationships with family members, employers, and others.

First, it is important to note that there is no absolute dichotomy between weakness and freedom of action; those who are subordinate are often still confronted with real choices.  Domestic workers in Kuwait have few legal tools but those available allow them to bargain for the least unfavorable result.  Egyptian wives seem subordinate in terms of the law of personal status but are able to use family and other areas of law in order to secure a more favorable position.  Their actions are not dictated only by structural and legal inequalities but also by their own desires and ingenuity.  Far from countering agency, weakness can sometimes enforce it.  For example, by allowing domestic workers claiming abuse to negotiate with their employers, Kuwaiti police effectively increase the pressure on them to drop charges.

Second, the array of choices and strategies open even to the subordinate is greatly expanded when the courts are not viewed as a final or exclusive forum.  The ability to drop charges or abandon litigation and the availability of family (and other informal) channels allow resort to a combination and shifting set of tools more often than not.  Certainly concentration on the law as written is insufficient, but concentration on a particular forum (such as the courts) is insufficient as well because it misses the way in which various fora can operate simultaneously and even depend on each other.

Finally, there is no evidence that those who resort to the courts reinforce or legitimate their legal subordination in any way.  If going to court foreclosed other options and forced a narrow legal interpretation of a problem then it could plausibly be argued that the law operates to define and thus constrain action and identity.  If a domestic servant could use only the protections available under the provisions of the contract then it might be plausibly argued that resort to those protections might foster a sense of identity defined largely in those subordinate terms.  But she can also draw on criminal law and embassy protection; a Filipino domestic servant can conceive of—and present—her problem as a matter for civil law, criminal law, informal negotiation, and diplomacy.  Most important, she can present the problem in all these ways simultaneously.  So long as the law, in combination with other institutions and practices, presents so many options, scholars must take women seriously as agents.