In Quest of Equity? The Muslim Marriage Contract

Shaykh Mustafa al-Maraghi (1881-1945) is famous for being appointed twice as rector of the oldest Muslim university in the world, the al-Azhar, where he was an active supporter of Islamic legal reform. Once, when sitting in a meeting of lawyers who were working to reform Egypt’s Islamic law, the shaykh is reported to have said to the lawyers that it was for them to suggest to him what changes they wished to make in Islamic law and it was for him to find a suitable authority in the shari‘ah for their views. This story, narrated in an academic article¹ by another academic who, despite the fact of not being a Muslim, was called in by more than one country to advise them on how to reform Islamic law, captures the haphazard attitude of British apologists seeking to reform the Islamic law of marriage through the Muslim Marriage Contract [hereinafter, MMC]. {quotes}We find no coherence in their proposals for reform.{/quotes}

Instead, we observe that they have adopted conflicting opinions from the various legal schools of law to arrive at an end product that would not only not be recognized by any single one of then, but what is much more serious, is directly in contravention of sacred Islamic law. Not only that, the justifications for these reforms offered by the apologists are either embarrassingly apologetic or plain hypocritical. The rest of this article expands on these two themes, namely the un-Islamic nature of the MMC, and the internal tensions within it.

On Islamic Law and Islamic Critiques

Supporters of the MMC often condemn their critics for mixing a religious critique with their criticism of the MMC and similar reform proposals. In fact, the apologists themselves are presenting, explicitly, an Islamic critique of the traditional Islamic law provisions on marriage [nikah], divorce [talaq] etc. The authors of the MMC and their supporters themselves have tried to use Islamic arguments to show that the traditional Islamic laws as practiced in Britain are an imperfect expression of the principles of Islamic law and, therefore, in need of reform. After all their entire argument rests on the premise that since traditional Islamic law is incapable of dealing with the challenges of twenty-first century British life, Islam itself requires that we discard the practices of the past, of our Prophet and his companions, our pious forefathers and forbears – and that we adopt instead the confusing medley of reforms presented to us by the apologists. As such they can hardly complain that their critics are invoking Islam to challenge the reform proposals instead of arguing on the merits of the proposals themselves. The extent to which the proposed reforms are genuinely harmonious with traditional Islamic law has to be one of the key tests used to determine the success of these reforms.

Furthermore, the argument that a law is Islamic so long as it is the law of Muslims also seems to ignore the crucial distinction between the concepts of shari‘ah and fiqh.⁷ The former term refers to the legal content of the Qur’an and Sunnah alone.⁸ In this sense it is Divine law as contained in the word of God. This can either be revealed directly in the form of the Qur’an, which according to orthodox Islamic belief is the literal, uncreated word of God, or indirectly, through the words and actions of the Prophet, known as the Sunnah, which is held by the Qur’an itself to be divinely inspired.⁹ Fiqh, on the other hand, is the law which comes about after legal scholars have interpreted the relevant provisions of the Divine law.¹⁰ Fiqh can therefore make no claim to infallibility or objectivity. Being the result of the ijtihad or intellectual exertion of a scholar or a group of scholars, it is always possible that it misinterprets the provisions of the shari‘ah.¹¹ This is why it is necessary to measure every fiqh opinion in the light of the Qur’an and the Sunnah, and this historically, is what Islamic scholars have always done – offer Qur’an and Sunnah based defenses of their own positions and using the Divine sources to point out where they believed their contemporaries to be mistaken.

On Islamic Legal Reasoning: The Mark of a Muslim Jurist

In fact the approach followed by the apologists has been the same as that adopted by every insincere attempt by Muslims to reform Islam since the Ottoman Mejelle. This law, the first modern attempt to codify Islamic law, was brought about by the pressure on the Ottomans by Western powers who wanted to see large parts of Islamic law reformed and who also wanted to see exceptions from Islamic law provided to Christians residing in Ottoman lands. As a result of their moral and political weakness, the Ottomans capitulated and produced the Tanzimat which provided immunity from Islamic law to Westerners in the Empire and the Mejelle which undid those aspects of Islamic law most repugnant to Europeans. As a result, an eclectic blend of mutually contradictory opinions from the four schools were brought together and enforced on the Muslim population. Since their passage in the 1880s the Mejelle has been the model of reform for every reform of Islamic law by cowered Muslims everywhere. The MMC too, follows the methodology of this misguided instrument in bringing together not just the easiest opinion from the four schools, but what is far more disgusting – those most palatable to the West. Thus the presence of a guardian is deemed unnecessary based on a Hanafi opinion with which the Hanbalis disagree, the wife is allowed the right to forbid her husband from marrying again, based on a Hanbali opinion with which the Hanafis disagree, and the husband is denied the right to marry again, even outside the country, based on an MMC opinion with which nobody agrees!

So what lies beneath these reforms? Clearly, the desire to please secularists who denounce the backwardness of Islam, ignoring in the meantime their own spiritual and moral, not to mention social impoverishment, as reflected in their drug-use and crime rates, and [a hugely relevant statistic, given the MMC’s attempts to make Islamic marriages resemble Western ones] their rates of divorce. To bring about these changes, the framers of the MMC have blinded themselves to the contribution of thousands of legal minds over nearly fifteen centuries, they have severed the temporal link between the Muslim community which, like any other religious community, has always perceived itself to be connected with its religious forbears and with future generations of adherents to the faith. They have also ignored basic provisions of Islamic jurisprudence, such as the rule requiring that the Qur’an must be interpreted in the light of the Sunnah,¹² that the consensus of the Muslim community’s jurists is itself a binding source of law,¹³ and that the practices of the earliest generations of Muslims, the Companions of the Prophet and the couple of generations following them, constitute a golden example for Muslims to follow.¹⁴ In fact the command to follow the Caliphs Abu Bakr and ‘Umar is contained in a Prophetic tradition, as is the command to follow the Righteous Caliphs.¹⁵ The framers of the MMC thus ignore the crucial point that a jurist does not have complete freedom in interpreting a term like ‘nikah’ [marriage] and must be guided by the understanding of earlier scholarly authority, not by contemporary trends in English public opinion.

They also ignore the hierarchy of sources that exists in Islamic jurisprudence to resolve any potential conflicts between them. The hierarchy followed by traditional Muslim jurists, for example, places revealed or primary sources above non-revealed or secondary sources. In our nikah example, a divine command that the parties carry certain obligations designed to bring about their own welfare and that of the society in which they live, could not be overridden by considerations of public interest, because public interest, although accepted as a source, is in fact only a secondary source of law.¹⁶ In the case of the MMC the whole invocation of public interest as a grounds of law is undermined by the assumption made by its framers that public welfare is synonymous with their desire to be respected and liked by those who regard religious law, especially Islamic law as oppressive and barbaric. A Muslim ought to believe that there is nothing in the religion of God that is contrary to his best interests. This, rather than challenging the wisdom of God based on the criticisms of those who know nothing of religion and God, needs to be the Muslim’s approach.

None of the Justifications Given for the MMC is Valid

Following on from that, even if we accept that the aim of the reforms is a valid one and there is a need to harmonize English law and Islamic law by mutilating the latter – the MMC does not even achieve this aim. For the MMC makes it quite clear that there are areas of irreconcilable difference between Islamic and international law. As such, the MMC fails on one of the targets it sets itself. So not only is it misguided in its vision but also ineffective in bringing that vision to reality.

In fact the MMC envisages a two-tiered structure whereby parties to a Muslim marriage [and recall that the soundest opinion is that a marriage convened under the MMC would NOT be Islamic] would have to approach both local Islamic shari‘ah boards/community leaders and also the civil courts. This would be disastrously inefficient, and cost-ineffective, especially at a time when the government is complaining about the burden on the court system.

Arguing that Islamic law as practiced in the UK by local imams/communities contains hidden biases and forms of domination, the apologists have chosen to remedy this malady by changing Islamic law itself, while upholding those cultural practices which they claimed were responsible for the perpetuation of injustice, particularly against women, in Muslims societies. For instance, while claiming that the purpose of the draft is to remove the burdens faced by Muslim women – a laudable aim – the MMC allows repugnant cultural practices such as the practice of requiring the bride’s family to provide “gifts” to the groom or his family. Often, the amounts demanded by the groom and his family as gifts, also referred to as jahez in South Asian communities, are so excessive that families have to face serious financial difficulty to meet these demands. If they do not, there is a danger that the bride will be subjected to mistreatment by the husband’s family. The MMC not only fails to outlaw such un-islamic cultural practice, but by failing to condemn them actually gives them legal protection, allowing the continuation of cultural practices oppressive to women. Similarly, the Introduction to the MMC draft calls for the empowerment of local Mosque Imams. These are the very same people, whom the framers of the MMC accused, in a different context, of being responsible for the subjugation and oppression of women and of improperly understanding the Islamic law on this subject. While the MMC is undoubtedly correct in identifying the role of local imams in reinforcing cultural forms of oppression, how does it make sense to empower these same imams by making them the first avenue of conflict resolution, as the MMC does. Is it really thought that a five page document would remove the misconceptions of imams, who for decades have been responsible, according to the framers of the MMC of misinterpreting and misunderstanding Islamic law?

Supporters of the MMC have hailed it as a symbol of equity. This claim is worth examining in some detail, especially since Islam is a religion which claims to guarantee equity through the application of Islamic law. To claim that we need to look beyond Islam to build an equitable legal system would thus be a direct rejection of the Qur’anic claim that the law of God is based on justice and equity.

It would also be denying the attribute of the Lawgiver who calls Himself the Equitable One. In fact, the MMC, despite its claims to the contrary, is a particularly iniquitous proposal. It is unfortunate that in order to appease those who are hostile to the idea of Islam not only have these modernisers made changes to Islamic law, they have also made claims about their proposals which are untrue, all to satisfy those who are unlikely to be satisfied with Islamic law until it is no longer Islamic at all.

A good example of this would be the MMC’s provisions on marital obligations. Although referred to elsewhere in the draft, the MMC does not list sexual enjoyment by one’s spouse to be one of the obligations of the husband or the wife. From an Islamic perspective this is a glaring omission. In fact, one of the consequences of the provision would be that a wife could sue her husband on grounds of marital rape, arguing that since being sexually available for the husband was not part of her martial obligations, the husband had no right to have intercourse with her. This would overturn centuries of Islamic legal thought which regards the act of marriage itself as consent to future acts of intercourse (provided neither side is harmed by that). On the other hand, by not explicitly addressing the issue, the MMC is also unlikely to satisfy its intended audience, namely those non Muslims who denounce the existence of the right of each spouse to engage in intercourse with the other. If the framers of the MMC really did see the occurrence of marital rape as a form of violence against women, why did they not address this issue directly?

An even more startlingly iniquitous statement in the MMC claims that since marriage is a civil contract, there must be consideration for it in accordance with English law, and that this consideration is the dowry or mahr, paid by the husband to the wife. This is truly astounding, for the concept of consideration in English law entails that the party getting a benefit from a contract must offer something in exchange for the benefit it receives in order for the contract to be valid. For example, the Courts will not uphold A’s contract with B whereby A agrees to give B his car, because there is no consideration being offered by B for the benefit he acquires, namely the car. If on the other hand B offers ten pounds for the car, the courts will uphold the contract because B has offered consideration (ten pounds) for the benefit (the car). The MMC states that the consideration is ALWAYS to be paid by the husband. Why is this the case? Shouldn’t the basic presumption of an equality based contract be that both parties benefit equally from the contract? If so, why must the husband pay for the benefit of getting a wife, when the principle of equality suggests that the husband and wife both benefit equally by entering into the marital contract? Of course the framers of the MMC have simply demonstrated their lack of competence at the basic Islamic juristic tool of analogical reasoning [qiyas], claiming that mahr is consideration just because of a superficial resemblance between the two. Moreover, consideration is a specifically English concept and is not a requirement of continental law in claiming that mahr is consideration the framers have clearly imposed a distinctly English concept onto Islamic law. Would the framers suggest that a Muslim marriage in mainland Europe and in the Muslim world would be invalid because those jurisdictions do not require consideration as part of civil contracts? Clearly, the Islamic philosophy behind the payment of mahr, (which does not even have to be a financial amount according to the soundest opinion supported by ahadith in the Sahih of al-Bukhari), has nothing to do with the English doctrine of consideration, despite the sad and unworthy attempts of the framers of the MMC to convince secularists that Islamic law is as sophisticated as English law.

In fact the MMC also states that if the husband divorces the wife he will have to pay any outstanding mahr he owes her. This seems to indicate an absolute, not a fault-based standard of divorce, seemingly in line with the MMC’s stated aim of bringing about greater equality. But paradoxically, we then find a fault based provision thrown in which states that if the wife divorces the husband, and the husband is found to be at fault, she does not lose her mahr. This definitely indicates a fault-based standard. Why do the so called upholders of equity insist on this double standard? If divorce is, as the MMC claims, the power of the husband, why does the issue of fault arise? And if the issue of fault is relevant, as the MMC claims, why does the husband lose the mahr he paid to the wife even where she is at fault?

These are just some of the absurd consequences and contradictions that arise as a result of abandoning the guidance of the Qur’an, the Sunnah and the pious predecessors on this issue.

Lastly, a general point about the nature of attempts such as the MMC in the context of the secular English legal systems needs to be made. The framers might not realize it, but their very proposals for reform, which were designed to bring about relief from some sort of oppression that we have all apparently been suffering from, ends up being the most illiberal, anachronistic and primitive attempts by one set of people to dominate and control another. Do the framers of this document realize the absurdity of framing a legislative draft in a secular state and legal system which purports to tell people that if they violate this five page draft, they would be committing a sin? Isn’t this far more antithetical to the spirit of a liberal, secular state than the traditional religious marital practices of a community of Muslims could ever be? By what authority have the framers of this document, which has been almost universally reviled by traditional experts on Islamic law everywhere, granted themselves the right to tell people that not following the fruit of their futile labour would not only be a violation of the law (actually they have it wrong, it won’t be a violation of the law, but never mind) but also a sin? It is precisely to remove this oppression of man to other men, to remove inequality by ensuring that all men and women submit to God equally, that the religion of Islam was revealed. For all its false attempts to portray itself as a liberal document the MMC is in fact a thoroughly intrusive set of proposals which should be rejected by all who possess a genuine love of liberty and the dignity of man. A more invasive set of proposals is difficult to imagine. The MMC goes so far as to make it a legislative duty to maintain social contacts with various groups of people. A husband is legislatively prohibited from passing a “transmissible” (sic.) disease to his wife (does that include a flu?). It will be recalled that these are not merely legislative guidelines. They purport to be theological truths. The man who does not wish to associate with the “mutually beneficial” social contacts envisaged by the MMC is not just an offender, he is also a sinner. It is unremarkable to find that proposals such as this have found the most support from fanatical anti-Islamists who have no acceptance in the mainstream Muslim community, such as Ed Hussain whose acclaimed liberalism dies a strange death whenever there is an opportunity to denounce heavy-handed attempts to restrict the liberties of mainstream Muslims. In the most alarming provisions, the MMC actually undermines centuries of profound Western thinking on the subject of the separation of powers and claims that Muslims will have the right to decide on the “interpretation and application” of the MMC themselves. Since when does a secular state allow citizens and subjects of the law to decide what it means and also how and if to implement it. And if all the power is going to rest with individuals anyway, which is presumably where it rests now, what is to stop the evil imams whose personal influence over individual Muslims allowed them to wreak such injustice in their lives. Once again, the MMC seems to be both draconian and ineffective at the same time.

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