Sexual Ethics in Islam (30 page)
Read Sexual Ethics in Islam Online
Authors: Kecia Ali
Tags: #Religion & Spirituality, #Islam, #Religious Studies, #Gender & Sexuality, #Women in Islam, #Other Religions; Practices & Sacred Texts
Here, I am only treating the case of conversion by “people of the Book.” In the case of other (pagan, polytheist, etc.) converts to Islam, or of apostasy
notes 165
from Islam, no marriage can stand, whether it is the husband or the wife who is the Muslim partner. Again, however, very early Muslim practice allows for ambiguity on this topic; there is some dispute, for instance, over whether the marriage of one of the Prophet’s daughters to Abu al-‘As was preserved despite his refusal to convert until her waiting period had long expired or whether a new marriage followed his conversion. Accounts taking both views are found in
Sunan al-Tirmidhi
, K. al-Nikah, “Ma ja’a fi’l-zawjayn al-mushrikayn yuslimu ihdahuma,” vol. 3, pp. 447–8.Alalwani, “Fiqh of Minorities (1 of 3).” I would like to thank Junaid Qadri (personal communication, November 2004) for bringing this article to my attention.
See Friedmann,
Tolerance and Coercion in Islam
, p. 172. Friedmann does not highlight the distinction between already being married and getting married when noting the eventual demise of the “current of opinion willing to countenance the preservation of a Muslim woman’s marriage to an unbeliever.” Notably, some of these unbelievers were non-kitabis.European Council for Fatwa, Resolution 3/8, “A woman embraces Islam and her husband does not,” from the Final Statement of the 8th Ordinary Session.
He thus passes the first test that Abou El Fadl sets in his discussion of authoritarianism in Islamic thought. Syed, discussing this issue (
The Position of Women in Islam
, pp. 44–7), also acknowledges the jurists’ prohibition and that “practice from the earliest time is against such unions” but uses a legal maxim regarding permissibility to declare (p. 47) that “it is an acceptable proposition that Islamic law permits marriage between Muslim men and Muslim women with women and men, respectively, belonging to the ahlil kitab.” Syed contends that the Qur’an and the hadith “are silent on the question of Muslim women marrying kitabis.”See, for example, the fatwa from Islam Q&A (www.islam-qa.com) “Ruling on a Muslim man marrying a non-Muslim woman and vice versa” (Question #21380). No individual mufti is listed as the author of the response in question, but renowned classical exegetes are quoted as prohibiting all marriages between Muslim women and any non- Muslim, whether
mushrik
or
kitabi
.On the applicability of Qur’anic commands to men and women, see chapter 7.
Notes to Chapter 2
1.
Sunan Abi Dawud
, K. al-Talaq, “Bab fi karahiyyat al-talaq,” vol. 1,
p. 503. Also there: “To God, Exalted and Majestic, the most repugnant (
abghad
) of what is lawful is divorce.
2.
Fatawa-I-Kazee Khan
, vol. 2, p. 167 (2263 #1363).
3. For a survey of twentieth-century reforms in divorce laws, see An-Na’im, ed.,
Islamic Family Law in a Changing World
. For a mid- twentieth-century discussion of Indian application of Muslim divorce law, see Fyzee,
Outlines of Muhammadan Law
, pp. 123–62.
4. Q. 4:35, 128.
166 sexual ethics and islam
Barring her involvement in “clear lewdness,” on which see Q. 4:19;
Q. 2:229 discusses the permissibility of compensation if both parties fear they will not be able to adhere to appropriate limits. Ibn Rushd,
The Distinguished Jurist’s Primer
, vol. 2, pp. 79–84 discusses the debates over when and whether (and how much) compensation was permitted.There are two exceptions: widows wait for four months and ten days, regardless of whether the marriage was consummated, and pregnant women’s waiting periods end when they give birth. There has been dis- pute, however, about the case of the pregnant widow; most have settled on the view that her
‘idda
ends when she gives birth and she need not observe the rest of the mourning period. Additionally, there is a differ- ent length of waiting periods for slave and free women.The jurists understand this intervening marriage to be necessary from Qur’an (2:230); they rule that this marriage to a different husband must be consummated based on a reported statement from the Prophet that it was not lawful for a woman to return to a husband who had divorced her three times “until she has tasted the sweetness [of intercourse]” with her other husband. See, among other sources,
Sahih Bukhari
, Book of Divorce, “If he divorces her triply and she marries another husband after the waiting period,” trans. Khan, vol. 7, p. 182; and Tirmidhi,al-Nikah, “On the one for whom [she is] made lawful and the one who makes [her] lawful,” vol. 3, pp. 427–9.
See, for a brief summary of differences on this point, Coulson,
A History of Islamic Law
, pp. 111–13.A few early authorities including Sa‘id ibn al-Musayyab held that a man could take his wife back during her waiting period from
khul‘
, even without her consent, if he returned to her the compensation she had paid him.Ironically, even some members of the ‘ulama turned to this type of argument in their efforts to defeat proposed Egyptian legislation for stipulations in marriage contracts. Ron Shaham summarizes the argu- ments of the Shaykh al-Azhar: “The Qur’an defined the required relationship between the spouses as being based on love and compassion, whereas the proposed stipulations in the marriage contract reduced this relationship to a property transaction based on bargaining.” Shaham, “State, Feminists and Islamists,” p. 477.
Ayubi, “American Muslim Women Negotiating Divorce,” pp. 128–33.
Zahra Ayubi’s thesis in progress, however, indicates that in some cases Muslim immigrants refer to the laws of their nations of origin as their source for authoritative Islamic law.
Fatawa-I-Kazee Khan
, vol. 2, p. 167 (2263 #1363). See also Haskafi,
The Durr-ul-Mukhtar
, pp. 230–1.The husband’s ability to refute a woman’s claims that he has divorced her by taking an oath seems to have been widely practiced. One case in the
Musannaf
of Ibn Abi Shayba (vol. 5, pp. 251–2) unwittingly attests to this practice when discussing a matter of inheritance in the case of “the man whose wife claimed that he had divorced her and she brought him up to the Sultan, and he had him swear that he had not divorced her, then he returned her to him.” When he dies, the fact that she inherited from him implies the continued validity of the marriage.Tucker,
In the House of the Law
, p. 65; Tucker’s translation.notes 167
As a practical matter, premodern Hanafi judges found ways around women’s access to divorce while preserving inflexibility of doctrine.
For the concept of “traditionist-jurisprudent,” see Melchert, “Trad- itionist-Jurisprudents and the Framing of Islamic Law.”
Spectorsky,
Chapters on Marriage and Divorce
, pp. 248–9.Jennings, “Divorce in the Ottoman Sharia,” p. 165 notes that cases of “claims and counterclaims” are common.
See country profiles in An-Na’im,
Islamic Family Law in a Changing World
, for specifics.This can cause problems where a suspended or conditional oath of divorce working to secure the wife’s option to leave the marriage if the husband does (or fails to do) a particular deed relies on the resulting divorce to be final. Given the interconnected and intricately interwoven nature of legal doctrines, tinkering with one portion of the system is likely to have significant unintended consequences elsewhere.
As Amira Sonbol argues, it is not always the case that codified national laws are always better than “traditional” jurisprudential doctrines. See “Introduction,” in Sonbol, (ed.),
Women, the Family, and Divorce Laws in Islamic History
.Esposito with DeLong-Bas,
Women in Muslim Family Law
, p. 60; see also Mashhour, “Islamic Law and Gender Equality,” pp. 582–4.Esposito with DeLong-Bas,
Women in Muslim Family Law
, p. 80.Some have argued that the availability of
khul‘
induces women who have legitimate grounds for judicial divorce without relinquishing of dower to give up their dower in exchange for ease of obtaining marital dissolution.See Al-Sheha,
Woman in the Shade of Islam
, pp. 101–3 for a summary of representative views on women’s initiation of divorce. Al-Sheha insists that “The most natural and logical way to this peace [mentioned inQ. 4:128] is to let the man have control of the divorce process, not the woman.”
Eid, “Marriage, Divorce and Child Custody as Experienced by Ameri- can Muslims,” proposes such a system. The Canadian Council of Muslim Women has been arguing against a similar proposal at the provincial level.
An-Na’im, “Shari’a and Islamic Family Law,” p. 3; see also p. 16.
An-Na’im, “Shari’a and Islamic Family Law,” p. 8.
The use of U.S. law has been an essential element of the strategy pro- posed by Karamah: Muslim Women Lawyers for Human Rights (www.karamah.org) for Muslim women to safeguard their rights.
Notes to Chapter 3
Haskafi,
The Durr-ul-Mukhtar
, p. 24. I have altered B.M. Dayal’s trans- lation of this passage in several respects.Modern apologetics, as will be seen below, frequently claim instead that she was a wife. A war captive, Rayhana, is likely to have been Muham- mad’s concubine, though some sources suggest that he manumitted and then married her, as he had done with Safiyya, another war prisoner he
168 sexual ethics and islam
purchased from her captor. See Ibn Kathir,
The Life of the Prophet Muhammad
; and Hidayatullah,
Mariyah the Copt
.
3. Q. 2:221, 24:32.
Terms for male slaves included
‘abd
(also “worshipper”) and bothghulam
and
fatah
, which could refer to either male slaves or male youths.Mattson, “A Believing Slave is Better Than an Unbeliever,” p. 134.
Ahmed,
Women and Gender in Islam
, pp. 67, 79–101.See Q. 4:3.
Al-Umm
, K. al-Nafaqat, “Ma ja’a fi ‘adad ma yahillu min al-hara’ir wa’l-imma’ wa ma tahillu bihi al-furuj,” 5:215.While there were frequently distinctions made between types of slaves based on race, slavery as a whole was not racialized in Muslim contexts in the way that it was in the U.S. See Lewis,
Race and Slavery in the Middle East
.Peirce,
The Imperial Harem
. Their situation was unusual, however, and some have suggested that scholarship should not treat them alongside other slaves, or perhaps even as slaves at all. See Toledano, “Represent- ing the Slave’s Body in Ottoman Society,” p. 57. Davis suggests likewise that “regardless of law or theory, a slave’s actual status could historically vary along a broad spectrum of rights, powers, and protections.”
In the Image of God
, p. 125.For one discussion, see Diederich, “Indonesians in Saudi Arabia,” pp. 133–6.
A number of reports over the past decade from organizations including Amnesty International and Human Rights Watch have documented these abuses.
There is significant dispute among human rights activists today as to what constitutes an acceptable use of the term “slavery.” Miers (“Con- temporary Forms of Slavery,” p. 239) notes that, for some servants, “in practice their condition is very like that of chattel slaves” although “it is very different in theory.” Toledano (in “Representing the Slave’s Body”) argues for understanding slavery as a “continuum” and Davis makes a similar point: “[T]he condition of slavery itself has not always been the most abject form of servitude, and it is not necessarily so today. Some contract labor, though technically free, is more oppressive than many types of conventional bondage.”
In the Image of God
, p. 123.U.S. Department of State, “Slavery, Abduction and Forced Servitude in Sudan;” and iAbolish, “Spotlight on Sudan.”
Nazer and Lewis,
Slave: My True Story
. On the past and contemporary practice of slavery in the Sudan, see Collins, “Slavery in the Sudan in History.” For discussion of the historical practice of enslavement of Muslims by Muslims in Africa, with attention to racial and ethnic patterns, see Mack, “Women and Slavery in Nineteenth-Century Hausaland,” esp. pp. 89–90; also Lewis,
Race and Slavery in the Middle East
, pp. 57–9.Algar,
Wahabbism: A Critical Essay
, p. 57.Sikainga, “Slavery and Muslim Jurisprudence in Morocco,” esp. pp. 64–6 and p. 70. Lovejoy downplays the significance of European abolitionist pressure, arguing that Europe “reluctantly pursued the fight whenever compromise proved impossible.” He argues, instead, that
notes 169
abolition resulted from the incompatibility of Africa’s absorption into the modern industrial economy with “a slave-based social forma- tion.”
Transformations in Slavery
, p. 253. Likewise, Collins notes that in the Sudan, British colonial officials were largely content to focus their attention on the slave trade, and overlook the widespread practice of slavery. “Slavery in the Sudan in History,” p. 80.Lewis,
Race and Slavery in the Middle East
, pp. 80–81.Toledano,
Slavery and Abolition
, p. 127.Toledano,
Slavery and Abolition
, pp. 122–9 remarks on the Muslim view of Muslim slavery as humane and, in particular, distinct from chattel slavery as practiced in the American South. On the attention to Muslim sensibilities in Western scholarship on Muslim slavery, see Lewis,
Race and Slavery in the Middle East
, p. vi (also Toledano,
Slavery and Abolition
, pp. 138–9 on this remark by Lewis; and Davis,
In the Image of God
, pp. 137–50 for a review of Lewis’ work as a whole). See also Miller, “Muslim Slavery and Slaving: A Bibliography.”Ali, “Money, Sex, and Power,” chapters 1, 4, and 5.
See, in addition to other verses cited below, Q. 2:178; 16:75; and 30:28. 23. Q. 4:92.