Statelessness & Citizenship Review
2021
3(1)
which represented the core of French civil law, was a compilation of patriarchal
rules that subjected women to legal incapacity. Under this code, women were
forced by law to obey their husbands, 122 prohibited from securing their rights
before Courts 123 and unable to buy, give or sell their own goods without their
husband’s approval. 124 In short, French law viewed women as having the same
legal capacity as criminals and children. One of the most fierce and misogynist
provision of the Napoleonic Code was the ‘rape marriage law’, an article
according to which a man who kidnapped or raped a girl could avoid prison by
marrying his victim. 125 This law, and the Napoleonic Code more generally, was
exported by France in all its colonies, including in Lebanon, 126 Morocco, 127
Algeria 128 and Tunisia. 129 Although the Code was largely regarded as a symbol of
progress and modernisation in Europe, 130 it represented a major step backwards
for non-Western women. Before the Anglo–French occupation, Ottoman women
enjoyed the right to sign binding contracts, to buy or sell goods without their
husband’s permission and to secure their legal rights in court on their own
behalf. 131
In fact, Turkish women obtained the right to vote in 1930, 14 years before
French women did. 132 Therefore, it is a colonial fallacy to maintain that European
colonialism somehow brought ‘civilisation’ or enhanced gender equality of local
populations. 133 It actually had the opposite effect. This provision further illustrates
how patriarchy is an inextricable part of the racism and brutality of colonialism.
Although the oppressive colonial machinery was aimed at subjugating all native
populations, 134 it had a disproportionate impact on women. It seems like the socalled ‘civilising mission’ put forward by the French was subjugating women,
rather than about bringing civilisation. In this regard, it must be stressed that
Britain introduced the same gender-based discrimination in its colonies, including
in Jordan, Iraq and India, following a similar pattern. 135 Both colonial powers are
therefore responsible for introducing this patriarchal principle, and yet the
124F
125F
126F
128F
127F
129F
130F
13F
122
123
124
125
126
127
128
129
130
131
132
133
134
135
ibid art 213.
ibid arts 215, 221, 1124.
Hanley (n 120).
Rothna Begum, ‘Middle East on a Roll to Repeal “Marry the Rapist” Laws’, Human Rights
Watch (online, 24 August 2017) <https://www.hrw.org/news/2017/08/24/middle-east-rollrepeal-marry-rapist-laws>.
Legislative Decree No 340 ‘Penal Code’ (1943) art 522 (Lebanon). Article repealed in August
2017. ‘Lebanon Rape Law: Parliament Abolishes Marriage Loophole’, BBC News (online, 16
August 2017) <https://www.bbc.co.uk/news/world-middle-east-40947448>.
Dahir No 1-59-413 ‘Code Penal’ (1962) 28 Joumada II 1382, art 475 (Morocco). Article
repealed by Loi No 1-14-06 (2014) 18 Bulletin Officiel 2492.
Ordonnance No 66-156 du 8 juin 1966 portant code penal (2011) art 308 (Algeria). Article
repealed in 2017.
Code Penal (1913) art 227 bis (Tunisia) (no longer in force). Article repealed in 2016.
In Europe, the Napoleonic Code (n 118) was actually regarded as a symbol of modernisation
and progress. See Xavier Martin, Fonction paternelle et Code Napoléon (Annales Historiques
De La Révolution Française, 1996) 466.
Zantout (n 115) 2.
Valentine Moghadam, Modernizing Women: Gender and Social Change in the Middle East
(Lynne Rienner Publishers 1993) 91.
Deniz Kandivoti, Gendering the Middle East: Emerging Perspectives (Syracuse University
Press 1996).
Fanon (n 107); Memni (n 72).
Radha Govil and Alice Edwards, ‘Women, Nationality and Statelessness’ in Alice Edwards
and Laura Van Waas (eds), Nationality and Statelessness under International Law
(Cambridge University Press 2014) 169.
20