Lahousseine Id-YoussAbied Alsulaiman On the interaction between legal and religious concepts

On the interaction between legal and religious concepts

Lahousseine Id-YoussAbied AlsulaimanKU Leuven (University of Leuven)
Table of contents


Man needs law, just as railway cars need a track to guide them (Strong 1907, 542). The law provides people with the necessary structures and guidelines to which their actions should conform in order for some form of social order to exist. It represents a complex phenomenon as it can reflect existing social and economic relationships, on the one hand, and it can be used as a means for directing social change, on the other (Kircher 1986). In terms of form and content, it is shaped and influenced by a variety of forces and factors.

Religion can be seen as one of those important and influential elements that interact with the law in different ways. Religious values may sometimes constitute guiding principles by which voters choose their representatives in the legislative branch. In this sense, the voters’ ideological convictions will inevitably be echoed in the law. However, the other way round scenario is also applicable. Bobrowicz states that while in a secular fashion people tend to focus on the “way religion influences law, the latter may equally affect the former”. Such a reversed influence can go as far as touching “upon religion’s core principles, and matters of such importance as the question of what constitutes ‘orthodoxy’” (Bobrowicz 2018, 88).

Our focus in this chapter, nevertheless, lies on the influence of religion on law, and more particularly on the impact it may have on legal terminology. Given the fact that the interaction between these two institutions may vary from one society to another and from subject-field to another, we will center our attention on how this influence manifests itself in the context of the Moroccan Family Law. The Islamic basis of this code has been highlighted in a number of studies (Alsulaiman 2009; Alsulaiman 2011; Engelcke 2019; Id-Youss 2016).

We will attempt to illustrate the degree to which religion has affected the Moroccan Family Law legal terminology. This objective will be achieved through studying the Code from the lens of the Quran and the Sunna11.Sunna refers to the prophet’s sayings and deeds. being the two major sources of Islamic law, in order to see how much conceptual and linguistic correlation exists between them. The issue will thus be approached from onomasiological and semasiological angles, in an endeavor to add some insights into this phenomenon of the interaction between law and religion. A note of caution needs to be made here at the outset. The Quran and the Sunna are not the only sources of legislation in Islam. Other sources include consensus amongst Muslim jurists (’iğmā‘), consideration of public good al-maṣāliḥ al-mursalah, ’iğtihād, practice of the people of Madina etc. However, the outcome of each of these secondary sources should not contradict what is laid down in the Quran and the Sunna.

The chapter is divided into four blocks, and it is organized as follows: The first section sketches some literature background on the connections between religion and law in general, and the second outlines some methodological aspects relating to our terminological study. In the third section, some onomasiological aspects of the analyses are presented. Finally, the fourth one is devoted to introducing some of the semasiological matters of this work.

2.Interaction between religion and law

To many, religion and law are two incompatible and unrelated institutions, each of which serves a different purpose: While religion is spiritual and psychological oriented, law is social oriented. However, when the connection between them is closely scrutinized both diachronically and synchronically, one can easily see that these two seemingly different institutions are but two sides of the same coin. Countless legal rules belonging to different legal systems are drafted based on religious texts (Id-youss 2016). Obviously, the presence of religious elements in law can vary from society to society, reflecting the ideological convictions of the people. In this section, we will shed some light on the connection between these two constructs. Our focus will be geared toward some of the functions and characteristics they share as well as the interaction and interdependence between them and their corresponding text types.

Religion and law share a great deal of functions and features, and they mutually influence each other. According to White (1995), they embrace comparable concepts of crime and sin, contract and covenant, justice and righteousness respectively. They are formally related and both have “liturgy and ritual, concepts of tradition and precedent, sources of authority” (1995, 176).

In the same vein, Barzilai (2007, XI) argues that both aspire to frame human consciousness and behavior in all areas of public and private life. While religion achieves this through people’s belief that they need to think/act/behave in accordance with the teachings of their religion, law attains this objective by legal enforcement and sanctions. Both apply the same concepts: reward in return for compliance and punishment for disobedience. Just like in religion, the feature ‘punishment for disobedience’ constitutes a key characteristic in the philosophy of law. Austin (2007) defines law as a set of commands posited by certain structures of governance which are habitually obeyed by the majority, and where disobedience is punishable by law.

Moreover, religion and law have never achieved complete autonomy from each other, in the sense that religion has been embodied in modern legal systems, including those systems that have strived to privatize it. Paradoxically, they are both complementary and contradictory, and they constitute simultaneous sources of rule-making, adjudication and execution (Barzilai 2007).

Another aspect of interaction and interdependence between the two is that while the law provides structures and normative conditions within which religion exists and operates, the latter determines the law through the values and convictions embraced by the people (robbers 2010). This interdependency is illustrated by the fact that the law offers the necessary legislation regulating the functioning of religious institutions such as churches, synagogues, mosques, etc. Religious values embraced by the people, on the other hand, determine the content and shape of the law (Id-Youss 2016).

Interestingly, legal texts and religious texts are also comparable in terms of their functions and status. Šarčević (1997) demonstrates that the function of legal texts is normative. Texts such as laws and regulations, codes, contracts, treaties and conventions have a primarily prescriptive nature, as they are regulatory instruments containing rules of conduct or norms. They are “normative texts which prescribe a specific course of action that an individual ought to conform to” (Šarčević 1997, 11). By the same token, religious texts “such as the Ten Commandments and the Laws of the First Fruits in Exodus are normative texts prescribing standards of behavior in the form of commands and prohibitions” (Šarčević 1997, 11).

The authoritative status is yet another characteristic shared by religious and legal texts. Legal text is vested with the force of law, i.e., it is binding for the parties concerned. Any non-compliance is thus punishable by law. Similarly, religious rules are binding for the people concerned, and disobeying these rules incurs some form of punishment as mentioned above. It is true that the form of punishment involved in the two contexts may be conceptually different, but the principle lying behind it seems to be the same.

Still at the macro-level, i.e., at the text level, religious translation and the translation of legal texts have also been interconnected with regard to the translation approach to be adopted in the translation process. Šarčević (1997) explains that given the normative and prescriptive character of both these text types, the early history of legal translation was closely related to that of Bible translation, and the preferred approach in both translation forms was literal translation. It was until the 20th century that this literal tendency was first challenged.

At the micro-level, i.e., the terminological/conceptual level, religious and legal concepts have a lot in common. In translation, for instance, when searching for equivalent concepts/terms, we are often confronted with comparable problems of conceptual incongruency and system-bound concepts. Incongruency refers to the phenomenon that equivalent concepts may not always share all their defining characteristics. In both fields, translators and terminologist are often satisfied with partially equivalent concepts/terms due to the absence of absolute equivalents.

Within the legal sphere, Cao (2007) demonstrates that the scope of the concept can sometimes be too broad that it can be translated into another language and legal system using two or three terms depending on the context. As an example, the English concept jurisprudence is broader than its French equivalent ‘jurisprudence. While the English concept covers both the philosophy of law or legal theory as well as case law, the French equivalent concept denotes case law or legal precedents only (Cao 2007, 59). Along the same line, Šarčević (2012, 194) shows that the concept decision in French law corresponds with two more specific concepts in German law, viz. Entscheidung and Beschluss; and it corresponds with three concepts in Dutch law, namely, beschikking, besluit and beslissing.

Religious concepts also exhibit this conceptual asymmetry. Most notions are so deeply rooted into the religious culture where they have evolved that finding their absolute equivalent concepts in other cultures can be truly challenging. As an illustration of this phenomenon, the concept prayer in Christianity can be “defined as communication with God in a relationship of love”, be it “formal or informal, private or communal” (Zanzig 1996, 9). The emphasis in this definition is on the phrase communication with God, the different manifestations of which appear in almost every dictionary definition of the concept. The equivalent notion in Islam, on the other hand, receives a different definition. According to Zepp (2000, 80), prayer (also termed ṣalāt) is “a prescribed liturgy which includes bodily movement, saying of prayers in Arabic, and recitation of the Quran”.

It is true that communication with God is also involved in the Islamic definition of the concept as the whole act of praying is meant and addressed to God/Allah. However, other essential features such as the prescribed bodily movements, recitation of the Quran, an unshaken focus (ḫušū‘) etc.22.The transliteration system used in this chapter is ISO 233 for the romanization of Arabic. Exception: localized spelling of known Arabic words in English such as “Quran”. are essential features that any prayer should include if it is to be regarded as ‘valid’. Moreover, ṣalāt is bound to specific moments during the day.

This absence of symmetry between the two concepts is perhaps the reason behind another translational phenomenon, viz. correspondence with more than one concept in the target language/culture. The concept ‘prayer’ as defined within the Christian tradition can correspond to other concepts in Islam such as dhikr and du‘ā’. Ḏikr literally means remembering God/the mentioning of God. Du‘ā’, on the other hand, is an act of supplication. An additional layer of complexity stems from the fact that ḏikr and du‘ā’ do form part of ṣalāt. However, the two can also be perform outside ṣalāt and are not subject to any temporal or spatial considerations.

Another characteristic that law and religion share at the conceptual level is what is termed as system-bound concepts/terms. System-bound terms refer to those terms that are exclusively peculiar to the legal system they have evolved in and thus have no comparable counterparts in other legal systems or families, because the object, relationship, action, or procedure designated by those terms do not exist in those systems (Šarčević 1997). This phenomenon is referred to by some authors as system-bound terms (Cao 2007; Šarčević 1989, 1997). This terminological difference reflects a difference in perspective. While some look at the legal systems having certain peculiar concepts not shared with other legal systems, others highlight those legal systems which lack such concepts.

Religions are also characterized by this feature of systemic diversity. Harvey (2002) argues that religion is inseparable from the notion of systemic diversity and that religious texts contain cultural specific items singular to the religion in question. It is true that religions, unlike legal systems, are transnational; however, the underlying idea of system-bound concepts is the same.

To conclude, religion and law have a great deal of characteristics in common, and they exhibit almost the same functions and status (Šarčević 1997). They interact in various ways, complementing each other at times and contradicting each other at other times. Moreover, the concepts involved in the two domains raise similar issues of conceptual asymmetry and systemic diversity.

3.Methodological considerations

The remaining sections will strive to illustrate some manifestations of the interaction between religion and law. The focus will be geared mainly toward a specific aspect, viz. the influence of religion on the Code. This area of law seems to be a prototypical instance of the legal subject-fields that are heavily shaped by religion. In the paragraphs below, we will offer some methodological elements pertinent to our terminological and conceptual study. First, the corpus, which consists of the Code and the two primary sources of Islamic legislation, will be introduced. Second, the criteria for the selection of the analyzed terminological units will be outlined. Finally, the graphical representation of terminological elements will be explained.

The first component of our corpus consists of the Code, upon which our terminological and conceptual analyses have been based. It was first drafted in Arabic and published in the Official Gazette of the Kingdom of Morocco No. 5184 on the 5th of February, 2004. The Code was implemented by Law No. 03–70, promulgated by the Dahir No. 22–04–1, issued on the 3rd of February, 2004. The French copy of the code appeared later on in the Official Gazette No. 5358 on the 6th of October, 2005.

The second component concerns the Quran and the Sunna. These religious texts constitute the two major sources of Islamic legislation (Ibn Rushd, and Abdul-Rauf 1994; Šarčević 1997). According to Baamir (2016, 48), the Quran “is the sacred book of Islam, believed by Muslims to be the infallible words of God dictated to Prophet Muhammad". The Sunna, on the other hand, can be defined as a collection of the Prophet’s sayings, his behavior, matters he approved and matters he condemned during his lifetime (Baamir 2016). It is also seen as the way the Prophet applied the Quran in practice. For instance, the Quranic command “attend to your prayers” is general, and it is the Sunna which specifies how/when to pray, what to say in one’s prayer, etc.

With a view to demonstrating how much impact religion had on the current Moroccan Family Law, we selected some key marriage and divorce-related notions in the Code and tried to evaluate the concordance between their terms as used in the Code and their linguistic manifestations as they occur in the Quran or Sunna. The study also involves a semasiological component where individual legal concepts are compared with their religious counterparts. The selection of the terms is motivated by two factors: (1) the high frequency of their occurrence in the Code and/or (2) the weight/importance of the concepts they designate.

Interestingly enough, the two criteria we used as guidelines for the selection of the terminological units can be beautifully mapped on the onomasiological and semasiological perspectives of our analyses. In this sense, while frequency applies to Section (3) where onomasiological aspects are presented, weight has a bearing on Section (4) where semasiological dimensions of the study are outlined.

Given that frequency is of an onomasiological character, the term frequency is provided in the fourth column of Table 1 in Section 4. Its calculation has been performed manually for a number of reasons. First, one term in the Code may refer to more than one concept (polysemy), as is the case for the term ’ahliyyah which denotes two concepts in the Code, viz. ‘legal capacity’ and ‘qualification’. Second, the same term may be used in combination with other words to form a different terminological unit denoting a related concept. For instance, the term zawāğ is used 44 times designating the specific concept ‘marriage’. However, as a sequence of letters, its total occurrence is 125 times, where it is sometimes combined with other words forming an extended terminological unit. Examples of these extended units include ‘aqd al-zawāğ (marriage contract), waliy al-zawāğ (matrimonial tutor) etc.

Another nuance has to do with the fact that part of the term is sometimes used as a short form contract for marriage contract. Finally, the total occurrence does not involve situations when a pronoun is used to stand for a particular term, nor does it include its synonyms in the Code, if any. This entails that the real frequency rate is higher than that offered. All these factors combined make it impossible to implement an automatic frequency calculation method. A semi-automatic method is nevertheless possible thanks to the search functionalities offered by Word Processors and Web Browsers.

The weight of an item has been evaluated on the basis of how important it is inside the system. The more important it is, the more serious legal effects its presence/absence produces. This holds particularly true for conditions, prototypical elements, unavoidable paths and procedures etc. For instance, while the concepts dowry, matrimonial tutor, mutual consent, etc. exemplify necessary conditions; marriage and divorce are instances of prototypical items in the context of family law. Inevitability can be represented by the concept legal waiting period, a specific period of time that no woman in Morocco can escape going through in the event of almost any form of separation including death. It is true that the selected items are not the only elements in the Code which meet these criteria; however, they are sufficient to demonstrate the points raised in this chapter.

A final point with regard to the weight of an item is that there is no necessary correlation between weight and frequency. It can happen that an important element occurs in the Code less frequently than a less important one. This premise can be illustrated by the concepts mutual consent (appearing 8 times) and dowry (appearing 34 times). It is true that both concepts constitute key conditions for the conclusion of marriage in Morocco; however, they exhibit weight differences when put at the prototypical scale. We have deduced from our analyses that the former, even if it occurred less frequently, holds more importance. First, without mutual consent, marriage cannot simply be concluded (Article 10). Second, if something wrong with mutual consent is discovered even after contracting marriage, that will cause marriage to be declared void (Article 57).

These two points can clearly be contrasted against their dowry-related counterparts. In the context of marriage of entrustment, marriage can be concluded and consummated even if dowry is not specified in the marriage act (Article 27). This defect can be corrected by specifying the dowry and giving it to the wife even after the conclusion of marriage. A marriage in which the dowry is dropped can be declared by the court to be a defective marriage, which can be corrected by obliging the husband to pay a sum of money based on a number of social and professional factors (Article 59; Article 60). Labeling marriage as defective as opposed to void has considerable legal implications which need not be outlined here; but that suffices to demonstrate that mutual consent weighs way more than dowry. For more details on defective and void marriages, see Articles 57 through 64.

Before wrapping up this section, a few words need saying about how terms, concepts and features are presented in this chapter. In order to facilitate communication, these terminological elements will be formatted in accordance with ISO 10241–1 (2011). Thus, terms will be placed between double quotation marks while concepts or characteristics will be set between single quotation marks. When needed, translation of Arabic terms will follow between brackets. Since concepts are theoretically language independent and since the discussion is in English, the concepts will be provided in English whenever possible so as to ensure a smooth flow of ideas. Otherwise, a transliteration will be provided. Obviously, even if the English wording of the concept is used, reference is still made to the conceptual reality as expressed in the Code. Finally, all the Arabic words and terminological units which are mentioned in this chapter have been transcribed following a consistent transliteration system. The only term which deviates from this rule is the term adoul, which has been adopted from the French copy of the Code, and the reason behind this choice stems from the fact that this form is familiar in some other languages than Arabic.

4.Religious origins of the Moroccan Family Law legal terminology

The Moroccan Family Law as a whole is based on Islamic precepts and values. A great deal of terminological units used in the Code find their roots in religious textual material. This Islamic basis has been explicitly provided for in Article 400 of the Code, which states that reference may be made to the Islamic33.The Maliki is one of the four major Sunnite schools of jurisprudence. It relies on the Quran and Hadiths as primary sources of Islamic law. Maliki school also considers the consensus of the people of Medina to be a valid source of Islamic law. Malikite School of Jurisprudence and to iğtihād in the event of issues not addressed by a text in the law. In this section, we will attempt to illustrate the onomasiological correlation between this legal instrument and the two religious sources, namely, the Quran and the Sunna.

It is perhaps worth reminding that onomasiology is a semantic mechanism, which looks at the designation/designations of a concept. In other words, onomasiology takes its starting-point in a concept investigating how that concept is termed/expressed. Some of the phenomena associated with this mechanism include synonymy, neologisms, word formation, etc. (Geeraerts 2009).

The relevance of the onomasiological mechanism to this study stems from the need to evaluate the degree of terminological correspondence between the Code and the two religious sources introduced in the previous section. At this level, thus, the comparison concerns mainly the linguistic surface. Table 1 presents the terminological units that we have selected and studied based on the criteria discussed in the previous section. The first and second columns list the terminological units in Arabic as they show in the Code and their transliteration respectively; the third one offers a possible translation for the term. The fourth, fifth and sixth columns are concerned with the occurrence of the term in the Code, the Quran and the Sunna. Because the occurrence of the term in the Code is self-evident as it is the basis for analysis, the corresponding column lists the occurrence frequency of the term. In the Quran and Sunna related columns, where the source of the occurrence is presented, the word synonym is used when the concept is designated in the religious text using a different terminological unit than that used in the Code. When the concept is not expressed at all in one of the two religious text, the acronym NA is used.

Table 1.The onomasiological perspective
Term in Arabic Transcription Translation Occurrence in the Code Occurrence in the Quran Occurrence in the Sunna
زواج zawāğ marriage 44 times synonym: Sura 24:33 Al-Būṣīrī 1999; Hadith #2540
التراضي al-tarāḍī mutual consent  8 Sura 2:232 Abū Ḥanīfah 1994; Hadith #164
أهلية ’ahliyyah legal capacity 12 synonym: Sura 4:6 Synonym: Al-Qāsim Bin Salām 2007; Hadith #701
ولي waliy matrimonial tutor 13 NA Al-Šāfi‘ī 2001; Hadith #1690
صداق ṣadāq dowry 34 Sura 4:4 Mālik 1997; Hadith #537
موانع شرعية mawāni‘ šar‘iyyah legal impediments 17 NA NA
عقد الزواج ‘aqd al-zawāğ marriage contract 42 synonym: Sura 2: 237 synonym: Al-Šāfi‘ī 2001; Hadith #1144
عدلان adoul Two Islamic public notaries 13 Sura 65:2 Ibn ’Abī Šaybah 2008; Hadith #14107
طلاق ṭalāq divorce under judicial supervision 65 Sura 2:227 Mālik 1997; Hadith #1129
تطليق taṭlīq judicial divorce 35 NA Al-Ğaṣṣāṣ s.a; Hadith #183
شقاق šiqāq divorce for irreconcilable differences  9 Sura 4:35 Al-Šāfi‘ī 2001; Hadith #1227
طلاق الخلع ḫul‘ divorce in exchange for compensation 17 NA Sa‘īd Bin Manṣūr 1993; Hadith #1410
رجعي rağ‘ī revocable divorce  9 Sura 2:230 Mālik 1997; Hadith #1212
بائن bā’in irrevocable divorce  5 NA Al-Šāfi‘ī 2001; Hadith #1720
عدة iddah legal waiting period 26 Sura 33:49 Mālik 1997; Hadith #1162

We will now try to provide an overview of these terminological units with some more context. They can be categorized in terms of their occurrence and nature into four types: (1) the same term occurs in both religious sources; (2) the same term occurs in the Sunna only; (3) a synonym is used in both the Quran and the Sunna; and (4) the concept is not termed in the Quran nor in the Sunna. Based on this division, while Group 1 enjoys full terminological correspondence, Group 3 and Group 4 exhibit no correspondence. Members of the second category, on the other hand, are instances of partial correspondence, i.e., the terminological unit corresponds only with one of the two religious texts.

We begin this discussion with the first category where the extracted terms find their articulation in the two religious sources and which consists of 7 elements. The first three elements concern the concepts mutual consent, divorce under judicial supervision and legal waiting period termed as al-tarāḍī, ṭalāq and ‘iddah, respectively, which show in nominal and verbal forms across the Code, the Quran and the Sunna. The term adoul (two Islamic public notaries) appears in the Code and the two religious texts in dual forms, because marriage or some forms of divorce must be concluded by two Islamic public notaries. However, the transliteration, which has been taken from the French copy of the Code, does not reflect this dual aspect as it opts for the plural form.

The fifth concept revocable divorce manifests itself in the Code in the form of verbs, adjectives and nouns. In the Quran and the Sunna, verbal structures are given more preference, and the noun rağ‘ah is the only nominal realization found in the Sunna for this concept. However, it must be stressed that the full terminological unit ṭalāq rağ‘i, as it occurs in the Code, has not been located in neither religious sources.

The sixth concept ‘divorce for irreconcilable differences’ materializes throughout the three instruments as the noun šiqāq. It is true that the consonantally related verb is also found in the Quran and the Sunna; but it occurs in contexts outside the family related issues with broader meanings. Finally, the terminological realization of the concept ṣadāq, dowry, is also shared across the three instruments. The only nuance that has to be added is that in the Quran the consonantally related ṣaduqāt is used, and not the exact term ṣadāq. Other non-technical synonyms are also found but only in the two religious texts and include mahr and ’ağr.

The second set includes 5 instances exemplifying legal terms which find their origins in the Sunna only. The term zawāğ (marriage) exhibits an important onomasiological aspect, i.e., it has a multiplicity of synonyms. We distinguish here two types of synonyms: those occurring in the legal instrument exclusively and those appearing in the religious text. The unit zawāğ has been used more or less consistently throughout the Code, and a clear divergence from this practice occurs in the preamble where a verse from the Quran is invoked in which the non-technical synonym nikāḥ is used. Based on our analyses, this form of the term is not present in the Quran but occurs in the Sunna both as a noun and as a verb. The closest consonantally related term that is located in the Quran and which comes with a slightly different meaning is the verb zawwağa (to give in marriage to).

The other members belonging to this group are ḫul‘ (divorce in exchange for compensation), taṭlīq (judicial divorce), “bā’in (irrevocable divorce) and waliy (matrimonial tutor). All these units seem to be lacking in the context of the Quran, but they are mentioned in different books of the Sunna.

The third group concerns those terms which show in the two religious sources as synonyms only, i.e., the very terminological unit used in the Code is lacking there. This set involves legal capacity and marriage contract, realized in the Code as ’ahliyyah and ‘aqd al-zawāğ, respectively. The two concepts are termed in the Quran and the Sunna, using the synonyms rušd and ‘uqdat al-nikāḥ. The synonym rušd, however, is also located in the Code. Thus, based on the typology above, we can say that while rušd is a technical synonym, ‘uqdat al-nikāḥ is not because it does not show in the legal instrument. Some technical synonyms of marriage contract found in the Code include ‘aqd al-zawğiyyah, mustanad al-zawğiyyah and rasm al-zawāğ.

The last category exemplifies those concepts that are not termed in the two religious sources, and it contains only one element, viz. mawāni‘ šar‘iyyah (marriage legal impediments). This terminological unit occurs in the Code in several occasions and takes both verbal and nominal forms. No trace of it, however, could be found in the Quran nor in the Sunna. We believe that it has been formalized as a term by Muslim scholars in fiqh (Islamic jurisprudence).

To wrap up, terminological correspondence between the Code, on the one hand, and the Quran and/or the Sunna, on the other, seems to be an undeniable fact. This correspondence can be total, as exemplified by the first set, or partial, as the second set of terms demonstrates. However, some points of onomasiological divergence between them can also be seen. This divergence takes at least two forms: (1) some concepts are termed differently in the religious context using synonyms; and (2) some terminological units seem to lack there, and their underlying conceptual reality is expressed instead using non-terminological forms as will be explained in the next section.

5.Semasiological dimensions

Now that we have demonstrated the religious foundations of the Moroccan Family Law terminology, it remains to illustrate this overall basis from a semasiological perspective. In this section, we will closely examine the level of conceptual correspondence between the Code, on the one hand, and the two religious sources, on the other. We will try to highlight some of the constitutive elements of legal concepts, with a view to finding out how comparable they are with their religious counterparts.

Unlike onomasiology, semasiology considers how the meaning/meanings of an isolated word is/are manifested; it takes its starting-point in a term exploring the concept(s) associated with it (Geeraerts 2009). Some of the issues associated with this semantic mechanism include polysemy, semantic change, metaphor, etc. A common related phenomenon in the legal sphere relates to situations in which ordinary words with ordinary meanings, when used in law, receive new readings with new legal conceptual features. The same thing holds true for words with religious meanings/connotations when incorporated in the law.

Polysemy and semantic variation/change will be the two major semasiological features with which we will be concerned in our attempt to illustrate the conceptual correspondence between the Code and the two major sources of legislation in Islam, viz. the Quran and the Sunna. For the sake of consistency, the same set of units analyzed in the previous section will be semasiologically treated here. Table 2 reintroduces these units and the sources where they occur. Even if this table looks like the one given in the previous section, it differs in substantial respects. First, it leaves out the onomasiological elements relating to the term, its transcription and frequency. Second, the occurrence columns document here the sources where the concept, rather than the term, can be found.

The two tables resemble each other mainly in the sense that the same Quran and Sunna related references are used. A key objective behind employing this table in this form is to facilitate comparison of the onomasiological correspondence degree as opposed to the degree of semasiological correspondence. The first column presents the concept, and the second provides the legal article where the concept appears in the Code. The third and fourth columns are devoted to the occurrence of the concept in the Quran and the Sunna. The acronym NA is used when no concept could be detected in the religious text.

Table 2.The semasiological perspective
Concept Occurrence in the Code Occurrence in the Quran Occurrence in the Sunna
Marriage Art. 4 Sura 24:33 Al-Būṣīrī 1999; Hadith #2540
mutual consent Art. 4 Sura 2:232 Abū Ḥanīfah 1994; Hadith #164
legal capacity Art. 13 Sura 4:6 Al-Qāsim Bin Salām 2007; Hadith #701
matrimonial tutor Art. 13 NA Al-Šāfi‘ī 2001; Hadith #1690
dowry Art. 13 Sura 4:4 Mālik 1997; Hadith #537
marriage legal impediment Art. 13 Sura 4:23 Al-Bayhaqī 1991; Hadith 3633
marriage act Art. 16 Sura 2:237 Al-Šāfi‘ī 2001; Hadith #1144
two Islamic public notaries Art. 65 Sura 65:2 Ibn ’Abī Šaybah 2008; Hadith #14107
divorce under judicial supervision Art. 71 Sura 2:227 Mālik 1997; Hadith #1129
judicial divorce Art. 71 NA Al-Ğaṣṣāṣ s.a; Hadith #183
divorce for irreconcilable differences Art. 52 Sura 4:35 Al-Šāfi‘ī 2001; Hadith #1227
divorce in exchange for compensation Art. 71 Sura 2:229 Sa‘īd Bin Manṣūr 1993; Hadith #1410
revocable divorce Art. 123 Sura 2:230 Mālik 1997; Hadith #1212
irrevocable divorce Art. 126 Sura 2:229 Al-Šāfi‘ī 2001; Hadith #1720
legal waiting period Art. 84 Sura 33:49 Mālik 1997; Hadith #1162

Based on Table 2, we can clearly see that all the concepts occur in both the Code and the Sunna. All of them can also be located in the Quran with the exception of judicial divorce and matrimonial tutor. This high conformity includes the concept marriage impediment which we reported in the previous section to occur only in the code as a terminological unit. The concept does appear in the two religious sources, but it is verbalized in non-terminological conventions. It showed in a form of a list consisting of the kinship forms that prohibit marriage between a man and a woman. Thus, semasiological correspondence between the Code and the two religious sources seems to be quite high. However, this image needs to be nuanced by the addition of some internal conceptual variation. Before exploring these variations, we need to say few words about some terminological units which exhibit polysemous features.

The first of these is the term ’ahliyyah, which comes with two senses in the code: (1) “the age and mental requirements for one to reach adulthood and thus be able to enter into civil contractual relations”; and (2) “the state of being qualified in general regardless of one’s age”. The first meaning can be seen as principle one in the Code. The second occurs only once in the preamble in the context of entrusting custody to the most qualified relative. This second meaning is more general as it involves additional professional, social, educational aspects. Both meanings associated with the same consonantal root can be found in the Quran and the Sunna with some conceptual variation to be treated later on.

Another instance from our list concerns the concept matrimonial tutor termed as waliy, which does not seem to show in the Quran but it does in the Sunna. However, the same word is used in the Quran with slightly different senses. This word is translated in various Quranic contexts by Itani (2014) as guardian, friend, partisan, ally, etc. Ali (2001) renders it as patron, friend, helper, votary, protector… Similarly, Al-Hilali and Khan (1996) translate it as guardian, supporter, helper, friend, protector… The reader should not be misled here by some translators’ use of the word guardian. The underlying meaning has nothing to do with the concept matrimonial tutor. Trying to determine the basis for these translators’ terminological choices can be an interesting path, which unfortunately falls outside the scope of this chapter.

A common practice which lies behind some related semasiological complications concerns the use of partial terminological units. The term ‘aqd al-zawāğ (marriage contract) has been shortened in various occasions to al-‘aqd. This short form, if seen out of context, can denote any form of contractual relation between two or more people, including lease contracts, contracts of sale, membership contracts, etc. It is true that the accurate meaning can be identified from the context in which it shows; however, that does not rule out this semasiological confusion.

Even if these polysemous features constitute key semasiological issues and do need to be singled out, they say very little about the semasiological degree of correspondence between the Moroccan Family Law and the religious text. Comparing the internal structures of legal and religious concepts seems to be the adequate path that could shed some light on this matter. In order for our analysis to be consistent, we have made no distinction between the two religious sources; a concept acquires its religious significance through occurring in either of them. With this point in mind, we can conclude that all the concepts listed above are religiously founded, and the fact that ‘judicial divorce’ and ‘matrimonial tutor’ could be detected in the Sunna only does not dilute their religious character.

When the internal reality of each concept is scrutinized, it becomes clear that the full conformity between the Code and the religious text we have seen at the overall level does not apply uniformly and that some conceptual incongruency between them exists. Some notions do exhibit high conceptual conformity, but some correspond partially only. The concepts marriage, mutual consent, dowry, marriage impediment, divorce in exchange for compensation, legal waiting period, revocable divorce and irrevocable divorce seem to be symmetrical. The features of these seem to have travelled safely from the religious text into the Code.

For instance, all the religious details relating to the constitutive elements associated with the waiting period, through which a woman must go in the context of divorce or death of her husband, are found one by one in the Code. It suffices to say that two complete chapters of the code–from Article 129 to Article 137–have been devoted to this period and its details. It has also been mentioned in 8 other articles outside these two chapters, viz. Articles 39, 84, 88, 125, 124, 127, 167 and 196. Every tiny feature in these legal articles is supported by religious basis.

A number of other concepts, however, resist this conceptual symmetry and exhibit some form of incongruency. The incongruency ranges from mild conceptual variations to possible conceptual clash. Some of these mild discrepancies can be exemplified by the concept legal capacity. According to Article 19 of the Code, the two major characteristics of this notion are ‘18 years of age’ and ‘mental aptitude’. The internal scope of the concept in the religious domain, on the other hand, differs to some extent as the focus is on mental and physical fitness. The age when one can conclude marriage is left unspecified.

A similar mild incongruency is exhibited by the concept marriage contract. Article 16 of the Code provides that the marriage act must be registered with the competent authorities; and if this does not happen for reasons of force majeure, special formal procedures must be followed to fix the problem. This formal registration process does not seem to affect the validity of the act from purely religious point of view. The source of the discrepancy at this level is perhaps clear; in legal contexts, individuals are accountable to legal institutions while they are accountable to God in religion. It must be noted, nevertheless, that the addition of this registration feature is not at odds with any religious principle. Some Muslim scholars, based on other sources of Islamic legislation such as consideration of public interest also known as promotion of the common good or al-maṣāliḥ al-mursalah, consider the marriage act registration an important condition in order to protect the rights of the spouses.

A higher level of conceptual variation can be noticed in the context of divorce. In Morocco, there are two major categories of divorce, viz. judicial divorce and divorce under judicial supervision. Based on the wording of the terms, one might be misled into thinking that there is no difference between the two; however, the distinction between them is far from being a simple terminological glitch. Each comes with its own principles, motivations, forms, formalities, etc.

While judicial divorce, which can be introduced by either spouse, can be seen as a modern court-related divorce, divorce under judicial supervision refers to the traditional divorce pronounced by the husband. The role of the court in the latter seems to be somewhat limited as it intervenes mainly to reconcile the spouses (Article 81) and to issue an authorization for two Islamic public notaries to draw up the divorce act (Article 87). In the context of a judicial divorce, on the other hand, the court plays a major role. First, it receives a divorce petition filed by one of the spouses (Article 108). Second, it organizes reconciliation attempts (Article 113). Third, it issues a divorce judgment (Article 139).

The distinction between these two separation forms is not as strongly pronounced in the religious text as it is in the Code. Using Prototype Theory terminology, we can safely say that the concept judicial divorce is marginal in the religious context while it enjoys a central position in the Code. Under pressure from feminist groups and civil rights organizations, the reforms of 2004–through the introduction of (šiqāq) the divorce for irreconcilable differences procedure–have given women wider access to divorce compared to the situation earlier than 2004 when divorce under judicial supervision prevailed. The husband-related form of separation seems to be favored in the Islamic religious discourse.

In our list, the unit which seems to represent an instance of a clear conceptual divergence is the concept matrimonial tutor. The consent of a matrimonial tutor constitutes an important marriage condition. According to some Islamic schools of thought such as the Hanbali school of jurisprudence, if such a requirement is not met, marriage can be declared invalid. The Code, on the other hand, has made it optional for adult women (Articles 24 and 25), but it remains necessary for minors (Article 21). The ‘optionality’ aspect referred to above does not seem to have been founded on religious grounds. We could not locate any religious textual materiel that may possibly support it. It even conflicts with a clear saying of the prophet where the need for the presence and consent of a matrimonial tutor is explicitly mentioned (cfr. Al-Šāfi‘ī. 2001; Hadith #1690).


By way of conclusion, we have attempted to illustrate the interaction between law and religion. To this end, we studied the degree of onomasiological and semasiological correspondence between the Moroccan Family Law and some key sources of Islamic legislation. Based on our analyses and discussion, a number of conclusions are worth highlighting. First, at the onomasiological level, some forms of divergence between the Code and the religious sources can clearly be documented. They can be attributed mainly to the use of synonyms and to the introduction of conceptual features without assigning to them a clear linguistic label.

Second, semasiological correspondence is total at the macro-level. By the macro-level we mean the mere occurrence of the concept in the legal and religious domains, irrespective of its internal conceptual reality, i.e., how it is defined. In this sense, all the concepts have indeed appeared in the two fields. Third, the degree of conceptual conformity goes down at the micro-level, i.e., the stage where individual concepts in the two domains are compared in terms of their shared and unshared features. The lowered conformity rate results from some aspects of conceptual variations.

Fourth, the two fields exhibit more semasiological than onomasiological correspondence. The legislature tends to use different linguistic forms to label conceptual structures referred to otherwise in religious sources. Such a linguistic deviation can be explained by the differences between Modern Standard Arabic (in which the Code is drafted) and Classical Arabic (in which Islamic religious sources are documented).

Finally, some further large-scale research involving more terminological units is needed to study the degree of semasiological variation between the two domains in much more depth. Such a piece of research should also strive to provide adequate explanation for the conceptual differences discussed above and for any deviation that may be found out. This kind of work will undoubtedly bring more insight into the nature of the interaction between law and religion.


1.Sunna refers to the prophet’s sayings and deeds.
2.The transliteration system used in this chapter is ISO 233 for the romanization of Arabic. Exception: localized spelling of known Arabic words in English such as “Quran”.
3.The Maliki is one of the four major Sunnite schools of jurisprudence. It relies on the Quran and Hadiths as primary sources of Islamic law. Maliki school also considers the consensus of the people of Medina to be a valid source of Islamic law.


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