Progressive Muslims: On Justice, Gender and Pluralism (35 page)

These few examples demonstrate that neo-conservative interpretations diverge from the traditional model in several ways, generally to women’s detriment. The majority of North American Muslims rely on pamphlets and quasi-scholarly books such as these, which claim to present authoritative and authentic information, for their knowledge of Islamic law.
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It is against this backdrop of pseudo-traditional doctrine that the feminist and reformist discourses to which I now turn must be understood.

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A number of authors concerned with promoting Muslim women’s rights in matters of marriage and divorce have discussed women’s legal rights “in Islam.” These authors oscillate between, on the one hand, upholding specific rules as an example of how Islamic law protects women and, on the other hand, critiquing traditional jurisprudence when patriarchal assumptions lead the jurists to unreasonable decisions.
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In the latter case, these reformers turn to the Qur’an to challenge, often quite persuasively, juristic interpretations. However, I am concerned here with their attempts to defend the basic precepts of traditional jurisprudence on marriage.

In seeking to counter both stereotyped portrayals of women’s legal rights and the negative consequences of neo-conservative interpretations, these authors point to provisions of classical law that guarantee women certain protections. These doctrines serve as evidence that Islamic law is not unremittingly patriarchal. They also provide practical guidelines for Muslim women seeking to ensure more egalitarian marriages for themselves. Both goals are laudable, and the strategy of promoting detailed marriage contracts is, in the short term, potentially quite effective at securing for women rights that are ignored today. However, there are two serious flaws in this approach. First, the strategy of including contractual stipulations is not, jurisprudentially, nearly as straight- forward as it is often made out to be. Second, and far more importantly, adding conditions onto a contract does not change its basic essence. I will address the validity of stipulations first.

Among the clauses al-Hibri suggests women can include in their marriage contracts are some rights that accrue to women anyway according to traditional jurisprudence (such as to be supported by her husband or to not have to cook or clean) and some that are only hers if agreed upon in the contract (such as to work outside the home).
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In this latter category are the oft-mentioned stipulations that a husband will not take any other wives or will not relocate his wife from her hometown. Al-Hibri writes that

In fostering change, the Qur’an resorts to what has been known as recently in the West as affirmative action. In a patriarchal society, even a general declaration of equal rights is not sufficient to protect women. Consequently, divine wisdom gave women further protections. Paramount among these protections is the ability of the Muslim woman to negotiate her marriage contract and place in it any conditions that do not contradict its purpose. For example, she could place in her marriage contract a condition forbidding her husband from moving her away from her own city or town.
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The Qur’an, it should be pointed out, does not refer to stipulations in the marriage contract. So Al-Hibri is using the phrase “divine wisdom” to describe the jurisprudential doctrine of stipulations. However, according to Maliki, Hanafi, and Shafi‘i jurists of the formative period, the stipulation that the husband will not move his wife from her hometown is completely void; the Hanbali jurists alone allow it.
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Even in the Hanbali case, the wife is given a choice as to whether or not to divorce her husband in this circumstance; she is not allowed to bind him to remain with her in her town. My discussion here will focus on the related issue of stipulations against polygamy, illustrating that the current discourses about these stipulations misrepresent the provisions of traditional jurisprudence on the subject. I will further argue that even if this provision can be satisfactorily formulated so as to be legally binding, it still fails to address the underlying inequities in spousal rights.

When a contemporary author mentions putting a condition in the contract that the husband will not take another wife, or that she has a choice to divorce him if he does so, she or he is lumping together two entirely different mechanisms for ensuring the wife’s “right.” The first is a simple contractual stipulation; the second is conditional delegated divorce. According to Maliki, Hanafi, and Shafi‘i texts from the formative period, contractual stipulations that a husband will not take additional wives (or any concubines) are meaningless.
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For the Hanbalis, if the husband breaks the condition by taking an additional wife, the first wife has the option to divorce him.
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However, in none of these cases is the validity of the second marriage affected.

The second mechanism is more potent. In this type of stipulation, the husband delegates his power of repudiation to the wife if he performs a certain action. Thus, a husband can state in the contract that “If such-and-such occurs, your affair is in your hands.” If the wife learns that the condition has come to pass, she has the option to divorce him.
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There is difference of opinion on whether such a choice is only good during the particular encounter where she learns of it or whether she retains the right even after that meeting so long as she has not had intercourse with her husband. For the Hanbalis, however, a woman can lose her right to divorce by having intercourse with her husband
even if she did not know that the event giving her the right to divorce had taken place
: “If her

husband has intercourse with her, the wife in question no longer has the option of separating from him, regardless of whether she was aware of her option before the act of intercourse.”
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In this case, under Hanbali law, a woman who had not put a stipulation in her marriage contract that her husband would not take an additional wife, but rather relied on delegated divorce at a later date, would lose her freedom of choice if her husband simply concealed the second marriage long enough to have intercourse with the first wife. (Remember that she is legally obligated to have intercourse with him whenever he desires.)

There is one additional way that a wife can attempt to regulate her husband’s

taking of another wife: through having him pronounce a suspended repudiation. For all of the schools, if the husband makes an oath of repudiation conditional on his taking a second wife (“If I marry again, you are repudiated”) the repudiation is effective. As a practical matter, when a woman has no other option for assuring her right to be separated from a polygamous husband, this conditional repudiation can be a useful strategy. But what makes the strategy possible is the unfettered nature of a man’s right to repudiation. His repudiation automatically takes effect when he marries again simply because of his absolute right to repudiate his wife. The same would be true if he said, “If you ever speak to so-and-so, you are repudiated” (or “If I ever speak to so-and-so . . .”) or even “If it rains on Tuesday, you are repudiated.” To hold up a woman’s right to divorce on her husband’s taking another wife as an example of how Islamic law protects women’s rights ignores the specific legal rationale for validating such a divorce. It occurs in a context in which the woman has no way to protect herself from an unwanted repudiation, which is valid without her consent, participation, or even knowledge.

I have demonstrated that insuring against polygamy through a condition in the marriage contract is not the simple affair it is made out to be by contemporary authors. Yet even if one could find a way to construct stipulations against polygamy in a binding manner, it would not address this basic imbalance in men’s and women’s marital rights, or the definition of the marriage contract as being unilaterally in the husband’s domain (
fi yadihi
). There is no condition that can restrict the husband’s right to repudiate his wife at any time, for any reason or no reason at all. Raga’ El Nimr acknowledges this, in an apologetic piece that differs only subtly from the views put forth by Abdul-Rauf, but does not explore its implications.
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For El Nimr and others who stress women’s protections in Islamic law, however, the dower serves that function by acting as practical deterrent or an economic safety net. I now turn to a consideration of how dower (
mahr
or
sadaq
) is understood in these discourses. Some stress its economic importance, while others suggest that a large deferred dower provides a disincentive to capricious repudiations, since the balance will become due at divorce. El Nimr considers that dower is intended “to safeguard the economic position of women after marriage.” Drawing from Qur’anic verses on dower, El Nimr argues that dower is a critical means through which women can secure

their well-being. She writes that “The object is to strengthen the financial position of the wife, so that she is not prevented, for lack of money, from defending her rights.”
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Al-Hibri likewise stresses the dower’s importance for women, providing a slightly different description of its purpose:

Mahr, therefore, is not a “bride price” as some have erroneously described it. It is not the money the woman pays to obtain a husband nor money that the husband pays to obtain a wife. It is part of a civil contract that specifies the conditions under which a woman is willing to abandon her status as a single woman and its related opportunities in order to marry a prospective husband and start a family.
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In comparison, the Maliki jurists of the formative period express a quite different role for the dower, stating that a free woman “is due her dower, and her vulva [
bud‘uha
] is not made lawful by anything else.”
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Nor do the jurists shy away from considering the dower a price. Indeed, Al-Shafi‘i explicitly uses the term “price” (
thaman
) on numerous occasions for the dower, stating that “dower is a price among prices.”
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Various discussions in the
Umm
illustrate that dower is “a price for the vulva” (
thaman al-bud‘
),
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and that “a woman’s fair dower is the fair value of her vulva” (
qima mithl al-bud‘a mahr mithlaha
).
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The commercial aspects of the marriage contract are unremarkable for the jurists. For example, in discussing a situation where a slave was specified as the wife’s dower, Al-Shafi‘i states that “she sold him her vulva for the slave” (
ba‘athu bud‘aha bi ‘abd
).
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I do not give these examples to prove that marriage was a sale, for the jurists

also made analogies that differentiated marriage from sales in particular respects. I simply want to demonstrate that jurists of the formative period did not have any hesitation whatsoever in using the terminology of sales and purchases to discuss marriage. The discomfort with these comparisons is our own, and was not shared by the pre-modern jurists. The explanations of dower given by Al-Hibri and El Nimr gloss over the logic and language of traditional jurisprudence, accepting its substantive rules but providing them with more palatable interpretations.

As with dower, Al-Hibri and El Nimr champion women’s exemption from

domestic duties in traditional jurisprudence, but provide a new rationale for it. In these discourses, a woman’s lack of duty to cook or clean is an example of her marital rights. El Nimr writes that

With regard to domestic duties, Islam has relieved women of all manual drudgery. According to strict Islamic injunctions, it is not obligatory for a woman to cook the food for her husband or children, or to wash their clothes or even to suckle the infants. A woman can refuse to do any of these things without this being made a ground of legal complaint against her. If she undertakes these duties, it is an act of sheer grace.
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While with regard to dower, El Nimr turns to the Qur’an for her explanation, here she refers only to “strict Islamic injunctions” – meaning, undoubtedly, jurisprudence. Though she makes the point forcefully that women do not have household or childcare duties, she does not offer any explanation of what responsibilities they do have as wives or why it is that they are exempt from the obligation to perform these services.

Al-Hibri’s treatment of the same subject offers a glimpse into her interpretive strategy:

Islam also views marriage as an institution in which human beings find tranquillity and affection with each other. It is for this reason that some prominent traditional Muslim scholars have argued that a woman is not required to serve her husband, prepare his food, or clean his house. In fact, the husband is obligated to bring his wife prepared food, for example. This assertion is based on the recognition that the Muslim wife is a companion to her husband and not a maid. Many jurists also defined the purpose of the marriage institution in terms of sexual enjoyment (as distinguished from reproduction). They clearly stated that a Muslim woman has a right to sexual enjoyment within the marriage.
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Al-Hibri, like El Nimr, is correct in her characterization of the traditional jurisprudential position that a wife has no obligation to do household chores (though she perhaps underestimates how prevalent this position was, attributing it only to “some prominent traditional Muslim scholars”). Seizing on the view that women are not required to do housework, Al-Hibri argues that this indicates that Muslim women were recognized to be “companions” to their husbands rather than maids. However, for the early jurists, as discussed above, wives were bound to provide service, but sexual rather than domestic.

The wife’s sexual responsibilities are entirely sanitized by Al-Hibri’s next statement that “Many jurists also defined the purpose of the marriage institution in terms of sexual enjoyment.” This phrasing obscures the reality that sex in marriage was almost exclusively a female duty and a male right. While it was recommended that a husband satisfy his wife sexually, women had no enforceable rights to sex. Indeed, Al-Hibri’s assertion here about women’s right to sexual enjoyment is undercut by her later statement that “some traditional jurists gave women the right to seek judicial divorce if they had no conjugal relations with their husbands for more than four months.”
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Apparently, of the “[m]any jurists” who “clearly stated that a Muslim woman has a right to sexual enjoyment within the marriage” only “some” considered that a husband’s abstention for more than four months constituted grounds for separation. Indeed, even this overstates the case; four months, as my discussion of the formative period jurists indicated, is only the relevant period of sexual abstention where a husband has completely forsworn his wife; it does not apply to cases of abstention without a vow.