Progressive Muslims: On Justice, Gender and Pluralism (33 page)

A significant amount has been written in the last decades on Muslim men’s and women’s marital rights and duties, from a variety of perspectives. Despite the diversity of views, there is a trait common to most of this literature: little attempt is made to distinguish between types of norms and sources of authority. When authors make claims about what rights “Islamic law” (or sometimes simply “Islam”) grants to spouses, they might mean Qur’an, or prophetic tradition, or the classical jurisprudence of one or more legal schools, or even the modern, codified laws of a particular Muslim country.
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If it is traditional jurisprudence that is meant, seldom is it specified whether the text is from the fourth/tenth century or from the fourteenth/twentieth century, or whether the view presented is the majority view or a minority one, perhaps held by only few jurists. Claims that “some jurists” or “many jurists” held a particular view are especially difficult to investigate. This collapsing of different discourses into the category “Islamic law” allows one to claim a broad authority for one’s own view without needing to specify the source for that authority. By remaining so vague, it also prevents others from critiquing the claims and being able to weigh independently how authoritative they wish to consider a particular doctrine to be. And shifting from one set of sources to another – taking a majority view from classical Sunni jurisprudence when it suits, turning to the Qur’an when it doesn’t, and drawing from modern statutory reforms when necessary – leaves one open to charges of inconsistency.

This essay will use Sunni
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legal texts from the third century
hijri
/ ninth

century

CCEE

to illuminate how marriage was understood contractually in

traditional Islamic jurisprudence.
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My choice of this period requires a note of explanation. While the following centuries produced important texts – the classical works from the fourth/tenth to the sixth/twelfth century are particularly significant
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– the literature from the formative period of the third/ninth century

is a manageable body of work, making it possible to adequately survey the primary texts themselves. Given the importance of the issues under consideration, I think it is important to have a solid, thorough comparative approach, rather than using selected passages from a variety of texts from different centuries and

different schools, or relying on modern summaries of earlier doctrine which may misrepresent crucial positions. That said, I think my general characterization of the marriage contract and its associated rights and duties applies to later Sunni texts as well, though in a few minor respects later classical doctrines may differ in their particulars from those described here.

I want to be absolutely clear to avoid any misunderstandings: I am not making any argument as to what Islamic marriage ideally should be or what the Qur’an or
Sunnah
says about spouses’ rights. Nor should my portrait of legal doctrine be taken as a description of Muslim women’s lives, either historical or contemporary.
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When I state that Islamic jurisprudence grants husbands a type of ownership over their wives, I do not mean that ‘Islam’ sanctions this, that God intends it, that the Qur’an requires it, or that the Prophet approved it. Rather, I intend to characterize the system of gendered rights and obligations developed by the jurists whose works I am discussing.

One basic fact is very important to keep in mind throughout: there is not now, nor has there ever been, a single, unitary Islamic law. Though Muslims agree that the
Shari‘ah
– God’s law for humanity – is complete, infallible, and universal, it cannot be known directly but only through the work of human interpreters. Historically, these interpreters have been the jurists. Their attempts to understand, develop, and implement
Shari‘ah
are human, imperfect, and shaped by the constraints of their specific historical contexts. This boundary between revealed law (
Shari‘ah
) and jurisprudence (called
fiqh
in Arabic, which means “understanding” or “comprehension”) has been obscured in the modern period as nations have adopted the term
Shari‘ah
to describe their legal codes. Even before the modern period, the human element in the creation of legal rules was often overlooked, particularly by non-specialists. Even among the jurists, conformity with school doctrine (
taqlid
) became important, and the particular rules themselves took on an air of inevitability. However, jurists themselves always recognized that it was their efforts that were central; the term
ijtihad
, used to refer to independent legal reasoning, refers to
striving
for results not the attainment of correct answers. The jurists knew of significant differences between the schools; there is a vital literature of dispute and polemic. While one finds, at times, disparaging remarks about legal doctrines held by other groups of jurists, one also frequently finds a disclaimer, most often after the expression of a ruling on which there is significant disagreement. The jurists state simply, “And God knows best.” There can be no clearer recognition of the inability of human reason to fully comprehend and implement God’s revealed law.
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The Qur’an was revealed beginning in the year 610
CCEE
; its revelation continued until Muhammad’s death in 632. In addition to general pronouncements on the

nature of the relationship that should exist between spouses – love and tranquillity, good conduct – the Qur’an addressed a number of specific issues relating to marriage and divorce. These included dower, a payment from the husband to the wife at the time of marriage; polygamy; the waiting period to be observed following the end of a marriage to determine if the wife was pregnant; and various types of divorce including unilateral repudiation and divorce for compensation. Muhammad also adjudicated in numerous disputes himself, establishing precedents separate from, and sometimes in tension with, the words of the Qur’an.
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In the decades following his death, the Prophet’s Companions gave
ad hoc
decisions in cases brought to their attention. Some cases were decided in accordance with what a Companion recalled to have been Muhammad’s practice in similar situations; others were based on what they expected he would have done in such a circumstance; others simply on a sense of community norms. Sometimes, Companions drew on the Qur’an as support for their decisions, though they differed on the proper understanding of numerous passages.

In later generations, into the eighth century, a process of recording these decisions and various other types of historical accounts from and about Muhammad and his Companions was underway. It eventually resulted in the compilation of books of traditions (
athar
,
ahadith
), the most famous of which was the
Sahih Bukhari
, completed in the ninth century. At the same time these traditions were being collected, a more systematic effort to explore legal issues was undertaken by jurists. Schools of law (
madhahib
, sing.
madhhab
) formed, with a base of shared doctrine and methodology, though jurists within each school sometimes diverged from the majority opinion on a given topic.
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Today, these schools survive as four Sunni schools (the Maliki, Hanafi, Shafi‘i, and Hanbali) as well as one primary and several smaller Shi‘i schools.

The legal schools of the formative period differed substantially on a number of issues related to marriage and divorce: how far a father’s right to marry off his virgin daughter without her consent extended; whether an adult woman had the right to contract her own marriage; whether three repudiations pronounced at once took effect together or only counted as one divorce; whether a minimum dower should be set; whether a woman had the right to contractually stipulate monogamy or that her husband could not take her away from her hometown; and whether a woman could stipulate the right to divorce her husband under certain circumstances. One should not assume that some schools held a “liberal” position and others a more “restrictive” one with regard to women’s rights. The Hanafi school, which held that adult women were free to contract their own marriages without needing a male representative (
wali
) to act on their behalf, also held that a woman could not obtain a divorce from an unwilling husband on any grounds except total impotence or possibly leprosy, and even then only so long as the marriage had not been consummated.
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The Maliki school provided the most extensive grounds for a woman to seek divorce, including failure to support and the broad category of “harm” (
darar
, also “cruelty”).

Nonetheless, its jurists permitted a father to marry off his never-married daughter against her wishes even if she were forty and independently wealthy. Only the Hanbalis held that there were consequences if a husband violated his contractual stipulation not to move his wife from her hometown or to take another wife; other schools considered these conditions meaningless and unenforceable.

Thus, it is clear that there were significant – and for actual women, quite real

– implications to being under the jurisdiction of one legal school or another; the differences between the schools were not, as some have asserted, merely in matters of detail.
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Nonetheless, there was indeed a shared understanding of the contractual relationship of marriage that prevailed at that time. This common view was based, in large part, on cultural assumptions shared by the jurists as a result of their social location in a particular and, according to Leila Ahmed, particularly patriarchal environment. She has shown that the ‘formation of the core discourses of Islam’ including jurisprudence took place in an era of hierarchy, social stratification, and the widespread practice of slavery. One characteristic of this environment was the “easy access” of elite men to slave women. She argues that “for elite men in particular, the distinction between concubine, woman for sexual use, and object must inevitably have blurred.”
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Indeed, the jurists were influenced in their elaboration of a system of marital rights and obligations by the norms governing slavery. Slavery and particularly slave-concubinage were normal and accepted facets of social life, and it was assumed by jurists of the ninth century that one could usefully draw analogies between marriage and slavery, husbands and masters, wives and slaves. At its most basic, the jurists shared a view of marriage that considered it to transfer to the husband, in exchange for the payment of dower, a type of ownership (
milk
) over his wife, and more particularly over her sexual organ (
farj
,
bud
‘). As evidence presented below will show, it was this ownership, while distinct from the outright ownership of another’s physical body in slavery, that legitimized sexual intercourse between husband and wife. It also gave the husband the unilateral right to terminate the marital relationship at any time, by repudiating his wife for any, or no, reason. As the jurists frequently noted, this was analogous to the master’s freedom to manumit a slave at any time.

Although marriage contained an element of ownership, this ownership was established by a contract that also gave rise to other rights and obligations between the spouses. These rights were interdependent – a wife’s rights were obligations upon her husband and vice versa – and strictly differentiated by gender. A wife’s most important marital duty was sexual availability, in exchange for which she was to be supported by her husband.
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The primacy of, and linkage between, these particular rights is clearly illustrated in a passage from the
Umm
, the main Shafi‘i work of the period: “Al-Shafi‘i said: It is among her rights due from him that he support her, and among his rights to derive pleasure from her [
istimta‘a minha
].”
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The wife’s obligation to be available to her husband was set apart from other types of domestic duties. Maliki, Hanafi, and Shafi‘i jurists emphatically denied any wifely duty to perform housework. (Ibn Hanbal’s responsa do not discuss this topic.) She need not even cook for herself, let alone her husband. The words of the third-century Hanafi jurist Ahmad b. ‘Umar al-Khassaf demonstrate this. He was asked, “What if she doesn’t have a servant and her husband supports her, must she bake bread and labor to prepare [food] for herself?” He replied, “If she says, I won’t do it, she is not compelled to. Rather, his claim on her is her making herself available for her husband [
tamkin al-nafs min al-zawj
], not for these tasks.”
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Al-Khassaf goes on to contrast the wife’s situation to that of a servant, who, if she refuses to perform these services, is not due support and may be turned out of the house. Al-Khassaf was not alone in this view; rather, he was representative. Service is excluded from a wife’s duties in the
Mudawwana
in an unequivocal way: “I said: Must a woman serve herself or perform household service or not according to Malik? He said: She need not serve herself or perform any household service.”
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Al-Shafi‘i suggested that whether or not a husband had to support a servant for his wife depended on whether or not “someone like her” was accustomed to serving herself; however, he was also adamant that even a woman who did not have a personal servant should be provided with prepared food and someone to bring her water so that she need not go out to collect it.
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In all of these cases, the wife’s performance of household duties is not expected, and is certainly not a condition of her support. Her maintenance is due, instead, as a result of her availability to her husband for sexual enjoyment.