Progressive Muslims: On Justice, Gender and Pluralism (36 page)

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The early and classical Muslim jurists had a clear logical system underpinning their conception of marriage and the interdependent rights of spouses within it. The basic purpose of marriage was legitimizing sexual intercourse: the jurists formulated an interdependent system of spousal rights that put the wife’s support and the husband’s right to sex at its center. This system was predicated, at a very basic logical level, on an analogy to slavery and other types of ownership. Furthermore, its specific rules were based on the widespread availability of slave-servants. Thus, the jurists’ debate was not over whether women were required to maintain their husbands’ homes, cook, and clean, but rather whether the husband had to support only one of his wife’s servants or more than that. Admittedly, this likely bore little resemblance to reality for the majority of Muslim women. But it served as a basis for the elaboration of many different rules that are unintelligible if removed from this framework and held up independently as an example of what “Islam” guarantees women.

Neo-conservative authors, even as they press for the observance of certain substantive rules that are the product of early
fiqh
, balk at using the commercial terminology and analogies to slavery that were part of the jurists’ accepted language. While often upholding the spousal rights that were agreed upon in that model, they provide new rationales for them, as can be seen in their discussions of a husband’s duty to maintain his family. For the early jurists, “a husband must maintain his wife, whether she is rich or poor, for restricting her for himself so that he may derive pleasure from her [
bi habsiha ‘ala nafsihi li’l- istimta‘a biha
].”
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The jurisprudential rationale for a husband’s support of his wife is entirely separate from the rationale for any person’s support of other relatives, including minor children or parents. For the neo-conservatives, however, a man’s duty to support his family is part and parcel of his male nature that makes him fit for earning a living and supporting his “dependents.” No distinction is made between wives and children. The wife’s role is conceived of in a complementary fashion: her nature makes her suited for caring for the home and children. In the process, certain traditional female rights (such as a wife’s exemption from housework) tend to fall by the wayside, as they are incompatible with the new understanding of male and female roles in marriage. When women’s advocates seek to resurrect these rights, they do so by appeal to the

authority of traditional jurisprudence. Like their neo-conservative antagonists, however, they frame these rights in a different conceptual vocabulary than that originally used by the jurists.

Feminist discourses that seek to promote more egalitarian Islamic laws are, undoubtedly, strategically useful. In particular, highlighting women’s legal exemption from housework or childcare is a useful corrective to neo-conservative discourses that presume wives have an obligation to perform these services because of a natural aptitude for them. Likewise, the attempt to promote the

inclusion of conditions in marriage contracts governing the husband’s taking of additional wives or the wife’s right to work and keep her earnings can be an important means of setting forth the spouse’s expectations for the marriage. This appeal to traditional legal views, however, is not without its perils. Though potentially quite effective in securing for women rights that are not respected today, it runs the risk of further cementing the authority of the traditional opinions. With regard to women’s work outside the home, while traditional jurisprudence rejects a man’s right to take any of his wife’s earnings, it upholds, as I have noted, his right to prevent her from working entirely – indeed, to forbid her from leaving the home at all. Some would suggest that a condition in the marriage contract would resolve that; it is an iffy proposition with regard to traditional law.
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Even where conditions can be made enforceable, and where rights can be upheld, the feminist rhetoric of women’s marital rights in Islamic law distorts traditional legal rationales – if not its substantive doctrines – at least as seriously as does the neo-conservative discourse.

Al-Hibri, El Nimr, and others fail to grapple with the way that the specific rights they point to as evidence of women’s legal protections are part of a larger logical understanding of what is being contracted for in marriage. If women reserve the right not to do any household service or childcare,
and
to be entirely supported by their husbands, while at the same time being free to pursue whatever work they choose,
and
maintaining sole control over their earnings from that work, what rights does the husband have? What responsibilities does the woman have in this situation? What is the basic aim of marriage, in either case? If the husband no longer supports his wife and no longer controls her mobility, then what is the point, legally speaking? Such a marriage no longer serves the purpose for which it was regulated according to traditional jurisprudence: ensuring a woman’s sexual availability in exchange for male support. If it is a different type of marriage, then it needs a different type of law. Half-measures to make the best of an existing situation are insufficient. It is necessary to question the traditional model that obliges a husband to support his wife and grants him the right to control her movements in return and expect sex at his whim. This will require a radical rethinking of Islamic marriage, beginning with a fresh approach to the Qur’an, above all.

A number of scholars, including Al-Hibri, have undertaken this effort to flesh out a new exegesis of sacred texts as a means of arriving at an alternative view of relations between the sexes in society, including in marriage. Their work is important, and challenges the androcentric nature of traditional interpreta- tions. Al-Hibri turns to the Qur’an in those cases where traditional law does not offer a resolution to the problems she sees. Others such as Riffat Hassan, Amina Wadud, and Asma Barlas have focused on the Qur’an to the exclusion of jurisprudence. Their ground-breaking studies have inspired a willingness on the part of other progressive Muslims to address legal issues through new approaches to the Qur’an.
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In and of itself, there is nothing wrong with such

an approach; indeed, the Qur’an must be at the center of Muslim piety and thought. However, in focusing so single-mindedly on the interpretation of the Qur’an, discarding centuries of jurisprudential texts as irredeemable, progressive Muslims run the risk of leaving the field of jurisprudence entirely to those trained in its methods and committed to its traditional assumptions. Scriptural exegesis, no matter how sophisticated, is not a legal methodology; the Qur’an is not a law book. Though the Qur’an does contain specific commands and prohibitions as well as moral and ethical guidance, it does not provide explicit regulations covering all possible circumstances. Some means of applying its provisions to the nearly infinite cases that arise among Muslims will always be necessary. The battle for egalitarian Muslim marriages will be fought on numerous fronts, and jurisprudence will undoubtedly be one of them.

Progressive Muslims cannot afford to ignore jurisprudence. There is a need for a thorough appraisal and analysis of the rules and methods of traditional jurisprudence. Such analysis will demonstrate, as I have done in part in this essay, that its doctrines are entirely inadequate to serve as the basis for laws governing Muslim families, communities, and societies today. However, it should also illustrate the phenomenal intellectual effort that went into creating the logical systems that produced law to govern millions of Muslim lives through the centuries. I would even venture to say that the legal method used by the jurists is basically sound, including the use of analogy. The issue is the assumptions from which they began, including the notion that marriage can be usefully compared to slavery or to commercial transactions. This does not mean, however, that doctrines should be simply modified, piecemeal, until we come up with something we can live with. Rather, whatever elements of traditional jurisprudential method are used, the process of regulating marriage and divorce will have to begin anew. Qualified Muslims must begin working to shape new laws, beginning from new assumptions – including those that feminist and progressive Qur’anic scholars have brought to the fore. The most critical of these insights is that men and women are ontologically equal, and that ultimately our equality as human beings in the sight of God matters more than any distinctions based on social hierarchy.

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Azizah al-Hibri posits that the Islamic marriage contract “is a vehicle for ensuring the continued well-being of women entering matrimonial life in a world of patriarchal justice and inequality.”
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I agree that it can be; a large deferred dower is often successfully used as a disincentive to hasty repudiation, for example.
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Certain other stipulations may secure rights that would otherwise be unenforceable. However, this formulation fails to address the complicity of jurisprudential institutions and doctrines in, at the very least, perpetuating the patriarchy and inequality that make such measures vital. The husband’s

unrestricted right to unilateral repudiation, for example, is not a
necessary
interpretation of scripture and prophetic tradition, yet traditional jurisprudence has affirmed his right to exercise it while denying women any parallel privilege. Since men have this unilateral power, contractual stipulations and practical strategies such as deferred dowers become crucial for women, a means of negotiating a patriarchal terrain. But given that jurisprudence itself is largely to blame for the state of affairs that requires women to implement these “affirmative action”
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strategies, praise for the protections it extends to those women knowledgeable and powerful enough to invoke them seems misplaced. Acknowledging the deeply patriarchal and discriminatory elements in Islamic jurisprudence is not cause for despair. It does not mean accepting that God intends Muslim women and men to live in hierarchical, authoritarian marital relationships. On the contrary, as I have illustrated, a thorough exploration and analysis of traditional jurisprudence will reveal the extent to which its rules are seriously flawed; they cannot be Divine. The role of human agency in the creation of these laws is evidenced by the diversity of legal views as well as the creation of a system of male marital privilege and sharply differentiated spousal rights that does not simply emerge wholly formed from the Qur’an. This system is the result of an interpretation, indeed of numerous acts of interpretation, by particular men living and thinking at a specific time. Their jurisprudence is shaped not by any malicious misogyny, or so I choose to believe, but rather by the assumptions and constraints of the time in which it was formulated. Our contemporary recognition that the traditional scheme of marriage law is compromised beyond repair liberates us to pursue a new jurisprudence, one based on assumptions that do not liken women to slaves or marriage to purchase. A marriage law that foregrounds the mutual protectorship of men and women (Q. 9:71) rather than male providership (Q. 4:34), or that focuses on the cooperation and harmony of spouses inherent in the Qur’anic declaration that spouses are garments for one another (Q. 2:187), can represent a starting point for a new jurisprudence of marriage. The result will be a closer – but still only human, and therefore fallible – approximation of divinely revealed

Shari‘ah
than what currently exists. And God knows best.

endnotes

1. An early version of this essay was delivered as a lecture at the University of Missouri – Columbia in March 2002 as “Marriage and Divorce in Islamic Law: Contemporary Debates in Historical Perspective.” I would like to thank the Women’s History Month Committee for that invitation and the lively exchange that ensued. I would also like to thank Kate Albright, Ellen Dunning, Ann Kim, Khaleel Muhammad, Harvey Stark, and especially Omid Safi for their comments and suggestions. Of course, I am responsible for any errors of fact or interpretation that remain.
   

2. For a scathing critique of this type of discourse, see Haideh Moghissi,
   Feminism and Islamic Fundamentalism: The Limits of Postmodern Analysis
   (London and New York: Zed, 1999).
   

3. This is the reporter’s summary, not al-Hibri’s. Rebecca Mead, “Comment: A Woman’s Prerogative,”
   New Yorker
   , December 2001. It accurately conveys Al-Hibri’s views as presented in that piece and several other published articles. For this essay, I draw from two articles by Al-Hibri: “An Introduction to Muslim Women’s Rights,” in
   Windows of Faith: Muslim Women Scholar-Activists in North America
   , ed. Gisela Webb (Syracuse, NY: Syracuse University Press, 2000), 51–71 (hereafter, “An Introduction”), and “Islam, Law, and Custom: Redefining Muslim Women’s Rights,”
   American University Journal of International Law and Policy
   , 12(1), 1997, 1–44 (hereafter, “Islam, Law, and Custom”).
   

4. Shart
   , pl.
   shurut
   .
   

5. For example, in an article discussing honor killings, Lama Abu Odeh uses the heading “The classical jurisprudential treatment of crimes of honour” for a section dealing exclusively with contemporary Arab criminal codes. “Crimes of Honour and the Construction of Gender in Arab Societies,” in
   Feminism and Islam: Legal and Literary Perspectives
   , ed. Mai Yamani (New York: New York University Press, 1996), 146. No mention is made of
   fiqh
   doctrines. I point this out not to disparage the article or its conclusions, but to emphasize that the terminology used to discuss Islamic law in its varied manifestations is seldom applied in a precise fashion.
   

6. I do not discuss the Shi‘i legal schools here, in part because the role of
   mut‘a
   (“temporary”) marriage in Shi‘i law makes comparison difficult. However, in its broad outlines the Shi‘i view of marriage (
   nikah
   ) is similar to Sunni law. See Shahla Haeri,
   Law of Desire: Temporary Marriage in Shi‘i Iran
   (Syracuse, NY: Syracuse University Press, 1989), especially chapter 2, “Permanent Marriage:
   Nikah
   .”
   

7. This is the body of literature that I survey in my doctoral dissertation, “Money, Sex, and
   

   Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period” (Duke University, 2002). However, the dissertation does not discuss Hanbali jurisprudence, which I include here. This essay draws on the following texts: for the Maliki school, the
   Muwatta’
   of Malik ibn Anas (d. 179/795) and
   Al-Mudawwana al-Kubra
   (hereafter,
   Mudawwana
   ) of Sahnun al-Tanukhi (d. 240/854); for the Hanafi school,
   Kitab al-Hujjah ‘ala Ahl al-Madina
   (
   Kitab al-Hujjah
   ) attributed to Muhammad al-Shaybani (d. 189/805), and two other works attributed to him: a recension of Malik’s
   Muwatta’
   (
   Muwatta’ al-Shaybani
   ) and
   Al-Jami‘ al-Saghir
   ; as well as the
   Kitab al-Nafaqat
   of Ahmad ibn ‘Umar al-Khassaf (d. 261/874); for the Shafi‘i school,
   Al-Umm
   , attributed to Muhammad b. Idris al-Shafi‘i (d. 204/820) and the
   Mukhtasar al-Muzani ‘ala ’l-Umm
   of Isma‘il b. Yahya al-Muzani (d. 264/878); for the Hanbali school, a compilation of Ahmad
   

   b. Hanbal’s (d. 241/855) legal responsa (
   masa’il
   ) edited from manuscript sources and translated by Susan Spectorsky as
   Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh
   (
   Chapters
   ). My citations of the Arabic volumes include the titles of the chapter and subsection to which I am referring, to make it easier for those using different editions of the texts to locate the relevant passages. Unless otherwise noted, all translations from the Arabic are mine.
   

8. Baber Johansen has addressed some of these issues for the classical period using Transoxanian Hanafi texts. See “The Valorization of the Human Body in Muslim Sunni Law,” in Devin J. Stewart, Baber Johansen, and Amy Singer,
   Law and Society in Islam
   (Princeton: Markus Wiener, 1996), 71–112.
   

9. Numerous scholars have investigated these subjects and found compelling evidence of female agency and juristic effort to protect women’s interests. Despite women’s clear disadvantages in legal doctrine across the schools, in practice women were able to exercise many rights, especially to property. Further, they often gained advantages that, in strict doctrinal terms, they should not have had. Scholars working with court records and collections of
   fatawa
   (juristic opinions, sing.
   fatwa
   ) have demonstrated that judges were often, in their application of the law, amenable to women’s claims and flexible in their judgments. This was often done by sidestepping, rather than directly challenging, problematic doctrines. To take only one example, in Hanafi communities, a woman’s inability to obtain divorce from an unwilling, non-supporting husband was dealt with not
   

   by changing the school’s position, but by appointing a deputy judge from another legal school to pronounce the divorce. For an online bibliography of works on women, gender, and Islamic law, see www.brandeis.edu/departments/nejs/fse
   

10. Khaled Abou El Fadl has made this point eloquently in
    Speaking in God’s Name: Islamic Law, Authority, and Women
    (Oxford: Oneworld, 2001), 32.
    

11. One well-known subject on which prophetic precedent is generally agreed to differ from
    

    Qur’anic revelation is that of punishment for a married person (
    muhsan/muhsana
    ) guilty of illicit intercourse (
    zina
    ). While the Qur’an prescribes flogging as a punishment for
    zina
    , some
    hadith
    record the Prophet as setting stoning as the penalty for adulterers, reserving flogging for fornication.
    

12. Several recent scholarly works have explored the early development of the Sunni legal schools and their methodologies. Two particularly useful studies are Wael B. Hallaq,
    A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh
    (Cambridge: Cambridge University Press, 1997) and Christopher Melchert,
    The Formation of the Sunni Schools of Law, 9th–10th Centuries C.E.
    (Leiden: Brill, 1997).
    

13. Occasionally, one or two other equally serious diseases were included by analogy to leprosy.
    

14. Farida Shaheed, writing about feminist criticism of Muslim laws, states in a footnote, “On the question of women’s rights, status, and role, the four [Sunni] schools agree in principle. The differences between them relate to details of legal procedure.” See “Controlled or Autonomous: Identity and the Experience of the Network, Women Living under Muslim Laws,”
    Signs: Journal of Women in Culture and Society
    , 19(4), 1994, 1004,
    

    n. 7. In
    Women in Islam: From Medieval to Modern Times
    , rev. edn (Princeton: Markus Wiener, 1993), 50, Wiebke Walther writes of the four Sunni schools of law, “They are to be
    

    found in various regions of the Islamic world, but they do not vary very much in their dogmas.”
    

15. Leila Ahmed,
    Women and Gender in Islam: Historical Roots of a Modern Debate
    (New Haven: Yale University Press, 1992), 85. See also p. 67 and chapter 5, “Elaboration of the Founding Discourses.”
    

16. Two aspects are important in the consideration of sexual availability: “deriving pleasure” (
    istimta‘a
    ) and “exercising restraint” (
    habs
    , later
    ihtibas
    ). For purposes of this article, the two are combined in the notion of sexual availability, though there were some important distinctions between the two.
    

17. Muhammad b. Idris al-Shafi‘i,
    Al-Umm
    (Beirut: Dar al-Kutub al-‘Ilmiyya, 1993),
    

    1. al-Nafaqat, “Bab al-rajul la yajidu ma yunfiqu ‘ala imra’atihi,” 5:132.
       

18. Ahmad b. ‘Umar al-Khassaf,
    Kitab al-Nafaqat
    (Beirut: Dar al-Kitab al-‘Arabi, 1984),
    

    1. al-Nafaqat “Bab nafaqat al-mar’a ‘ala al-zawj wa ma yajibu laha min dhalika,” 33.
       

19. Sahnun b. Sa‘id al-Tanukhi (Malik b. Anas),
    Al-Mudawwana al-Kubra
    (Beirut: Dar Sader, n.d.), K. al-Nikah IV, ‘Fi ikhtilaf al-zawjayn fi mata‘at al-bayt,’ 2:268.
    

20. “And if someone like her does not serve herself, maintenance of a servant for her is obligatory for him.”
    Al-Umm
    , K. al-Nafaqat, “Al-nafaqa ‘ala ’l-nisa’,’” 5:153; see also “Wujub nafaqat al-mar’a,” 5:127.
    

21. Isma‘il b. Yahya al-Muzani,
    Mukhtasar al-Muzani
    , published as vol. 9 of Al-Shafi‘i,
    Al-Umm
    (Beirut: Dar al-Kutub al-‘Ilmiyya, 1993), K. al-Nikah, “Mukhtasar al-qasm wa nushuz al-rajul ‘ala ’l-mar’a . . ., 9:199.
    

22. See Vardit Rispler-Chaim, “
    Nusuz
    between Medieval and Contemporary Islamic Law: The Human Rights Aspect,”
    Arabica
    , 39, 1992, pp. 315–27; Kecia Ali, “Women, Gender,
    Ta‘a
    (Obedience) and
    Nusuz
    (Disobedience) in Islamic Discourses,” in
    Encyclopedia of Women
    

    and Islamic Cultures
    ˙
    , ed. Suad Joseph (Leiden: Brill, forthcoming); and Sa‘diyya Shaikh,
    

    “Exegetical Violence: Nushuz in Qur’anic Gender Ideology,”
    Journal for Islamic Studies
    , 17, 1997, 49–73.
    

23. One fifth/eleventh-century Maliki text suggests that Ibn al-Qasim (d. 191/806–7), the main authority for Malik’s views in the
    Mudawwana
    , considered the maintenance of a
    nashiz
    wife to be obligatory. See Ibn ‘Abd al-Barr (d. 463/1071),
    Al-Kafi fi Fiqh Ahl al-Madina al-Maliki
    (Beirut, Dar al-Kutub al-‘Ilmiyya, 1987), K. al-Nikah, “Bab fi ’l-nafaqat ‘ala
    

    ’l-zawjat wa hukm al-a‘sar bi ’l-mahr wa ’l-nafaqat,” 254. However, I found no evidence of this in the
    Mudawwana
    . Perhaps further study of Maliki manuscript sources for the formative period will turn up additional information that can substantiate this claim and provide a rationale for it.
    

24. Al-Khassaf,
    Kitab al-Nafaqat
    , “Bab nafaqat al-mar’a ‘ala ’l-zawj wa ma yajibu laha min dhalika,” 35–6.
    

25. A representative statement is that of Asifa Quraishi: “In Islam, sexual autonomy and pleasure is a fundamental right for both women and men.” See Asifa Quraishi, “Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” in
    Windows of Faith
    , ed. Webb, 131. Quraishi’s comments in the note to this passage reference sources dealing with women’s right to sexual pleasure. Though jurists may seek to protect women’s right to sexual pleasure in any given act of intercourse, they do not require the husband to have intercourse with his wife in the first place. This is because of the strict separation of male and female rights in marriage that I am arguing for in this paper.
    

26. Susan Spectorsky (trans.),
    Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh
    (Austin: University of Texas Press, 1993), 113. See also p. 234: “[W]hen a man has had intercourse with his wife once, he is not impotent.”
    

27. Muwatta’
    , K. al-Talaq, “Bab ajal alladhi la yamassu imra’atahu,” 375; see also
    Mudawwana
    ,
    

    1. Nikah IV, “Ma ja’a fi ’l-‘innin,” 2:265.
       

28. Ibn al-Qasim reiterates this view: “I [Sahnun] said: If he has sex with her one time then keeps away from her, is he set a year’s deadline in Malik’s opinion? He [Ibn al-Qasim] said: No deadline is set for him if he has intercourse with her according to Malik then he avoids her.”
    Mudawwana
    , K. Nikah IV, “Ma ja’a fi ’l-‘innin,” 2:265. The same view is expressed in Hanafi and Shafi‘i texts. See Muhammad al-Shaybani,
    Al-Jami‘ al-Saghir
    , (Beirut: ‘Alam al-Kutub, n.d.), K. al-Zihar, “Masa’il min Kitab al-Talaq lam tadkhul fi ’l-abwab,” 241–2;
    Mukhtasar al-Muzani
    , K. al-Nikah, “Ajal al-‘innin wa ’l-khasi ghayri majbub wa ’l-khuntha,” 9:191;
    al-Umm
    , K. al-Nikah, “Nikah al-‘innin wa ’l-khasi wa ’l-majbub,” 5:65.
    

29. Equally between free wives, that is; Hanafis, Hanbalis, Shafi‘is, and at least one prominent
    

    authority cited by the Malikis (Sa‘id b. al-Musayyab) argued for two nights for a free wife to each night for a slave wife. Malik, on the other hand, defended an equal division between free and slave wives. See
    Mudawwana
    , K. al-Nikah IV, “Al-qasm bayna al-zawjat,” 2:271; K. al-Nikah II, “Fi nikah al-ama ‘ala ’l-hurra wa ’l-hurra ‘ala ’l-ama,” 2:204–6. It should be emphasized that a slave wife belonged, of necessity, to another master. Though a man could take his own female slaves as concubines, he could not marry them without first manumitting them or selling them to another owner, who then needed to give permission for the marriage. A slave concubine was not entitled to a share of her owner’s time.
    

30. Al-Umm
    , K. al-Nafaqat, “Nushuz al-mar’a ‘ala ’l-rajul,” 5:285.
    

31. For a strong statement of this view by Ibn Hanbal, see Spectorsky
    , Chapters
    , 230.
    

32. Muhammad al-Shaybani,
    Kitab al-Hujjah
    (Hyderabad: Lajnat Ihya’ al-Ma‘arif al- Nu‘maniyah, 1965), K. al-Nikah, “Bab al-rajul yatazawwaju al-mar’a wa la yajidu ma yunfiqu ‘ala imra’atihi,” 3:451–69.