Marriage in Islamic Interpretive Tradition: Revisiting the Legal and the Ethical (2024)

2.1 Revisiting the Ethical and Legal in the Interpretive Tradition: Islamic Feminist Scholars’ Re-readings

In a path-breaking study, the Egyptian scholar Omaima Abou-Bakr undertakes a genealogical critical reading of the exegesis of Qurʾānic verse 4:34 over the course of ten centuries (Abou-Bakr 2015).⁹ Abou-Bakr surveys the exegetical corpus starting with the 10th century exegete Abū Ja῾far Muḥammad al-Ṭabārī (d.310/923) up till the 20th century exegete Muḥammad ῾Abduh (d. 1905). She traces the development of qiwāma as a patriarchal construct that sanctions gender inequality and essentialist discourse on maleness and femininity. Abou-Bakr’s analysis reveals the following exegetical trajectory of the development of qiwāma. First, exegetes turned ‘qawwāmūn’¹⁰ in verse 4:34- from a description of a particular social organization of marital roles at the time of the revelation when men provided for women—to a prescriptive construct articulated through the use of the noun qiyām first and then later qiwāma to sanction male authority and superiority. Second, they came up with lists of qualities that they attributed arbitrarily to men and women to justify men’s claim to authority and superiority on the basis of the constructed norm of qiwāma. For example, the exegete Abū al-Qāsim Maḥmūd ibn ʿUmar al-Zamakhsharī (d. 538/1144) comprised a list of assumed male attributes which he claimed were the basis for men’s right to divinely ordained preference (e.g. reason, resoluteness, determination, strength, writing, jihād, etc.). Subsequent exegetes such as Muḥammad ibn ʿUmar Fakhr al-Dīn Al-Rāzī (d 606/1209); ῾Abd Allāh ibn ʿUmar al-Baiḍāwī (d. 685/1286), Abū ʿAbd Allāh al-Qurṭubī (d. 671/1273), and ‘Imād al-Din Ismāʿīl ibn ʿUmar Ibn Kathīr (d. 701/1301), further developed listing binaries of male and female attributes to justify their constructions of qiwāma-based male superiority and privileges. Third, the concept of qiwāma was linked to verse 2:228 and the notion of men having ‘degree’ over women that is expressed in this latter verse in order to re-enforce the hierarchal meaning of qiwāma although verse 2: 228 is located in a unit of verses that tackles the theme of divorce and its central message is to urge both parties not to do injustice to one another.¹¹ Fourth, exegetes of modern times further cemented the meaning of qiwāmah by ascribing inherent domesticity to women versus inherent intellectual superiority and leadership in men.

Abou-Bakr examines Muhammad ʿAbduh’s exegesis of qiwāma as an example of this kind of modern religious discourse, shedding light on his concept of men’s riyāsa (rule) over women, and his argument for leadership and intellectual superiority as innate male attributes on the grounds of a notion of biological determinism that is extended to all male versus all female species (human and non-human). Abou-Bakr, in particular, highlights how ʿAbduh’s modernist exegesis, unlike that of the pre-modern, constructs and reinforces a domestic role for women that included not only child care but also the housework (Abou-Bakr 2014). She notes the importance of recognizing the significant distinction between pre-modern and modern patriarchy as illustrated in the exegetical corpus. Pre-modern exegetical discourse certainly privileged men and subordinated women, but it also stressed men’s duty to protect women, to be good husbands and fathers, not to do ẓulm (injustice) to their wives and made their privileges linked to men’s fulfillment of these duties as part of their religious duty to actualize taqwā (God consciousness). Modern exegetical discourse, however, is centered around modernist understandings of innate female domesticity and male rationality and leadership, resulting in clear-cut divisions between private female-centered domain and public male-centered domain. Abou Bakr points out that the patriarchy of this modernist exegetical discourse is more detrimental to women because it shifted attention away from men’s duties and obligations and focuses entirely on women and their essentialized nature and roles (Abou-Bakr 2014).

Abou-Bakr’s genealogical reading of constructs such as qiwāma demystifies the exegetical tradition. It is no longer seamless, unchangeable, and sacred but rather historically-based religious knowledge that can be revisited. In another relevant work, Abou-Bakr uses what she called ‘Islamic cultural analysis’ or intertextuality, to examine how different texts in the tradition speak to one another, revealing tensions between their patriarchal and egalitarian iterations (Abou-Bakr 2012). She juxtaposes, for example, the exegetical work of Ibn Kathīr and al-Suyūṭi who lived in the 15th century to the biographical dictionary of their contemporary, the historian and ḥadīth scholar al-Sakhāwī. Abou-Bakr’s goal is to shed light on how meanings and concepts traveled in the textual tradition; how they were reinforced and built on, or refuted and displaced; where hidden and alternative meanings and discourses can be found and unearthed. (Abou-Bakr 2012, 7) She notes, for example, that while al-Sakhāwī was describing ḥadīth women scholars using terms such as “rational, judicious, and of intelligent mind, and leading in mind and in religion,” Ibn Kathīr and al-Suyūṭi were writing about wifely obedience and ascribing subordination and inferiority to women, drawing on prophetic ḥadīth that claims women are deficient in intellect and religion. In other words, Abou-Bakr shows that Islamic interpretive tradition is not “monolith but contains within it signs of counter-discourse as well.” (Abou-Bakr 2012, 7).

The hierarchical model of marriage found in the exegetical corpus is also mirrored in Islamic jurisprudence (fiqh), which is concerned with deducing rulings from the textual sources to regulate social relations. Fiqh constructs spousal duties and rights as interdependent, gendered, and unequal. A husband is obligated to give his wife dower and provide for her in exchange for her obedience (ṭāʿa) (Mir-Hosseini 2003, Ali 2003, Abu Odeh 2004, Tucker 2008). Wife’s obedience in legal terms means her obligation to reside in the marital home and to avail herself sexually to her husband. These rulings were based on jurists’ interpretations of Qurʾānic verse 4:34. In this juristic model of marriage, there are no shared matrimonial resources. Whatever possessions and assets the wife brings to the marriage remain hers. Likewise, apart from maintenance for herself and her children, the wife cannot make claims to resources acquired by the husband during marriage. In addition, the husband has unilateral right to repudiation and polygamy, while the wife’s access to divorce is restricted; and is secured either judicially on the grounds of specific fault-based reasons, which differ from one school to the other, or through negotiation with the husband, often involving her forfeiting her financial rights.

Unpacking the juristic construction of marriage, the Iranian UK-based Ziba Mir-Hosseini notes how jurists defined the marriage contract as a “contract of exchange and patterned on the contract of sale,” whose objective was to make sexual relations between the two contracting parties licit (Mir-Hosseini 2013, 10). This marriage contract stipulates a set of rights for both spouses, some legally enforceable, and others subject only to moral sanctions. The rights and duties that carried legal weight focused on a husband’s duty to provide versus wife’s duty to be obedient; and husband’s right to repudiate or take multiple wives. But the abuse of the right to unilateral repudiation or polygamy, for instance, was merely subject to moral sanction. Still pre-modern jurists, Mir-Hosseini adds, were concerned about the welfare of women: they warned husbands against doing injustice to women and put in some checks on husbands’ authority and privileges (e.g. they linked men’s right to unilateral repudiation with payment of financial rights that were due to the wife; they restricted a husband’s authority over his wife to sexual access; and they regulated the ways in which a husband could discipline his wife). But their very construction of the marriage contract, its goal, and the particular rights and duties that were privileged overshadowed the ethical essence and purpose of Islamic marriage as defined in the Qur’an. Furthermore, this juristic construction of the marriage contract and its underlying concept of men’s qiwāmah over women, shared by all schools notwithstanding differences among them, became the foundation or the “DNA of patriarchy in modern Muslim family laws.” (Mir-Hosseini and Anwar 2012)

The insights from Abou-Bakr and Mir-Hosseini’s hermeneutical engagements with tafsīr and fiqh respectively are particularly relevant for contemporary Muslim contexts where dominant religious discourses often sanctify and essentialize Islamic textual tradition, depicting it as monolithic, fixed, and sacred. Such discourses and its challenges are illustrated, for example, through the argument put forward by the Egyptian Azhar scholar of Islamic Jurisprudence, Soad Saleh. In a religious talk show entitled ʿAmmā Yatasāʾalūn (What are they Asking About) aired on the Egyptian satellite channel Dream 2, on June 20, 2009, Saleh was asked whether there was a need for an interpretation that restricts or even bans men’s right to polygamy, given the problems that had been found to arise from polygamous marriages, and which impact co-wives and children (e.g. men leaving their multiple wives without support, failing to provide adequate care and education for their children, etc.). Saleh’s answer was if polygamous men were failing to be good Muslims who treat their co-wives equally and take care of their children, then this was a problem with the men and not a reason to go against God’s sacred text, which according to Saleh, sanctions polygamy.¹² In other words, Saleh’s argument assumes there is a perfect text-based religious doctrine which is applicable to Muslims at all times and in all places. And if the doctrine does not serve justice or creates injustice, it is because either Muslims are applying it erroneously or are failing in piety. Her interpretation not only fails to link context and text in a nuanced and dynamic fashion but also takes dominant exegetical interpretations sanctioning polygamy as an immutable given. In other words, these interpretations become conflated with the Qurʾānic text itself.

Egyptian religious scholars’ opposition to the new khulʿ divorce—when it was first passed in 2000—was also based on a similar logic that sanctified Islamic jurisprudence. The new law grants Egyptian women to petition for judicial khulʿ divorce, irrespective of a husband’s consent. Female petitioners in such cases are guaranteed court issued divorce without having to prove any fault-based grounds for their petition provided that they relinquish their right to the dower and other post-divorce financial dues (Al-Sharmani 2012). The opponents of the new law argued that the Egyptian legislator departed from the Islamic Sharīʿah. since the majority opinions in most juristic schools assume that a wife seeking khulʿ divorce has to negotiate with her husband and secure his consent.¹³

While the works of Mir-Hosseini and Abou-Bakr and others focus primarily on identifying the epistemological and ethical gaps in Islamic interpretive tradition (i.e. diagnosing the problem), perhaps the African American scholar Amina Wadud takes a step further by providing an alternative framework for reform from within the sacred text. Wadud calls for Qurʾānic hermeneutics that undertakes “analyses of the ethical moral intent” of the sacred text. (Wadud 2004, 330). Wadud points out that at the core of the Qur’an’s worldview is the ‘ethics of tawhid’ (Wadud 2015). She argues that tawhīd is the essence of the Qurʾānic message to human beings and is the guiding framework for human-God relation and human-human relations. Thus, all social relations (including gender) and practices need to reflect the actualization of tawhīd. (Wadud 2015, 258).

Tawḥīd, Wadud explains, has three important dimensions. First, it is premised on the central truth that God is one. Second, all attributes of God and their essences are in harmony and unity. Thus, attributes of God that may seem to be contradictory (e.g. wrath, mercy, being the first and last, the apparent and the hidden, etc.) are in fact in absolute harmony. And God created the world, including the human female and male, in dual forms, and each in their own inner reality as well as together reflect the Divine reality of oneness and harmony. Third, an important dimension of tawḥīd is that ‘God unites’ and brings together differences. This has important implications for social relations (and in turn for gender relations). It means that perceived differences between people should be guided by the principle of tawḥīd, which is grounded in the principle “of unity above hegemony,” and requires “reciprocity, equality and harmony in all human relationships.” (Wadud 2015, 267) And so if tawḥīd as a central theological principle of Islam is to be implemented on both the individual and collective levels, it would be a counter construct for qiwāma, since the latter sanctions unequal gender relations and male superiority and thus contravenes with the essence of tawḥīd.

The South African scholar, Saʿdiyya Shaikh, also puts forward a corrective to the construction of gender in Islamic law, through a Sufi-oriented engagement (Shaikh 2015). Sufism, Shaikh points out, reminds us of the essence of human existence and the core theological principle that underlies Islam, which is submission to the Divine. The actualization of this goal entails the pursuit of the spiritual and ethical path towards the knowledge, love, and worship of God. Drawing on the work of the 13 century Sufi scholar Ibn ʿArabi, Shaikh notes that all human beings, whether men or women, are ontologically and spiritually equal and have equal potentiality for moral agency to seek the path. In other words, women and men-carrying the divine spark within—have the potentiality to realize the ethical ideal within them, and thus are able to manifest and unite God’s attributes (i.e. balance jalālī attributes such as power and wrath and jamālī attributes such as mercy and gentleness). And since spiritual and social life are expected to be interconnected, an ethical way of being and living needs to be also reflected in the laws governing social (and thus gender) relations. This inherently necessitates striving against the desire for control, domination, and hierarchy, attributes that lie at the core of patriarchy. Therefore, fiqh being part of this religious tradition needs to be reformed in a way that reflects the theological and ethical essence of the faith.

To conclude, for the above-mentioned Islamic feminist scholars, the question of gender in the Islamic interpretive tradition is not confined to the issue of inequality and injustice that women suffer because of a hierarchal model of marriage and spousal rights. It is first and foremost a problem that arises from the disconnect between the exegetical and juristic construction of marriage and divorce on the one hand, and the core theological and ethical principles that underlie the Qur’an on the other hand.

2.2 Revisiting the Ethical and Legal in Lived Realities of Muslim Marriages and Gender Relations

1

Elsewhere, I wrote about the contestations around the term Islamic feminism and the limitations of lumping together many divergent and un-connected projects underneath this label. I argue that there is, however, a conceptual, hermeneutical, and political framework that is shared by some of the projects and which I propose as the basis for studying them as part of a larger emerging body of knowledge building movement. See Al-Sharmani 2011, Al-Sharmani 2014c.

2

For example, in 2009, Ziba Mir-Hosseini and Amina Wadud, two of the scholars I discuss in this paper, co-founded with other Muslim women scholars and activists such as Zainah Anwar from Malaysia Musawah, a global knowledge building movement. Musawah links scholarship with activism, producing new collaborative religious feminist knowledge and undertaking advocacy efforts towards the goal of gender equality and justice in the Muslim families. See http://www.musawah.org/. As part of a multi-dimensional five year knowledge-building initiative on the concepts of qiwāmah and wilāah, Musawah brought together the studied scholars and others to conduct hermeneutical studies on these two concepts. See Mir-Hosseini el 2015.

3

This Academy of Finland project (2013–2018) is titled ‘Islamic Feminism: Tradition, Authority, and Hermeneutics’ and is based at Faculty of Theology, Study of Religions Unit, University of Helsinki.

4

I call the work of these scholars transnational for a number of reasons. These scholars are based in academic institutions in different countries in Africa, the Middle East, UK, USA, Canada. They produce scholarship in English and their published work is widely disseminated to both academic and non-academic readers.

5

One such organization is Mada Foundation, and its program Noon for gender and religious reform. The foundation, however, suspended its activities in October 2015. On the work of Islamic feminist scholars in Egypt and Mada Foundation, see Al-Sharmani 2016.

6

With the assistance of research assistants, Sawsan Sharif and Fayrouz Gamal at the Social Research Center, the American University in Cairo we conducted interviews with 194 male and female litigants about their disputes and court cases, and 100 men and women of different marital statuses about their marriage aspirations and practices; as well as interviews with 30 court personnel including judges and court-based mediators; 4 focus group discussions with lawyers, and interviews with legislators, religious scholars, and women’s rights activists.

7

This research was one of three studies comprising a larger Academy of Finland project titled ‘Transnational Muslim Marriages in Finland: Wellbeing, Law, and Gender.’

8

I and post-doctoral researcher Abdirashid Ismail collected interview data from 37 women and men and 5 focus group discussions with a total 39 women and men. I also documented the life stories of 5 women. In addition, I collaborated with post-doctoral researchers Sanna Mustasaari and Abdirashid Ismail in researching 8 mosques in Helsinki that conclude Islamic marriages and undertake mediation and arbitration in family disputes. In particular, I conducted an in-depth four year ethnographic study of one Helsinki mosque, taking part in and observing its various activities for families. See Al-Sharmani et al 2017; Mustasaari and Al-Sharmani 2018, Al-Sharmani forthcoming.

9

A translation of verse 4: 34 reads, ‘Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband’s) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all)’ See Abdullahi Yusuf Ali translation, 1989.

10

Qawwām, an adjective, is derived from the Arabic verb yaqūm ʿalā, which means to take care of, to manage.

11

A translation of verse 2:228 reads, ‘Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise.’ See Abdullahi Yusuf Ali translation, 1989.

12

Exegetical interpretations which sanction polygamy are based on Quranic verse 4:3 which reads,’ If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from doing injustice.’(Youssef Ali Translation).

13

Juristic rulings on khulʿ are based on Quranic verse 2:229 and the Prophetic ḥadīth that narrates: Jamila the wife of Thabit ibn Qays went to Prophet Muhammad seeking divorce from her husband. She said he had not wronged her in any way but she did not wish to stay in the marriage and feared she might transgress against God’s limits if she continued with the marital union. The Prophet granted her the divorce after he had her return to the husband the garden which he gave her as a dower. See al-Bukhārī, 1974, 7:150–51.

14

Maʿrūf is used repeatedly in verses on marriage and divorce, for example in 2:228, 2:229, 231, 232, 233, 234, 235, 236. Iḥsān is also used in verse 2:229 as the basis for the Quranic framework for divorce.

15

Religious groups can register as a religious community either under the Freedom of Religion Act of 2003 (with a minimum of 20 members) or under the Association Act of 1989. Communities registered under the former have to meet more rigid criteria than those registered under the latter law, but they enjoy more rights such as the legal authority to conclude marriages and the right to religious education. Registered religious communities are entitled to receive annual financial assistance from the state if they have at least 200 registered members. See Kääriäinen, 2011.

16

I have been conducting a four-year ethnographic study of this mosque program, and how the Finnish state governance of religious minorities enables and limits these kinds of initiatives. See Al-Sharmani, forthcoming.