Sexual Ethics in Islam (29 page)

Notes to Chapter 1

notes 161

1. Al-Ghazali (Kitab Adab al-Nikah from
   Ihya’ ‘Ulum al-Din
   ), trans. Holland,
   The Proper Conduct of Marriage
   , p. 75.
   

2. Ibn ‘Abidin,
   Radd al-Muhtar
   , vol. 4, p. 379. The text points out diver- gent views among earlier Hanafi authorities about the precise contours of a husband’s sexual obligations to his wife (and even his concubines), but even those who hold that a husband may not abandon intercourse with his wife entirely acknowledge that any failure in this regard is not actionable before a judge once he has “exhausted her right” by consum- mation.
   

3. Friedmann,
   Tolerance and Coercion in Islam
   , p. 193.
   

4. For one first-person account of such a marriage, see Sharif-Clark, “Mar- rying a Believer.”
   

5. This phrase, from Q. 4:34, is usually taken by exegetes to refer to both dower and spousal support,
   nafaqa
   . See below.
   

6. Ahmed,
   Women and Gender in Islam
   , pp. 42–6, and sources cited there.
   

7. Khadduri, “Marriage in Islamic Law,” p. 213.
   

8. Mashhour, “Islamic Law and Gender Equality,” pp. 564–5.
   

9. Ahmed,
   Women and Gender in Islam
   , p. 45; Ahmed is making a general point here, not specifically discussing
   sadaq
   .
   

10. Women’s clear legal claim to dower might be vitiated in practice, with the payment either withheld by the husband or his family after marriage, divorce, or widowhood, or received and kept by the bride’s family. Judges have routinely and consistently enforced female dower claims when these are brought to court. For one anecdote, see Antoun, “The Islamic Court,” pp. 456–7; see also Tucker,
    In the House of the Law
    , pp. 53–5. On the shifting patterns of dower in Palestinian women’s experiences, see Moors,
    Women, Property, and Islam
    . Additionally, although the legally required transfer is unidirectional, a number of Muslim societies have had informal exchanges that, in practice, trans- ferred resources from the bride’s family to the groom through trousseaus or other exchanges. See Tucker,
    In the House of the Law
    , pp. 55–7; Zomeño,
    Dote y matrimonio en al-Andalus y el norte de Africa
    ; and Rapoport,
    Marriage, Money, and Divorce in Medieval Islamic Society
    , pp. 12–30, who discusses the function of the trousseau as a type of “gender-specific pre-mortem inheritance” (p. 30).
    

11. Wynn, “Marriage Contracts and Women’s Rights in Saudi Arabia,” and Hoodfar, “Circumventing Legal Limitation.” See also Mir-Hosseini,
    Marriage on Trial
    , for discussion of how dower and support obligations are used as bargaining chips in divorce negotiations in Iran and Morocco.
    

12. Qaisi, “A Student Note.”
    

13. See Al-Shafi‘i,
    Kitab Ikhtilaf Malik wa’l-Shafi‘i
    , in
    Al-Umm
    , vol. 7,
    

    p. 376; and, for similar language, Al-Shafi‘i,
    Al-Umm
    , K. al-Sadaq, “Fi’l sadaq bi aynihi yatlafu qabla dafa‘ahu,” vol. 5, p. 92; K. al-Nafaqat, “Ikhtilaf al-rajul wa’l-mar’a fi’l-khul‘,” vol. 5, p. 300; K. al-Sadaq, “Sadaq al-shay’ bi aynihi fa yujadu mu‘ayban,” vol. 5, p. 111; and Al-Muzani,
    Mukhtasar al-Muzani
    , K. al-Nikah, “Sadaq ma yazidu bi budnihi wa yanqasu,” in
    Al-Umm
    , vol. 9, p. 194.
    

    162 sexual ethics and islam
    

14. See, among other verses, Q. 4:4, 20, 24–5, and 34. 15. Q. 4:24.
    

1. In which case, as discussed further in chapter 2, she is using a delegated power of divorce.
   

2. Ali, “Progressive Muslims and Islamic Jurisprudence,” pp. 169, 178–9; Mir-Hosseini,
   Islam and Gender
   , p. 72, for one example of where this rhetoric breaks down.
   

3. See Moghissi,
   Feminism and Islamic Fundamentalism
   , pp. 21–2; Kugle, “Sexuality, Diversity, and Ethics,” pp. 192–3.
   

4. Schmidtke, “Homoeroticism and Homosexuality in Islam,” p. 261 (although she generalizes regarding “the Judaeo-Christian tradition”). On attempts to draw a similar distinction between Judaism and Chris- tianity, see Boyarin,
   A Radical Jew
   .
   

5. “La rahbaniyya fi’l-Islam.” Although this hadith is famous, it is appar- ently non-canonical. See Maghen,
   Virtues of the Flesh
   , p. 5, n. 11.
   

6. For one contemporary example, see Abdul-Ra’uf,
   Marriage in Islam
   , pp. 49–53. Abdul-Ra’uf quotes some of the Qur’anic passages and hadith reports used by al-Ghazali, below.
   

7. Al-Sheha,
   Woman in the Shade of Islam
   , p. 49 notes this rationale for wives’ sexual rights: “The husband is required and obliged by Islamic law to fulfill the sexual rights of his spouse, to ensure the satisfaction of the spouse so as to refrain one’s spouse from getting involved in shame- ful acts, may Allah forbid.”
   

8. Al-Ghazali died in 1111 CE. For a recent discussion of al-Ghazali, see Moosa,
   Al-Ghazali and the Poetics of Imagination
   . Moosa writes (p. 12) that “the Muslim tradition is saturated with Ghazali’s traces.” Al-Ghazali’s discussion of sex in the Ihya’ is one of the main sources for scholars today discussing sexuality in the classical tradition. See, for instance, Hidayatullah, “Islamic Conceptions of Sexuality,” pp. 264–9, 273. Fourteenth-century jurist Ibn al-Hajj expressed similar sentiments; see Lutfi, “Manners and Customs of Fourteenth-Century Cairene Women,” pp. 107–8.
   

9. Of course, within marriage the husband’s duties are the wife’s rights, and vice-versa, but the choice to address the husband as the relevant actor is noteworthy.
   

10. Al-Ghazali, trans. Holland,
    The Proper Conduct of Marriage
    , p. 74. The verse is Q. 2:223 trans. ‘Abdullah Yusuf Ali. For discussion of other provisions of this verse, see chapter 7.
    

11. Al-Ghazali, trans. Holland,
    The Proper Conduct of Marriage
    , p. 75.
    

12. Shaikh, “Family Planning, Contraception, and Abortion in Islam,” p. 115.
    

13. Shaikh, “Family Planning, Contraception, and Abortion in Islam,”
    

    p. 114; see also al-Hibri, “An Introduction,” pp. 57–8.
    

14. Shaikh does not refer to the Shafi‘i view that the wife’s consent is not required. See Musallam,
    Sex and Society in Islam
    , p. 31; Bowen, “Muslim Juridical Opinions,” pp. 325, 327–8. Also see Keller,
    Reliance of the Traveller
    , p. 526.
    

15. These points have been treated in works from Fatna Sabbah’s
    Woman in the Muslim Unconscious
    to Geraldine Brooks’ journalistic
    Nine Parts of Desire: The Hidden World of Islamic Women
    . Sabbah’s text is prob- lematic in numerous respects for conflating source texts with their interpretation. However, it was groundbreaking and still offers some
    

    notes 163
    

    important insights into the Islamic tradition. Fatima Mernissi’s work addresses the same issues; see especially the articles collected in
    Women’s Rebellion and Islamic Memory
    . Malti-Douglas’
    Woman’s Body, Woman’s Word
    traces these themes through a variety of medieval Arabo-Muslim literary texts.
    

16. See, e.g., Ahmed,
    Women and Gender in Islam
    , p. 27 and Lutfi, “Manners and Customs of Fourteenth-Century Cairene Women,” esp. pp. 117–8.
    

17. Ibn Jibreen is one of the muftis associated with the Saudi fatwa organ- ization studied by Abou El Fadl in his
    Speaking in God’s Name
    .
    

18. Ibn Baz, et al.,
    Fatawa Islamiyah
    , vol. 5, p. 391.
    

19. In another passage in the
    Ihya
    ’ overlooked by those who quote him in support of women’s sexual rights, al-Ghazali praises the practice of female circumcision; see Berkey, “Circumcision Circumscribed,” p. 32.
    

20. The parenthetical “at least” seems to be the translator’s addition.
    

21. Sahih Muslim
    , K. Al-Nikah, “It is not permissible for a woman to aban- don the bed of her husband,” trans. Siddiqi, vol. 1–2, p. 732. A variant ending is also mentioned with “until she comes back” instead of “until morning.”
    

22. Sahih Muslim
    , K. Al-Nikah, “It is not permissible for a woman to abandon the bed of her husband,” trans. Siddiqi, vol. 1–2, p. 732.
    

23. Sahih Bukhari
    , K. Al-Nikah, “If a woman spends the night deserting her husband’s bed,” trans. Khan, vol. 7, p. 93.
    

24. See Ali, “Money, Sex, and Power,” esp. chapter 2. 40.
    Fatawa-I-Kazee Khan
    , vol. 1, p. 270 (1588, #688).
    

1. Wani,
   Maintenance Rights of Muslim Women
   , p. 24.
   

2. See Ali, “Money, Sex, and Power,” chapter 2. Consent to sex within mar- riage is one area where comparative examples can be especially useful in sorting through the range of Muslim views. On medieval Catholic canon law, see Brundage, “Implied Consent to Intercourse.” Marital rape is a fairly recent legal offense; a woman’s husband “could force sexual intercourse upon her without being guilty of rape” in England until a 1991 court decision. See Doggett,
   Marriage, Wife Beating, and the Law in Victorian England
   , p. 46.
   

3. Sahih Bukhari
   , K. al-Nikah, “Your wife has a right over you,” trans. Khan, vol. 7, p. 97; see a similar anecdote in Al-Sheha,
   Woman in the Shade of Islam
   , pp. 49–50.
   

4. See Ali, “Money, Sex, and Power,” chapter 2.
   

5. Ibn Taymiyya is often quoted as espousing a more categorical right to divorce for a woman whose husband does not have sex with her. See Al-Sadlaan,
   Marital Discord (al-Nushooz)
   , p. 33; and al-Hibri, “An Introduction,” p. 70, n. 70.
   

6. The term
   muhsanat
   is used in at least two different senses in the Qur’an. In some places, such as Q. 4:24, it means married females; in Q. 5:5 it clearly refers to unmarried women. Views differ as to whether, in this context, it means women who are chaste or those who are free. This ambiguity gave rise to juristic disagreement over whether a free Muslim man could marry an enslaved
   kitabiyya
   (i.e., woman from
   ahl al-kitab
   ). The general Hanafi view was that such a marriage was permitted, but other Sunni jurists held that while concubinage with an enslaved
   kitabiyya
   was acceptable, and marriage with a free
   kitabiyya
   likewise, a
   

   164 sexual ethics and islam
   

   free Muslim man could only marry an enslaved woman if she was Muslim. None of this discussion considers the linkage between virtue and freedom, or rather the presumption that a female slave could or would not be chaste. I borrow the translation of
   muhsanat
   as “virtuous” from Friedmann,
   Tolerance and Coercion in Islam
   , pp. 161, 179. My discussion of intermarriage touches on classical topics also covered by Friedmann’s thoughtful and thorough chapter, “Interfaith Marriage,” pp. 160–93, and I have cited his text as a resource for those interested in pursuing further the specific topics discussed here.
   

7. They disagreed, however, as to whether that dissolution took place immediately and irrevocably or was suspended until the end of the wife’s post-marital waiting period; in the latter view, if the husband con- verted before the waiting period expired, the marriage would continue in force.
   

8. Friedmann,
   Tolerance and Coercion in Islam
   , p. 161.
   

9. For a brief discussion of “marriage equality,” see Marlow,
   Hierarchy and Egalitarianism in Islamic Thought
   , pp. 30–34; also see Siddiqui, “Law and the Desire for Social Control,” and Zomeño, “Kafa’a in the Maliki School.”
   

10. Hamilton,
    The Hedaya, or Guide
    , vol. 1, p. 110. Hamilton’s often quirky rendering (“more like a summary of al-Marghinani’s views, as they appeared in the Persian translation, expressed in Hamilton’s language” than a translation, according to Imran Ahsan Khan Nyazee [Ibn Rushd,
    The Distinguished Jurist’s Primer
    , xlvi]) is the only accessible English version to date; I have retained his language here. A new translation of the
    Hidaya
    by Nyazee is forthcoming from Amal Press (Bristol, England), with the first volume slated for publication in 2006.
    

11. Rather, he provides an extended discussion of the (im)permissibility of men’s marrying
    kitabiyyat
    and/or “idolatresses,”
    mushrikat
    , either free or enslaved.
    The Distinguished Jurist’s Primer
    , 2:51–3. This is not simply because he is concerned with the lawfulness of men’s actions alone; the immediately preceding section discusses, if only briefly, the case of women marrying male slaves. (It is permissible, provided that the women’s guardians agree and that the slaves in question do not belong to the women themselves.
    The Distinguished Jurist’s Primer
    , 2:49, 51. How- ever, a number of legal thinkers consider marriage between free females and enslaved males so blameworthy as to be practically forbidden.)
    

12. Keller,
    Reliance of the Traveller
    , p. 529.
    

13. See Friedmann,
    Tolerance and Coercion in Islam
    , pp. 172–3, esp. n. 72, and my discussion below.
    

14. Fatawa-I-Kazee Khan
    , vol. 1, p. 115 (1216 #316); see also Friedmann,
    Tolerance and Coercion in Islam
    , p. 180. Friedmann, pp. 185–6, identi- fies Ibn Hazm and Abu Thawr as holding that marriage to Zoroastrians was permissible. In other contexts where Hindus or Buddhists were the relevant minority, some Muslim scholars seem to have held that they were to be considered recipients of revelation (
    ahl al-kitab
    ), suggesting a strong practical role for proximity in what some consider purely theo- logical questions.
    

55.
Fatawa-I-Kazee Khan
, vol. 1, p. 115 (1216 #316).