Progressive Muslims: On Justice, Gender and Pluralism (37 page)

1. “He said: If he finds his wife’s maintenance day by day, they are not separated, and if he does not find it, he is not granted a delay of more than three [days], and he does not prevent his wife during the three [days] from going out to work or ask (i.e., ask for food). If he does not find her maintenance, she chooses [whether or not to divorce him] . . . And if they are separated then his situation improves it (i.e., the separation) is not rescinded. He does not possess the right to return to her during the waiting period, unless she wishes with a new marriage.”
   Al-Umm
   , K. al-Nafaqat, “Bab al-rajul la yajidu ma yunfiqu ‘ala imra’atihi,” 5:132.
   

2. For the Maliki position, see
   Mudawwana
   , K. al-Nikah IV, “Fi farad al-sultan al-nafaqa li ’l- mara’a ‘ala zawjiha,” 2:258–63. For the Hanbali position, see Spectorsky,
   Chapters
   , 80, 190.
   

3. One could argue for other terms to describe this group, including traditionalist or
   

   neo-traditionalist. I do not attach any importance to the term “neo-conservative” beyond its simple descriptive nature.
   

4. Saalih ibn Ghaanim al-Sadlaan,
   Marital Discord (
   al-Nushooz
   ): Its Definition, Cases, Causes, Means of Protection from It, and Its Remedy from the Qur’an and Sunnah
   , trans. Jamaal al-Din M. Zarabozo (Boulder: Al-Basheer, 1996), 13. Though published by an obscure press in the U.S.A., by the time of its translation the book was already in its third Arabic edition.
   

5. Muhammad Abdul-Rauf,
   Marriage in Islam: A Manual
   (Alexandria, VA: Al-Saadawi, 2000; reprint of 1972 edition). Many sections of this work are accessible online, giving some indication of its wide acceptance. See, for example, www.jannah.org/sisters/relations.html
   

6. Abdul-Rauf,
   Marriage
   , 47.
   

7. Abdul-Rauf,
   Marriage
   , 55.
   

8. See also a modified version of this sentiment, which reflects the special attention devoted to food preparation among a woman’s duties: “If the wife is sick and cannot perform her household duties or she belongs to a rich family and refuses to do her domestic work with her own hands or she regards it to be below her dignity, then she may be provided with cooked food. But it is better to do her domestic work with her own hands and as a housewife it is her responsibility. The duty of a husband is to provide means and a wife should manage and run the house.” Muhammad Iqbal Siddiqui,
   Family Laws of Islam
   (Delhi: International Islamic Publishers, 1988), 108–9. This formulation preserves the traditional rule that a wife is not required to perform this work, but emphasizes her domestic duties nonetheless.
   

9. ‘Abdul Rahman I. Doi,
   Woman in Shari‘ah (Islamic Law)
   (London: Ta-Ha, 1994). This work is one of the sources used by Raga’ El Nimr in her article, discussed in the following section. Despite its generally accurate portrayal of various legal doctrines across the Sunni schools, the book has a few significant errors and numerous minor ones. Mistakes include: failing to acknowledge traditional rules allowing for the forced marriage of minors (35); stating that Malikis consider a marriage guardian’s power of compulsion (
   ijbar
   ) to apply to widows and divorcees (36); failing to note juristic disagreement on when and how apostasy causes a marriage to be dissolved (43) and how return (
   raj‘a
   ) is effected during a woman’s waiting period (86–7); failing to differentiate between irrevocable and absolute repudiation (86–7); claiming that there is no possibility of divorce oaths before marriage (89); misidentifying a woman in a
   hadith
   (93); affirming that compensation in
   khul‘
   divorce is limited to the dower amount (96); mis-stating the time that must elapse before Maliki and Shafi‘i jurists will grant judicial divorce for non-support (107); and asserting vehemently that a marriage contracted for an unlawful dower “is null and void. All the jurists of the 4 schools agree upon this point” (160–1). In fact,
   none
   of the Sunni schools holds that view. While the specified dower would be invalid, the marriage is
   at most
   (e.g. for the Malikis) subject to dissolution (
   faskh
   ), and even then only if not consummated; this is quite different from being void (
   batil
   ), which implies having no legal effects whatsoever. Such errors in a work of this type are particularly unfortunate, because those knowledgeable enough to spot the mistakes will not be relying on this work for their understanding of Islamic law, and those who rely on it, unknowingly, will be misled.
   

10. Ibid., 107. However, he later states that if she runs a lawful business, she may “keep the whole income to herself. Islamic law does not put any responsibility for domestic expenses on her.” (154). Doi does not note any contradiction or attempt to reconcile these positions.
    

11. In a more recent phenomenon, the predominance of this type of information on the web parallels its presence in Muslim communities. Khaled Abou El Fadl’s
    Speaking in God’s Name
    illustrates, through its analysis of Saudi
    fatawa
    , that this type of thinking is not present only in the United States.
    

12. Al-Hibri refers to this type of arrogant and “self-serving worldview” as “Satanic logic.” “An Introduction,” 51; see also p. 57, n. 19.
    

13. The specific issue of working outside the home at a salaried job is anachronistic, though of course women did earn money through commercial activities in the first Muslim centuries. The closest proxy by which to examine this right is the wife’s stipulation that she may come and go as she pleases. Alternatively, one could look at the husband’s right to determine the
    

    marital domicile unilaterally, since the wife’s right to maintain stable employment is obviously compromised if the husband may relocate her at his whim. In both cases, wherever these stipulations are discussed in Maliki, Hanafi, and Shafi‘i texts they are simply deemed void. Hanbali jurisprudence, in contrast, allows these types of stipulations. See Spectorsky
    , Chapters
    , 183–4, 232.
    

14. Al-Hibri, “An Introduction,” 58.
    

15. It should be pointed out that this stipulation, along with a prohibition against taking additional wives, has been used by numerous Muslim women through history, with a greater or lesser degree of success in judicial enforcement. On the distinction between judicial decisions (
    qada’
    ), which are binding on litigants but do not set precedent, and juristic opinions (
    ifta’
    ), which are precedent-setting but not binding on anyone, including those who have requested the
    fatwa
    (opinion), see Muhammad Khalid Masud, Brinkley Messick, and David S. Powers, “Muftis, Fatwas, and Islamic Legal Interpretation,” in
    Islamic Legal Interpretation: Muftis and Their Fatwas
    , ed. M.K. Masud, B. Messick, and
    

    D.S. Powers (Cambridge and London: Harvard University Press, 1996), 3–32.
    

16. Maliki views: Malik ibn Anas,
    Al-Muwatta
    (Beirut: Dar al-Fikr, 1989), K. al-Nikah, “Bab ma la yajuzu min al-shurut fi ’l-nikah,” 335,
    Mudawwana
    , K. al-Nikah II, “Fi shurut al-nikah,” 2:197–200; Hanafi views:
    Kitab al-Hujjah
    , K. al-Nikah, “Al-rajul yatazawwaju ‘ala shay’ ba‘duhu naqd wa ba‘duhu ila ajal,” 3:210–2; Shafi‘i views:
    al-Umm
    , K. al-Sadaq, “Al-shart fi ’l-nikah,” 5:107–9,
    Mukhtasar al-Muzani
    , “Al-shart fi ’l-mahr . . .,” 9:195–196.
    

17. Spectorsky
    , Chapters
    , 183–4.
    

18. These texts do not specifically address this type of delegation occurring at a second marriage, but the principle is the same as in those events they do discuss. See Spectorsky
    , Chapters
    , 206–7, 219–20.
    

19. Spectorsky
    , Chapters
    , 206. Ibn Hanbal makes this statement when questioned about another jurist’s opinion “that if a husband has intercourse with his wife without her knowing that she has the option of choosing to be separated from him, she is asked to swear that she did not know of the option during intercourse. If she swears that she did
    

    not, then she is given the option of separating from him. If she did know of her option, she has lost it by the act of intercourse.” The option does not concern the husband breaking a stipulation against taking an additional wife, but the same logic applies.
    

20. “The wife may not legally object to the husband’s right of divorce. The marital contract establishes her implicit consent to these rights. However, if she wishes to restrict his freedom in this regard or to have similar rights, she is legally allowed to do so. She may stipulate in the marital agreement that she, too, will have the right to divorce or keep the marriage bond only so long as she remains the sole wife.” El Nimr does not explain how it is that “if she wishes to restrict his freedom in this regard . . . she is legally allowed to do so” if, as she affirms, a “wife may not legally object to the husband’s right to divorce.” El Nimr, “Women in Islamic Law,” in
    Feminism and Islam
    , ed. Mai Yamani (Ithaca Press: Reading, 1996), 96.
    

21. El-Nimr, “Women in Islamic Law,” 97.
    

22. Al-Hibri, “An Introduction,” 60.
    

23. Mudawwana
    , K. al-Nikah V, “Fi ihlal,” 2:292.
    

24. For example, disagreeing with the Maliki (and Hanafi) position that a minimum dower is necessary, Al-Shafi‘i states, “The dower is a price [
    thaman
    ] among prices, so whatever they consent to as a dower that has a value [
    qima
    ] is permitted, just as whatever two people engaged in a sale of anything that has a value [consent to] is permitted.” See
    Al-Umm,
    Kitab Ikhtilaf Malik wa’l-Shafi‘i, 7:376.
    

25. Al-Umm
    , K. al-Sadaq, “Fi ’l sadaq bi aynihi yatlafu qabla dafa‘ahu,” 5:92.
    

26. Al
    -
    Umm
    , K. al-Nafaqat, “Ikhtilaf al-rajul wa ’l-mar’a fi ’l-khul‘,” 5:300.
    

27. Al-Umm
    , K. al-Sadaq, “Sadaq al-shay’ bi aynihi fa yujadu mu‘ayban,” 5:111. See also
    Mukhtasar al-Muzani
    , K. al-Nikah, “Sadaq ma yazidu bi budnihi wa yanqasu,” 9:194, and
    al-Umm
    , K. al-Sadaq, “Fi ’l-sadaq bi aynihi yatlafu qabla dafa‘ahu,” 5:92.
    

28. “Women in Islamic Law,” 97.
    

29. Al-Hibri, “An Introduction,” 57–8. On housework, see also her “Islam, Law, and Custom,” 22.
    

30. Al-Hibri, “An Introduction,” 70.
    

31. Al-Umm
    , K. al-Nafaqat, “Wujub nafaqat al-mar’a,” 5:128.
    

32. Furthermore, this does not necessarily affect the social recognition of these rights. At an Islamic Society of North America session I attended in Chicago in 1994 or 1995, a woman raised a related issue before a panel of male “experts.” She had stipulated in her marriage contract that she was to attend medical school. Her husband, however, was objecting now that she sought to do so. The panelist who responded to her acknowledged the validity of the condition, but counseled her to drop her plans for medical school in order to preserve family harmony! What type of harmony can exist when it is predicated on the negation of women’s legitimate aspirations?
    

33. I do not mean in any way to suggest that these scholars have erred by not addressing jurisprudence; to the contrary, progressive Muslims must be grateful for the work they have done and the conceptual frameworks they have introduced. Nor do I intend to imply that exegesis is only a precursor to work on law. Rather, I mean that
    some
    progressive Muslims must devote attention to jurisprudence; it is a
    fard kifaya
    , a collective obligation the performance of which by a portion of the community exempts others from the duty to undertake it.
    

34. Al-Hibri, “An Introduction,” 60.
    

35. See, for example, Lisa Wynn, “Marriage Contracts and Women’s Rights in Saudi Arabia,” in
    Women Living under Muslim Laws. Special Dossier 1: Shifting Boundaries in Marriage and Divorce in Muslim Communities
    , ed. Homa Hoodfar (Montpelier, France: WLUML, 1996), 106–20. This topic has been discussed in numerous sociological studies. Today, the use of deferred dower is widely accepted in many parts of the world, and has been for centuries, as studies based on Ottoman court registers attest. Indeed, dividing a dower into prompt and deferred portions is common in North American Muslim communities. Yet while a fixed term for deferring payment of some portion of the dower was acceptable for jurists of the formative period (e.g. one or two years), the idea of deferring part of the dower’s payment until death or divorce was controversial and, at the very least, disapproved of. See, for example,
    Mudawwana
    , K. al-Nikah II, “Fi shurut al-nikah,” 2:197;
    Kitab al-Hujjah
    , K. al-Nikah, “Al-rajul yatazawwaju ‘ala shay’ ba‘duhu naqd wa ba‘duhu ila ajal,” 3:211–2.;
    al-Umm
    , K. al-Sadaq, “Al-shart fi ’l-nikah,” 5:107–9; and
    Mukhtasar al-Muzani
    , “Al-shart fi ’l-mahr . . .” 9:195–6.
    

36. Al-Hibri uses this term; see “Talk of the Town,” and “An Introduction,” 51 and
    passim
    .
    

8

SEXUALITY, DIVERSITY, AND ETHICS IN THE AGENDA OF PROGRESSIVE MUSLIMS

Scott Siraj al-Haqq Kugle
1

This study is dedicated to Hamid Nastoh, for bravery despite despair.
2

In the name of God, the Merciful and Compassionate. Praise be to God, the marvels of whose creation are not subject to the arrows of accident. Minds do not reflect on the beginning of such wonders except in awe and bewilderment. Praise be to God, the favor of whose graces continue to be bestowed upon all creatures. These graces come in succession upon the created beings whether or not they wish to receive them. One of God’s marvelous favors is creating human beings out of water, causing them to be related by procreation and marriage, and subjecting creatures to desire through which God impelled them toward sexual intercourse and thereby preserved their descendants.
3