Religious Conscience or Religious Freedom? The Difference between Official Constitutional Norms and Actual Legal Restrictions in Morocco, Algeria, and Tunisia

Abstract

This paper will consider the extent to which two competing norms—freedom of religion, on the one hand, and Islam as the religion of the state, on the other—are in tension with each other as seen through the lens of three Muslim-majority countries in the Maghreb. I examine this potential tension in four steps: first, the transformation of meaning of the Arabic word “hurriyya” (freedom) during and after the 19th century; second, the articulation of Islam as the religion of the state in the constitutions of Morocco, Algeria, and Tunisia; third, the articulation of freedom of religion (whether freedom of worship or conscience) in the constitutional texts of these three countries, and finally, the question whether the laws and practices that implement these two constitutional norms are compatible or whether they in fact give priority to Islam as the state religion over the norm of freedom of religion. In Morocco, Algeria, and Tunisia, Islam plays an important role in the legal system, especially in family codes: the Moroccan Family Code (2004), the Algerian Family Code (2016), and the Tunisian Personal Status Code (1957). These are the remaining citadels most implicated with references to Islamic law, the interpretation of which has placed women in an unequal position.