Code of Personal Status (Tunisia) - The Code and Religion

The Code and Religion

This series of reforms, although it fell short of the customary norm, which can be illustrated by the introductory adoption in 1958 unknown in Muslim lands and from the full adoption in 1959, never breaks with religion. Bourguiba is declared to be a mujtahid and not a Kemalist, because he reproached the Turkist leader as too removed from society. Since 1956, all responsible authorities, notably the Minister of Justice, Ahmad Mestiri and the different directors of UNFT, recalled on many occasions that the Code and successive laws were not opposed to Islam, but registered in the context of a reform of society "inside Islam." Furthermore, each of the measures taken in drawing up the Code was accompanied by justification provided from a liberal interpretation of Muslim law. During a speech delivered in Tunis on February 8, 1961, Bourguiba expressed his opinion on reason's domination above all other means of thought:

"There are still people who do not conceive that reason must apply to all things in this world and command all human activity; for these people certain domains, that of religion in particular, must escape the ascendancy of the intelligence. But then, in behaving this way one destroys at one blow the fervour and veneration that we all owe to the sacred. How admit this ostracism against reason? How abase ourselves to this functioning of an intelligent animal?"

Nevertheless, we are forced to testify that Bourguiba's Tunisia could no more be called secular than Ben Ali's or the rest of the Arab Muslim states, for more than a neutrality of orientation and the religious freedom of the state, secularism implies the autonomy of public and religious institutions. The reality is that the institutional presence of Islam in Tunisia, although strictly circumscribed, is truly a constant reference, implicit or explicit, legitimizing the regime's direction. Certainly, Tunisian public services are accessible to all without distinction of creed and the constitution guarantees religious freedom, so long as it does not threaten public order, but Islam remains the state religion, to the extent that it is said it is obligatory for the president of the republic to be able to assert it.