RETHINKING MUSLIM MAHR (Part 1)

P1 of 2 - RETHINKING MUSLIM MAHR
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In order to work out the doctrinal details of Islamic marriage law, early Muslim Jurists often analogized marriage contracts to slavery, and especially to contracts, for the purchase of a female slave. The gendered background presumptions that accompany this analogy permeate nearly every aspect of Islamic legal doctrine on marriage, affecting not only the mahr at the beginning, but also the rights and responsibilities of the parties during a marriage, and their respective access to divorce at the end.

The intertwining of slave sale contracts in the jurisprudence of Islamic marriage law is why Kecia Ali has argued that the strategy used by Muslim women Activists to find feminist uses for classically-established Islamic legal doctrines like the mahr is fundamentally flawed.

It “misses the forest for the trees,” she argues, because it “focuses on isolated rights without paying attention to how they are embedded in a system of interdependent spousal obligations” (Ali 2003: 164) - a system flawed by historical norms about slavery and sexual autonomy that no longer hold true today. She therefore urges a wholesale rethinking of the whole paradigm of Islamic marriage law to better fit modern sensibilities and practice.

A MEDITATION ON MAHR, MODERNITY, AND MUSLIM MARRIAGE CONTRACT LAW

Relevant Quranic texts has always led me to a different conclusion than that held by the majority of classical Muslim jurists. (My alternative reading is untested, so I will not elaborate on it here except to say that I think it is plausible to read the critical Quranic phrase “what your right hands possess” as referring not to slaves but to some form of preliminary marital arrangement, such as we might today say someone has “pledged their hand in marriage.”) But setting aside my personal skepticism about whether the Quran allows sex with female slaves, I believe it is important to understand the role that this concept played in the development of Islamic jurisprudence on marriage contract law.

Once we appreciate the jurists’ train of thought, it is then possible to ask productive questions about how much of the established doctrine of Islamic marriage law is still necessary today and how to most effectively construct meaningful alternatives

The slavery analogy is distasteful today, but it is not illogical. If one begins with the contract of sale as the base model for marriage contract law, then we can ask, what sort of sales contracts are most analogous to marriage contracts? It does not take much thought to conclude that contracts involving human beings as the subject of sale make a much better analogy than contracts for the sale of bushels of wheat or horses. After all, a horse cannot complain to authorities that he is being mistreated and a bushel of wheat cannot assert that it no longer wants to be owned.

But under Islamic law, a slave can do both things. Add to this a presumption that the purchase of a female slave includes the right to have sex with her, and it is quite understandable why the idea of ownership became important to jurists trying to work out the respective rights in a marriage contract.

MAHR

If we begin with the presumption that both marriage and slavery make sexual relations with a woman lawful, then it is natural to ask what these two situations have in common. One of the most obvious is that both involve some sort of payment—for a slave, it is the purchase price, and for a wife, the mahr. Thus it came about that juristic discussions of mahr “depend on and further the conceptual relationship between marriage and sale” (Ali 2010: 49). Mahr comes to be thought of as the “price” of access to a woman’s sexual parts, which are then “owned” by the husband.

Moreover, this “ownership” is specifically gendered - only males may own this sort of property. This provides an explanation for the juristic belief that women who owned male slaves do not likewise gain sexual access to them by virtue of the purchase price of the male slave. As the classical jurist Shafi’i put it, “The man is the one who marries and the one who takes a concubine and the woman is the one who is married, who is taken as a concubine. It is not permissible to make analogies between things that are different” (Ali 2010: 178).

In other words, although women are fully capable property owners in Islamic law generally, the type of ownership that makes sexual relations licit is considered to be different - it is available only to men. Moreover, this type of ownership is something that a man held with exclusivity. With its allowance of polygamy but not polyandry, Islamic law allows men to have more than one legal sex partner, but only allows women to legally have sex with one man (in a given time period). There is some logic to this as well, considering the ambiguous paternity issues involved when a woman has multiple sex partners.

In communities where wealth, status and power were so strongly affected by paternalistic lines, it is not surprising to see legitimate sexual relations tied not only to male control, but to exclusive male control.

SHARIA-BASED MUSLIM WOMEN’S RIGHTS ACTIVISM: PROS AND

I have recently written about the work of Muslim women’s rights activists who operate from a sharia-mindful perspective, commenting on why I believe this approach is often more effective than that of secular feminists working for Muslim women’s rights (Quraishi 2011). One advantage of the sharia-mindful approach is that much of its starting point is uncontested by even the most conservative and traditional Muslims.

Rather than dismissing all Islamic law as patriarchally biased, these scholars and activists take the more complicated route of finding those parts of established Islamic legal doctrine that can be harnessed and proliferated to pursue and protect women’s rights. Because they come from uncontroversial and established rules that already have persuasive weight with the vast majority of practicing Muslims, this approach can provide Muslim women with immediately effective tools for empowerment. This has a much more direct impact in individual women’s lives than the much longer (and often unsuccessful) projects aimed at reforming Islamic legal doctrine that is harmful to women.

As it turns out, these activists have identified quite a few rules within established Islamic law that can be used to empower women. For example, recognizing and protecting a woman’s right to own (and inherit) property in her own name has been a distinguishing feature of Islamic law among the world’s legal systems for centuries. All the classical schools of Islamic law agree that a woman’s property is exclusively her own - no one can assert any legal claim over it, including her male relatives. (Those familiar with women’s rights under common law will recognize that this Islamic rule is quite a bit more feminist than the property rules that applied to English and American women until not too long ago.)

Further, Islamic law also sets aside the mahr as a specific allocation of property available to every married Muslim woman. Because it is Quranically-mandated, Muslims often speak of the mahr in sacrosanct tones, making it a powerful tool for a Muslim woman to achieve financial security and independence - often the most difficult sort of independence for women to acquire.

Whether saved or invested at the beginning of a marriage, or deferred to be paid in the event of divorce or widowhood, a well calculated mahr could give an otherwise financially-dependent wife the ability to initiate divorce or survive life on her own. (And accessing one’s mahr is often a quicker and more reliable way to set up one’s financial life than waiting for court ordered alimony and/or the division of marital property assets.) Moreover, a large mahr deferred to the time of divorce could also be used to deter a husband from exercising his established Islamic legal right to unilateral divorce (talaq) against his wife’s will.

There are also other ways for women to protect themselves against the impact of traditional Islamic marriage rules that favor men. One emphasized by many sharia-based Muslim women’s rights activists is the marriage contract itself. Under established Islamic legal doctrine, a Muslim marriage contract can include stipulations that alter the otherwise default rules of Islamic marriage law (rules that often disadvantage women). For example, a contract could include a stipulation limiting the husband’s ability to take another wife or it could give the wife equal access to divorce. It might even specify that the wife is not expected to do household cooking and cleaning, reflecting the established rule that a wife has no Islamic obligation to do housework (Quraishi and Syeed-Miller 2004).

Muslim women’s rights activists today regularly point to this old Islamic legal principle to counter the arguments of those who insist on a gendered division of household labor. They also point to the wisdom and foresight of classical Islamic law in holding that, if a wife does perform such work, it may be financially compensable.
This rule could be crucial in the distribution of assets upon the divorce of a stay at-home wife and breadwinning husband—especially where community property is not an option.

All of these examples take the approach of using existing Islamic doctrine, rather than emphasizing its reform, to improve the lives of Muslim women. I have seen the effectiveness of this approach in my work with and observations of Muslim grassroots organizations over the years. The use of established Islamic legal doctrine was instrumental, for example, in the legal advocacy strategies chosen by lawyers defending women against adultery charges in Nigeria and the way in which Pakistan’s adultery laws were ultimately amended in 2006 (Quraishi 2011).

The effectiveness of this approach explains why many Muslims emphasize Prophetic practice (rather than secular law) to condemn domestic violence in their communities and why average Muslim women and girls assert their right to an education by appealing to Quranic verses rather than to international declarations of the rights of the child.

Simply put, Islamically-based arguments for women’s rights give a religious edge to rights claims that secular and reform arguments cannot. Thus, it is not surprising that Muslim women’s activists appropriate traditional Islamic legal concepts like the mahr to help empower Muslim women. This strategy appeals to, rather than challenges, the religious sentiments of even the most conservative Muslims and legal scholars and thus faces less opposition than feminist legal reform efforts. This is why promoting Islamic legal education for Muslim women has become a high priority for many sharia-based Muslim women’s rights organizations.

Fluency in established Islamic legal doctrine, it is believed, is crucial to giving Muslim women the necessary tools to fight for their rights (Quraishi 2011).

{LMU Note: Is it possible to find a solution which moves us away from the Muslim Marriage Contract being viewed in the light of a “Sales Contract” thus belittling the plight of women to a Commodity being sold for the sexual pleasure of men? And if not, do we continue resisting the implication, or do we use the argument of Muslim Women’s rights activists who operates from a “shariah mindful perspective, to create an opportunity for women to empower themselves. These questions will be addressed by the writer in Part 2 of this article.]

by Asifa Quraishi-Landes
A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law