Voices of Islam (249 page)

Likewise, Muhaqqiq al-Hilli, the renowned thirteenth-century Shi‘a jurist, wrote:

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Marriage etymologically is uniting one thing with another thing; it is also said to mean coitus and to mean sexual intercourse
.. .
it has been said that it is a contract whose object is that of dominion over the vagina, without the right of its possession. It has also been said that it is a verbal contract that first establishes the right to sexual intercourse, that is to say: it is not like buying a female slave when the man acquires the right of intercourse as a consequence of the possession of the slave.
10

Khalil ibn Ishaq, the prominent fourteenth-century Maliki jurist, was equally explicit when it came to dower and its function in marriage:

When a woman marries, she sells a part of her person. In the market one buys merchandise, in marriage the husband buys the genital
arvum mulieris.
As in any other bargain and sale, only useful and ritually clean objects may be given in dower.
11

I am not suggesting that classical jurists conceptualized marriage as either a sale or slavery.
12
Certainly there were signifi differences and disagree- ments about this among the schools, and debates within each school, with legal and practical implications.
13
Even statements such as those quoted above distinguish between the right of access to the woman’s sexual and reproductive faculties (which her husband acquires) and the right over her person (which he does not). Rather, what I want to communicate is that the logic of sale underlies the
fiqh
-based conception of marriage and defines the parameters of laws and practices, where a woman’s sexuality, if not her person, becomes a commodity, an object of exchange. It is also this logic, as we shall see, that defines the rights and duties of each spouse in marriage and in Ghazali’s words makes marriage like slavery for women.

Aware of possible misunderstandings, classical jurists were careful to stress that marriage resembles sale only in form, not in spirit, and drew a clear line between free and slave women in terms of rights and status.
14
They spoke of marriage as a religious duty, lauded its religious merit, and enumerated the ethical injunctions that the contract entailed for the spouses. But these ethical injunctions were eclipsed by those elements in the contract that con- cerned the exchange and sanctioned men’s control over women’s sexuality. What jurists defined as the prime ‘‘purposes of marriage’’ separated the legal from the moral in marriage; their consensus held these purposes to be: the gratification of sexual needs, procreation, and the preservation of morality.
15
Whatever served or followed from these purposes became compulsory duties incumbent on each spouse, which the jurists discussed under
ahkam al-zawaj
(laws of matrimony). The rest, though still morally incumbent, remained legally unenforceable and were left to the conscience of individuals.

For each party, the contract entails a set of defined rights and obligations, some with moral sanction and others with legal force. Those with legal force

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revolve around the twin themes of sexual access and compensation, embod- ied in the two concepts
tamkin
(access; also
ta‘a,
obedience) and
nafaqa
(maintenance).
Tamkin,
defi in terms of sexual submission, is a man’s right and thus a woman’s duty; whereas
nafaqa,
defi as shelter, food, and clothing, is a woman’s right and a man’s duty. A woman becomes entitled to
nafaqa
only after consummation of the marriage, and she loses her claim if she is in a state of
nushuz
(disobedience). There is no matrimonial regime: the husband is the sole owner of the matrimonial resources, and the wife remains the possessor of her dower and whatever she brings to or earns during the marriage. She has no legal duty to do housework and is entitled to demand wages if she does. The procreation of children is the only area the spouses share, but even here a wife is not legally required to suckle her child and can demand compensation if she does.

Among the default rights of the husband is his power to control his wife’s movements and her ‘‘excess piety.’’ She needs his permission to leave the house, to take up employment, or to engage in fasting or forms of worship other than what is obligatory (that is, the fast of Ramadan). Such acts may infringe on the husband’s right of ‘‘unhampered sexual access.’’

A man can enter up to four marriages at a time,
16
and can terminate each

contract at will: he needs neither grounds for termination nor the consent or presence of his wife. Legally speaking,
talaq,
repudiation of the wife, is a unilateral act (
iqa‘
), which acquires legal effect by the declaration of the husband. Likewise, a woman cannot be released without her husband’s consent, although she can secure her release through offering him induce- ments, by means of
khul‘,
often referred to as ‘‘divorce by mutual consent.’’ As defi by classical jurists,
khul‘
is a separation claimed by the wife as a result of her extreme ‘‘reluctance’’ (
karahiyya
) toward her husband, and the essential element is the payment of compensation (
‘iwad
) to the husband in return for her release. This can be the return of the dower, or any other form of compensation. Unlike
talaq, khul‘
is not a unilateral but a bilateral act, as it cannot take legal effect without the consent of the husband. If the wife fails to secure his consent, then her only recourse is the intervention of the court and the judge’s power either to compel the husband to pronounce
talaq
or to pronounce it on his behalf.

Veiling or Seclusion?

Unlike rulings on marriage, classical
fi h
texts contain little on the dress code for women. The prominence of veiling regulations in Islamic discourses is a recent phenomenon, dating to the nineteenth-century Muslim encounter with colonial powers. It was then that we see the emergence of a new genre of literature in which the veil acquires a civilizational dimension and becomes both a marker of Muslim identity and an element of faith.

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Classical texts—at least those that set out rulings or what we can call ‘‘positive law’’—address the issue of dress for both men and women under ‘‘covering’’ (
sitr
), in the Book of Prayer, among the rules for covering the body during prayers, and in the Book of Marriage, among the rules that govern a man’s ‘‘gaze’’ at a woman prior to marriage.
17

The rules are minimal, but clear-cut: during prayer, both men and women must cover their
‘awra,
their pudenda; for men, this is the area between the knees and the navel, but for women it means all of the body apart from hands, feet, and face. A man may not look at the uncovered body of an unrelated woman, but a woman may look at an unrelated man. The ban can be removed when a man wants to contract a marriage and needs to inspect the woman he is marrying. The rules concerning covering during prayer are discussed under
‘ibadat
(ritual/worship acts), while rules of ‘‘looking/gaze’’ fall under
mu‘amalat
(social/contractual acts).

There are also related rules in classical
fi h
for segregation (banning any kind of interaction between unrelated men and women) and seclusion (restricting women’s access to public space). They are based on two juristic constructs: the fi is the one that defi all of a woman’s body as
‘awra,
pudenda, a zone of shame, which must be covered both during prayers (before God) and in public (before men); the second defi women’s presence in public as a source of
fitna,
chaos, a threat to the social order.

These are, in a nutshell, the classical
fiqh
rulings on marriage and covering, which many today claim to be immutable and divinely ordained. The model of family and gender relations that they contain has come to be equated with the Shari‘a notion of gender and is thereby invoked to legitimate patriarchy on religious grounds.

These rulings have been the subject of intense debate in the literature and among Muslims since the early twentieth century. But before outlining the contours of this debate and the positions taken, there are important ques- tions to be asked: How far does this notion of gender refl the principle of justice that is inherent in the Shari‘a? Why and how does classical
fi
define marriage and covering in such a way that they deprive women of free will, confi e them to the home and make them subject to male authority? These questions become even more crucial if we accept—as I do—the sincer- ity of the classical jurists’ claim that they derive their ideal model of gender relations from the sacred sources of Islam: the Qur’an and the Sunna.

JURISTIC FOUNDATIONS OF GENDER INEQUALITY

There are two sets of related answers. The first set is ideological and politi- cal, and has to do with the strong patriarchal ethos that informed the classical jurists’ readings of the sacred texts, and eventually led to the exclusion of women from the production of religious knowledge and their inability to

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have their voices heard and their interests reflected in law. The second is more epistemological and concerns the ways in which social norms and gender ideologies were sanctifi and then turned into fi entities in
fi h.
That is, rather than considering practices relating to the ‘‘status of women’’ or ‘‘gender’’ as social issues, the classical jurists treated them as the subject matter of religious rulings (
mawadi‘ al-ahkam
). Let me elaborate.

The model of gender constructed by classical
fi h
is grounded in the patriarchal ideology of pre-Islamic Arabia, which continued into the Islamic era, though in a modifi form. There is an extensive debate on this in the literature, which I will not enter here.
18
Suffi e it to say that the classical jurists’ construction of the marriage contract was based on one type of marriage agreement prevalent in pre-Islamic Arabia. Known as ‘‘marriage of dominion,’’ this agreement closely resembled a sale through which a woman became the property of her husband. As John Esposito notes, it ‘‘produced a situation in which a woman was subjugated by males, her father, brother or close male relatives when she was virgin and her husband when she became a wife. As a matter of custom, she came to be regarded as little more than a piece of property.’’
19

Many passages in the Qur’an condemn women’s subjugation, affi the principle of equality, and aim to reform existing practices in that direction.
20
Yet the classical jurists bypassed the spirit of these Qur’anic verses and repro- duced women’s subjugation—though in a mitigated form. What they did was to modify the pre-Islamic ‘‘marriage of dominion’’ so as to accommo- date the Qur’anic call for reforms to enhance women’s rights and protect them in marriage. Women became parties to, not subjects of, the contract and recipients of the dower or marriage gift. Likewise, by modifying the regulations on polygamy and divorce, the jurists curtailed men’s scope of dominion over women in the contract, without altering the essence of the contract or freeing women from the authority of men—whether fathers or husbands. Fathers or guardians retained the right to contract the marriages of their daughters or female wards. While some schools gave a woman the option to annul a contract involving her after she reached puberty, in others the guardian was invested with the power of compulsion (
jabr
) that is, he could compel his daughter or ward into a marriage without her consent. This went against the very essence of Qur’anic reforms aimed at abolishing the pre-Islamic practice of coercing women into unwanted marriages.

The same applies to rulings on covering. Compulsory covering and seclu- sion for women have no basis in the Qur’an, and the
hadith
(Traditions) that some claim to support them have been also forcefully questioned.
21
As recent research has illustrated, the rulings on covering emerged from political and economic developments during the Abbasid period, and were shaped by the presence in public of slave girls and the commodifi ation of their beauty and sexuality. It was then that rulings on covering during prayer, which come under
‘ibadat
(ritual acts), were extended to the realm of
mu‘amalat

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(social acts), but only for free women, to distinguish them from slave women, who were forbidden to cover their hair in public.
22
It was in this context that compulsory covering came about, premised on the imperative of seclusion. The covering or confi of free women was seen as the best means of protecting them in and from a public space that was deemed contaminated by the presence and sexuality of slave women. Previously, in particular during the era of the Prophet, there was little constraint on women’s access to public space and their participation in the political and social affairs of the nascent Muslim community. Women took the oath of allegiance to the Prophet as men did; they fought in wars and prayed alongside men in mosques.

But the further we move from the time of revelation, the more women’s voices are marginalized and excluded from political life. By the time the
fiqh
schools emerged, women were already excluded from the production of reli- gious knowledge and their critical faculties were denigrated enough to make their concerns irrelevant to lawmaking processes.
23
Women were among transmitters of prophetic
hadith,
yet, as Sachedina reminds us: