A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 175 © Copyrighted Material

Chapter 7 m o .c te a g h s A Meditation on Mahr, Modernity, and.a w w w

m o Muslim Marriage Contract Law .c te a g h s .a Asifa Quraishi-Landes w w w

m o .c te a g h s .a w w w

m Introduction o .c te a g h s “Be a bit strategic,” I advise the young bride. “Think about.a whether you might w w w someday want to be a stay-at-home mom—you could set your mahr (dower) so m o that you won’t have to be completely financially dependent.c on your husband at te a g that time.” h s .a “But that still feels like I’m putting a pricew on myself,” she answers. “It w w

just makes me uncomfortable. I would ratherm just make my mahr something o .c symbolic and leave it at that.” te a g h s .a w I have had a version of this conversationw with many different people as I have w

m engaged the topic of Islamic family lawo as both an academic and activist over .c te a the years. It has always frustrated meg when women, like the bride here, casually h s dismiss the mahr in apparent disregard.a for its women-empowering potential. w w w Quranically-required of every valid Muslim marriage contract, the mahr provision m o designates some property to be.c given (or promised) to a bride upon marriage, te a g and Islamic property law protectsh it as exclusively hers, not to be used by anyone s .a w (including the men) in her life.w For these reasons, a substantial mahr can provide w a woman with financial independencem during marriage or give her the ability to o .c te leave a bad one. I have longa felt that women who casually dismiss the mahr could g h s be dangerously limiting.a their future life choices, just because it doesn’t feel right. w w On the other hand,w these women do have a point. For a bride, but not a groom,

m to be paid some financialo sum as part of a marriage contract does seem, at some .c te a level, like the womang is selling herself. This is certainly better than being sold, h s .a but not by much.w As many have noted, classical Islamic jurisprudence often w w used the term “price” to describe the mahr, and Islamic marriage contract law m o .c was specificallyte based on the model of a contract of sale. Even more disturbing, a g h in order tos work out the doctrinal details of Islamic marriage law, early Muslim .a w jurists oftenw analogized marriage contracts to slavery, and especially to contracts w

m for theo purchase of a female slave. The gendered background presumptions that .c te accompanya this analogy permeate nearly every aspect of Islamic legal doctrine g h s on.a marriage, affecting not only the mahr at the beginning, but also the rights and w w w © Copyrighted Material 174 Feminism, Law, and Religion © Copyrighted Material responsibilities of the parties during a marriage, and their respective access to m o divorce at the end. .c te a g h The intertwining of slave sale contracts in the jurisprudence of Islamic marriages .a w law is why Kecia Ali has argued that the strategy used by Muslim women activistsw w to find feminist uses for classically-established Islamic legal doctrinesm like the o .c te mahr is fundamentally flawed. It “misses the forest for the trees,”a she argues, g h s because it “focus[es] on isolated rights without paying attention to .howa they are w w embedded in a system of interdependent spousal obligations” (Ali w2003: 164)—a

m o system flawed by historical norms about slavery and sexual.c autonomy thatno te a longer hold true today. She therefore urges a wholesale rethinkingg of the whole h s .a paradigm of Islamic marriage law to better fit modern sensibilitiesw and practice. w w I agree with Kecia Ali—up to a point. I believe that the sales contract was m o .c indeed an unfortunate choice for framing Islamic marriaget econtract law, and that its a g h inherent problems were further exacerbated by the developments of Islamic law in a .a w historical context where slavery (especially concubinage)w was socially acceptable. w

m But I do not have quite as much criticism as she doeso for the Muslim women’s .c te rights activism that works within the existing doctrine,a and I will explain why g h s below. Nevertheless, I agree with Ali that the slavery.a framework and its resulting w w w doctrine are not dictated by scripture, so we are not obligated to perpetuate them m o today—especially when their historical contexts.c have so little in common with te a g how we now think about marriage, women,h and sexuality. Thus, it is not only s .a theoretically possible but also appropriatew to ask what sort of alternative model w w could be used to create a different schemem of Islamic family law for today. In this o .c chapter, I will briefly describe what teI think could be a better doctrinal model for a g h Islamic marriage law, and point the sway toward how it could be developed further .a w w by more qualified Muslim jurist-scholars.w Despite her urging for a new paradigm,

m Kecia Ali does not offer any of hero own ideas about what that might look like, so it .c te a is difficult to know if she andg I would agree upon the same solutions. h s .a In a nutshell, I think a workablew alternative would be to use partnership, rather w w than sales, as the framework for Islamic marriage contract law. I believe that m o applying the well-established.c (and recently re-energized) principles of Islamic te a g h partnership law to Muslims marriage contracts would have several advantages over .a w the current sales-basedw framework, including eliminating several traditional rules w

m that have been harmfulo to women. Among other things, some of the existing rules .c te that would disappeara under a partnership model include: the lack of mutuality g h s between husband.a and wife, legal tolerance of marital rape, and a husband’s w w exclusive rightw to unilateral divorce. A scheme of Islamic marriage law based on

m o partnership. c contracts would also fit better with modern attitudes about marriage, te a g mutuality,h women, and individual agency. As such, it would support the sharia- s .a based approachw of Muslim women’s rights activists more effectively than the w w current strategies that sometimes require uncomfortably stretching and pulling m o .c outdatedte doctrines to fit modern sensibilities. a g h s But my enthusiasm for a paradigm shift to this alternative model for Islamic .a w marriagew law is tempered by this caveat: paradigm shifts are not easy. They usually w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 175 © Copyrighted Material

require disentangling emotional connections and long-held patterns of behavior,m o .c te and these changes usually require much more than a good theoretical argument.a g h s So, while as a legal theorist, I would wholeheartedly support new Islamic marriagea . w w law based on a partnership contract model, the activist in me is concernedw about

m the pragmatic realities of making it stick. Simply put, no matter how o perfectly .c te a developed it might be, not everyone will be convinced to switch tog this new h s .a scheme of marriage law. I therefore end this chapter with a brief wdiscussion of w w what I think are the real-life challenges to introducing such an alternative model, m o .c and what I think should be done in light of these realities. te a g h s .a w w w

m Sharia-based Muslim Women’s Rights Activism: Pros ando Cons .c te a g h s I have recently written about the work of Muslim women’s.a rights activists who w w w operate from a sharia-mindful perspective, commenting on why I believe this m o approach is often more effective than that of secular. cfeminists working for Muslim te a g women’s rights (Quraishi 2011). One advantage hof the sharia-mindful approach s .a is that much of its starting point is uncontested byw even the most conservative and w w traditional of Muslims. Rather than dismissingm all Islamic law as patriarchally- o .c biased, these scholars and activists take the morete complicated route of finding those a g h parts of established Islamic legal doctrines that can be harnessed and proliferated .a w to pursue and protect women’s rights. Becausew they come from uncontroversial w

m and established rules that already have opersuasive weight with the vast majority of .c te a practicing Muslims, this approach cang provide Muslim women with immediately h s effective tools for empowerment. This.a has a much more direct impact in individual w w w women’s lives than the much longer (and often unsuccessful) projects aimed at m o reforming Islamic legal doctrine.c that is harmful to women. te a g As it turns out, these activistsh have identified quite a few rules within established s .a w Islamic law that can be usedw to empower women. For example, recognizing and w protecting a woman’s rightm to own (and inherit) property in her own name has o .c te been a distinguishing featurea of Islamic law among the world’s legal systems for g h s centuries. All the classical.a schools of Islamic law agree that a woman’s property is w w exclusively her own—now one can assert any legal claim over it, including her male

m relatives. (Those familiaro with women’s rights under common law will recognize .c te a that this Islamic ruleg is quite a bit more feminist than the property rules that applied h s .a to English and wAmerican women until not too long ago.) Further, Islamic law also w w sets aside the mahr as a specific allocation of property available to every married m o .c Muslim woman.te Because it is Quranically-mandated, Muslims often speak of a g h the mahrs in sacrosanct tones, making it a powerful tool for a Muslim woman .a w to achievew financial security and independence—often the most difficult sort of w

m independenceo for women to acquire. Whether saved or invested at the beginning .c te of aa marriage, or deferred to be paid in the event of divorce or widowhood, a well- g h s calculated.a mahr could give an otherwise financially-dependent wife the ability to w w winitiate divorce or survive life on her own. (And accessing one’s mahr is often a © Copyrighted Material 176 Feminism, Law, and Religion © Copyrighted Material quicker and more reliable way to set up one’s financial life than waiting for court- m o ordered alimony and/or the division of marital property assets.) Moreover, a large.c te a g h mahr deferred to the time of divorce could also be used to deter a husbands from .a w exercising his established Islamic legal right to unilateral divorce (talaq) wagainst w his wife’s will. m o .c te There are also other ways for women to protect themselves againsta the g h s impact of traditional Islamic marriage rules that favor men. One.a emphasized w w by many sharia-based Muslim women’s rights activists is the marriagew contract

m o itself. Under established Islamic legal doctrine, a Muslim marriage.c contract can te a include stipulations that alter the otherwise default rules of Islamicg marriage law h s .a (rules that often disadvantage women). For example, a contractw could include a w w stipulation limiting the husband’s ability to take another wife or it could give the m o .c wife equal access to divorce. It might even specify that thete wife is not expected to a g h do household cooking and cleaning, reflecting the establisheds rule that a wife has .a w no Islamic obligation to do housework (Quraishi and Syeed-Millerw 2004). Muslim w

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

All of these examples take the approachm of using existing Islamic doctrine, o .c rather than emphasizing its reform, teto improve the lives of Muslim women. I a g h have seen the effectiveness of this s approach in my work with and observations .a w w of Muslim grassroots organizationsw over the years. The use of established Islamic

m legal doctrine was instrumental,o for example, in the legal advocacy strategies .c te a chosen by lawyers defending gwomen against adultery charges in Nigeria and the h s .a way in which Pakistan’s adulteryw laws were ultimately amended in 2006 (Quraishi w w 2011). The effectiveness of this approach explains why many Muslims emphasize m o Prophetic practice (rather.c than secular law) to condemn domestic violence in their te a g h communities and whys average Muslim women and girls assert their right to an .a w education by appealingw to Quranic verses rather than to international declarations w

m of the rights of theo child. Simply put, Islamically-based arguments for women’s .c te rights give a religiousa edge to rights claims that secular and reform arguments g h s cannot. Thus, .ait is not surprising that Muslim women’s activists appropriate w w traditional Islamicw legal concepts like the mahr to help empower Muslim women.

m o This strategy.c appeals to, rather than challenges, the religious sentiments of even te a g the most hconservative Muslims and legal scholars and thus faces less opposition s .a than feministw legal reform efforts. This is why promoting Islamic legal education w w for Muslim women has become a high priority for many sharia-based Muslim m o .c women’ste rights organizations. Fluency in established Islamic legal doctrine, it is a g h believed,s is crucial to giving Muslim women the necessary tools to fight for their .a w rightsw (Quraishi 2011). w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 177 © Copyrighted Material

On the other hand, this strategy comes with a weakness. As Kecia Ali hasm o .c te argued, selectively emphasizing and giving feminist rationales to some partsa of g h s classical Islamic law fails to really engage with the jurisprudence as a coherenta . w w whole (Ali 2003). In other words, it may be dangerous to emphasize onlyw the

m woman-empowering aspects of established Islamic law without adequatelyo .c te a warning that many of these rules come with not-so-empowering sideg effects and h s .a caveats. By not telling the whole story, this approach runs the riskw of leaving w w Muslim women vulnerable to unexpected consequences when the rest of the law m o .c comes into play. For example, many of the stipulations that ate Muslim woman a g h might include in her marriage contract are enforceable only in s the Hanbali school .a w of law. And even when a stipulation is recognized as valid,w many schools offer w

m very limited relief for its breach—and very rarely is it specifico performance. Thus, .c te in most schools of Islamic law, a marriage contract stipulationa that a husband g h s will remain monogamous does not entitle a wife to end.a her husband’s marriage w w w to a co-wife, but rather, it only gives her grounds for divorce in the event that m o this happens. Having the freedom to choose between.c divorce and polygamy is, of te a g course, not a meaningful choice for most women,h and is especially shocking to s .a those who believe they have protected themselvesw against such a predicament in w w their marriage contract. m o .c Even the mahr is not as sacred as one mightte expect from its Quranic origin. a g h According to established Islamic jurisprudence,s whether or not a wife may keep .a w her mahr upon divorce depends upon thew type of divorce. A wife’s mahr is safely w

m hers if her husband exercises his right o to a unilateral divorce (talaq). But a wife- .c te a initiated divorce quite often results ing a forfeiture of mahr. Established Islamic law h s provides two ways for a wife to initiate.a and secure a divorce: 1) extra-judicially, w w w with the consent of her husband (“khul’”) or 2) by proving sufficient grounds m o before a judge (faskh). It is generally.c assumed that in a khul’ divorce, a wife te a g returns her mahr. (Some menh take advantage of this situation. A husband who s .a w would like to initiate a talaqw but does not want to pay the mahr might make life so w unbearable for his wife thatm she requests a khul’ divorce, which he then agrees to o .c te when she forfeits her mahra .) The last type of divorce, faskh, could protect a wife’s g h s mahr, but this requires.a her to prove adequate grounds (i.e. fault of the husband), w w the sufficiency of whichw are to be decided by a judge, and some schools of Islamic

m law make this virtuallyo impossible. .c te a The practicalg implication of all this is that, while the current sharia-based h s .a strategies mayw be successfully encouraging Muslim women to take advantage w w of some established doctrine for feminist reasons, sometimes these women face m o .c surprising tedisappointment when they attempt to enforce their understandings of a g h their rights.s The strategy is vulnerable because the jurisprudential theory that .a w created wthe rules in the first place does not match the feminist rationales promoted w

m by thoseo focusing on the woman-empowering provisions. This is why Kecia .c te Ali a argues that more is needed than selective appropriation of some apparently g h s favorable.a aspects of established Islamic law. Part of the problem, she argues, is w w thatw the methodological background to most established Islamic marriage law is © Copyrighted Material 178 Feminism, Law, and Religion © Copyrighted Material so out of step with contemporary sensibilities that it is downplayed or ignored not m o only by modern Muslim feminist activists, but also by popular Muslim discourse.c te a g h generally (Ali 2003: 166). To take her argument further, unless these backgrounds .a w presumptions and theories are brought into the light of contemporary discourse,w w they may prove to be the Achilles’ heel of sharia-based Muslim women’sm rights o .c te advocacy. As a proponent of sharia-based Muslim women’s rights work,a I take g h s Kecia Ali’s critique seriously. To respond, I will describe what I think.a would be w w a better model for Islamic marriage law, but also note some potentiallyw serious

m o obstacles to its success. In order to explain why I think my suggested.c alternative te a would be an improvement over the current law, I will first reviewg the existing rules h s .a of Islamic marriage law, including those aspects that are downplayedw by sharia- w w minded women’s rights activists. m o .c te a g h s .a w Islamic Marriage Law Today: Jurisprudential Theoryw and Presumptions w

m o .c te Most Muslims today either are not aware, or do not likea to emphasize, the theoretical g h s presumptions embedded in the Islamic jurisprudence.a of marriage law because w w w they are quite far from contemporary sensibilities. Established Islamic marriage m o contract law uses the contract of sale as its basic.c conceptual framework—a model te a g which leads to some uncomfortable conclusionsh about what is being sold and the s .a role of women’s agency in that sale. Evenw more out of step with modernity is w w a historical context in which slavery andm concubinage were socially acceptable. o .c Because of their presumption that a teman may legally have sex with his female a g h slave, classical Muslim jurists draws an analogy between a marriage contract and .a w w a contract for sale of a concubine,w using this analogy to work out the doctrinal

m details of the respective rights (sexualo and otherwise) of a husband and wife. This .c te a analogy is supported by juristicg interpretation of some Quranic verses to mean h s .a that there are two (and only wtwo) situations in which sexual activity is Islamically w w licit: in marriage and with a female slave. Theorizing about what could be the m o commonality between these.c two situations, these jurists come to the conclusion te a g h that some sort of males ownership (the Arabic term is “milk,” meaning control or .a w dominion) is instrumentalw in legitimizing sexual activity. As Kecia Ali explains in w

m her detailed study ofo the subject, “a comparison [i]s drawn between the dominion .c te imposed by a husbanda through which his wife is caused to surrender her sexual g h s self and the sovereignty.a established by the master [over his slave]” (Ali 2010: w w 15). Establishedw Islamic jurisprudence therefore often describes marriage as a type

m o of sale, with.c the item being purchased being a wife’s sexual organs. There are te a g qualitativeh differences between the rights of a wife and a female slave, of course, s .a and the wjurists do carefully lay these out, but nevertheless, the concept of male w w ownership of women’s sexual parts becomes an important part of the traditional m o .c juristicte understanding of what makes sex licit in Islam. a g h s I would like to note that I, personally, am not convinced that sex with one’s .a w femalew slave is approved by the Quran in the first place. My own reading of the w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 179 © Copyrighted Material

relevant Quranic texts has always led me to a different conclusion than that heldm o .c te by the majority of classical Muslim jurists. (My alternative reading is untested,a so g h s I will not elaborate on it here except to say that I think it is plausible to reada the . w w critical Quranic phrase “what your right hands possess” as referring not tow slaves

m but to some form of preliminary marital arrangement, such as we might otoday say .c te a someone has “pledged their hand in marriage.”) But setting aside myg personal h s .a skepticism about whether the Quran allows sex with female slaves, wI believe it is w w important to understand the role that this concept played in the development of m o .c Islamic jurisprudence on marriage contract law. Once we appreciatete the jurists’ a g h train of thought, it is then possible to ask productive questions sabout how much of .a w the established doctrine of Islamic marriage law is still necessaryw today and how w

m to most effectively construct meaningful alternatives. o .c te The slavery analogy is distasteful today, but it is nota illogical. If one begins g h s with the contract of sale as the base model for marriage.a contract law, then we can w w w ask, what sort of sales contracts are most analogous to marriage contracts? It does m o not take much thought to conclude that contracts involving.c human beings as the te a g subject of sale make a much better analogy than hcontracts for the sale of bushels s .a of wheat or horses. After all, a horse cannot complainw to authorities that he is being w w mistreated and a bushel of wheat cannot assertm that it no longer wants to be owned. o .c But under Islamic law, a slave can do both things.te Add to this a presumption that a g h the purchase of a female slave includes thes right to have sex with her, and it is .a w quite understandable why the idea of ownershipw became important to jurists trying w

m to work out the respective rights in a marriageo contract. .c te a The slavery analogy and the salesg contract model directly impact several areas h s of traditional Islamic marriage law.a that have a particularly negative impact on w w w women. I will take up three of these here: mahr, marital support, and divorce. m o .c te a g Mahr h s .a w w w

If we begin with the presumptionm that both marriage and slavery make sexual o .c te relations with a womana lawful, then it is natural to ask what these two situations g h s have in common. One.a of the most obvious is that both involve some sort of w w payment—for a slave,w it is the purchase price, and for a wife, the mahr. Thus it

m came about that juristico discussions of mahr “depend on and further the conceptual .c te a relationship betweeng marriage and sale” (Ali 2010: 49). Mahr comes to be thought h s .a of as the “price”w of access to a woman’s sexual parts, which are then “owned” by w w the husband. m o .c Moreover,te this “ownership” is specifically gendered—only males may own a g h this sort ofs property. This provides an explanation for the juristic belief that women .a w who ownedw male slaves do not likewise gain sexual access to them by virtue of w

m the purchaseo price of the male slave. As the classical jurist Shafi’i put it, “The .c te mana is the one who marries and the one who takes a concubine and the woman g h s is. a the one who is married, who is taken as a concubine. It is not permissible to w w makew analogies between things that are different” (Ali 2010: 178). In other words, © Copyrighted Material 180 Feminism, Law, and Religion © Copyrighted Material although women are fully capable property owners in Islamic law generally, the m o type of ownership that makes sexual relations licit is considered to be different—it.c te a g h is available only to men. Moreover, this type of ownership is something that sa man .a w held with exclusivity. With its allowance of polygamy but not polyandry, wIslamic w law allows men to have more than one legal sex partner, but only allowsm women o .c te to legally have sex with one man (in a given time period). There is somea logic to g h s this as well, considering the ambiguous paternity issues involved when.a a woman w w has multiple sex partners. In communities where wealth, status and wpower were so

m o strongly affected by paternalistic lines, it is not surprising to see legitimate.c sexual te a relations tied not only to male control, but to exclusive male control.g h s .a w w w Marital Support (Nafaqa) m o .c te a g h Classical Muslim jurists draw a parallel between a s husband’s obligation to .a w pay mahr at the start of a marriage, and his obligationw to pay for basic support w

m (“nafaqa”) during the course of a marriage, and botho are connected to the licitness .c te of sexual activity. As the jurists conceive things, thea mahr makes a woman initially g h s sexually available to a husband, and the nafaqa. a enables continued sexual access w w w to her during the marriage. Support and sexual access thus become inextricably m o linked in Islamic marriage law: if a husband provides.c his wife with adequate food, te a g shelter and clothing, she has no right to hdeny him sexual access whenever he s .a so desires. If he fails to provide such maintenance,w she is not obligated to make w w herself sexually available to him. In short,m “for Muslim jurists sex is a husband’s o .c right and support is a wife’s right” (Alite 2010: 94–121). a g h This leads to many related doctriness commanding wifely obedience that can .a w w be quite disturbing to modern sensibilities.w Not only does this doctrine of sexual

m availability mean that a wife’s mobilityo is severely dependent upon her husband’s .c te a consent, but it also has seriousg implications for marital rape. Because a husband’s h s .a right to have sex with his wifew is conditioned solely on his payment of support, w w her consent is irrelevant. The idea of marital rape is thus conceptually virtually m o impossible in this legal .c paradigm. Indeed, despite significant Islamic literature te a g h stressing the importances of attending to a woman’s physical desires and sexual .a w pleasure (including orgasm),w the idea of marital rape is nevertheless an oxymoron w

m in classical Islamico jurisprudence. It just does not fit in a system where the legality .c te of sexual activitya is based not on consent of the parties but upon male dominion g h s and payment of.a financial support. w w Even shortw of rape, there is not much room for sexual mutuality in a system

m o of marital rights.c built upon a male-ownership view of sexual licitness. Traditional te a g Muslim juristsh discuss a woman’s right to sexual activity within marriage, but her s .a rights tow sexual access to her husband (and even to non-sexual companionship) are w w virtually unenforceable. Indeed, these jurists think of sex as “the husband’s right m o .c and tenot his duty,” so it makes little sense to compel him to do it. Thus, a Muslim a g h wife’ss right to sexual pleasure, though morally acknowledged in the scripture .a w andw literature, is legally meaningless. Because established Islamic jurisprudence w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 181 © Copyrighted Material

fundamentally views marriage as an exchange of lawful sexual access for dowerm o .c te and continued sexual availability for support, it does not require any mutualitya g h s in sexual rights. This is why Kecia Ali argues that without rethinking the a entire . w w premise of this system, Muslim women activists focusing on such mutualityw will

m always be left with an unenforceable ideal, rather than tangible legalo rights to .c te a sexual equality (Ali 2003). g h s .a The topic of marital support exemplifies the problem w with selectively w w emphasizing only women-empowering parts of established Islamic law. As m o .c mentioned earlier, it has become popular for Muslim women’s terights activists to a g h point out that classical Islamic law does not require a wife to dos housework. This .a w is true, but tells only part of the story. A husband’s marital wsupport obligation is w

m not considered compensation for a wife’s performance of o household chores, but .c te it is considered compensation for her making herself sexuallya available to her g h s husband. That very important caveat is not conducive.a to the picture of marital w w w respect and mutuality that modern Muslim women activists want to portray. But m o without fully acknowledging it, the advocacy approach.c appears under-theorized te a g and incomplete, and ultimately vulnerable. h s .a w w w

Divorce m o .c te a g h Keeping in mind that established Islamics marriage law is based on a paradigm .a w of male ownership of sexual access, itw is not difficult to understand why the w

m established legal doctrine gives a husband,o but not a wife, the right to unilaterally .c te a end a marriage. The jurisprudence conditionsg the legality of sexual activity upon a h s husband’s (or slaveowner’s) exclusive.a ownership of the sexual bond, which means w w w he must have unilateral control over the termination or continuation of that bond. m o Kecia Ali summarizes the doctrinal.c landscape this way: te a g h s .a w The strict gender differentiationw of marital rights, the importance of women’s w

sexual exclusivity, andm above all the strict imposition of rules about unilateral o .c te divorce, however contesteda in practice, all facilitate and flow from the key idea g h s that marriage and licit.a sex require male control or dominion (Ali 2010: 181). w w w

m Indeed, the very meaningo of the word “talaq,” (“release”) evokes parallels with .c te a the dominion involvedg in slavery. A talaq divorce “frees” or “releases” a wife, h s .a much as a slavew is “free” or “released” in manumission, and jurists regularly use w w this analogy in their descriptions of unilateral divorce. Thus, the mahr enslaves a m o .c married woman’ste sexual self just as a slave comes to be owned through a purchase a g h price, ands talaq frees her from that bond just as manumission frees a slave. .a w Suchw a scheme does allow for limited wife-initiated divorce. Khul’ divorce fits w

m withino the male-owned paradigm of marriage because it cannot happen without the .c te husband’sa consent. To be sure, khul’ is more empowering to women than divorce g h s law.a in other systems where women could not initiate divorce at all, and it does w w whonor the concept of marriage as a bilateral contract to which she is a party. But © Copyrighted Material 182 Feminism, Law, and Religion © Copyrighted Material jurisprudentially speaking, khul’ is still conceptualized in the language of sales m o in a way that does not portray marriage itself as a mutual relationship. According.c te a g h to the classical jurists, in talaq, the husband relinquishes his control overs his .a w ownership of the wife’s sexual organ, and in khul’, the wife buys back ownershipw w over herself by compensating her husband (usually by returning her mmahr) in o .c te return for a divorce. Put even more starkly, talaq is analogous to manumissiona g h s of a slave and khul’ is analagous to “kitaba,” the Islamic legal doctrine.a by which w w a slave contracts to pay for his or her emancipation. Both require wthe husband’s/

m o master’s consent, and both require the payment of some sum from.c the wife/slave te a for release. g h s .a w w w

m o .c Modernity and Legal Reform te a g h s .a w Virtually all of the presumptions that formed the jurisprudentialw backdrop for w

m Islamic marriage law are no longer held today. Thereo is now a near universal .c te consensus against slavery among the world’s Muslims,a as is evident from the g h s absence of substantial Muslim resistance to laws.a abolishing it throughout the w w w world. Indeed, the very fact that Muslims today seem uncomfortable with the m o analogy between marriage and slavery itself.c illustrates how much norms have te a g changed since the formative period of Islamich jurisprudence, when the analogy s .a seemed to be a natural, almost self-evidentw one. It is unthinkable among most w w contemporary Muslims that a husband mwould have a female slave with whom he o .c could have unlimited sex. In fact, bothte educated and lay Muslims routinely ignore a g h the classical jurisprudence allowings concubines, often stating categorically that .a w w Islam allows sexual relations onlyw in one situation: marriage.

m Not quite as pervasive as theo aversion to slavery, but nevertheless a significant .c te a shift from earlier norms are g the changes in Muslim attitudes about mutuality h s .a in marriage and the role ofw women in society. Although equality is a contested w w concept, Muslims around the world nevertheless speak of marriage in terms of m o reciprocal and complementary.c rights and duties, mutual consent, and with respect te a g h for women’s agency. s Polygamy is tolerated in some Muslim circles, but the .a w idea of male ownershipw of a wife’s sexual parts in marriage would strike most w

m contemporary Muslimso as inappropriate and probably offensive to a healthy .c te sexual relationship.a g h s Many point. a to Muslim scripture and classical literature to support these ideals w w of mutuality—andw there is significant material to work with. But formalizing

m o these attitudes.c in enforceable rules is much more difficult. So, while Muslims te a g generally h disapprove of the idea of a husband forcing his wife to have sex, it s .a is neverthelessw difficult to find widespread Muslim consensus that marital rape w w should be a crime. This is because a wife’s sexual availability is embedded in m o .c mainstreamte Muslim understandings of the rights and obligations of marriage. In a g h fact,s many who contest the general concept of wifely obedience will nevertheless .a w toleratew it in the context of sexual access. Similarly, while Muslims routinely w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 183 © Copyrighted Material

speak of marriage as a contract based on the mutual consent of both spouses, mostm o .c te Muslims do not contest the idea that Islamic law gives husbands exclusive righta to g h s unilateral divorce. Thus, while many areas of state-enacted family law in Muslima . w w countries have changed in response to public pressure for women’s rightsw (such

m as raising the minimum age of marriage), there is strong social resistanceo to the .c te a abolition of things like polygamy or unilateral talaq divorce. Kecia Alig argues that h s .a this is because these aspects of Islamic marriage law are inextricablyw intertwined w w with the jurisprudential background that relies on the analogy of marriage and m o .c slavery—and that is something no one wants to talk about (Ali te2006: 43, 51). In a g h other words, because the paradigm of the male ownership tie iss so fundamental to .a w the theoretical foundation of all Islamic marriage law, any women’sw rights work w

m (legislative, social activist, or otherwise) that does not takeo this into account will .c te always be limited in how much it can ultimately accomplish.a g h s The obvious question, then, is this: is it possible to.a create a different scheme w w w of Islamic marriage law, one that is better suited to modern sensibilities and not m o based on presumptions about slavery and male ownership.c of female sexuality? te a g This question involves two issues. First is the questionh of Islamic law reform s .a generally: is it possible to challenge existing Islamicw legal doctrine at all, or is w w this religiously set in stone? Second, if such changem is theoretically possible, what o .c could a new Islamic law of marriage look like?te I will take up the first question here a g h and the second question in the following section.s .a w w w

m Sharia Basics and the Challenges of Reformo .c te a g h s Is Islamic legal reform possible?.a Can established Islamic religious law be w w w challenged without offending the divine? The answer may surprise those m o unfamiliar with the foundations.c of Islamic jurisprudence, and the fact that Islamic te a g law is based on an epistemologyh that is self-conscious of its own human fallibility. s .a w In brief, the key principlew is exemplified in the difference between “sharia” w and “fiqh.” “Sharia,” usuallym translated as “Islamic law,” represents the idea of o .c te ultimate justice, the ideaa of God’s divine directions about the ideal way to live— g h s thus, “God’s Law.” Muslim.a jurists use ijtihad (legal interpretation) to elaborate w w the doctrinal detailsw when they are not obvious from the scriptural sources (the

m Quran and Prophetico narratives). What is significant aboutijtihad is that it is a self- .c te a consciously fallibleg process. The jurists performing ijtihad to create legal rules h s .a recognized thatw in doing so, they were human beings struggling to articulate divine w w will, and therefore their conclusions could be, at best, only probable articulations m o .c of God’s Law.te No one could claim with certainty that his or her answers were “the a g h right answer,”s at least in this lifetime. That is why they use the term “fiqh”—which .a w means “understanding”—forw the doctrinal rules of Islamic law. w

m Moreover,o there are a variety of fiqh rules on the same topics. Because the .c te legala scholars could claim only probable correctness for their conclusions, they g h s all.a recognized that they had to respect the differing conclusions of their colleagues w w was possibly correct. In other words, as long as it is the result of sincere ijtihad, © Copyrighted Material 184 Feminism, Law, and Religion © Copyrighted Material any fiqh conclusion qualifies as a possible—and thus legitimate—articulation of m o sharia. This is why sharia, as a body of tangible law, is inherently and unavoidably.c te a g h pluralistic. Eventually, the variety of fiqh opinions coalesced into several definables .a w schools of law, each with equal legitimacy and authority for Muslims seekingw to w live by sharia. In short, for a Muslim, there is one Law of God (sharia), butm there are o .c te many versions of fiqh articulating that ultimate Law here on earth (Quraishia 2008). g h s In contemporary discourses, especially in a legal advocacy setting,.a it is very w w important to keep the two terms fiqh and sharia distinct. Sloppy usew of the term

m o sharia can (and does) generate unnecessary resistance to what .otherwisec would te a be legitimate and uncontroversial assertions. It is unnecessarilyg provocative to h s .a advocate, for example, changing or reforming sharia, becausew this implies that w w God’s Law is not itself already perfect, a suggestion likely to generate resistance m o .c from many Muslims. But advocating a change or reform ofte fiqh is quite a different a g h matter, because fiqh is fallible, and in fact its many manifestationss already reflect .a w the consideration of a variety of different social norms.w In short, sharia (God’s w

m Law) cannot be questioned by Muslims, but our o understandings of sharia— .c te namely, the fiqh rules—are always open to question.a g h s This brings us directly to the question of reform..a Are all the fiqh rules set w w w in stone or can they be changed? At the most basic theoretical level, the answer m o seems simple—and encouraging: all existing.c fiqh rules are the product of ijtihad, te a g and because ijtihad is fallible, they can beh challenged by any alternative ijtihad. s .a But things get a bit more complex when wew look at the details. To fully understand w w what is fixed and what is negotiable inm the existing fiqh corpus requires detailed o .c knowledge of the ijtihad that producedte each fiqh rule. More specifically, it is a g h important to know the methodologicals pieces of the ijtihad analysis that created it: .a w w what was textually ambiguous andw what was not, what was the reasoning behind

m using some prophetic narrationso but not others, and what other jurisprudential .c te a tools were used and why. g h s .a There are many ways in wwhich new fiqh rules can be made. One of the easiest w w is where the jurisprudential tools used in the past relied on a social context that m o has changed today in relevant.c ways. In these cases, simply applying classically- te a g h established ijtihad methodologiess in the new changed circumstances will produce .a w a new fiqh rule. But w it is important to realize that this way of arriving at a new w

m rule is not legal reformo in the sense of changing established Islamic legal theory. .c te Rather, it is an examplea of how a new rule can naturally result when the same tools g h s are employed in.a a new context. For example, the tool of maslaha (public good) w w happens to bew one that is extremely responsive to changing circumstances. If one

m o is faced with.c a problematic fiqh rule that directly relies on a historical evaluation te a g of the publich good, that rule can be easily changed if the relevant public good has s .a changed.w There are other jurisprudential analytical tools with a similar built-in w w potential to generate new fiqh rules without posing any major upheaval to Islamic m o .c legalte theory. For example, qiyas (analogical reasoning) requires fiqh scholars to a g h identifys the cause (‘illa) of an original textual rule before expanding it to new .a w cases.w In the body of classical fiqh doctrine, there can be a diversity of opinion w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 185 © Copyrighted Material

on those causes and thus what analogies are appropriate and why. That diversitym o .c te could continue today, with contemporary fiqh scholars identifying and applyinga a g h s different cause—and thus reaching a new fiqh rule—for an established scripturala . w w text. w

m Turning now to the issue at hand, Islamic marriage law, Kecia Ali o has done .c te a a careful job of laying out how the analogy to slavery and concubinesg played a h s .a pivotal role in the development of traditional Islamic jurisprudencew on marriage w w and marriage contract law (Ali 2006, 2010). That analogy was not scripturally- m o .c directed. It was created by fallible jurists who saw similarities betweente these two a g h situations that led them to use this analogy in working out thes doctrinal details .a w of marriage law. These perceived similarities were largely wbased on social and w

m philosophical realities of their time that no longer hold trueo today. Slavery and .c te concubinage have fallen out of practice, and indeed, out aof the moral compass of g h s most Muslims. Moreover, new pervasive attitudes about.a mutuality in marriage w w w make the idea of a husband’s ownership of his wife’s sexual parts surprising and m o offensive to many Muslims today. Thus, it would.c not be too radical a reform te a g to re-think the slavery analogy. Jettisoning the hanalogy between marriage and s .a concubinage does not challenge the use of analogyw as an Islamic jurisprudential w w tool altogether, but rather just suggests that thism particular analogy was based on o .c social circumstances that are no longer appropriatete today. This suggests that new a g h ijtihad (Islamic jurisprudential reasoning) s on Islamic marriage law that does not .a w presume an analogy to slavery is possible,w and could create different doctrinal w

m rules than those summarized above. Moreover,o if done thoroughly and well, it .c te a would carry just as much validity as theg existing traditional doctrinal scheme. That h s is because Islamic law requires tolerance.a and respect for all ijtihad conclusions, w w w no matter how diverse. m o But there are two important.c caveats to the viability of any new theory of te a g Islamic marriage law. Jurisprudentially-speaking,h the success of a new legal s .a w scheme is dependent upon:w 1) the expertise of those performing the new ijtihad w and 2) the impact of past mconsensus. The first criterion is fairly obvious: without o .c te proper training in ijtihada , a scholar’s fiqh conclusion will not garner the status of g h s probability that gives .ita validity, and ijtihad expertise is no small accomplishment. w w Many prerequisites wof language, legal reasoning, and knowledge of context must

m be mastered beforeo a scholar can even begin to extrapolate legal doctrine from .c te a the sharia sourceg texts. The complex, layered, soul-searching process of Islamic h s .a jurisprudentialw analysis is not for amateurs, no matter how well-intentioned w w or socially conscious they might be. But once one is an expert, whatever one m o .c produces deserveste to be respected as a legitimate articulation of sharia, no matter a g h how innovatives the conclusions. Thus, the success of any new Islamic marriage .a w law willw depend very largely on the ijtihad qualifications of the legal scholar(s) w

m creatingo it. Without appropriate training in established Islamic legal theory, their .c te conclusionsa are likely to lack credibility in the general Muslim public, as well as g h s the.a juristic community whose doctrine it is challenging. w w w © Copyrighted Material 186 Feminism, Law, and Religion © Copyrighted Material

The second caveat—the impact of past consensus—is a bit more complicated m o and potentially more of an obstacle. Consensus, a core idea in established Islamic.c te a g h legal theory, can have a drastic impact upon the staying power of individuals fiqh .a w rules. To put it briefly, Islamic jurisprudence is built upon the wmultiplicity of w many different schools of fiqh doctrine, but if there is unanimous agreementm of all o .c te qualified jurists of a given age, that agreement has a higher status thana an average g h s fiqh rule. According to Islamic legal theory, consensus transforms a fiqh.a rule from w w mere probability to certainty—the same epistemological status asw the Quranic

m o text. In the world of Islamic jurisprudence consensus can thus .changec a fallible te a human opinion into certain truth, binding upon all. This meansg that creating new h s .a Islamic legal doctrine is not so simple a matter as just engagingw in new ijtihad, w w because Islamic legal theory did not allow new ijtihad on questions that had m o .c already been answered by scholarly consensus. For brandte new questions never a g h before presented (such as those presented by modern bio-ethicss and technology), .a w this is not a problem, for no classical jurist could havew imagined the possibility w

m of, say, in vitro fertilization or the use of the interneto for conducting business. .c te But it is a harder one for age-old issues such asa a woman’s access to divorce, g h s or sexual availability of wives, where changes.a in social understandings make w w w classical rulings inappropriate or even oppressive, but the legal questions have m o nevertheless been asked and answered by past.c jurists. In short, the doctrine of te a g consensus means that, if consensus was reachedh in the past, the field is not open to s .a new interpretations of the same questionsw by new ijtihad taking into account the w w realities of our time, perspectives, and circumstances.m o .c One way out of the grip of this deadte hand of the past would be to radically a g h reform Islamic legal theory altogethers to argue for changing or even deleting the .a w w classical doctrine of consensus to alloww new opinions even in the face of settled past

m conclusions. This would be an extremeo move, one that would risk losing supporters .c te a that might otherwise support reformg done within the existing jurisprudential rules. h s .a To reject consensus would w be to reject a foundation of Islamic legal theory— w w that jurisprudential scaffolding upon which all Muslim jurists stand to craft their m o legal rules. Purging one part.c of the methodological structure might render all of it te a g h vulnerable to change ors deletion, and might thereby create intolerable foundational .a w challenges. In the aftermath,w how would contemporary Muslim scholars decide w

m which of the existingo tools would stay and which would go? Would new ones be .c te added, and how?a Would it even still be Islamic law if it were grown from such a g h s different set of .a roots? These are obviously very big questions to which there are w w no ready answers.w That is why many reformers choose paths of reform that do not

m o involve such.c destabilizing questions, such as working within the existing structure te a g of classicalh Islamic legal theory—using them to update and even correct mistakes s .a in the positivew law, while still maintaining those established foundations. w w Frankly, I have not done enough research on the role of consensus in established m o .c Islamicte marriage law to know if it played a significant role in solidifying the a g h doctrinals rules discussed here. I do not know, for example, if it was asserted that .a w therew is consensus that male ownership is the basis of sexual licitness, let alone on w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 187 © Copyrighted Material

the doctrines emerging from that concept (unilateral divorce, sexual availabilitym o .c te of wife, etc.). But, given the pervasiveness of these concepts and the similaritya of g h s doctrinal rules across the schools, it is certainly possible that this is the case.a If so, . w w then there is a powerful dead-hand-of-the-past consensus challenge withw which

m contemporary Muslim marriage law reformers must deal. o .c te a But if it is possible to get past the obstacle of consensus in establishedg Islamic h s .a marriage law—and I personally hope that it is—I can imagine w one possible w w approach that modern Muslim jurists could pursue to create an alternative scheme m o .c of Islamic marriage law, one that is not based upon an analogyte to slavery and a g h concubinage. The alternative, as I see it, lies in the Islamic slaw of partnership .a w contracts. w w

m o .c te a g h s A New Model for Islamic Marriage Law: The Partnership.a Contract w w w

m o Could Islamic marriage contract law proceed from.c a different basis than the te a g sales contract and the analogy to owning a femaleh slave? I believe the answer is s .a yes. There is an established body of Islamic contractw law that seems to me quite w w well-suited for the subject of marriage and m which would fit much better with o .c contemporary sensibilities about marital respectte and harmony, women’s agency a g h and the aversion to slavery. That body of s law is the field of Islamic partnership .a w contracts, a field that not only has historicalw pedigree going back to the earliest w

m periods of Islamic legal practice, but alsoo has commanded vibrant new attention, .c te a because it is instrumental in contemporaryg thinking about modern Islamic finance h s (El-Gamal 2006). .a w w w While I do not claim to be an expert in the Islamic contract law, let alone the m o nuances of partnership contracts,.c my review of this field indicates that it may be te a g a fruitful area for new ijtihadh on marriage contract law. To summarize, Islamic s .a w law regarding partnership contractsw is based on several primary features that are w useful for modern marriagem contracts. Partnership contracts recognized under o .c te Islamic law depend on aall the parties’ continuous concurrent consent, in both the g h s continuation of partnership.a and the terms imposed on each party. In addition, each w w party has to contributew something to the partnership—whether it is capital, labor,

m or something else.o Beyond these generalities, there are many specific types of .c te a partnership contractsg recognized in Islamic law, and the rules governing them vary h s .a across the schools.w As an example of one doctrinal scheme, the Hanbali school w w (probably the simplest system) requires that partners agree 1) to assume relations m o .c of mutual agencyte and at times suretyship, 2) to contribute work, credit, or capital, a g h or combinationss of all three, and 3) to share profits in predetermined percentage .a w shares. wIn addition, each partner binds the other partners in dealings with third w

m partieso and is liable for any infractions. Perhaps most significant for our present .c te purposes,a partnership contracts are revocable at will by any partner and terminate g h s with.a the death of any partner (El-Gamal 2006). w w w © Copyrighted Material 188 Feminism, Law, and Religion © Copyrighted Material

There are three basic principles that are deemed to be essential to all m o partnerships, and cannot be varied even by the parties’ agreement. These .care te a g h 1) they are revocable at will, 2) losses are borne by partners in proportion tos their .a w shares of ownership of capital, and 3) profits must be shared by percentage,w not w in fixed sums. These three principles, too complicated to fully describe mhere, stem o .c te from Islamic legal doctrine prohibiting interest and speculative transactionsa (the g h s underlying purpose being to prevent unfair advantage by capitalizing.a on future w w uncertainties) (Vogel 1998). w

m o Given these basic parameters, I believe that Islamic partnership.c contracts te a are better suited to be the base theoretical model for modern g Muslim marriage h s .a contracts than the current sales contract model. If we w take seriously the w w principle—recognized by even classical jurists—that both husband and wife are m o .c parties to the contract, then partnership contracts are ate logical framework for a g h thinking about marriage contracts. Moreover, marriagess vary widely between .a w couples and contexts, and there are many different typesw of partnership contracts w

m recognized in established Islamic law. This facilitateso a variety of choices by .c te spouses wishing to tailor their marriage contracta to individual circumstances. g h s For example, a limited partnership (`inan) is .onea where each of the partners w w w contributes both capital and work, whereas in a silent partnership (mudaraba), m o some of the partners contribute only capital.c and the others only work; in a te a g labor partnership (abdan), the partners contributeh only work, and in a credit s .a partnership (wujuh), the partners pool theirw credit to borrow capital and transact w w business with it. (Each of these simplem models could be combined to form more o .c complex types of partnerships.) Givente the infinite diversity of marriage styles, a g h using partnership contracts as the basiss for Islamic marriage law is a very useful .a w w platform for couples to tailor theirw marriage contract to reflect their own unique

m financial, work, and life circumstances.o .c te a Another benefit of a new schemeg of marriage law based on partnership contract h s .a law is that it would preservew the existing structure of marriage as a contract, and w w merely shift the contract type from that of sales to partnership. Thus, although it m o would not follow the existing.c jurisprudence based on sales and slavery contracts, a te a g h new partnership-baseds model of Islamic marriage law would not stray too far from .a w established Islamic jurisprudencew as whole, because it would draw from existing, w

m well-established principleso of a different area of Islamic contract law. .c te In sum, I believea that the Islamic law of partnership contracts is eminently g h s well-suited to be.a the basis of new ijtihad for Muslim marriage law, because it w w would facilitatew new rules honoring mutual spousal respect, including in sexual

m o relationships,.c and the concept of women’s agency. As I am not a specialist in te a g Islamic contracth law, I cannot fully work out the details here, but I can offer some s .a preliminaryw suggestions on how this model could offer positive changes in some w w areas of existing Islamic marriage law that are harmful to women. m o .c te a g h s .a w w w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 189 © Copyrighted Material

Licitness of Sexual Activity m o .c te a g h s As theorized in established Islamic jurisprudence, sex is made licit in marriagea by . w w a husband’s payment (initially the mahr, and over time, marital support) byw which

m he acquires exclusive “ownership” over the wife’s sexual parts. As summarizedo .c te a above, this concept is directly related to the juristic analogy of maritalg sex to sex h s .a with a female slave: in both cases, payment makes sex lawful byw analogy to a w w “sale” of sexual access. But what if the analogy to a sale contract is not used? m o .c What if the payment part of the marriage contract—the mahr—waste not the price a g h of sexual licitness, but rather, incidental to it? s .a w In other words, what would make sex licit if marriage contractsw are viewed w

m through a partnership, not a sales, lens? The most obviouso answer seems to .c te lie in the core element of any contract—the mutual agreementa of the parties. g h s Even in established Islamic marriage law, the idea of .aconsent of the parties is a w w w crucial factor in establishing the validity of offer and acceptance of a marriage m o contract, and the payment of mahr and maintenance.c are only additional (required) te a g components of that contract. Perhaps, then, mutualh agreement could be considered s .a the core element to the validity of a marriage contract,w and thus the basis of the w w licitness of sexual activity within that marriage.m This seems to me to be the most o .c logical answer, and the most responsive to thete idea of marriage as beginning with a g h the mutual consent of autonomous human sagents. .a w Basing the licitness of sex on mutualw marital agreement also honors modern w

m sensibilities about the nature of healthyo sexual relationships. The classical scheme, .c te a by basing the licitness of sex on maleg control and ownership, easily leads to h s situations of women becoming sexual.a objects—mere receptacles for the male sex w w w drive. Despite Islamic moral exhortations otherwise, existing Islamic law does not m o protect sex as a mutual act where.c agency and consent of both parties is essential. te a g Today, the idea of treating womenh as sex objects is socially unacceptable. It is s .a w understood as harmful to wwomen, to relationships, and to society in general. w

A partnership model of marriagem contracts would facilitate a clear break from o .c te the destructive outdateda idea of sexual licitness based on male ownership and g h s exclusive control, looking.a instead to mutuality and consent. w w This new conceptw of sexual licitness would also eliminate legal tolerance for

m marital rape. In a partnershipo model of marriage contract, marital support would no .c te a longer be a paymentg in exchange for the sexual availability of the wife, but rather, h s .a a bargained-forw negotiation reflecting an agreement of mutual financial and labor w w responsibilities within a marriage. Because a husband’s payment of support would m o .c no longer tbee the basis of the licitness of sex within the marriage, a financially- a g h supporteds wife would no longer be obligated to be sexually available on demand. .a w Sexual wrights would be based on mutuality, respect and companionship, rather w

m than maleo ownership and payment. .c te a g h s .a w w w © Copyrighted Material 190 Feminism, Law, and Religion © Copyrighted Material

Mahr m o .c te a g h This brings us specifically to the topic of the mahr. If, under a partnership model,s .a w mahr is not payment for access to a woman’s sexual parts, then what purposew w would it serve? Would it even still be important in a scheme of partnership-basedm o .c te marriage contracts? I believe that the mahr should remain an importanta element of g h s Islamic marriage contracts, even under the partnership model, but not.a for the same w w reasons as imagined in the sales model. The mahr is specifically designatedw in the

m o Quran and Prophetic narrations as important, so I think it should be.c taken seriously. te a The scriptural sources are silent, however, on the reasons behindg the mahr, so we h s .a are left to speculate on this question. The idea that the mahrw is payment for licit w w sexual access in established jurisprudence is one speculation by classical jurists m o .c based on their own social context and analogies that seemedte appropriate at the a g h time. But we are not obligated to agree with their speculation.s .a w Once we eliminate the idea of the mahr as considerationw for sexual access, then w

m some interesting new insights open up. One thing thato is striking in the Quranic .c te verses on mahr is the suggestion that it is a type ofa gift rather than a bargained-for g h s consideration. In contract law, consideration always.a involves a mutual exchange w w w of something. But gifts are given freely, not exchanged for something else. On m o the other hand, because it is commanded by the.c Quran, a mahr is not purely a gift te a g either. Instead, it seems more like an effect orh incident of the contract, automatically s .a and externally imposed upon the parties wby law—in this case, the Law of God. I w w imagine it to be similar to the fair laborm statutes and rules of consumer protection o .c in American law in that these are legislatedte to automatically attach clauses to some a g h routine contracts in order to protect sparties likely to be vulnerable. .a w w While special protection to womenw as the vulnerable parties in a marriage

m contract might seem sexist to o some, I do not find it offensive that the Quran .c te a would take into account the biologicalg and social realities that can put women at h s .a a financial disadvantage. Thatw is, there are natural limitations on many women’s w w working hours due to childbearing, infant nursing and child rearing, for those who m o choose to do so. Add to these.c facts the historical realities of gender discrimination te a g h in the marketplace, manys of which are still true today, and the gendered power .a w imbalances that causew women specific financial disadvantages are hard to ignore. w

m (To take just one contemporaryo example, an American Muslim woman might find .c te good use for her amahr in simply funding post-partum time off from her job, given g h s the lack of federally.a required paid maternity leave in the United States.) In sum, w w I find it quitew logical to imagine that the Quranic verses require mahr in order to

m o provide a type.c of “fair labor” tool by which women could neutralize the potential te a g biologicalh and social disadvantages they might face during their life. s .a Thenw again, not every woman becomes a mother, and not every woman needs w w help in attaining financial independence. Accordingly, themahr requirement allows m o .c for individualizedte tailoring to respond to each woman’s unique circumstances. a g h Thes substantive content of each mahr is highly negotiable—it can be anything .a w ofw value, ranging from a substantial financial sum to a symbolic token. (The w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 191 © Copyrighted Material

Prophetic traditions mention several creative, non-monetary mahrs, includingm o .c te one man’s conversion to Islam, and another’s teaching his wife a chapter ofa the g h s Quran.) Those women who do not feel they will need this tool can tailora their . w w marriage contract accordingly. But for those who do, it is a powerful toolw that,

m because of its Quranic source, cannot be easily dismissed by those aroundo her. .c te a In sum, whereas the classical jurists spent very little time thinkingg about the h s .a practical realities that the mahr serves in a woman’s life, a new ijtihadw of marriage w w law could benefit from the insights provided by women’s activists (Muslim and m o .c non-Muslim) chronicling the financial disadvantages that womente regularly face. a g h Seen in this light, the mahr is, like consumer protection law, sa legally mandated .a w incident of every marriage contract that reflects a higherw legal principle that w

m must be respected by the contracting parties. This understandingo of mahr could .c te eliminate the feeling of “selling oneself” with which manya brides associate it. g h s .a w w w Marital Support m o .c te a g The mahr is not the only aspect of the marriageh contract that could be tailored s .a to a couple’s individualized needs under a partnershipw model. Because marital w w support would no longer be the basis for a mmale-ownership concept of sexual o .c licitness, there would also be no automaticte presumption that the husband must a g h be the breadwinner. Spousal maintenance woulds instead be a mutually bargained- .a w for provision of each marriage contract.w I see several social advantages to this w

m increased flexibility in spousal financialo obligations. First, it fits the reality that .c te a every marriage is different, and eachg spouse may have different skills that don’t h s always translate well to the husband-as-breadwinner.a default model. What if, for w w w example, the husband is an artist who gets paid in large lump sums every few m o years, but the wife has the skills.c to bring home a regular monthly paycheck? Or te a g the husband prefers to be theh primary child-rearer and the wife’s job pays more s .a w anyway? The partnership modelw allows spouses to negotiate these roles rather than w operate against default presumptionsm that do not fit their lives. o .c te Given the many typesa of partnerships recognized in Islamic law, there are g h s a variety of legally ready-made.a choices for spouses deciding how to allocate w w services and propertyw contributions to their marital household. For example, one

m couple might createo an ‘inan (limited) partnership marriage contract where both .c te a spouses agree to g contribute both capital and labor (“labor” being defined as either h s .a an income-creatingw job or household work and childrearing, or both). I would w w imagine this scenario would work well for a marriage in which both spouses plan m o .c to earn an tincome,e but in unequal or unpredictable amounts. The traditional stay- a g h at-home-parents scenario, on the other hand, seems more suited to a mudaraba .a w (silent) wpartnership where one partner contributes labor and the other contributes w

m capital.o In each case, Islamic partnership law would provide further details on how .c te the aprofits and losses should be borne by each party. (In the case of the ‘inan, the g h s spouses.a need not contribute equal amounts of capital and they may determine the w w wprofit shares as they like, but losses should be borne in proportion to the capital © Copyrighted Material 192 Feminism, Law, and Religion © Copyrighted Material contributions. In a mudaraba, Islamic partnership law provides that the spouse m o who provides the capital is liable for all losses, and the non-capital-providing.c te a g h spouse bears no losses (except in losing his/her labor), and is not entitled tos any .a w capital profit until the capital-providing spouse has recouped his or her investment,w w and then only in the agreed percentage. An even more flexible marriagem contract o .c te might use the model of an abdan partnership, in which both parties contributea only g h s work, and Islamic partnership law holds that such partners are free to.a agree upon w w their relative shares of ownership of the partnership capital, and ware obliged to

m o share losses accordingly. And, again, all these simple models could.c be combined te a to create more complex combinations of marriage arrangements.g h s .a Finally, marriages mutually arranged under the partnershipw model would more w w powerfully include many contract stipulations that currently have only limited m o .c enforceability under existing Islamic marriage law. Therete is nothing inconsistent a g h with the partnership model, for example, if a husbands and wife were to agree .a w that their marriage will be monogamous and create enforceablew consequences for w

m breach of this provision. o .c te a g h s Divorce .a w w w

m o Perhaps the most significant change that would.c occur in Islamic marriage law by te a g switching to a partnership model would beh the equalization of access to divorce. s .a Because Islamic partnership law is basedw on the fundamental principle of all w w parties’ continuous concurrent consent mto the continuation of the partnership, this o .c means that in Islamic marriage law basedte on partnership contracts, both spouses a g h would have the right to end the marriages at will. Thus, both husband and wife .a w w would have a unilateral right of divorcew (except in the Maliki school, which would

m require mutual consent). This veryo powerful doctrinal change would honor modern .c te a sensibilities about women’s agencyg and correct the uneven, often manipulative h s .a power that traditional Islamicw marriage law allows husbands to wield against their w w wives in a time of divorce. It would also complete the disentanglement of the idea m o of male ownership as central.c to the legitimacy of marital relations that exists in te a g h established marriage law.s .a w Because it wouldw be so drastic a change from centuries of established Islamic w

m marriage law, mutualo spousal rights to unilateral divorce might prove to be a rather .c te hard sell in Muslima publics. Indeed, exclusive male access to unilateral divorce g h s has been one area.a that has been extremely resistant to legislative change in modern w w Muslim-majorityw countries, largely because so many believe it is a fundamental

m o aspect of Islamic.c marriage law. But the idea of women exercising talaq divorce te a g is not itselfh unheard-of in established jurisprudence. Even under existing Islamic s .a marriagew law, a woman can acquire a “delegated” talaq right from her husband, w w usually documented in her marriage contract (Ali 2009). This “delegated divorce” m o .c optionte has in fact garnered a lot of attention from contemporary Muslim women’s a g h activistss encouraging Muslim women to preserve this right for themselves in .a w modernw Muslim marriage contracts. What the partnership model of marriage w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 193 © Copyrighted Material

contracts would do, then, would be to eliminate the gendered preference mof o .c te the unilateral divorce right. Instead of automatically giving it to husbands a(and g h s allowing it to wives only through delegation from their husbands) the partnershipa . w w model would give both spouses this right equally (or under the Maliki school,w both

m would be limited by a requirement of mutual consent). This is possibleo because .c te a (contra the sales model) male ownership of the marriage tie wouldg not be the h s .a central legitimizing feature of a partnership-based Muslim marriagew contract. w w Moreover, equalization of access to divorce means that under the partnership m o .c model of marriage contracts, there would no longer be any needte for a doctrine a g h of woman-initiated divorce (khul’) and the sharp doctrinal differencess between it .a w and male-initiated unilateral (talaq) divorce. Whether or notw a woman keeps her w

m mahr would thus have nothing to do with whether or not sheo initiated the divorce. .c te With the mahr being disentangled from the idea of paymenta for sexual access (and g h s the return of mahr in a khul’ divorce being described .aas a wife “buying herself w w w back”), a woman’s mahr would be controlled only by the mutually-agreed terms m o of the marriage contract. Similarly, judicial divorce.c (faskh), if it existed, need not te a g focus on fault or grounds for divorce committed byh the husband, but rather, could s .a become more like third-party mediation of asset wdivision and other logistical needs w w of divorcing parties, whenever a couple is in needm of such assistance. o .c te a g h s .a w Conclusion w w

m o .c te a In this chapter, I have briefly sketchedg out how a new scheme of Islamic marriage h s law based on Islamic partnership law.a might work. If such a doctrine were fully w w w developed and implemented, it would enable women-empowering rationales to m o flow logically with the doctrinal.c rules, rather than at cross-purposes to each other, te a g as occurs now. The result wouldh likely be a vast improvement in the situation of s .a w many Muslim women as wellw as the strategies employed by sharia-based women’s w rights activists. However,m I am also aware that not everyone would welcome o .c te such a new scheme. First,a it may not be considered legitimate according to the g h s jurisprudential boundaries.a of acceptable Islamic law reform, and thus would not w w be respected by religiousw authorities with the strongest influence on the general

m Muslim public. Second,o many Muslims (jurists and laypersons) see no need for .c te a reform in the firstg place, and are quite satisfied with established fiqh doctrine on h s .a marriage as it wis. Thus, it is inevitable that, no matter how solid the reasoning, a w w new partnership model of Islamic marriage law will only ever appeal to a part of m o .c a given Muslimte audience. a g h Froms this fact, I take two lessons: 1) fiqh diversity means that the new has .a w to toleratew the old, and 2) it is always good to have a back-up plan. The first w

m lessono is simply this: the same ijtihad principle that would give legitimacy to a .c te newa partnership-based doctrine also gives legitimacy to the existing sales-based g h s doctrine..a The fallible nature of both old and new doctrinal schemes means that w w wboth must be allowed to exist. This preservation of doctrinal diversity is, in my © Copyrighted Material 194 Feminism, Law, and Religion © Copyrighted Material opinion, one of the most powerful attributes of Islamic jurisprudence, because it m o facilitates choice. That means that there is no way to excommunicate or officially.c te a g h eliminate the established scheme of Islamic marriage contract law, even if as new .a w scheme is crafted. That new scheme would simply exist alongside the existingw w scheme in the marketplace of fiqh, and modern Muslims would have them freedom o .c te to choose between them. a g h s Given that first lesson, the second becomes even more important..a Despite my w w enthusiasm for the prospect of a new partnership-based Islamic marriagew law and

m o what it could do for Muslim women, I have to ask: what is the.c back-up plan if te a this new model (if and when it is created) fails to take sufficientg hold? Do we use h s .a the imperfect strategies developed under the established Islamicw marriage law, w w or do we hold out until we can convince more Muslims to adopt the new and m o .c improved model? The dilemma feels similar to that faced byte American proponents a g h of the Equal Rights Amendment (ERA) to the United sStates Constitution in the .a w early 1980s when it failed to be ratified by the last deadline.w Given that the ERA w

m provided clearly-stated coherent constitutional protectiono for women’s rights, .c te should these activists have held out until it could bea proposed again, or was it better g h s to use the not-as-ideal Equal Protection doctrine .aof the Fourteenth Amendment to w w w work for gender equality? The activist in me leans toward doing the best we can m o with what we have, although the theorist in.c me much prefers the cleaner, more te a g coherent path of new ijtihad and fresh legalh reform. A back-up plan provides us s .a something to use in the interim before anw alternative scheme of Islamic marriage w w law can be created (and even afterwards,m for those Muslim women choosing to o .c follow the traditional scheme). This meanste that the strategies currently employed a g h by sharia-based Muslim women’s rightss activists may be the only tools available .a w w to provide some modicum of mutualityw and equality in Muslim marital rights right

m now. These strategies may not be,o as Kecia Ali points out, as theoretically clean as .c te a a fully-formed alternative modelg of marriage in Islam, but they have the advantage h s .a of being immediately effectivew in those limited areas where they can help women. w w This brings us back to the mahr, and my advice to modern Muslim brides m o (and grooms). Yes, the jurisprudence.c that equates mahr with the “price” of female te a g h sexual access is disturbing,s and thus it is understandable that many Muslim women .a w opt out of includingw a substantial mahr in their marriage contracts. However, I w

m believe that this knee-jerko rejection of mahr is shortsighted. Why let inappropriate .c te and outdated juristica presumptions about sexuality rob women of what could be a g h s very powerful .toola for financial independence? I believe that strategic use of the w w mahr should bew part of a back-up plan for women’s empowerment under existing

m o doctrine, and.c it will have an even more powerful role in women’s agency if it is te a g part of a partnershiph scheme of marriage law that is developed in the future. s .a So, tow Kecia Ali’s challenge for a new model, I answer “yes, there is a better w w way,” and I have laid out here my ideas of what that way could look like. The legal m o .c theoristte in me, the ERA supporter in me, would love a brand new doctrinal scheme a g h alongs this model to become the Islamic norm. But the activist in me warns that if .a w thisw doesn’t happen, we must not abandon the needs of the many women living w © Copyrighted Material A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law 195 © Copyrighted Material

within the classical model. That is why I believe the current approach of shariam - o .c te based Muslim women’s rights activists, no matter how much Kecia Ali pointsa out g h s its ideological mismatch with established law, should nevertheless be respecteda . w w and understood for the pragmatic good that it does, working within the wexisting

m paradigm. But I also believe that Kecia Ali and I share a hope for a futureo where .c te 1 a such back-up plans are no longer necessary. g h s .a w w w

m o .c List of References te a g h s .a w Ali, K. 2003. Progressive Muslims and Islamic jurisprudence:w the necessity for w

m critical engagement with marriage and divorce law, ino Progressive Muslims: .c te on justice, gender and pluralism, edited by O. Safi.a Oxford: Oneworld g h s Publications, 163–89. .a w w w Ali, K. 2006. Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, m o and Jurisprudence. Oxford: Oneworld Publications..c te a g Ali, K. 2009. Marriage in Classical Islamic Jurisprudence:h A Survey of Doctrines, s .a in The Islamic marriage contract: case studiesw in Islamic family law, edited by w w

A. Quraishi and F. Vogel. Cambridge, Mass.:m Islamic Legal Studies Program, o .c Harvard Law School, 11–45. te a g h Ali, K. 2010. Marriage and Slavery in Earlys Islam. Cambridge, Mass.: Harvard .a w University Press. w w

m El-Gamal, M. 2006. Islamic Finance: oLaw, Economics, and Practice. New York: .c te a Cambridge University Press. g h s Quraishi, A. 2008. Who Says Shari’a.a Demands the Stoning of Women? A w w w Description of Islamic Law and Constitutionalism. Berkeley Journal of Middle m o Eastern and Islamic Law, 1,.c 163–77. te a g Quraishi, A. 2011. What if Shariah Weren’t the Enemy? Rethinking International s .a w Women’s Rights Advocacyw on Islamic Law. Columbia Journal of Gender and w

Law, 25(5), 173–249. m o .c te Quraishi, A. and Syeed-Miller,a N. 2004. No Altars: An Introduction to Islamic g h s Family Law in US.a Courts, in Women’s Rights and Islamic Family Law: w w Perspectives on Reformw , edited by L. Welchman. London: Zed Books, 177–87.

m Vogel, F. and Hayes,o S. 1998. Islamic Law and Finance: Religion, Risk and Return. .c te a Leiden: Brill gAcademic Publishers. h s .a Zuhayli, W. andw Gamal, M. 2003. Financial transactions in Islamic law. Damascus, w w Syria: Dar al-Fikr. m o .c te a g h s .a w w w

m o .c te a g1 I wrote this chapter during the last days before giving birth to my third child, a feat h s possible.a only with the enduring support of my cherished husband, Matthew. I would like to w w notew my deep gratitude to him and to all three children for their patience. © Copyrighted Material