Changes in the Process of Debates Over the Islamic Marriage Contract Among Contemporary Muslim Arab Intellectuals

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Identity and Authority: Changes in the Process of Debates over the Islamic Marriage Contract among Contemporary Muslim Arab Intellectuals

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Authors Badareen, Nayel A.

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Link to Item http://hdl.handle.net/10150/332830 Identity and Authority: Changes in the Process of Debates over the Islamic Marriage Contract among Contemporary Muslim-Arab Intellectuals

Nayel A. Badareen

A Dissertation Submitted to the Faculty of the

The School of Middle Eastern and North African Studies

In Partial Fulfillment of the Requirements

For the Degree of

DOCTOR OF PHILOSOPHY

In the Graduate College

THE UNIVERSITY OF ARIZONA

2014

THE UNIVERSITY OF ARIZONA

GRADUATE COLLEGE

As members of the Dissertation Committee, we certify that we have read the dissertation prepared by Nayel Badareen, titled Identity and Authority: Changes in the Process of Debates over the Islamic Marriage Contract among Contemporary Muslim Arab Intellectuals and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy.

______Date: 4/18/2014 Scott C. Lucas.

______Date: 4/18/2014 Linda T. Darling

______Date: 4/18/2014 Anne H. Betteridge

______Date: 4/18/2014 Maha T. Nassar

Final approval and acceptance of this dissertation is contingent upon the candidate’s submission of the final copies of the dissertation to the Graduate College.

I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement.

______Date: 4/18/2014 Dissertation Director: Scott C. Lucas

STATEMENT BY AUTHOR

This dissertation has been submitted in partial fulfillment of the requirements for an advanced degree at the University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library.

Brief quotations from this dissertation are allowable without special permission, provided that an accurate acknowledgement of the source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder.

SIGNED: Nayel A. Badareen

ACKNOWLEDGMENTS

The completion of this dissertation would not have been possible without the guidance and assistance of a number of individuals. First, I would like to thank my advisors—Scott. C.

Lucas, Anne Betteridge, Linda Darling and Maha Nassar—for their patience and insight, for pointing me to the right sources, and sharing their wealth of knowledge with me throughout this project.

I would like to specifically thank Dr. Scott Lucas for his patience, help, advice, support, and encouragement, as well as for his immense knowledge and intellect. Dr. Lucas has been more than generous with his time throughout my years as a graduate student at the University of

Arizona. Without his constant and invaluable input, this project would never have seen the light of the day. Thank you, Dr. Lucas.

Much of the research and writing of this dissertation was made possible by a generous grant from the American Institute of Maghreb Studies (AIMS). I would like to also thank the

School of Middle Eastern and North African Studies for its generous funding throughout my graduate studies.

I wish to thank the many people who helped me in my fieldwork in Morocco; specifically, I would like to thank Dr. Aḥmad al-Khamlīshī for his generosity, hospitality, for sharing with me his great knowledge of Islamic jurisprudence, and for his valuable input with regard to his experience with reforming the Moroccan Mudawwana. I would also like to thank the staff at Dār al-Ḥadīth al-Ḥassania for opening their doors to me, and for allowing me to conduct my research with various members of their faculty. I want to thank the many people in

Morocco who had a hand in my research and field work, and also Youssef Hamdanoui for his generosity and time serving as my guide and friend during my time in Morocco.

Many thanks to my friends and colleagues for their patience and encouragement. To Dina

Jaddallah, whose intellectual input and suggestions proved extremely valuable. Mostly, I am thankful to my editor, Craig Baker, for his help, suggestions and insightful observations. I would like to also extend my gratitude to Robert and Mollie Wyatt for their patience and help throughout the process of writing this project.

I am eternally grateful to my family across the ocean. To my parents, Atta Allah

Badareen and Amina Badareen (may her soul rest in peace) for the sacrifice and the hardship they endured throughout my early studies away from home. My sisters, Manal, Nawal, Naela,

Nafiza, and Basima, who have endured the hardships faced by all Arab-Muslim women in their everyday lives.

Last but certainly not least, I would not have been able to complete this study without the love and sacrifice of my son and my wife, Alana, both of whom have suffered greatly throughout this strenuous, stressful, and time-consuming endeavor.

DEDICATION

To my friend and longtime partner, for the sacrifices and the hardship she endured, for her constant encouragement throughout the writing of this dissertation.

This project is dedicated to my wife Alana. Thank you for all that you are

and everything you do. You have been my true inspiration.

TABLE OF CONTENTS

LISTS OF TABLES……………….….…………………………………………………………..9

ABSTRACT……………………….……………...…………………………………………… 10

INTRDOCUTION:……………………………………………………………………………. 12

Methodology …………………………………………...……………………………….23 Literature Review………………………………………………………………………...27 Significance………………………………………………………………….…….……..37 Sources……………………………………………………………….…………….…….40 Structural Organization…………………………………………………………….…….41

CHAPTER ONE: Majority and Minority Opinions…………………...…………...…….….45

The Age of Puberty (Bulūgh)……………………………………………………………49

The Age of Legal Capacity/Financial Competency (Rushd)…………………………….57

Marriage (Nikāḥ)…………………………………………………………………….…..64 The Marriage of Minors and the Legal Age of Marriage………………………..64 The Marriage Guardian (Walī)…………………………………………………..71 The Marriage of a Single Adult (Bikr) Woman…………………………………74

Conclusion……………………………………………………………………………….90

CHAPTER TWO: The Role of Minority Jurists in Reforming Family Law……….….…...93

Part I: The Codification of Personal Status Law: The Case of Egypt…...... ….………97

Opposition to the Newly Codified Egyptian Personal Law………….….…….107 New Liberal Voices. …. …………...………..………………………………..114

Part II: Syrian and Lebanese Intellectuals: Codification and Reactions…..…………..123 Shī‘ī Intellectuals……………………………………………………..………..133

Part III: Opposition Voices………………………………….………………………….140 Opposition Voices: Saudi Arabia..………………………………….………...147

Part IV: The Twenty-first Century Debates……………………………………...…….153 Recent Debates over the Age of Marriage: The Case of Saudi Arabia .…….. 160

Debates in Egypt………………………………………………………….… 167

Conclusion……………………………………………………………………………...172

CHAPTER THREE: Intellectual Debates over the Islamic Marriage Contract in Morocco….178 Part I: Articles Concerning Marriage…………………………………...…………...…185 Al-Khamlīshī’s Criticism of the 1957 Mudawwana……………………………193 Debates over the 1957 Mudawwana….……..……………………………….…202 The Opposition………………………………………………………………….212

Part II: The First Reform of the1993 Mudawwana………………………………...... 219 Reaction to the Reforms………………………………………………………...226

Conclusion……………………………………………………………………………...243

CHAPTER FOUR: Who is qualified to be a Mujtahid?...... 248 Part I: Taking the Debate to the Streets……..….………………….……………..…...253

Part II: The 2004 Committee and al-Khamlīshī………...……………………………...259

Part III: Al-Khamlīshī’s Collective Ijtihād (Al-Ijtihād al-Jamā‘ī)...... 267

Part IV: Debates over the Role of Women in the 2004 Mudawwana………..………...279 Public Engagement and Debates………….……..……………………………304

Part V: Interviews with Moroccan Intellectuals……………….………………………307

Conclusion……………………………………………………….……………………..329

CONCLUSION: ………………………………………………………………………………334

APPENDIX A…………………………………………………………………………………348

BIBLIOGRAPHY…………………………………………………………………………….350

LIST OF TABLES

Table 1-1. Jurist Opinions on the Marriage Contracts of Single Adult Virgin (Bikr) Women…..88 Table 2-1. Table 2-1, Family Personal Law in Egypt, Syria and Lebanon (Shī‘ī Ja‘farī): The Age of Marriage and the Role of the Walī..………………………………………...……139 Table 2-2. Names of Intellectuals Who Used the Opinions of Minority Jurists……………..…172 Table 3-1. Important Articles in the 1957 and 1993 Moroccan Mudawwana...... 224 Table 4-1. Articles Concerning the New Reformed Mudawwanat al-Usra, 2004…...... 264

Appendix………..………………………………………………………………………….…..348

ABSTRACT

Throughout Islamic history, Islamic schools of law (madhāhib) enjoyed tremendous authority. In addition, traditional religious institutions that have taught the doctrines of the various Islamic schools of law have also wielded similar authority within the Arab-Muslim states. However, Arab-Muslim intellectuals challenged the authority of these madhāhib both from within the madhāhib and from outside of them. As a result, consensus (ijmā‘) reached by past jurists of the madhāhib, has also been challenged in favor of a new type of ijtihād known as collective ijtihād. This new method of ijtihād allows professional women to participate in the process of lawmaking alongside men as reforms are made to Islamic family law. As a consequence of this legal process, the authoritarian method of traditional consensus (ijmā‘) has been weakened in favor of more inclusive methods which allow for the creation of laws that are more favorable to women.

Over the course of the twentieth century there has been a dynamic and ongoing debate within both traditionalist and reformist circles of Arab-Muslim society regarding the topic of marriage. Muslim conversations regarding the marriage contract demonstrate that the debates over family law in general, and the marriage contract in particular, are complex and challenging.

The fact that not all Arab-Muslim intellectuals and muftīs share the same opinion regarding the legal age of marriage for women, the role of the marriage guardian (walī) in marriage, or the right of women to conduct their own marriages, for example, illustrates this point. Even individuals from within the same Islamist party have vastly differing opinions. While some argue for the preservation of the Islamic tradition by the continued restriction of a wife’s role in her

10 marriage, others want to grant women broader agency in some aspects of the marriage contract.

All intellectuals, traditionalists, Salafis, and reformists, however, draw on past Islamic authority—the Qur’anic text, the Sunna of the Prophet, and past jurists’ opinions—in order to legitimize their argument in an effort to preserve the identity of Muslim society and its core foundation, the Muslim family.

Chapter one of this dissertation introduces the origins of Muslim jurists’ opinions and rulings in Islamic jurisprudence (fiqh). While the chapter outlines the opinions of the majority of jurists regarding the age of puberty (bulūgh) for men and women, the age of financial competency (rushd), and the legal age of marriage, it also illustrates the opinions of minority jurists who reject the marriage of minors outright. Chapter two demonstrates the opinions of numerous Arab-Muslim intellectuals, as well as the codification of some of the Arab-Muslim states’ Personal Status Laws (PSLs), and the debates among intellectuals along with the evidence they cite to justify their opinions.

Chapters three and four are concerned specifically with debates among Moroccan intellectuals. They also include a discussion of the history of debate over the Moroccan

Mudawwana from its initial publication in 1957 through the present day. The chapters discuss the opinions of Moroccan intellectuals regarding some of the Articles of the Mudawwana and show the evidence presented by each side both for and against reforming the Mudawwana.

Chapters three and four also present the opinions of intellectuals voiced during personal interviews I conducted in 2013. These interviews show how complex the task of compartmentalizing the various Arab-Muslim intellectuals’ opinions may be when seeking to label them either traditionalist or reformist with respect to their views on the rights of women in marriage.

Introduction

Identity and Authority: Changes in the Process of Debates over the Islamic Marriage Contract among Contemporary Muslim-Arab Intellectuals

For more than a century, Muslim scholars and intellectuals struggled with how to reform

Islamic jurisprudence (fiqh). Muslims faced crucial concerns due to the rapid changes in social, economic, and political issues in the region. Scholars and intellectuals alike were faced with a number of questions at the beginning of the nineteenth century and the middle of the twentieth century particularly, after Arab-Muslim states began gaining their independence from the colonial governments. Which authority is qualified to proceed with such reforms and which religious institutions may be involved (if any)? Which authority or tradition(s) should be considered when reforming Islamic fiqh, particularly Islamic family law? Which rulings and legal transactions must be reformed to accommodate the ongoing changes? These were a few questions among many with which reformers and intellectuals grappled. At the heart of these issues are Islamic tradition and the Muslim society’s identity presented by its foundational block, the Muslim family (usra). While looking to reform Islamic jurisprudence, reformers had to deal with religious institutions’ long-standing traditions as well as the religious scholars and intellectuals affiliated with these institutions.

Long before any reforms were made and the idea of codifying Islamic jurisprudence was adopted, Muslims believed that God’s Divine law (Sharī‘a) in the revealed texts was always fair, just, and equitable. To Muslims, Sharī‘a is understood through the field of Islamic jurisprudence, or fiqh, which literally translates to “understanding.” Jurists (fuqahā’, sing. faqīh) are scholars

12 who understand the complexity of Sharī‘a and, therefore, become specialists who study and analyze the revealed texts, as well as mediators between Sharī‘a and the average Muslim.1

Therefore, Muslims believe that naming jurists as the authority on Sharī‘a brings them and

Islamic society justice, equity, and preserves the identity of Islamic society.2 Over many centuries, jurists gained a special place within Muslim society. Jurists’ authority, in the words of

Khaled Abou El Fadl, “has become a firmly embedded part of Islamic dogma.”3 Their authority on legal issues has become the norm throughout the centuries, effectively rendering the opinions of anyone who disagrees with this authority irrelevant.4 Further, their authority through the method of consensus (ijmā‘) is a prime example of the absoluteness of this authority whereby anyone who disagrees with it is usually marginalized and, at times, considered an apostate.

The majority of Muslim scholars and intellectuals accepted the method of consensus as a primary source of law. A few however, challenged this formidable legal method. According to

Muhammad Zaman, scholars like Muḥammad Abduh, (d. 1905), Rashīd Riḍā (d. 1935), ‘Ubayd

Allah Sindhi (d. 1944), and Fazlur Rahman (d. 1988) suggested reforming the method of consensus.5 These jurists were among but a handful who took notice of the potential dangers of

1 Khaled Abou El Fadl, Speaking in God's Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001), 31-32. 2 I use Burke and Stets definition of identity. Islamic social and religious identity includes Muslims who share the view that they are members of the same social category; all adhere to the Muslim faith. Being Muslim provides an individual with similar perspective as others in the same society. Belonging to one society also enables individuals to have “a strong sense of belongings and raise one’s self-worth.” Muslims who gather to pray, fast, mourn their loved ones, celebrate weddings and religious holidays together, all have very similar customs and traditions and tend to draw on these rituals and practices at times of both suffering and joy. This provides Muslims with a strong sense of “unity and belonging” as one unit. Continuing this long tradition provides the individual Muslim with a unique identity which becomes part of the member’s own self and worthiness. See Peter J. Burke and Jan E. Stets, Identity Theory (Oxford: Oxford University Press, 2009), 118-121. 3 Abou El Fadl, 2001, 31. 4 Ibid. 5 For an excellent review on the method of consensus see Muhammad Q. Zaman, Modern Islamic Thought in a Radical Age (New York: Cambridge University Press, 2012), 45-74. ‘Ubayd allah Sindhi was an Indian Sikh who converted to Islam and was a contemporary of Rashīd Riḍā. For more on the life of Sindhi see Zaman, 2012, 11-19. Zaman includes the Egyptian scholar Yūsuf al-Qaraḍāwī in the list. However, after careful reading of al-Qaraḍāwī’s cited work a fa ata āmulu ma a al-turāth wa-al-tamadhhub wa-al-ikhtilāf (How do We Deal with Heritage, Sectarianism, and Disagreement?) I excluded Qaraḍāwī from the list since he deals with Islamic heritage (tradition), 13 the consensus of the four Sunni schools of law (madhāhib) and argued against it.6 Observing how dangerous the method of consensus has become, Fazlur Rahman argued that consensus was the “most potent factor in expressing and shaping the complex belief and practice of Muslims and at the same time the most elusive one in terms of its formation.”7 After the formation of the

Sunni schools of law, Fazlur Rahman observes that ijmā‘ became a mechanism of “traditional authoritarianism.”8 Later, jurists began projecting consensus among the Islamic legal traditions on the early Muslim community.9 This continued throughout Islamic legal history. Consensus of jurists—members of Sunni schools of law and, to an extent, The Twelver Shī‘ī school of law— has played a central role in Islamic jurisprudence. Along with the Qur’ān and Sunna, consensus has wielded considerable authority in Islamic law throughout centuries.10

Consensus of jurists within a single madhhab became obvious after the crystallization of

Sunni schools of law after the tenth century. The authority of consensus became influential through the legal rulings of jurists of the madhāhib. Consensus provided the “iron cast” to protect and preserve the Islamic legal tradition and at the same time strengthened the authority of past jurists and their schools of law. Jurists of the Islamic madhāhib were the actors who understood Islamic law and Islamic tradition and became indispensable authorities in Islamic society. Most importantly, in their manuals of legal theory (uṣūl al-fiqh), jurists claimed to be the only experts and authority on Islamic law, saying that they were the figures who understood the

sectarianism and other issues that are not relevant to consensus. See Yūsuf al-Qaraḍāwī, a fa ata āmulu ma a al- turāth wa-al-tamadhhub wa-al-ikhtilāf (How do We Deal with Heritage, Sectarianism, and Disagreement?) (Cairo: Maktbat Wahbah, 2001). 6 Zaman does significant work in discussing the attempts to reform method of consensus; see Zaman, 2012, 45-74. 7 Ibid., 75. 8 Zaman, 2012, 46. 9 Zaman, 2012, 45-46. 10 Zaman, 2012, 45. 14 revealed texts and knew the right path (Sunna) of the Prophet Muḥammad and his Companions.11

To resolve the everyday issues arising within Islamic society, Muslims and states turned to jurists as the authority on legal issues and past traditions. In order for Muslims to understand the past and to preserve their Islamic tradition, they looked for religious intellectuals (jurists, theologians, and religious figures) to preserve society and ensure the continuity of tradition.12

During the nineteenth century, Muslim intellectuals began to use the idea of safeguarding the Muslim community (umma) to promote their agenda. It was the Egyptian scholar Muḥammad

‘Abduh who advocated for general reforms in Islamic jurisprudence and reforms in Islamic religious institutions, particularly in al-Azhar University. ‘Abduh also called for reforms to the

Muslim family law so as to preserve the Muslim nation (umma).13 Later, with the rise of independent states, the term umma was replaced by a new term: mujtama‘, which means

“(Muslim) society”.14 Muslim intellectuals (reformists and traditionalists, including Salafis) responded to the emergent needs of the umma by using the past religious legal authority of

Muslim jurists—from the early to modern periods—to preserve the identity of Islamic society.15

11 Bernard G. Weiss, h S ar h f r d aw I lami Juri rud i th Writi g f Sa f l- ī l- midī. Salt Lake City: University of Utah Press, 1992), 692-718; midī, Alī b. Abī Alī, al-Iḥkām fī uṣūl al-aḥkām ([Cairo]: Muḥammad Alī abīḥ, 1968), 3: 199-256; Abū Ḥāmid Muḥammad al-Ghazālī, al- u taṣfā mi ilm al-uṣūl (Medina : Ḥ. b. Z. Ḥāfi , 1993), 4: 128-147. See also Ibrāhīm b. Mūsā, al-Shāṭibī, Al- uwāfaqāt. (Al-Khubar: Dār Ibn Affān, 1997), 5: 336-337. 12 Here I use Acton’s definition of tradition to mean “anything which transmitted from the past to the present,” or as Acton defined it: “a belief or practice transmitted from one generation to another and accepted as authoritative, or deferred to, without argument.” Or as Graham stated, traditions in this sense are almost synonymous with “custom” since they are actions, ideas, and written or oral texts received from the past and accepted as normal or normative for a given community. Cited in Graham, “Traditionalism in Islam,” 496.See also Harry B. Acton, “Tradition and Some Other Forms of Order: The Presidential Address,” Proceedings of the Aristotelian Society 53 (1952-53), 2. 13 Talal Asad, Formation of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), 231-232. 14 On the transition of the use of the term mujtama‘ see Tania Haddad, “The Role of Civil Society in a Fragmented and a Weak Arab State: Developing or Fragmenting the State? Analyzing the Mujtama Ahli, Mujtama Taefi and Mujtama Madani in Lebanon,” (Ph.D. Diss., Libera Università Internazionale degli Studi Sociali, 2012), 13-31. 15 I use the term traditionalists to mean Muslim experts (Sunni or Twelver Shī‘īs) in Islamic law and theology who are entrusted (by Muslims) to preserve the vision and norms of Islam and ensure continuity and connection with past Muslim communities (umma). Traditionalists are usually considered authority in interpreting God’s revealed texts (Qur’ān and aḥādīth of the Prophet), and are respected throughout the Arab-Muslim society as the scholars who preserve and safeguard the identity of Islamic society against foreign and Western interventions. Under the umbrella 15

While most traditionalists resisted change, reformists were willing to change some of the discriminating rulings against women present in Islamic jurisprudence. In general, traditionalists feared reforms and considered them a direct threat to the Islamic tradition; for some, reform represented a change in Islam, while others viewed reform as a foreign import from the West.16

A third group stood against change simply because they considered Islam a timeless religion which was in need of no reform.17

Arab-Muslim intellectuals used opinions of past jurists preserved in textbooks of Islamic jurisprudence to preserve and strengthen the identity of Muslim society. Intellectuals also aimed at protecting Islamic society from erosion and safeguarding it against foreign (especially

Western) intervention. Arab-Muslim traditionalists wanted to preserve the traditions of Islamic society by ensuring the continuity of the Islamic society founded at the time of the Prophet and thereafter. They responded to the emergent needs of the umma by using Islamic jurisprudence to preserve and strengthen the foundational building block of Islamic society: the institution of marriage.18 Central to that debate were the various components (norms and stipulations) of the

of traditionalists, I include reformist-traditionalists, Salafis and contemporary Wahhābī-Salafis while excluding extremist Salafis. I define reformist–traditionalists as individual experts in Islamic jurisprudence who argue for reform from within the Islamic tradition. Salafis, on the other hand, are individuals who consider themselves followers of the Prophet Muḥammad and the first few generations of Muslims, the forebears, as the “salaf.” Salafis also do not feel obligated to follow any of the Sunni schools of law. Examples of such Salafis would be the Syrian jurist Rashīd Riḍā, the Egyptian scholar Muḥammad ‘Abduh, and the Moroccan jurist ‘Allāl al-Fāsī. Many contemporary Salafis however, follow early and classical period jurists such as Aḥmad b. Ḥanbal and Ibn Taymīyah. While some contemporary Salafis and many traditionalists oppose any reforms to Islamic family law, other intellectuals (like reformers) have approved of reforms if they were based on Islamic Sharī‘a and grounded within Islamic traditions. For a definition of traditionalists and Salafis, see William A. Graham, “Traditionalism in Islam,” The Journal of Interdisciplinary History 23, no. 3(winter, 1993), 496-500; Zaman, 2012, 7-8. 16 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford University Press, 2009), 12. 17 Ramadan, 12. 18 Islamic jurisprudence is the corpus of legal opinions of Islamic jurists (legal lawyers). Muslim jurists recorded their opinions and at times the opinions of other jurists—whether belonging to the same school of law or independent scholars—within the pages of these textbooks. Fiqh textbooks are organized through topics and usually start with rituals and practices (‘ibādāt) followed by legal transactions (mu‘āmalāt) such as commercial contracts, sales, family law: (marriage, divorce, inheritance, etc…), and other legal transactions. These textbooks usually contain several volumes and are studied within religious colleges and universities such as, al-Azhar University in Cairo, Dār al-Ḥadīth al-Ḥassanīa in Rabāṭ, al-Qarawiyyīn University in city of Fez, and other colleges and universities throughout the Arab and Muslim world. 16 marriage contract. Addressing the new challenges was made necessary by economic and political transformations in the region which directly impacted Islamic society. One of the most notable changes that took place during the middle of the nineteenth century was the restructuring of the nuclear family (usra). While the old definition of family included the husband, wife, their children, slaves, and the husband’s extended family, the newly evolved family consisted of the husband, his wife, their children and, on occasion, the husband’s dependent extended family members.

While changes in the core family occurred throughout Islamic society, Islamic fiqh and the methodology of consensus (ijmā‘) remained intact despite some of the calls for reforms. In addition, the five Islamic schools of law (the four Sunni schools of law and the Twelver Shī‘ī school of law) still were being taught at major religious traditional universities throughout the

Arab and Muslim world. The ancient university, al-Azhar, in Cairo, al-Qarawiyyīn University in

Morocco, and Umm al-Qurā University (formally College of Sharī‘a) in Saudi Arabia taught

Sunni madhāhib focusing on the local madhhab. While the cities of Najaf in Iraq and Qum in

Iran have some of the most ancient religious colleges that teach the Twelver (Ja‘farī) Shī‘ī madhhab, these universities and many others throughout the Muslim world stayed loyal to the local madhhab while teaching other madhāhib. Loyalty to the local madhhab meant siding with the consensus of the madhhab. Due to such religious traditional colleges, consensus remained strong and was rarely seriously challenged.

Traditionalists and reformists had to work from within Islamic fiqh to resolve challenges which arose in their particular regions. Arab-Muslim intellectuals reacted by attempting to maintain the Islamic identity of their societies by reverting to Islamic fiqh while simultaneously trying to be responsive to emergent needs. The view of each party (for and against reforming

Islamic fiqh) on how to serve society’s best interest was dependent on what the parties perceived to be the most imminent threat to the coherence, stability, and welfare of Islamic society in general. For traditionalists, Western customs and traditions were considered an outside threat which had to be guarded against.

Internally, reformists had initially considered women’s ignorance to be the main threat to society. As they saw it, a daughter—or a woman who was to become a wife and a mother—took a central role in the societal response and defense.19 Reformers aimed at preserving the identity of Islamic society manifested through the character of the Muslim woman, thereby placing tremendous pressure on the persona and character of the woman as the bearer of the Islamic tradition, custom, and the future generations. A woman was to be protected as part of men’s property (a daughter or a wife). Women were also never considered independent but were always attached to men’s kinship; she is a daughter, a mother, a sister a wife, but never an autonomous person. The primary proposed solution was to delay the age of marriage for women until they were considered “educated” under the care of the marriage guardian (walī).20 On the other side, traditionalists, who stood against any changes in a woman’s status, perceived moral corruption

(fitna) as the primary threat to mujtama‘, and as such, they naturally had a different view as to where and by whom young women were to be educated. They proposed that women be married young since, in the institution of marriage, women would be less subject to fitna and could be

19 Qāsim Amīn was one of the first intellectuals to call on society to liberate the ignorant Arab-Muslim woman. See Qāsim Amīn, aḥrīr al- ar’ah (Mi r: Dār al-Ma ārif, 1970 ). Leila Ahmed criticized Amin for assuming that Western civilization is superior to Muslim civilization. She also criticized him for targeting women instead of the colonizer (the British). See Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate. 1992), 155-164. 20 The following intellectuals are among those who called for delaying the marriage of women; Muḥammad al- Dasūqī, ‘Alī al-Shādhilī, Ḥūsayn Faḍl Allāh, Wahbah al-Zuḥaylī, Rajā’ Mekkāouī, and Zaynab Raḍwān. See below, chapters 2-4. 18 educated experientially in the duties of motherhood and wifedom.21 On the other hand, reformists felt that a woman must be educated while under the tutelage of her father or guardian

(walī).

Using the method of ijtihād (the exercise of independent or original analysis on legal issues), the majority of the members of both groups attempted to defend Islamic society as manifested in the persona of the Muslim woman while maintaining the Islamic usra as the main building block with which to safeguard society.22 While both reformists and traditionalists had the same goal, their differing perceptions of what constituted the primary threat resulted in differing priorities with regard to the components of a legally valid and ethical Islamic marriage.

Changes to these components started with redefining the dower (mahr) into a symbolic norm as well as the transformation of ikāḥ to zawāj. While jurists defined ikāḥ to be the actual marriage contract and the act of intercourse, Arab-Muslim intellectuals replaced the term ikāḥ with zawāj, which was defined as a contract to make the enjoyment of marriage licit between the couple.23 Changes were being proposed for other parts of the marriage contract as well. In an effort to protect women, reformists advocated for an increase to the minimum age of marriage in order to allow for the education of single women. For some, an increase to the minimum age meant an extended period in which the woman/ward remained under the authority of her walī or father. Conservative-traditionalists, on the other hand, perceived women’s sexuality to be the biggest threat to society and so they considered single women in general a source of moral

21 Among the intellectuals who called for early marriage are the followings; ‘Abd al-Salām Fighū, Muḥammad Bultājī, Aḥmad Ibrāhīm, Mu ṭafā al-Sibā‘ī, and Muḥammad b. Ma‘jūz. See below, chapters 2-4. 22 For the meaning of ijtihād see Khaled Abou El Fadl, Speaking in God's name: Islamic law, authority and women (Oxford: Oneworld, 2001), 9. 23 See Badrān Badrān Abū al- Aynayn Badrān, al-Fiqh al-muqāra lil-aḥwāl al-shakhṣī ah ba a al- adhāhib al- arba ah al- u ī ah wa-al-madhhab al-Ja farī wa-al-qā ū (Beirūt: Dār al-Nahḍah al- Arabīyah lil-Ṭibā ah wa-al- Nashr, 1967-), 9-10. 19 corruption (fitna) that must be protected at all times in order to safeguard the honor of the family and preserve the identity of Islamic society.

During the latter part of the nineteenth and into the early-to-mid-twentieth centuries, the

Ottoman Empire and some Middle Eastern countries began codifying Islamic family law in order to replace the section of Sharī‘a which dealt with what came to be known as Personal Status Law

(PSL) or al-aḥwāl al-shakhṣiyya.24 During the early twentieth century, a few Arab-Muslim intellectuals began to challenge some of the Sharī‘a rulings which they considered to be discriminatory against women.25 Scholars like Muḥammad ‘Abduh, Qāsim Amīn (d. 1908), and

Hudā Sha‘rāwī (d. 1947) advocated for change using the Islamic legal method of ijtihād to reform some of these Sharī‘a rulings in order to provide women with a more inclusive role in marriage and divorce.26 The new debates covered many aspects of Islamic family law, including marriage, divorce, custody of children, inheritance, maintenance, and the rights and duties of the husband and wife. Due to the daunting nature of the task of discussing all topics covered by the

Islamic family law, this dissertation is concerned only with the debates over the marriage contract. Restricting my focus to the portion of law which concerns itself with marriage is the only way to cover the topic with the depth it deserves while providing the reader with ample detail to illustrate the debates that occurred regarding the role and rights of women in marriage.

Since this project discusses the debates that have ensued over the Islamic marriage contract, it is a case study that is directly relevant to Muslim women. This project is not one

24 Throughout the dissertation I refer to states’ codified Islamic family law by Personal Status Law (PSL), while I use the term “Islamic family law” to connote the part of Islamic jurisprudence, which deals with family and personal law. 25 While the title “personal status law” or al-aḥwāl al-shakhṣiyya, has no roots in the traditional textbooks of Islamic jurisprudence, it encompasses rulings which cover marriage, divorce, custody of children, female testimony, inheritance, the rights and duties of the wife towards her husband, and other family matters. 26 Ahmed, 1992. 20 which is based on court decisions so much as it is a study on the way that Islamic family law is written and debated, as well as the way it has continued to evolve throughout the past decades.

Unlike Islamic fiqh, which was written only by men, today several highly educated women have become crucial players in the reform of the laws which deal with women’s rights. This emergence of women in the political sphere undermined the authority of the ‘ulamā’ (sing.

‘ālim) and helped to restrict men’s role as the sole participants in this discourse.27 Today, we see a different landscape of Islamic law that is no longer under the monopoly of male jurists, nor are women any longer solely subject to the laws of men. Some of the old fiqh rulings (aḥkām) with regard to Islamic family law have been challenged by men and women alike, and at times have been changed despite strong opposition from many of the ‘ulamā’ and their constituency. While

Muslim personal status law (PSL) is based on one or more of the Islamic schools of law

(madhāhib pl. madhāhib), states’ PSL differ from one Arab state to another. Islamic personal law, therefore, is not a monolithic law as some in the West may perceive it to be, since even states that follow the same madhhab may have differing personal laws. The changes and reforms within each state have been the topic of debate among multiple parties now for over a century.

The purpose of this project is to evaluate the authority and the impact of Muslim tradition and jurisprudence upon the twentieth and twenty-first century debates over Muslim family law.

To accomplish this, the first chapter of this project examines the marriage contract within the four Sunni schools of laws and Twelver (Ja farī) Shī‘ī school during the classical and post- classical periods, with occasional reference to the formative period when necessary.28 The first

27 The term ‘ulamā’ is an ambiguous term, however I define ‘ulamā’ as those Muslim men who studied Islamic law and theology. A ‘ālim is anyone who holds a professional position, a jurist, a professor, a muftī, a teacher of Islamic religion, or a preacher (imām) of a mosque. 28 This study uses the following dates to classify the intended periods of study: 1) the formative period includes dates up to the ninth century; 2) the classical period covers from the tenth to the twelfth centuries; 3) the post- 21 section of chapter one will discuss the age of bulūgh and rushd, as well as the legal age of marriage, the agency granted by jurists to single adult virgin (bikr) women in marriage, and the role of the marriage guardian (walī).29 The chapter provides background relevant to the rest of the chapters of the dissertation, which deal with the debates among Arab-Muslim intellectuals and muftīs (jurist-consults) from the twentieth-century through the present. The dissertation limits its exploration of debates over marriage reform to a few Arab states, namely Egypt,

Morocco, Saudi Arabia, Syria, Palestine, and Lebanon. I chose these states due to the dynamic debates regarding women’s role in marriage and due to the plethora of legal literature provided by intellectuals of these states. The study will include both Sunni and Shī‘ī participants so as to provide the reader with a comprehensive picture of the religious debates concerning the Islamic marriage contract.

My argument is two-fold. First, I argue that Western scholars tend to understate the authority of traditional religious institutions that teach traditional Islamic jurisprudence, many of which still enjoy tremendous power over Islamic law. Second, I argue that the authority of the madhāhib has been challenged internally and externally and in some countries was eventually eroded in favor of a more inclusive type of ijtihād (collective ijtihād), which allowed non-jurist professional women to participate alongside men in reforming Islamic family law. As a consequence to this new process, the formidable legal method of consensus is weakened, and states like Morocco witnessed the end of the monopoly of a single madhhab.

The twentieth and the twenty-first centuries have shown that there is a dynamic debate within Arab society—specifically amongst traditionalists and more liberal circles—on the topic

classical (modern) period runs from the end of the twelfth century on. The Ottoman period could be considered as part of the modern period. 29 The term bikr is an Arabic term means a virgin woman (minor or adult) who was never previously married before. 22 of marriage and divorce. This study shows that the discourse surrounding the Islamic marriage contract exemplifies the complex and challenging nature of the debate over family law in general. I aim to illustrate this point by demonstrating that contemporary Muslim intellectuals may not be compartmentalized in two camps in order to create a dichotomy; one in favor and another against reforms. I also aim to illustrate that, while Arab-Muslim intellectuals argue for or against reforming Islamic family law, they are attempting to do so in conjunction with preserving the identity of Islamic society by calling upon the authority of past Muslim jurists. To legitimize their position within the Islamic society, these intellectuals argue from within the Islamic tradition either to restrict women’s roles in conducting their marriage or to grant women wider agency and allow for women to gain their autonomy as independent individuals in an Islamic society. At stake in these debates is the authority and legitimacy of the various participants in this discourse.

Methodology

The topic of marriage has also received a considerable amount of attention among

Western scholars. While some have written on the marriage contract during the early Islamic period, many have focused on the debates and reforms of the family law (al-aḥwāl al- shakhṣiyya) over the past century. Few have combined a study on the marriage contract during the early period of Islam and the modern period. The latter type of study provides the reader with details on the origins of the many laws Arab-Muslim states have adopted in their PSLs. In the following pages, I first analyze the related work done by Western scholars regarding Islamic family law, then relay the significance of my topic, and finally, I present a brief summary of the upcoming chapters.

In one of the few instances these days when one may consider themselves fortunate to be an Arab, I consider myself lucky to have the ability to draw on a vast collections of Arabic sources, classical fiqh books, as well as contemporary legal work on Islamic family law and states’ personal law in this research. My fluency in Arabic came to my aid when I tried to look for Moroccan intellectuals to interview. Through my preliminary research, I ran into the name of a prominent Moroccan scholar who played a huge role in reforming the last Moroccan

Mudawwana in 2004—Aḥmad al-Khamlīshī. After exchanging a few emails, al-Khamlīshī welcomed my research and provided me with his personal cellular phone number, asking me to call him as soon as I arrived in Rabāṭ. In May 05, 2013, I flew to Rabāṭ and, upon my arrival, I called al-Khamlīshī, who welcomed me and asked me to come the next day to attend a conference on the Prophet’s Sunna held at the institution of Dār-Ḥadīth al-Ḥassanīa, where al-

Khamlīshī served as the director. The next day, I went to see al-Khamlīshī, not realizing how great his prominent status was until I arrived at the gate of the institution. When I provided the security guard with my name he immediately called for al-Khamlīshī who was already sitting among the different dignitaries in the auditorium. He came and warmly welcomed us (the guide and myself) and ushered us to sit with him in front of the auditorium. Al-Khamlīshī was an elderly man (b.1928) with a bright smile on his face; he insisted on inviting us for breakfast and lunch and took it upon himself to introduce me to some of the presenters at the conference.

Later that week we sat down with al-Khamlīshī and talked for hours. For three days I met with al-Khamlīshī discussing the Moroccan Mudawwana and Islamic jurisprudence. After finishing the interviews, I asked al-Khamlīshī for recommendations for further interviewees and he, graciously, provided me with phone numbers of a few female leaders in Rabāṭ. We then took

24 a taxi and headed to the Mohammed V University to search for the professors to meet and interview.

Not knowing our way around, we asked to see the president of the university (this was spontaneous and without any prearrangement) who was not at the office. An administrator directed us to the office of the vice president who was present at the time. Professor Rajā’ al-

Mursilī invited us to come into her office and asked if I had any type of permission from the university or any research center in the United States to interview faculty members in Morocco as this is the protocol with the Moroccan universities. My guide spoke first in his Moroccan dialect (different from the formal Arabic language I speak) trying to explain to her that I was a serious researcher and wanted to interview some of the professors in her department. I then interjected and explained that we had just interviewed al-Khamlīshī and that I was a Palestinian-

Arab living in the United Stated conducting research on Islamic family law with an emphasis on that of Morocco. Once she understood that I was an Arab recommended by al-Khamlīshī, her attitude changed and she was much more welcoming. In fact, she logged onto her computer and started looking for faculty members who were working on the Moroccan Mudawwana or Islamic family law in the university at large. She provided us with several phone numbers and began dialing some of the faculty members, stating that it was better that she call and introduce me to her faculty members directly. Luckily, she reached professor Rajā’ Mekkāwī and made an appointment to see her a few days later. This was one of the most profound moments of my research. For the first time I felt that I had been welcomed among friends and no longer felt like a stranger; being an Arab had finally paid off for someone like me who lived a number of years of his life in the United States. We sat down sipping Moroccan tea and talked to professor al-

Mursilī about my project at length and my background. Before leaving, al-Mursilī insisted that I

25 attend a conference the university was organizing the following week so that I may have the chance to meet other professors and professionals in the field.

The next day we knocked on the door of professor Laṭīfa al-Mihdātī, assistant dean of the social science department at Mohammed V University. Al-Mihdātī was also welcoming once she recognized my background and nationality. A few days later, while passing through the hallways of the Institution of Dār al-Ḥadīth al-Ḥassanīa, I stopped Professor Fāṭīma Bouslāma on her way out and asked if she had time for an interview.30 Luckily, she agreed to meet with me first for half an hour with the promise of meeting again in few days, which she generously fulfilled with a lengthy interview. While exiting the meeting room with Bouslāma, she flagged down another colleague of hers, who also agreed to an interview later that day.

A few days later I asked my guide to visit the family courts in Rabāṭ. We headed there after an interview on a cloudy spring day. After taking the electric train in Rabāṭ, we walked few hundred yards to Rabāṭ’s family court. As usual, we did not have an appointment set with any of the employees of the court. In this visit I relied on my Arabic background, age, and the charm of my guide to get by. Luckily, my guide Yousuf met one of his friends who led us to the office of the chief judge. We knocked on the door and it was opened by the chief judge’s assistant.

Surprised that we had no previous appointment and thinking that I was an American researcher, he refused to allow us to meet the chief judge and immediately started to show us the way out. I then had to speak to him in Arabic to introduce myself. That was the magic wand. Upon hearing me speak the Arabic language, the chief judge ushered us in and we began a friendly conversation. He then asked for the purpose of the visit and I explained to him that I was looking

30 I met Bouslāma a week earlier when I first visited Dār al-Ḥadīth al- Ḥassanīā and we had a little discussion in which she agreed to meet after the end of the conference. 26 for a few samples of Moroccan marriage contracts to include in my future research. He took out the most recent contract from his desk and asked his assistant to make a copy and then instructed him to see that we obtain a sample of Morocco’s previous contracts. On the way to the office of archives, the assistant explained to us that this is unusual since the procedure is usually to have an official letter from the state to gain access to the archives, but since the chief justice approved our request, he was happy to see that we received what we had come for. Through a combination of good luck and my Arab background, we were also introduced to other professionals who were more than willing to share their knowledge and experience with us over a cup of Moroccan tea.

Some of the individuals I interviewed were so generous that they gifted me some of their books while others offered to purchase, pay for the books, and mail them to my address in the United

Stated, to which I declined thanking them for their time, generosity, and their wonderful

Moroccan hospitality.31

Literature Review

While many Western scholars have written on the topic of family law, few have addressed the Islamic marriage contract or the topic of marriage in general. One of the first

Western scholars to write about reformed family law in the Arab nation-states is J.N.D

Anderson. An English Christian missionary, Anderson relied heavily on his personal experiences with the Islamic judicial system throughout the world. Anderson, who had strong ties to many government officials, claimed to have worked as a consultant to many Muslim states as well as

31 I would like to thank the American Institute for Maghrib Studies (AIMS) for providing me with a grant to conduct my research in Morocco.

27 to the colonial governments. In his work, Anderson cites mostly government documents, referring only rarely to the fiqh tradition. In the few occasions where he actually cites a source, it is usually the name of the particular school of law or the individual responsible for the opinion that he mentions without making reference to any direct documentation. However, despite his background and his role as a Christian missionary, Anderson was one of the first scholars to write on the newly codified laws throughout the Muslim world. His writings reflect his knowledge and expertise in the modern newly codified laws as well as the Islamic fiqh.

In his 1958 articles, “Reforms in Family Law in Morocco” (published in the Journal of

African Law) and “The Tunisian Law of Personal Status” (published in The International and

Comparative Law Quarterly), Anderson addresses some of the newly reformed articles of the personal law (al-aḥwāl al-shakhṣiyya) in Morocco and Tunisia.32 Some of the Articles Anderson analyzed had to deal with the position of the walī, the age of marriage, polygyny, and the man’s unilateral right of divorce. Anderson analyzes and juxtaposes some of these reformed articles concerning marriage, divorce, and polygyny with those of the various Sunni schools of law. In his article on the Moroccan Mudawwana, Anderson limits his analyses to the newly codified family law, but in the article on Tunisian personal law, he briefly mentions the point of view of some who opposed the law. His articles address the codification of personal law in Tunisia and

Morocco without referring to the various groups involved in the reforms or the parties that opposed them. In juxtaposing the two Arab states’ newly codified laws, Anderson concludes by stating that by issuing a new Moroccan PSL based on the Mālikī school of law, the new government restricted Muslim women’s agency in Islamic family law. In the article on the

Tunisian personal law, Anderson argued that in codifying the Tunisian personal status law, the

32 Tunisia published its first Personal Status Law in 1956 whereas Morocco published its personal law in 1957-58. 28 government aimed at eliminating Sharī‘a courts as separate institutions and bringing Tunisian courts under a unified modern secular system. However, in his analysis, Anderson fails to cite his sources when it comes to his analysis of Islamic jurisprudence. Still, these two articles by

Anderson can be looked at as a survey study of the newly codified family laws between the two subject countries.

Aside from these articles, Anderson has written a plethora of literature on the reforms of the family law among the Arab and Muslim states. In his writings, Anderson analyzes some of the government reforms, often juxtaposing the newly reformed laws with Islamic jurisprudence.

Here, I will only mention one of his many books on the topic—Law Reform in the Muslim

World, published in 1976—which could also be considered a survey of newly codified laws in the Muslim states. Even Anderson’s many articles on the reforms to Arab-Muslim family law lack the necessary focus on Islamic jurisprudence because Anderson always attempts to cover

Islamic family law in its entirety rather than zeroing in on any particulars. Nevertheless, his work has been cited by many modern scholars studying family reforms in various Muslim states.

While Anderson attempts to cover all reforms within the Muslim states, some scholars focus on only a few of the reforms in particular states. One such scholar is Ron Shaham, who wrote on the debates over the reforms of the family law in Egypt. Two of his many articles could be considered similar in topic to this project. The first article, published in 1995 under the title

“Custom, Islamic Law and Statutory Legislation: Marriage Registration and Minimum Age at

Marriage in the Egyptian Sharī‘a Courts” addresses the debates over the legal age of marriage in

Egypt during the early twentieth century.33 While this article sheds light on the debates which

33 Ron Shaham, “Custom, Islamic Law and Statutory Legislation: Marriage Registration and Minimum Age at Marriage in the Egyptian Sharī‘a Courts.” Islamic Law and Society 2, no. 3 (1995): 258-81. 29 ensued over the minimum age of marriage as set by the Egyptian personal law, it is limited in scope, as Shaham admits. Shaham only addresses the early Egyptian court’s decision to reject family law cases in which at least one of the couples had not reached the newly required age of marriage. Shaham focuses on the historical development of the legal age of marriage in Egyptian courts during the first half of the twentieth century. Shaham concludes that the Egyptian government must educate and encourage women to participate in the labor force in order for legal reforms to succeed. Shaham’s 1999 article, titled “State, Feminists and Islamists: The Debate over Stipulations in Marriage Contracts in Egypt,” illustrates the debates over a proposal submitted by a group of Egyptian feminists.34 In it, Shaham articulates the debates over the proposed stipulations between the religious ‘ulamā’ on one side, and Egyptian feminists on the other side.

Moreover, Shaham provides the reader with a comprehensive study of what took place between the two parties by including his own analysis of the nine proposed stipulations as well as the religious evidence used by both parties.35 In this article, Shaham argues that in order for the

Egyptian government to pass certain legislations concerning family law, it relies on ‘ulamā’

(jurists and muftīs) who are close to the political establishment, hired by the government rather than independent scholars.

This article could be considered an excellent reference guide to the 1995 Egyptian debates since Shaham not only offers his own analysis, but also often juxtaposes the newly proposed stipulations against the opinions of jurists of the different Sunni schools of law. For

34 Ron Shaham, “State, Feminists and Islamists: The Debate over Stipulations in Marriage Contracts in Egypt,” Bulletin of the School of Oriental and African Studies 62, no. 3 (1999): 462-83. 35 The following are some of the Articles proposed, 1) Do you agree that your wife will complete her higher academic studies? 2) Do you agree that your wife will work [outside of the home] in the future? 3) Do you agree that your wife may change her job for another that matches her qualifications? 4) Do you agree that your wife will travel abroad-with a legitimate justification with or without the children? 5) Do you agree to abstain from marrying an additional wife, and if you do marry [an additional wife], your wife will have the right to divorce herself? For the rest of the Articles see Shaham, 1999, 467-72. 30 example, Shaham was one of the very few scholars who pointed out that one of the reasons that the Azhar ‘ulamā’ objected to the proposed stipulations was for fear that the new marriage contract might become strictly a civil contract, thus undermining the authority enjoyed by the

‘ulamā’ as religious leaders, and threatening their position as religious leaders who are heavily involved in Egyptian family law (al-aḥwāl al-shakhṣiyya). However, his two articles only concern themselves with the stipulations proposed in that particular time period and do not delve deeper into other aspects of the marriage contract, such as its history.

One female scholar who gained popularity by writing on marriage reforms in Egypt is

Mona Zulficar. Zulficar’s 2008 article, “The Islamic Marriage Contract in Egypt,” discusses the development of the Egyptian marriage contract.36 Zulficar shows the various stages the Egyptian marriage contract went through from its inception in 1919 until the passage of the newly reformed contract in 2004. Zulficar’s article mostly speaks of her activity as the chair of an all- female committee “Group of Seven” that was instrumental in passing the proposed marriage contract. The new contract containing the proposed stipulations was first introduced in 1985.

While her piece might appear to be similar to other articles, it was one of very few which included several examples of translated Egyptian marriage contracts. These marriage contracts were arranged chronologically to show the amendments made to the contracts up until 2004. The article highlights the concerns of Egyptian feminists, placing particular emphasis on scrutinizing the legal age of marriage and safeguarding the rights of wives, such as the right to divorce her husband (khul‘) and the restriction of polygyny. Because the article focuses on the Egyptian marriage contracts and the proposed stipulations to those contracts, the article is limited in scope and ignores the crucial religious debates between Egyptian feminists and their opposition.

36 Mona Zulficar, “The Islamic Marriage Contract in Egypt,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Quraishi Asifa and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008). 31

Two more authors that wrote on the recent reforms in Egypt are Mulki al-Sharmani and

Nadia Sonneveld.37 Al-Sharmani’s two articles address the practicality of the reformed laws passed by the Egyptian courts as well as the various obstacles facing women in Egyptian family courts. Nadia Sonneveld’s 2010 article on khul‘, or female-initiated divorce, in Egypt addresses similar issues as the two articles previously mentioned, including the parties involved in the debates over the new Egyptian marriage contract.38 While all three articles address the newly reformed marriage contract, they could be considered as ethnographical studies based on interviews with various subjects. These articles deal mostly with divorce cases initiated by women (khul‘ law) and the various obstacles women faced in the Egyptian family courts after the newly reformed marriage contract took effect. The two authors conclude that, while theoretically the Egyptian PSL was reformed in practice, the Egyptian court system is far from implementing any of these reforms.

Amira Sonbol’s 2008 article, “A History of Marriage Contracts in Egypt,” addresses the

Egyptian and Islamic marriage contracts throughout history and juxtaposes them with marriage contracts from sixteenth-century Egypt.39 Sonbol’s article, which focuses on the Egyptian archives, reaches the conclusion that pre-modern Egyptian marriage contracts granted women a wider role in marriage than current contracts. Sonbol’s article, while informative, is limited to juxtaposing contract stipulations between various marriage contracts.

Other scholars were successful in conducting field work studies on various issues surrounding Islamic family law. Ziba Mir-Hosseini is one scholar who conducted field work

37 Mulki al-Sharmani, “Egyptian Family Courts: A Pathway of Women's Empowerment?" Hawwa 7, no. 2 (2009): 89-110; idem, "Legal Reform, Women's Empowerment and Social Change: The Case of Egypt," Institute of Development Studies Bulletin 41, no. 2 (2010): 10-17. 38 Nadia Sonneveld, “ hul‘ Divorce in Egypt: How Family Courts Are Providing a Dialogue between Husband and Wife,” Anthropology of the Middle East 5 (Winter, 2010), 100-120. 39 Amira Sonbol, “A History of Marriage Contracts in Egypt,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School: Distributed by Harvard University Press, 2008), 87-122. 32 studies in Iran and Morocco. Her 1993 book, Marriage on Trial: A Study of Islamic Family Law:

Iran and Morocco Compared, is a remarkable study on the practical side of the Islamic family laws in two different countries with two different Islamic schools of law—the Sunni Mālikī school in Morocco and the Ja‘farī Shī‘ī school in Iran. In this book, Mir-Hosseini conducts her research through family court archives and court cases to find the difference between the practical and textual parts of the law. While Mir-Hosseini’s work represents a breakthrough regarding the practical aspects of family law in modern Muslim courts, her study discusses many aspects of Islamic family law—marriage, divorce, polygyny, inheritance, and child custody— which make it more of a broad study than an in-depth one. Of similar import is Mir-Hosseini’s article, “Justice Equality and Muslim Family Laws.” In it, Mir-Hosseini attempts to answer several questions regarding primary sources in Islamic Sharī‘a (namely, the Qur’ān and Sunna) and whether gender equality and Sharī‘a-based laws are able to coexist. To explore this question,

Mir-Hosseini explores the work of Tunisian scholar al-Ṭāhir al-Ḥaddād (d. 1935) as well as

Muslim Pakistani scholar Fazlur Rahman (d. 1988) regarding gender equality in Islamic law’s primary sources and the contemporary debates that took place throughout the Islamic and

Western world.40

Many other scholars also wrote on the topic of reforms in the Moroccan Mudawwana and, here, I explore the work of three such scholars: Leon Buskens’ article, “Recent Debates on

Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere,” published in Islamic Law and Society, (2003); Maddy-Weitzman’s article, “Islam, and the

Moroccan State: The Struggle over the Personal Status Law, ” published in Middle East Journal,

(Summer, 2005); and Zakia Salime’s 2011 book, Between Feminism and Islam: Human Rights

40 See Ziba Mir-Hosseini, “Justice, Equality and Muslim Family Laws: New Ideas, New Prospects,” in Gender and Equality in Family Law: Justice and Ethics in the Islamic Legal tradition, eds. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe (London: I.B. Tauris, 2013), 7-34. 33 and Sharia Law in Morocco. All three articles address the reforms in Morocco and the political reaction to these reforms.41 In addition, all three focus on the reaction of women’s organizations to the proposed reforms and at least touch on the two organized mass marches that took place both for and against the planned reforms. While Salime’ focuses on women’s organizations and their relationship with the state, Buskens and Maddy-Weitzman make the role of the king in reforming the Mudawwana central to their works. Both scholars argue that the king’s political motive in co-opting the religious establishment was a main motive for these reforms. All three scholars limit their work to the reaction of women’s organizations, though, and do not discuss the evidence brought forth by the different parties.

While most of the work I explore in this study deals with the Sunni marriage contract

(except for the work of Mir-Hosseini), there is one scholar worth mentioning who wrote on the

Shī‘ī reaction to some of the reforms that were put in place in Iraq. Chibli Mallat’s 1990 article,

“Shī‘īsm and Sunism in Iraq: Revisiting the Codes,” is one of few existing articles that addresses the reaction of the Shī‘ī ‘ulamā’ to the reforms of the family law in Iraq.42 In this work, Mallat examines the Shī‘ī opposition as represented by religious scholar Muḥammad Baḥr al-‘Ulūm, who objected to the codification of the Iraqi personal law in 1959. Mallat provides Baḥr al-

‘Ulūm’s evidence for opposing the newly codified law and illustrates the position of a Shī‘ī scholar in a country with Sunni tendencies.

I also found two additional studies that are related to my project: the unpublished 2010 dissertation of Carolyn Baugh, titled Compulsion in Minor Marriage as Discussed in Early

41 Leon, Buskens, “Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics an Emerging Public Sphere,” Islamic Law and Society, 10. no. 1 (2003), 78; Bruce Maddy-Weitzman, “Women, Islam, and the Moroccan State: The Struggle over the Personal Status Law,” Middle East Journal, 59, no. 3 (summer, 2005; Salime, Zakia. Between Feminism and Islam: Human Rights and Sharia Law in Morocco (Minneapolis: Minnesota Press, 2011). 42 See Chibli Mallat, “Shī‘īsm and Sunism in Iraq: Revisiting the Codes,” in Islamic Family Law, ed. Chibli Mallat and Jane Connors (London; Dordrecht; Boston: Graham and Trotman, 1990), 71-91. 34

Islamic Legal Texts; and Kecia ‘Ali’s 2010 book, Marriage and Slavery in Early Islam. 43Both studies focus on the early aspects of Islamic law and cover a great deal of the marriage contract—Baugh’s even more so than ‘Ali’s. Baugh’s dissertation is one of only a handful of studies detailing the differences among various early jurists’ opinions regarding the minimum age of marriage, indications of bulūgh, the coercion of minors into marriage (ijbār), and the role of social status (kafā’a) in marriage. However, both Baugh and ‘Ali limit their studies to the early Islamic period and focus mainly on early Sunni fiqh with references to just a few jurists from the fourteenth century.

The work of many other Western scholars who wrote on the topic of Islamic law could be classified as survey work. I selected five works by five such scholars on which to focus for the purposes of this project: Kecia Ali’s 2008 article, “Marriage in Classical Islamic Jurisprudence:

A Survey of Doctrines,” as published in Asifa Qurishi’s and Frank E. Vogel’s (eds.) The Islamic

Marriage Contract: Case Studies in Islamic Family Law; Judith Tucker’s 2008 book, Women,

Family, and Gender in Islamic Law; Susan Spectorsky’s 2010 book, Women in classical Islamic

Law: A Survey of the Sources; Lynn Welchman’s 2007 book, Women and Muslim Family Laws in Arab States: a Comparative Overview of Textual Development and Advocacy; and finally,

John Esposito’s 2001 book, Women in Muslim Family Law.44 These scholarly works could be considered collectively as surveys of the Islamic family laws which focus on the different

43 Carolyn Baugh, “Compulsion in Minor Marriages as Discussed in Early Islamic Legal Texts," (Ph.D. Diss., University of Pennsylvania, 2011); Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, Mass: Harvard University Press, 2010). 44 Kecia Ali, “Marriage in Classical Islamic Jurisprudence,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Quraishi, Asifa, and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008); Judith Tucker, Women, Family and Gender in Islamic Law (Cambridge, UK; New York: Cambridge University Press, 2008); Susan Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Leiden: Brill, 2012); Lynn Welchman, Women and Muslim Family Laws in Arab States: A Perspective on Reform (London, UK; New York, Palgrave Macmillan, 2004); John Esposito, Women in Muslim Family Law (Syracuse, N.Y: Syracuse University Press, 1982) . . 35

Islamic schools of law with a particular emphasis on the Sunni schools. Kecia Ali summarizes the key doctrines of the five schools of law arguing that the five Islamic schools differ significantly in dealing with Islamic family law, especially with regard to the marriage contract and divorce rulings. Spectorsky’s work, on the other hand, is a survey of sources on marriage and divorce rulings. While this is a very helpful book for students of Islamic law with which they may more effectively navigate the complex books of Islamic law, the sources she chooses are arbitrary and do not offer the reader a clear idea of the prominent sources in Islamic law.

Tucker’s book, on the other hand, attempts to tackle crucial issues regarding the position of women in Islamic society, and how Islamic jurisprudence shaped the family, property rights, space, and sexuality, from the classical and medieval period to the present. While Tucker tackles serious topics regarding gender issues in Islamic law, she falls short on formulating a firm conclusion to her work as she affirms that she has found it difficult to provide a clear summary of Islamic rulings regarding women issues due to the diversity of legal opinions among classical jurist and contemporary intellectuals.45 The book is still a great tool for students of Islamic law looking for classical sources. Spectorsky’s and Tucker’s works could be viewed as attempts to cover every aspect of the Islamic law. This has the effect of making their work merely surveys of

Islamic law in general rather than in-depth studies.

Welchman and Esposito’s works discuss the new family law in some of the Muslim countries specifically. Welchman argues that the new laws of today’s Muslim states’ continue to discriminate against women while Esposito’s work analyzes the approaches taken by some of the

Muslim states, specifically Pakistan and Egypt, to reform Islamic law. Esposito criticizes these approaches for their inadequacy to reform states’ laws since states use the method of a piecemeal

45 Tucker, 2008, 82. 36 approach while patching legislations from different schools of law to make reforms. Instead,

Esposito argues that it is better to go back to the essence of the Qur’ān and other Muslim reformist principals which he believes would improve the position of women and restrict women’s rights in Islamic family law. While Esposito’s argument is valid and his approach has been called for by other Muslim scholars like Asma Barlas and Fazlur Rahman, religious traditional institutions exercise a great deal of authority and would not allow a feminist interpretation of Islamic family law to take precedent over consensus of past jurists with a long standing tradition. Any new interpretation of the revealed text not grounded within Islamic tradition faces rejection by traditionalists who aim at preserving the identity of Islamic society by continuing the long tradition of relying on past authority (the Qur’ān, Sunna of the Prophet, and opinions of past jurists). However, despite the size of the book, it could be considered a great contribution to Western scholars on Islamic law in certain states.

Significance

This study focuses on the modern and contemporary legal work of Arab-Muslim intellectuals on the rights of Muslim women in marriage. In this study, I included the Arabic writings of Arab-Muslim intellectuals whose legal work on Islamic family law is largely understudied or ignored in the West. The study will show that, contrary to Western perception, a dichotomy of Arab-Muslim intellectuals is unfounded and impossible to assess based on two opposite camps. While some of these intellectuals might oppose the requirement of a walī in marriage for example, the same individuals might stand for reforming the legal minimum age of marriage. The study explores the authority of jurists’ consensus through the consensus of a single

37 madhhab, and the challenges facing this old and authoritative methodology by focusing on the discourse surrounding Islamic marriage contract.

While the first chapter addresses the opinion of jurists on the legal age of marriage and the role of women in contracting their marriage, the rest of the chapters focus on contemporary intellectuals’ writings and interviews regarding women’s role in marriage. This formatting serves multiple purposes: the chapter on Islamic jurisprudence provides the reader with rulings (aḥkām) that are considered fundamental to an understanding of modern Islamic family law (PSL). It also provides the reader with some examples of the type of language modern day jurists encounter when they debate on the topic of the marriage contract. The chapter also provides the reader with a view of the Islamic authority that is often utilized to legitimize reforms in Arab-States’ personal status laws. In addition, this project contributes directly to the scholarship of the topic of family law in classical fiqh through the inclusion of insight garnered from a large number of primary and classical fiqh textbooks, as well as through the examination of primary contemporary works by modern Muslim intellectuals and activists. I hope, ultimately, to contribute to the ongoing debate among scholars and intellectuals regarding the role of women in

Islamic family law, and to become a part of the link between Arab-Muslim scholars and intellectuals in the Arab-Muslim states and those in the West.

The focus of this study is the debates among Arab-Muslim intellectuals, religious scholars, and activists within the Arab world over the marriage contract, specifically. In addition,

I explore the method of how Muslim reformists and traditionalists utilize the authority of the past to shape the identity of contemporary Islamic society. More importantly, in this project, rather than discussing Islamic family law in its entirety, I chose to focus on one aspect of the law—the marriage contract—so as to cover the topic with the depth that it deserves. Unlike other works,

38 my study of the marriage contract includes the work of both Sunni and Shī‘ī scholars and activists. This provides the reader the best opportunity to consider the various opinions on the topic alongside the evidence provided by these individuals and the origins of this evidence.

Through this approach, my intention is to outline the general debate along with the evidence intellectuals and jurists used to buttress their positions regarding the legal age of marriage and the role of women in negotiating a marriage contract. Since the foundation of

Islamic family law is grounded in fiqh, reformers had to learn the language understood by the traditional parties and the religious intellectuals. More importantly, reformers had to ensure that their demands and evidence supporting those demands were grounded within Islamic Sharī‘a and were formulated using fiqh language. This step was an essential one to prevent the conservative

‘ulamā’ from accusing reformers of importing Western ideas or using secular language, especially since traditionalists in general considered secular language to be a serious threat to the unity of the Islamic family (usra) and the identity of the Muslim society. This also provided the reformers with religious credibility—a quality they were seen as lacking when their demands had previously been ignored or rejected by the religious establishment.

While the sources of Sharī‘a are still the same today, modern Islamic law is vastly different. Post-colonial twentieth-century Islamic law involves a greater array of actors who were previously not present. During the twentieth and twenty-first centuries, nation-states became heavily involved in codifying Islamic family law. In addition, other individuals joined in on the process of forming and reforming the law. In the last hundred years, Western-educated professional lawyers, scholars, historians, poets, activists, journalists, and politicians joined jurists and religious ‘ulamā’ in the discourse over family law. And even more significantly, for

39 the first time, women have now entered the arena of Islamic legal reform in several Arab countries.

The discourse surrounding Islamic family law is a living dialogue, a struggle through debates in which professional men and women have become an integral part. As has been well documented, women in Arab-Muslim states have organized themselves and succeeded in helping to make certain reforms to the original codified law. Upon entering the public sphere, women brought with them new tools that gained the respect of the other side (mostly traditionalist men, including jurists and laymen). Women entered the field of Islamic jurisprudence, held professional positions such as head of corporations, professors, lawyer, judges, and politicians.

This move of sharing the public sphere with me was unprecedented, since women have traditionally been ignored and marginalized as participants in the writing of Islamic jurisprudence. Recently, though, certain women have become primary contenders and fierce competitors to the men that have controlled and monopolized the realm of Islamic law for centuries. The work of intellectuals like the Moroccan scholar al-Khamlīshī has been instrumental in challenging jurists’ consensus, and in gaining a place for women in which to participate in the reform of Islamic family law and call for the enhancement of women’s rights therein. While some women called for reforms, others remained faithful to the old fiqh, preferring the interpretation of the classical Muslim jurists over any new reforms. This is where my project will play the most significant role: in this project I bring forth the opinions and writings of many women well-versed in both family law and fiqh, and shed light on the work of a number of women that have been mostly ignored by Western scholars. The project will also touch on the religious and legal evidence provided by Arab-Muslim men and women to

40 communicate with the religious establishment and traditionalists during the processes of debating and reforming Islamic family law.

Sources

Most of the primary sources referenced in this project are written in Arabic and have not been translated into any Western language. In Section I of the project, my aim is to focus on fiqh textbooks. As for Section II, the sources will necessarily vary due to the introduction of written media and the internet. This study employs the Islamic legal writings of numerous Arab-Muslim intellectuals whose work has influenced legal reforms in at least one of the Arab states, and has also influenced the debate over Islamic family law throughout the Arab-Muslim world. I have also conducted interviews with several Moroccan intellectuals—men and women—who have directly participated in legal reforms and dialogues within the Moroccan government on women’s rights in the Moroccan Mudawwana. I also searched the internet for websites which advocate a position in the debate over the marriage contract. I have been successful in accessing several media websites that are important for my research, such as those maintained by professional newspapers, magazines, governments, and organizations, as well as personal websites. In addition, I have made use of several media sites like YouTube and Facebook which store some quantity of work on family law. These websites and visual media outlets have become a platform for various parties to address their approval of, or opposition to, certain topics, including those concerning Islamic family law. Furthermore, the private websites of various Arab-Muslim intellectuals and religious figures were utilized as a means of establishing contact with their constituents in order to promulgate certain ideas, or to answer questions regarding various issues, including marriage. I was able to access websites which pertained to the

41 debates in Morocco over past and current reforms of the Mudawwana. I was also able to access the websites of several major Saudi newspapers which address the current Saudi debates on marriage among various muftīs.

Structural Organization

The entirety of this dissertation is structured in such a way as to provide the reader first with a background of the topic before leading them through the modern debates on the issue of

Islamic family law in the Arab-Muslim states. Chapter One discusses most of the principals of the Islamic marriage contract within Sunni schools of law during the classical and post-classical periods. In this chapter, I examine the demarcation of puberty (bulūgh) and the significance of attaining bulūgh.46 The chapter also examines the age of financial competency (rushd) and the various opinions of the different schools of law regarding the attainment of rushd, particularly the method by which jurists determine whether or not an individual has met the requirements of rushd.47 The chapter then goes on to address the opinions of jurists regarding the role of the walī in marrying his minor and adult wards, as well as an adult woman’s rights with respect to contracting her own marriage.

Chapter Two is concerned with the debates and opinions among Arab-Muslim intellectuals and muftīs from the mid-1950s until the end of the twentieth-century. The chapter focuses on the opinions of Arab intellectuals and religious ‘ulamā’ regarding the marriage contract, the age of marriage, and whether or not a walī possesses the right to marry his ward

46 Muslim jurists define bulūgh to be the end of childhood. A few jurists considered an individual who reached the age of bulūgh to be able to conduct commercial contracts and, at times, her marriage without coercion and without the permission of a walī. See Muḥammad Abū Zahrah, Al-Wilā a ‘alā al-nafs (Beirut: Dār al-Rāʼid al- Arabī, [1970]), 52. 47 The age of rushd is when an individual may receive his or her financial assets and manage them without the consent of a walī. Often the age of rushd follows the age of bulūgh. 42 without their consent. The chapter includes the opinions of individuals from Egypt, Syria, Saudi

Arabia, Lebanon, and other Arab states. Chapter Two aims to illustrate the debates that ensued during the aforementioned period along with the communications among different intellectuals.

These debates transgressed traditional boundaries, for instance, where individuals wrote of their opinions regarding the newly codified family laws of other states and juxtaposed them with the family laws of their own states. The chapter includes Sunni and Shī‘ī intellectuals and muftīs who were part of the vibrant debate during this period.

Chapters Three and Four are dedicated specifically to the debates in Morocco. In Chapter

Three, I examine the debates over the codification of Morocco’s first family law (the

Mudawwana, first published in 1957-58). The chapter aims at challenging the perception that traditionalist Muslim intellectuals were always positioned against women’s rights. The works of

Moroccan men and women are explored in this chapter as well as the opinions of minority intellectuals, to demonstrate the influence of those minority opinions on the Moroccan family law.

Chapter Four functions as a continuation of Chapter Three, but covers the twenty-first century debates and reforms. The chapter focuses on debates and interviews I conducted in the summer of 2013 concerning the third reform of the Moroccan Mudawwana (2004) and the role and influence of the Moroccan scholar Aḥmad al-Khamlīshī in enhancing the rights of women according to the Moroccan Mudawwana. Al-Khamlīshī—a traditionalist intellectual whose upbringing and education were anything but liberal— succeeded in breaking away from the old

Islamic fiqh and in opening the gate of ijtihād not only to professional, secular men, but also to women. This infused the public debate with calls to enhance the rights of women which were based on evidence from within the Islamic tradition—a strategy employed to preempt the

43 religious and traditionalist parties who had always slandered their opposition as Western- supported groups aimed at destroying the identity of the Moroccan Islamic society by replacing

Islamic Sharī‘a with secular Western laws.

This dissertation shows the strong authority of Islamic legal schools of law and how difficult it is to challenge rulings prescribed by these schools of law (madhāhib). The study also demonstrates that the method of consensus which was promulgated by members of these madhāhib became a formidable force against any reforms which might enhance women’s agency in Islamic family law in general, and specifically, in conducting their marriage contracts.

However, through the perseverance of a few Arab-Muslim intellectuals, these institutions and methodologies were challenged (from within the madhhab and from intellectuals outside of the madhhab) and finally weakened, their authority eroded, allowing for women to gain some agency in Islamic family law. Through the method of collective ijtihād, women started to participate alongside men in reforming Islamic family law. As a consequence of this new process, the legal method of consensus was weakened and the authority of the single madhhab began to erode, giving room for a new local authority to take hold through al-Khamlīshī’s method of collective ijtihād. By calling on the authority of past jurists and arguing from within

Islamic tradition, al-Khamlīshī succeeded in reforming the Moroccan Mudawwana to enhance women’s rights and grant them almost all of their due rights in Moroccan Muslim society. In relying on past authority, al-Khamlīshī also succeeded in preserving the identity of the Moroccan

Islamic society without relying on Western laws or traditions, therefore making his reforms more acceptable to the opposition, exemplified by religious parties and traditionalists throughout

Morocco.

Chapter 1

Majority and Minority Opinions of Classical Jurists: Women and Walīs

Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same): for those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy.1

- Qur’ān, 65: 4

In March 2012, a sixteen year old Moroccan Muslim woman committed suicide in order to escape the life she led under her abusive husband. The girl’s father had forced her into marrying her husband—a man who had previously raped her—following an outdated custom.2

Forced marriage is common in Muslim communities and has its roots in customs and traditions that predate the advent of Islam and Islamic jurisprudence (fiqh). It is no wonder, then, that the role of Muslim women in the Islamic marriage contract has been one of many issues of contention faced by women in many parts of the Islamic world. While the roots of the marriage contract can be traced to pre-Islamic Arabia, Islamic laws governing the role of women in

Islamic family law in today’s Arab-Muslim states are rooted in Islamic fiqh. Some modern

Muslim scholars—such as Fatima Mernissi and Khaled Abou El-Fadl—attempt to find the root causes of these issues in books of fatwas, ḥadīth, and the traditional exegesis of the Qur’an,3 while other Muslim scholars like Scott Lucas, Kecia Ali, and Khalid Masud, however, search

1Throughout the dissertation I use the Qur’anic translation by ‘Abd Allah Yūsuf ‘Ali The Meaning of the Holy Qur ā [McGregor & Werner, 1946]. 2 For the story of the victim see al-Jazeera, “In Morocco, legal loophole questioned after girl's death,” http://stream.aljazeera.com/story/morocco-legal-loophole-questioned-after-girls-death-0022130; al-Jazeera, “Qaḍīyat Amina Filāllī,” accessed October 25, 2013, http://www.youtube.com/watch?v=If7-O8frrbA; see also “Iḥtijājāt bi al-Maghrib Ba‘da intiḥār ‘Mughta abat al-‘Ara’ish,” accessed on August 09, 2013, http://arabic.cnn.com/2012/middle_east/3/18/morocco.childRape/; see also accessed August 09, 2013, and Aniss Maghri, “In Morocco, the rape and death of an adolescent girl prompts calls for changes to the penal code,” accessed August 09, 2013, http://www.unicef.org/policyanalysis/morocco_62113.html. 3 Fatima Mernissi, Beyond the Veil: Male-Female Dynamics in Modern Muslim Society (Bloomington: Indiana University Press, 1987); Abou El Fadl, Speaking in God's name: Islamic law, authority and women (Oxford: Oneworld, 2001). 45

Islamic fiqh textbooks to uncover jurists’ biases against women.4 A third group still, which includes scholars like Asma Barlas, Barbara Stowasser, and Amina Wadud, attempts to ignore the legal textbooks, fatwas, ḥadīth books, and the work of exegetes altogether and focus instead on the Qur’anic text.5

This chapter follows the few scholars who have looked at the root causes of the limited role of women in the marriage contract and the wider role given to men in contracting women into marriage by focusing on fiqh textbooks. These textbooks are the products of past Muslim jurists from the early Islamic period through the modern period (the latter part of the Ottoman period); they contain jurists’ opinions and their evidence (including prophetic aḥādīth, Qur’anic verses, legal reasoning, and the opinions of other jurists) which has been utilized by Islamic judges and Muslim ‘ulamā’ for centuries. These books were also the basic foundational texts for the Arab-Muslim states when they began codifying their PSLs.

Fiqh textbooks show that Muslim jurists (fuqahā’, sing. faqīh) of the classical and post- classical period agreed that a marriage contract must be completed in order for a marriage to be legally valid. While jurists disagreed on certain aspects of the contract, they all agreed that the offer and acceptance (ījāb and qubūl), the pronouncement of the marriage contract (ṣīgha), and the presence of the bride and groom or their representatives were all essential parts thereof.6

4 Scott C Lucas, “Justifying Gender Inequality in the Shāfiʿī Law School: Two Case Studies of Muslim Legal Reasoning,” Journal of the American Oriental Society 129, no.2 (April-June 2009): 237-258; Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, Mass: Harvard University Press, 2010); Muhammad Khalid Masud, “Gender Equality and the Doctrine of Wilaya,” in Gender and Equality in Family Law: Justice and Ethics in the Islamic Legal Tradition,” ed. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe, (London: I.B. Tauris, 2013): 127-147. 5 Asma, Barlas, B li i g W m i I lam r adi g atriar hal I t r r tati f th Qur ā (Austin, TX: University of Texas Press, 2002); Barbara Stowasser, more than the other two authors seem to focus on books of exegesis (taf īr). See Barbara Stowasser Women in the Qur'an, Traditions, and Interpretation (New York: Oxford University Press, 1994); Amina Wadud, Qurʼa a d W ma R r adi g th Sa r d xt fr m a W ma Perspective (New York: Oxford University Press, 1999). 6 Kecia Ali, “Marriage in Classical Islamic Jurisprudence,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Quraishi, Asifa, and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008), 13. 46

However, jurists disagreed over whether the dower (mahr), witnesses, and the marriage guardian

(walī) were necessary parts of the marriage contract. This chapter will focus primarily on the role of the walī and his role in contracting a valid marriage. The role of the walī is crucial in the

Islamic marriage contract since many of the jurists (Sunni and Shī‘īs alike) do not validate a woman’s marriage unless her walī consents to it. This legal issue has continued to exist throughout the past centuries and found its way into many of the Arab-Muslim states’ PSLs.

Muslim men and women who advocated for women’s rights called for reforms to their state’s

PSL in order to allow women to conduct their marriages independently and without a walī. The chapter also examines the age of financial competency (rushd) for men and women, as well as the demarcation of bulūgh, both of which become essential in granting men complete independence in conducting their own marriages, and are crucial for women in obtaining certain agencies in contracting their marriages, as well.

The presence of the marriage guardian (walī), the issue of early marriage, and the agency of the adult bikr woman to conduct her own marriage contract all have their foundations in centuries-old customs and laws, including Islamic fiqh.7 This chapter seeks to explore the role of the walī, the issue of coercion in marriage, and the minimum age of marriage and examines these issues as presented by the different Islamic schools of law (madhāhib, sing. madhhab). In addition, the chapter examines the minority opinions of jurists who disagreed with the majority of their contemporaries. My argument in this chapter is two-fold: first, I argue that consensus

(ijmā‘) of jurists regarding the above issues was reached due to the loyalty of jurists to their

7 The term bikr is used to mean adult virgin woman who was never married. The marriage guardian (walī), in Arab- Muslim custom, is the individual (often a man from the male agnates of the bride) who receives the groom and his male relatives, and represents the bride-to-be in a meeting of men only. 47 madhhab rather than reached by way of rational or textual evidence;8 second, I argue that jurists’ methods of deducing legal rulings regarding the minimum age of marriage and the position of the walī, for minor and adult bikr women, through consensus (ijmā‘), was detrimental to the freedom of women in marriage. The ijmā‘ notwithstanding, a minority of jurists disagreed with the majority’s opinions, and these minority opinions, although marginalized, became part of

Islamic fiqh which future generations relied upon to deduce certain reforms in Islamic family law which favored women. The most notable of these minority opinions belonged to jurists like ‘Abd

Allāh b. Shubruma (d. 144/761), Abū Bakr al-A amm (d. 201/816/17), ‘Uthmān b. Muslim al-

Battī (d. 143/760), and the eponym of the Ḥanafī madhhab Abū Ḥanīfa (d. 150/767). The first three jurists (Ibn Shubruma, al-A amm, and al-Battī) rejected the consensus reached by all

Muslim jurists (Sunni and Shī‘ī jurists) that minors (below the age of bulūgh) may be married or coerced into marriage. Abu Ḥanīfa was one of very few jurists who rejected the requirement of a male walī to contract a single adult (bikr) woman’s marriage without her consent. The opinions of the four jurists became crucial when Arab-Muslim states started to codify their personal status laws.

This chapter investigates the opinions of past jurists in order to illustrate different bodies of evidence with respect to certain aspects of the marriage contract and seeks to shed light on the origins of long-standing customs and rulings which later became part of the codified Personal

Status Laws (al-aḥwāl al- hakhṣī a) in many modern Arab states. The chapter serves as a prelude to the three that follow it in order to elucidate the basis of Islamic laws which are

8 The doctrine of consensus constitutes the third source of Islamic law. George Hourani defines the doctrine of consensus among Sunni schools of law to be “the unanimous opinion of the Muslim community on a religious matter during any generation.” George Hourani, "The Basis of Authority of Consensus in Sunnite Islam." Studia Islamica no. 21(1964), 19. See also Joseph Schacht, The Origins of Muhammadan jurisprudence (Oxford: Clarendon Press, 1975), 82-97; Subḥī Maḥama ānī, Falsafat al-ta hrī fī al-I lām muqaddimah fī dirā at al- harī ah al-I lāmī ah al awʼ madhāhibuhā al-mukhtalifah wa- awʼ al-qawā ī al-ḥadīthah, trans. Farhat J. Ziadah (Beirūt: Dār al- Ilm lil-Malāyīn, 1961), 76-78. 48 considered by many to discriminate against women and favor men. The chapter addresses the following questions: 1) Is there a legal age for marriage in Islamic fiqh that is agreed upon by jurists? 2) Why did many jurists approve of the coercion of women into marriage? 3) Where did current laws—which require an adult woman to have a male walī to complete or conduct her marriage—come from? 4) Is there consensus regarding the role of the walī in marriage and the minimum age of marriage? The answers to these questions will be provided in order to provide a clearer picture of the roots of current Islamic laws which concern the role of women in marriage.

The Age of Puberty (Bulūgh)

The age of bulūgh is an ambiguous issue among Sunni and Shī‘ī jurists alike. The nineteenth-century Ḥanafī jurist Muḥammad Amīn b. bidīn (d. 1252/1836) and other jurists define the term bulūgh to mean reaching or attaining in a linguistic sense. Legally, they define the term as that which connotes the end of childhood.9 Bulūgh is a crucial demarcation among most of the Muslim jurists. In reaching bulūgh, men and women begin to have legal and religious obligations.10 The majority of jurists, Sunni and Shī‘ī, agree that minors—girls or boys—who have not attained the age of bulūgh may be married. Among many Islamic schools of law, bulūgh is the demarcation for boys to become adults, at which point they are able to conduct their own marriage contracts and dissolve their marriages independently, without the requirement of a guardian (walī). Men who have reached bulūgh may not be coerced into marriage. Some

Muslim jurists also assert that when girls have reached the age of bulūgh, their consent in

9 From the Ḥanafī jurists, see Muḥammad Amīn b. Umar Ibn bidīn, ā hi at Ib bidī Radd al-muḥtār al al- urr al-mukhtār (Beirūt: Dār al-Kutub al-‘Ilmīyah, 1994), “Kitāb al-Ḥajr ,” 9: 225. From the Ḥanbalī jurists see Muwaffaq al-Dīn Abd Allāh b. Aḥmad, Ibn Qudāmah, al- ugh ī Egypt: Maktabat al-Qāhirah, 1968), “Kitāb al- Ḥajr,” 4: 345-346. See also the Mālikī jurist al-Khurashī in Muḥammad b. ‘Abd Allāh al-Khurashī, ā hī at al- hura hī alā ukhtaṣar Sa idī halīl (Beirūt: Dār al-Kutub al- Ilmīyah, 1997), “Bāb al-Ḥajr,” 6: 232. See also Muḥammad b. Idrīs, al-Shāfi‘ī, aw ū at al-Imām al-Shāfi ī al-kitāb al-Umm (Beirūt: Dār Qutayah, 1996), “Kitāb al- alā,” 1: 10, no. 952. 10 Ibn Qudāmah, “Kitāb al-Ḥajr,” 4: 345. 49 marriage must also be sought. Ḥanafī jurists and a handful of jurists from other schools of law agree that a woman who has reached the age of bulūgh may conduct her marriage contract without a walī.11 Some Ḥanafī jurists even granted minor women who had been coerced into marriage the right to petition the judge to dissolve their marriage upon reaching the age of bulūgh.12 This was unusual among many jurists who asserted that once a minor married by her father, she may not challenge the validity of her marriage upon reaching the age of bulūgh. The minor man on the other hand, once he reaches the age of bulūgh has the right to dissolve the marriage by his unilateral right of divorce provided to him by Muslim jurists. These rulings were deduced based on gender issues preferring men over women for various reasons.13

All Sunni schools of law and a few Twelver Shī‘ī jurists agree that bulūgh is indicated either by the appearance of certain biological signs or, in the absence of any signs of bulūgh, by reaching a certain age. Concerning the natural signs of bulūgh, jurists are in agreement that there is no specific age at which these natural signs appear, and therefore there can be no specific age to define bulūgh. The majority of the Ḥanafī, Mālikī, Shāfi‘ī, and Ḥanbalī jurists consider nocturnal emission and the appearance of pubic hair to be verifiable signs of bulūgh shared by men and women.14 Jurists supported their opinions using nocturnal emission to denote bulūgh for

11 This is the case for the majority of the Ḥanafī jurists, as the next few pages will illustrate. See Mahmoud Yazbak, "Minor Marriages and Khiyār Al-Bulūgh in Ottoman Palestine: A Note on Women's Strategies in a Patriarchal Society," Islamic Law and Society 9, no. 3: (2002), 393. 12 According to the Ḥanafī jurist al-Shaybānī, Abū Ḥanīfa was of the opinion that if a walī other than the father or the grandfather married off their minor children, the married minors may disovle the marriage upon reaching the age of bulūgh. See Muḥammad al-Shaybanī, itāb al-ḥujjah ‘alā ahl al- adī ah (Beirūt: ‘ lama al-Kutub, 1980) ; Ibn ‘ bidīn, 4: 174-175; for cases on the marriage of minors, see Judith Tucker, “Marriage in Classical Islamic Jurisprudence,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, eds. Quraishi, Asifa, and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008), 125. 13 These reasons vary from jurists’ claim that women are “naturally” inferior to the claim that men possess better judgment than women when it comes to making decisions in crucial situations such as marriage and divorce. 14 Ibn ‘ bidīn , “Kitāb al-Ḥajr,” 9: 225; Abd al-Raḥmān b. Muḥammad Shaykh Zādah (Dāmād), ajma al-a hur fī harḥ ultaq al-abḥur (Beirūt: Dār Iḥyāʼ al-Turāth al- Arabī, 1980), “Kitāb al-Ḥajr,” 2: 444; See also Ibn Qudāmah, “Kitāb al-Ḥajr ,” 4: 345-346. From the Mālikī jurists see Aḥmad b. Muḥammad al-Dardīr, al-Sharḥ al- ṣaghir al aqrab al-ma ālik il madhhab al-Imām ālik (Cairo: Dār al-Ma ārif, 1973), “Bāb al-Ḥajr,” 3: 404. For the Shāfi‘ī jurists, see the opinion of al-Shīrāzī and al-Nawawī in Yaḥya b. Sharaf al-Nawawī, al- ajmū harḥ al- 50 boys by citing Qur’anic directive 24:59, which states, “But when the children among you come of age (balagha al-aṭfāl mi kum al-ḥulum), let them also ask for permission.” With regard to the nocturnal emissions of girls, jurists cited the Prophetic ḥadīth in which the Prophet advised that a woman who experiences a nocturnal emission is required to wash her entire body to perform the ritual of complete ablution (ghusl).15 In addition, there are certain signs of bulūgh only experienced by women, such as menstruation and pregnancy.16 However, the majority of jurists considered pregnancy to be a late sign of bulūgh, declaring that a woman who becomes pregnant has reached the age of bulūgh six months prior to her date of delivery.17 If none of the physical signs ever appeared, all Sunni jurists among the four schools of law, save Abū Ḥanīfa agreed that the age of bulūgh would be fifteen for both boys and girls.18 Therefore, jurists did not specify a certain age for bulūgh but instead considered the natural biological demarcations which may occur during that age. Jurists have done so in an effort to keep with customs and traditions of the time while following the teachings of the Qur’ān.19 Further, jurists generally did not want to disagree with their peers within the madhhab so they usually remained loyal to the madhhab.

muhadhdhab lil-Imām bī I ḥāq Ibrāhīm ib lī ib ū uf al-Shīrāzī (Beirūt: Dār al-Kutub al- Ilmīyah, 2002), “Bāb al-Ḥajr,” 14: 164-185. From the Ḥanbalī jurist see Ibn Qudāmah, 4: 345-356; al-Buhūtī, Man ūr b. Yūnus al- Buhūtī, a h hāf al-qi ā a mat al-iq ā (al-Riyāḍ: Maktabat al-Na r al-Ḥadīthah, 1968), “Bāb al-Ḥajr,” 3: 444. 15 Yaḥy b. Abī al-Khayr al-‘Imrānī, l-Ba ā fī madhhab al-Imām al-Shāfi i (Beirūt: Dār al-Minhāj lil-Nashr wa- al-Tawzī , 2000), 6: 218-219. The ḥadīth can also be found in Ṣaḥīḥ al-Bukhārī, see Aḥmad b. ‘ lī b. Ḥajar al- ‘Asqalānī, atḥ al-bārī bi- harḥ al-Bukhārī (al-Riyāḍ: Maktabat dār al-Salām, 1418 1997 ), “Bāb idhā Iḥtalamat al-mar’ah,” 1: 503-505. Some Shāfi‘ī jurists do not consider the appearance of pubic hair to be a sign of bulūgh for Muslim men. See the opinion of the Shāfi‘ī jurist al-Rāfī‘ī in Abd al-Karīm b.Muḥammad Rāfi ī, l- zīz harḥ al- Wajīz al-ma rūf bi-al-Sharḥ al-kabīr (Beirūt: Dār al-Kutub al- Ilmīyah, 1997), 5: 69-70. 16 Ibn ‘ bidīn, “Kitāb al-Ḥajr,” 9: 226; Ibn Qudāmah, 4: 345-346; al-Dardīr, 1973, “Bāb al-Ḥajr,” 3: 404; al- Nawawī, 2002, 164-185. The Shāfi‘ī jurist al-An ārī among other jurists considered pregnancy a late sign of bulūgh. See Zakarīyā b. Muḥammad al- hurar al-bahī ah fī harḥ a ūmat al-bahjah al-Wardī ah (Beirūt: Dār al-Kutub al- Ilmīyah, 1997), “Bāb al-Ḥajr,” 5: 341; al-Buhūtī, 3: 444; al-‘Imrānī, 6: 218-223. 17 For summary of Sunni opinions see, al-‘Imrānī, 6: 222-223; al-Nawawī, “Bāb al-Ḥajr,” 14: 175; Muḥammad b. Bahādur, al-Zarkashī, Sharḥ al- arka hī al ukhtaṣar al- hiraqī fī al-fiqih al madhhab al-Imām ḥmad ib a bal (Al-Riyāḍ: Maktabat al- Ubaykān, 1989), 4: 95, no. 2059. 18 Ibn bidīn, 9: 225; al-‘Imrānī, 6: 222-223; Ibn Qudāmah, 4: 345-346. This is also the opinion of al-Shīrāzī and al-Nawawī. See all-Nawawī, 2002, “Bāb al-Ḥajr,” 14: 165-185; al-Rāfī‘ī, 5: 68. 19 Particularly verses 4: 06, 24: 58-59, and 65: 4. 51

Regarding the age of bulūgh for boys, jurists also cite various aḥādīth and stories related to some of the early caliphs and the Prophet’s Companions. Ibn ‘ bidīn and other jurists refer to the Prophetic ḥadīth which states that “three individuals are not to be punished for neglecting their religious duties and obligations: the one who is sleeping until [he/she] wakes up, the minor until [he/she] attains bulūgh, and the insane until he/she recovers and becomes sane.”20 In addition, jurists cite a story related to the second caliph, ‘Umar I (d. 23/644), in which he ordered his governor to collect the poll-tax (jizya) from non-Muslims with pubic hair.21 Since the jizya is collected from adults only, jurists considered the appearance of pubic hair a sign of bulūgh.

‘Umar I also considered the appearance of pubic hair an indicator that an individual is ready to receive criminal punishment.22 Abū Ḥanīfa, however, rejected the appearance of pubic hair as a sign of bulūgh, because he considered pubic hair to be a part of the rest of the body, and therefore not part of bulūgh.23 The rest of the jurists, including Ḥanafī jurists, disagree with Abū

Ḥanīfa. They maintain that pubic hair is different from the rest of body hair since it appears only at the time of bulūgh, whereas other types of bodily hair appear before or after reaching bulūgh.24

Jurists also used a narration related to the caliph ‘Umar Ibn ‘Abd al-‘Azīz in which he ordered his governors not to pay anyone below the age of fifteen.25 Jurists also provide the ḥadīth of Ibn

‘Umar as transmitted by al-Shāfi‘ī as evidence. In it, Ibn ‘Umar states that “The Prophet saw me in the Battle of Uḥud when I was fourteen years of age and did not permit me to join the battle

20 This ḥadīth is found in Aḥmad b. Shu ayb. al-Nasāʼī, Su a al-Na āʼī bi- harḥ al-Imāma al-Su ūṭī wa-al- Si dī (Cairo: Dār Al-Ḥadīth, 1999), 3: 494, no. 3432; Muḥammad b. Yazīd, Ibn Mājah, Sunan Ibn Majah ([Egypt]: al-Maṭba ah al- Ilmīyah, 1313 1895 or 1896 ), 2: 322. 21 Ibn ‘ bidīn, 9: 227; Ibn Qudāmah, 4: 345-346; Aḥmad b. Muḥammad al-Ṭaḥāwī, ukhtaṣar ikhtilāf al- ulamā’ (Beirūt: Dār al-Ba ā'ir al-Islāmīya, 1995) 2: 6. 22 Ibid. 23 Ibid. 24 Ibid. 25 Al-Shāfi‘ī, 5: 57; Ibn ‘ bidīn, 9: 226; Ibn Qudāmah, 4: 345-346; Badr al-Dīn Maḥmūd b. Aḥmad al- Aynī, l- Bi ā ah fī harḥ al- idā ah al-ma hhūr bi harḥ idā ah (Beirūt: Dār al-Kutub al- Ilmīyah, 1999-2000), 11: 109- 110; al-Zarkashī, 4: 94, 2056. 52 then. And when I was fifteen, he saw me in the Battle of the Ditch and allowed me to join the battle.”26 The ḥadīth became a primary piece of evidence for many jurists who consider the age of fifteen lunar years to be the legal age of bulūgh for men and women in the absence of other biological demarcations. This ruling was adopted by a majority of jurists from the four Sunni schools of law and also many of the contemporary Sunni intellectuals as the legal minimum age of marriage for men. It then found its way into some of the Arab-Muslim states’ PSLs.27

Many Sunni jurists are of the opinion that visible signs of bulūgh may occur in girls at nine lunar years of age, and in boys at the age of twelve lunar years.28 Ḥanafī and Mālikī jurists contend that the maximum age of bulūgh is eighteen for boys and seventeen for girls.29 The

Ḥanafī jurist Badr al-Dīn al-‘Aynī (d.855/1451) reports that Abū Ḥanīfa considered the maximum age of bulūgh for men to be nineteen.30 Mālikī jurists follow the eponym of the Mālikī jurist Mālik (d. 179/795) who, according to some Mālikī jurists, considered the maximum age of bulūgh to be eighteen for boys and girls in the absence of natural visible demarcations.31

Due to the difference in opinions amongst jurists of the madhāhib, Ibn ‘ bidīn and the

Shāfi‘ī jurist al-Nawawī (d. 676/1277) suggest that the age of bulūgh be open for ijtihād

(deducing legal reasoning by present and future jurists) and left to the local custom of the region

26 Ibn ‘ bidīn, 9: 227; al-Rāfī‘ī, 5: 68; Muḥammad b. Idrīs, al-Shāfi‘ī, “Kitāb al-Nikāḥ,” 5: 57, no. 15390; Ibn ‘ bidīn, 9: 226; al-Nawawī, “Bāb al-Ḥajr,” 14: 168. See also the Shāfi‘ī jurist al-An ārī, “Bāb al-Ḥajr,” 5: 340; Muḥammad b. Bahādur, al-Zarkashī, Sharḥ al- arka hī al ukhtaṣar al- hiraqī fī al-fiqih al madhhab al- Imām ḥmad ib a bal (Al-Riyāḍ: Maktabat al- Ubaykān, 1989), 4: 95, no. 2057. The ḥadīth could be found in Muḥammad b. Ismā‘īl al-Bukhārī, Ṣaḥīḥ al-Bukhārī (Cairo: al-Jumhūrīyah al- Arabīyah al-Muttaḥidah, al-Majlis al- A l lil-Shuʼūn al-Islāmīyah, Lajnat Iḥyāʼ Kutub al-Sunnah, 1386-<1412 > [1966]-<1991 > )5: 377, no. 2399; Muslim b. al-Ḥajjāj al-Qushayrī al-Nīsābūrī, al-Jāmi‘ al-Ṣaḥiḥ (Beirūt: al-Maktab al-Tijārī lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī 1970-?]), 6: 29-30; Ibn Qudāmah, 4: 345-346; al-Ṭahāwī, 2: 5. 27 Al-Shāfi‘ī, 5: 57, 4: 242; Ibn ‘ bidīn, 9: 226; al-‘Imrānī, 6: 219. 28 Ibn ‘ bidīn, 9: 226-27; Badr al-Dīn Maḥmūd b. Aḥmad al-‘Aynī, l-Bi ā ah fī harḥ al- idā ah al-ma hhūr ī harḥ idā ah (Beirūt: Dār al-Kutub al- Ilmīyah, 1999-2000), “Kitāb al-Ḥajr,” 11: 11; al-Rāfī‘ī, 5: 69. 29 Ibn ‘ bidīn, 9: 226-227; Damād, “Bāb al-Ḥajr,” 2: 444; al- Aynī, “Kitāb al-Ḥajr,” 11: 109-110; al-Ṭahāwī, 2: 5. 30 Badr al-Dīn al-‘Aynī,11: 110; al-Ṭahāwī, 2: 5/ 31 For the opinion of Mālik see al-Shāfi‘ī, 5: 57; Ibn ‘ bidīn, 9: 226; Ibn Qudāmah, 4: 345-46; al-Dardīr, al-Sharḥ al-Ṣaghīr, “Bāb al-Ḥajr,” 3: 404; al-Khurashī, “Bāb al-Ḥajr,” 6: 232. 53

(‘ādāt, sing. ‘ādah).32 Ibn ‘ bidīn suggests that the average age of bulūgh be fifteen for both boys and girls while maintaining that the minimum age be twelve for boys and nine for girls should they admit to experiencing any demarcation of bulūgh at that age, particularly nocturnal emission for boys and menstruation for girls.33 Shāfi‘ī jurists al-Ghazālī (d. 505/1111) and al-

Rāfi‘ī (d. 623/1226) are of the opinion that the minimum age of bulūgh for boys and girls is nine years old.34

Most Mālikī jurists agree on the demarcations of biological bulūgh for men and women.35

However, the Mālikī jurist al-Damīrī (d. 805/1402) mentions that Mālik and Ibn al-Qāsim (d.

191/806) had an opinion similar to that of Abū Ḥanīfa, rejecting pubic hair as a demarcation of bulūgh.36 Mālikī jurists disagreed, however, on the exact age of bulūgh. While Mālik and some of his followers consider the age of bulūgh to be eighteen lunar years for men, Ibn Wahb (d.

197/812) considers fifteen years sufficient for the achievement of bulūgh in the absence of biological signs.37 Ḥanbalī jurists also agree with the rest of the majority on the biological demarcations of bulūgh.38 In addition, Ḥanbalī jurists consider fifteen lunar years to be the age of bulūgh when natural indications of bulūgh are not visible, citing the previous ḥadīth of Ibn

Umar.39 Ibn ‘Umar’s ḥadīth became the foundation not only for Islamic jurisprudence, but also for Arab-Muslim states’ PSLs in which states adopted the age of fifteen as the legal minimum age of marriage for boys (at least in the early stages of codifying states’ Islamic family laws.)

32 Ibn ‘ bidīn, 9: 226; al-Nawawī, “Bāb al-Ḥajr,” 14: 168. 33 Ibid., 9: 227-28. 34 Al-Rāfī‘ī, 5: 79. 35 For the Opinion of Khalīl al-Jundī see Bahrām b. Abd Allāh al-Darmīrī, aḥbīr al-mukhtaṣar wa-huwa al-sharḥ al-wa aṭ al mukhtaṣar halīl fī al-fiqh al- alikī (Cairo: Markaz Najībawayh lil-Makhṭūṭāt wa-Khidmat al-Turāth, 2013), 4: 161 36 Al-Damīrī, 4: 161. 37 Ibid. 38 Ibn Qudāmah, 4: 346. 39 Ibid. 54

Like the Sunni jurists, Shī‘ī jurists also disagree on the age of bulūgh for men and women. Zaydī jurists for example use the first sign of menstruation or the age of fifteen as a means to determine if a girl is bāligha, or ready for marriage.40 Twelver Shī‘ī jurists are not as clear on the age of bulūgh for women, as that of Zaydī jurists. While some consider the first sign of natural bulūgh to be the indication for bulūgh, others consider age instead. The Twelver Shī‘ī jurists Abū Ja‘far al-Ṭūsī (d. 460/1067), Ibn Ḥamza,41 al-‘Allāma al-Ḥillī (d. 726/1325), and al-

Muḥaqqiq al-Ḥillī (d. 676/1277) consider either the girl’s age (nine lunar years) or signs of bulūgh.42 Like the majority of Sunni jurists, al-Ṭūsī and al-‘Allāma al-Ḥillī consider a girl who shows any of the following signs of bulūgh to be bāligha: nocturnal emissions, the appearance of pubic hair, menstruation, or pregnancy.43 Al-Muḥaqqiq al-Ḥillī however, considers only nocturnal emissions and the appearance of pubic hair to be the first signs of bulūgh while rejecting menstruation and pregnancy as later signs of bulūgh.44 Al-Ṭūsī considers a girl who reaches the age of ten not only to be ready for marriage, but also able to receive criminal punishment (ḥudūd).45 Most importantly, the majority of Twelver Shī‘ī jurists consider the age of nine to be the primary indicator for the girl’s bulūgh and her readiness for marriage. The following Twelver Shī‘ī jurists, al-Ḥalabī (d.381/991), Ibn Idrīs (d. 598/1202), Ibn al-Junayd (d.

40 Yaḥya b. al-Ḥusayn al-Hādī ilā al-Ḥaqq b. al-Qāsim, itāb al-aḥkām fī al-ḥalāl wa-al-ḥarām (1990- ), 1: 372. 41 Ibn Ḥamza was a student of al-Ṭūsī. See, Al-‘Allāma al-Ḥillī, Ḥasan b. Yūsuf b. Muṭahhar, Mukhtalaf al-Shī‘a fi-aḥkām al- harī‘a (Qum: Qum Press, 2003), 10: 28, no. 35. 42 Abū Ja‘far Muḥammad b. al-Ḥasan b. ‘Alī, al-Ṭūsī, Al- abṣūṭ fī fiqh al-imāmī ah ( Tehrān : al-Maktaba al- Murtaḍawīya li-Iḥyā al- t ār al- a farīya 1967-1972), 2: 282-285, “Bāb al-Ḥajr”; ‘Al-‘Allāma al-Ḥillī, aḥrīr al- aḥkām al-Shar‘ī a‘alā ma hhab al-imāmī a (Qum: Mu’assasat al-Imām al- ādiq, 2000), 2: 534-535, no. 3856, “Bāb al-Ḥajr”; Abū al-Qāsim Najm al-Dīn Ja‘far b. al-Ḥasan, al-Muḥaqqiq al-Ḥillī, Sharā’i‘ al-I lām fī a ā’l al- ḥalāl wa-al-ḥarām (Al-Najaf: Maṭba‘at al-Ᾱdāb, 1969), 2:99-100. 43 Al-Ṭūsī, alab ūṭ, 2: 282-285, “Bāb al-Ḥajr.”; ‘Al-‘Allāma al-Ḥillī, Taḥrīr al-aḥkām, 2: 534-535, no. 3856, “Bāb al-Ḥajr.” 44 Al-Muḥaqqiq al-Ḥillī, 2:99-100. Al-Ṭūsī is of the opinion that the age of bulūgh for girls is either nine or ten. See Al-Ṭūsī, alab ūṭ, 2: 282-285, “Bāb al-Ḥajr;” Al-Nihā a, 490, 453, 468; al-Ṭūsī, al-I tibṣār fī-mā ikhtalafa mi al- akhbār (Tehrān: Dār al-Kutub al-Islāmīyya ( 1970 ), 3: 237-238; Al-‘Allāma al-Ḥillī, Taḥrīr al-aḥkām, 2: 534-535, no. 3856, “Bāb al-Ḥajr.” 45 Al-Ṭūsī, Al-I tibṣār, 3: 237-238. While Ibn Ḥamza, agrees with al-Ṭūsī and al-‘Allāma al-Ḥillī that the age of bulūgh for a girl is nine, he considers menstruation to be the only sign of bulūgh. Muḥammad b. ‘Alī al-Ṭūsī, Ibn Zahra, al-Wa īla ilā a l al-fa īla ([Qum : Maktabat yat Allāh al- U mā al-Mar a ī, 1987), 30. 55

356/967), Ibn al-Barrāj (d. 481/1088), Ibn Bābawayh al-Qummī (d. 918/1412), al-Suyūrī al-Ḥillī

(826/1423), and Ibn Zahra (d. 585/1189), consider the bulūgh for girls to be nine while rejecting any consideration for biological demarcations of bulūgh.46 Like most of Sunni jurists, Twelver

Shī‘ī jurists consider the girl to be able to withstand sexual intercourse once she reaches the age of nine lunar years. Regarding the age of bulūgh for boys, most Twelver Shī‘ī jurists consider the boy who reaches the age of fifteen or experiences either nocturnal emissions or the appearance of pubic hair—both indicators of bulūgh —to be an adult (bāligh).47 However, a few Twelver Shī‘ī jurists consider a boy who reaches the age of thirteen or fourteen to have reached the age of bulūgh.48 For Twelver Shī‘ī jurists to consider a specific age as a demarcation for bulūgh instead of relying on the natural signs of bulūgh could be considered contrary to Sunni tradition of placing emphasizes on natural demarcations. However, the majority of Sunni and Twelver Shī‘ī jurists somehow agreed that once a woman reaches the age of nine she may be married, thereby legally declaring her ready for physical intercourse.

The opinion of jurists regarding the age of bulūgh and the demarcations of bulūgh were crucial issues when Arab-Muslim states began codifying the legal age of marriage.

Contemporary Arab-Muslim jurists and intellectuals had to rely on Islamic jurisprudence in order to codify the minimum legal age of marriage. States also had to struggle whether to consider the majority opinion to allow minors to be married or to consider the opinion of minority jurists in

46 Taqī al-Dīn Abū al- alāḥ, al-Ḥalabī, al- afī fī al-fiqh (I fahān: Imām ‘Alī Public Library, 1983), 309; Ibn Idrīs al-Ḥillī, itāb al-Sarā’ir, al-ḥāwī li taḥrīr al-fatāwaā (Qum: Mu’assasat al-Nashr al-Islāmī, 1989), 2: 561; al- Suyūrī, al-Miqdād b. ‘Abd Allah, al a qīḥ al-ra’i‘ li-Mukhtaṣār al-Sharā’i‘, 3: 25 al-Suyūrī, al-Miqdād b. ‘Abd Allah, al a qīḥ al-ra’i‘ li-Mukhtaṣār al-Sharā’i‘,, 309; al-‘Allāma al-Ḥillī, aḥrir al-aḥkām al-Sharī‘a ‘alā ma hab al-imāmī a (Qum: Mu’assasat al-Imām al- ādiq, 2000), 3: 467, no. 5003; Ibn Zahra, “Kitab al-ghu ī a uṣūlūha wa-furū‘uah” al-Jawāmī‘ al-fiqhī a (Qum: Maktabat Ayat Allāh Al-‘Uzmā al-Mar‘ashī al-Najafī, 1983), 461; for the opinion of Ibn al-Junyad see al-‘Allāma al-Ḥillī, Mukhtalaf al-Shī‘a, 5: 452, no. 99. 47 Izz al-Dīn, Baḥr al- Ulūm, l- ajr wa-aḥkāmuh fī al- harī ah al-I lāmī ah (Beirūt: Dā r al-Zahrāʼ, 1980), 105 ; al-Ṭūsī, alab ūṭ, 2: 282-285, “Bāb al-Ḥajr.”; ‘Al-‘Allāma al-Ḥillī, aḥrīr al-aḥkām, 2: 534-535, no. 3856, “Bāb al-Ḥajr.” 48 Baḥr al- Ulūm, 106. 56 banning the marriage of minors.49 These issues among others were at the heart of the discourse over codifying the new states’ PSLs. States which began codifying their PSLs were faced with opposition from conservative traditionalists who objected to codifying the age of marriage following the longstanding traditions of Islamic society and the Islamic madhāhib.

The Age of Legal Capacity/Financial Competency (Rushd)

The age of bulūgh in Islamic fiqh is different from the age of rushd. Jurists define the age of rushd as the legal age at which a minor, the insane, and the incompetent (al- afīh) may be granted full custody of their finances and assets once they are known to possess the capacity to manage their own financial affairs.50 The age of rushd is as important to women as that of bulūgh. Arab-Muslim states had to determine whether women are able to manage their financial affairs once they reach the age of bulūgh or afterwards. In addition, states had to determine a specific age for rushd.

The age of rushd is also crucial to women since the majority of jurists agree not to grant women the right to manage their own financial affairs or marriage contracts until they reach this age. In their rulings to determine the age of rushd, Sunni jurists relied on Qur’anic verse 4:6, which states, “Make trial of orphans until they reach the age of marriage; if then ye find sound judgment in them (rushd), release their property to them.”51 Jurists differentiate between the age of bulūgh and the age of rushd. The majority of jurists consider men and women to have reached bulūgh once they show certain biological signs. Many Muslim jurists agree that signs of bulūgh may appear as early as nine lunar years of age for girls and twelve for boys. However, a solid

49 Here, the term “minors” refers to children, boys and girls, who did not experience any signs of bulūgh. 50 Shāfi‘ī jurists also impose a capacity for religious piety. See Ibn Qudāmah, al-Mughnī, 4:343. It is worth mentioning that jurists considered the term incompetence to connote one who squanders his/her money or assets. See al-Khurashī, 6: 242. 51 Ibn Qudāmah, 4: 343. 57 majority of Muslim jurists agree that the age of rushd is not determinable by the bulūgh signs or by the attainment of a certain age. Instead, jurists created a different type of measure to establish the age of rushd for men and women involving reliance on the testimony of the father or walī.

According to most Sunni jurists in all four Sunni schools of law (Mālikīs, Shāfi‘īs, Ḥanafīs, and

Ḥanbalīs), the age of rushd may be determined by testing and examining the individual’s ability to manage his or her financial affairs.52 Shāfi‘ī jurists, however, felt that the verification of an individual’s religious piety was also necessary before considering them a legal adult.53

According to the Mālikī jurist Ibn Rushd (d. 595/1198), a majority of jurists agreed on the method of establishing the period of rushd for men, but they disagreed on the methods by which women may reach rushd.54 Most jurists, according to Ibn Rushd, agreed that women may attain rushd once they have reached bulūgh and their ability to manage their financing affairs has been examined.55 Mālik also considers a boy to have reached the age of rushd on the first signs of bulūgh along with a demonstration of his ability to manage his financial affairs independently.56

However, the Mālikī jurist Khalīl (d. 776/1374) disagrees with Mālik on the age of rushd; he considers the demarcation of bulūgh— the first signs of biological bulūgh or eighteen lunar years of age—to be the sole demarcating qualities of the age of rushd for men.57

However most of the Mālikī jurists followed Mālik in considering a woman to have reached the age of rushd when her father decides that she is competent in managing her financial affairs, or if she marries and stays with her husband for a period of one-to-seven years and is then tested by men and women in her ability to manage and invest her money. The predominant

52 See Ibn Qudāmah, 4: 350, no. 3425; Ibn Rushd, 2: 313; Ibn ‘ bidīn, 9: 219. 53 Al-Rāfī‘ī, 5: 72; Ibn Qudāmah, 4: 350, no. 3425; Ibn Rushd, 2: 313. 54 Abū al-Walīd b. Aḥmad Ibn Rushd, Bidā at al-mujtahid wa- ihā at al-muqtaṣid (Cairo: Maktabat al-Kullīyāt al- Azharīyah, 1970), 2: 312; al-Khurashī, 6: 232. 55 Ibn Rushd, 2: 312. 56 Ibn Rushd, 2: 313. 57 For the opinion of Khalīl see al-Damīrī, 4: 161; al-Khurashī, 6: 232. 58 feeling amongst these jurists is that, due to the inherent probity of men, should a man testify that a woman has reached the age of rushd, then she is to be considered ra hīda and her money is to be released to her.58 If an adult bikr woman remains single, Mālikī jurists consider her incompetent, saying that she has failed to reach the age of rushd by staying with her father for too long a period of time, unless she is considered a spinster (‘a i ). If she is considered an ‘a i , then Mālikī jurists considered her ra hīda.59 With regard to this issue, the Mālikī jurist al-Bājī (d.

494/1100) provides the following interpretation:

Jurists who insisted on the consent of the father in the marriage of the adult bikr considered the adult bikr woman to remain a minor when it comes to managing her money and assets. Since the skill and experience in managing and investing one’s money and assets are the demarcation for rushd, and this does not happen without mixing with and experiencing people, the adult bikr woman shall remain under the interdiction (ḥajr) of her father until she marries, spends time with her husband, (is) tested and people testify for her skills in managing her money—rendering her competent. It is then that she becomes ra hīda or else she is considered a minor as if she did not attain the age of bulūgh.60

Unlike jurists from the other schools of law, Mālikī jurists consider marriage to be an essential requirement for a woman to be considered financially competent (ra hīda). Without marrying, therefore, a woman may never become independent and may forever remain a minor. As for adult bikr orphan women, al-Bājī reports that Mālik considers them under interdiction whether they have a walī or not until the age of forty.61 Except for one jurist (Khalīl) all Mālikī jurists sided with Mālik who considered a woman to be a minor even after she was married, therefore, placing the woman under the tutelage of two men—her husband and her father. In so doing, the

Mālikī jurists sided with Mālik without clear evidence from the Qur’ān or an example of the

58 See Ibn Rushd, 2: 312-313. See also Alī b. Abd al-Salām Tusūlī, al-Bahjah fī harḥ al- uḥfah (Beirūt: Dār al- Kutub al- Ilmīyah, 1998), 2: 493, no. 1339; al-Damīrī, 4: 164-167; al-Khurashī, 6: 241-242; al-Bājī, Sulaymān b. Khalaf, itāb al- u taq harḥ uwaṭṭā imām ār al- ijrah a id ā ālik ib a (Beirūt: Dār al-kitāb al- arabī, 1970), 3: 272-273; al-Khurashī, 6: 242. 59 Ibn Rushd, 2: 313, 315; al-Damīrī, 4: 164-168; al-Bājī, 3: 273. 60 Al-Bājī, 3: 373. 61 Ibid., 3: 373-374. 59

Prophet’s Sunna, meaning the only explanation for their opinions was loyalty to Mālik and to their madhhab.

The eponym of the Shāfi‘ī madhhab, al-Shāfi‘ī (d. 204/820) also cites Qur’anic verse 4:6 in his determination of the age of rushd.62 According to Shāfi‘ī jurists, the age of rushd is preceded by the age of bulūgh—either through signs of bulūgh or by the achievement of the age of fifteen for both men and women.63 According to most Shāfi’ī jurists, rushd usually occurs after the age of bulūgh since prior to bulūgh an individual is under the interdiction of the father/walī. This is supported by Qur’anic injunction 4:6, which calls for paying the interdicted his/her money after they reach bulūgh.64 In addition, Shāfi‘ī jurists cite the portion of Qur’anic verse 4:6 which calls for the “release [of their property to them,” to assert that once an individual—boy or girl— reaches the age of rushd, no one may hold financial authority over them.65 Following their eponym, Shāfi‘ī jurists maintain that an individual must be examined in managing his/her finances and religious piety to be considered of the age of rushd.66

An individual’s financial skills may be tested against their tendency to squander their assets.67 This is usually done by providing the individual in question with an allowance to examine their skills with regard to purchasing and selling goods.68 Similarly, women are also tested by providing them with a small portion of their maintenance as other women watch over their spending. If a woman is deemed wise she is considered a ra hīda by the discerning women.69 Examining one’s religious piety, according to Shāfi‘ī jurists, is done by ensuring that an individual did not commit any sins which might impede his/her legal testimony ( hahāda) in

62 Al-Shāfi‘ī, 4: 242, 10292; al-‘Imrānī, 6: 225. 63 Al-Shāfi‘ī, 4: 242, 10292; al-‘Imrānī, 6: 218. 64 Al-‘Imrānī, 6: 225. 65 Al-Shāfi‘ī, 4: 242, no. 10293. 66 Al-Shāfi‘ī, 4: 242, no. 10293; al-Rāfī‘ī, 5: 72. 67 Al-Shāfi‘ī, 4: 242, no. 10293; al-‘Imrānī, 6: 224. 68 Al-Shāfi‘ī, 4: 243, no. 10294-10296; al-‘Imrānī, 6: 225-226. 69 Al-Shāfi‘ī, 4: 243, no. 10294-10296; al-‘Imrānī, 6: 227. 60 court.70 However, al-Shāfi‘ī is careful to state that the age of rushd for women may not be considered an indication of the woman’s capacity to marry independently.71 Further, some

Shāfi‘ī jurists maintain that interdiction may not be lifted if an individual does not pass the financial and religious tests without the interference of a judge.72 Throughout the past centuries,

Shāfi‘ī jurists remained loyal to the eponym of the madhhab, al-Shāfi‘ī, and did not deviate from al-Shāfi‘ī’s opinion which supported restricting a woman’s right to managing her assets by first examining her financial skills and religious piety.

Ḥanafī jurists also follow the majority in their belief that rushd is attained after the age of bulūgh according to Qur’anic verse 4:6.73 Ḥanafīs also consider an individual to have reached the age of rushd after examining their financial management skills.74 However, unlike the rest of jurists, Ḥanafī jurists followed the opinion of Abū Ḥanīfa, who stated that incompetent individuals may not reach the age of rushd until they reach the age of twenty-five lunar years.75

According to the Ḥanafī jurist al-Sarakhsī (d. 483/1090), Abū Ḥanīfa chose the age of twenty- five since boys reach bulūgh at the age of eighteen.76 They then require some time, seven years

(the age of discretion), to reach the age of rushd. The extra seven years according to al-Sarakhsī is the age of discretion where the Prophet commanded Muslims to order boys to start praying the five daily prayers once they reach the age of seven.77 The Ḥanbalī jurist Ibn Qudāmah (d.

620/1223) considers twenty-five years to be excessive. Ibn Qudāmah disagrees with Abū

Ḥanīfa’s stipulated age of rushd, saying, “in our madhhab a woman may become a grandmother

70 Al-‘Imrānī, 6: 224. 71 Ibid., 4: 243, no. 10296. 72 Al-Rāfī‘ī, 5: 72-74. 73 Muḥammad b. Aḥmad, al-Sarakhsī itāb al- abṣūṭ (Beirūt: Dār al-Kutub al- Ilmīyah, 2001), “Kitāb al-Ḥajr,” 24: 159. 74 Al-Sarakhsī, 24: 162; Ibn ‘ bidīn, 9: 219. 75 Yazbak, "Minor Marriages and Khiyār Al-Bulūgh,” 393; Ibn ‘ bidīn, 9: 219; al-Sarakhsī, 24: 161-162; Ibn Qudāmah, 4: 344-345 76 Al-Sarakhsī, 24: 162. 77 Ibid. 61 at the age of twenty-five, therefore, Abū Ḥanifa’s age of rushd does not apply to our madhhab.”78 Ibn Qudāmah goes on to say that “for us the Ḥanbalī madhhab] the rushd is determined by the capacity of the individual to manage [his/her] financial assets, and not religious piety, according to the Qur’anic verse, ‘if then ye find sound judgment in them, release their property to them.’”79 Boys may be tested, according to Ibn Qudāmah, by “providing them with an allowance to examine their skills in financial transactions and the trade of their peers or the trade of their fathers. Girls, however, are tested in women’s household duties; hiring skilled women to weave wool and the skills of purchasing rugs.”80 To the Ḥanbalī jurists, rushd is attained after bulūgh according to Qur’anic verse 4:6, where the verse mentions bulūgh first and then rushd. Like the rest of the Sunni jurists, Ḥanafī jurists also sided with the opinion of the madhhab’s eponym, Abū Ḥanīfa, regarding the age of rushd for women. Ḥanbalī jurists, according to Ibn Qudāmah, rejected the Ḥanafī’s ruling in favor of their own. Shī‘ī jurists rely on the testimony of men and women to determine when an individual has reached the age of rushd.81

With respect to the age of rushd, one can observe that jurists did not agree on a specific age. In addition, the majority of Mālikī jurists did not consider women to be of the age of rushd unless they had already been married for a substantial period of time, were tested, and then had their character verified by testimony. Shāfi‘ī jurists disagreed with the rest of the Muslim schools of law (Shī‘ī s and Sunnis) and added yet another stipulation for a woman to be released from interdiction—religious piety. While this type of restriction applies to both men and women, it is women who are most affected by this ruling since they remain minors, unable to manage their

78 Ibn Qudāmah, 4: 351. 79 Ibn Qudāmah, 4: 351, no. 3425. The Qur’anic verse is part of Q 4: 6. 80 Ibid., 4: 351-352, no. 3426. 81 Al-Muḥaqqiq al-Ḥillī, 2: 100-101. 62 own finances until they are either married for a length of time, or until people testify to a court that she is of the age of rushd. While men may have access to their property and are able to act independently as soon as they reach bulūgh, women are faced with a long period between the age of bulūgh and the age of rushd. During this period, a woman is considered neither an adult nor a minor and is therefore left in a period of uncertainty, hanging between minority and majority.

More importantly, jurists instated interdiction (ḥajr) of the insane, mentally deranged (ma‘tūh), and minors, and included a clause which states that if a woman’s father feels that his daughter does not possess the capacity to manage her finances and assets—even if she is completely sane— he is not required to release her from under his interdiction.

Jurists of the five Islamic schools of law have reached consensus that bulūgh can be reached through certain biological demarcations. Jurists also reached consensus that, in order for a woman to be able to manage her finances, she must first reach the age of rushd. In addition, all jurists of the five madhāhib considered a minor woman who reached the age of nine as having attained the age of bulūgh and therefore as ready for marriage. While jurists of the five madhāhib disagreed on the methodology of keeping a woman under the interdiction of her father/walī, jurists reached a consensus to restrict a woman’s ability to manage her financial assets if she did not pass the financial test put forth by male jurists. Only after passing the financial test (and at times, a religious piety test) a woman may be considered of the capacity to own and manage her financial assets independently. Most importantly, one observes that jurists remained loyal to their eponym centuries after the eponym rendered his opinion.

Jurists’ methodology of differentiating the age of bulūgh from the age of rushd found its way to the newly codified states’ PSLs. Some of the Arab-Muslims states’ PSLs followed past jurists’ rulings and considered the age of rushd to occur a few years after reaching bulūgh. By

63 doing so, the newly codified states’ PSLs restricted women’s ability to conduct their marriages as well as their ability to manage their finances until they reached the age of rushd.

Marriage (Nikāḥ)

The definition of marriage ( ikāh), according to the majority of jurists, is a contract

(‘aqd) or the act of intercourse (waṭ’), or both a contract and the act of intercourse, which makes intercourse licit.82 With respect to the marriage guardianship (wilā a), jurists divide it into two parts: a recommended guardianship (wilā at i tiḥbāb) and a guardianship of coercion (wilā at ijbār).83 A recommended guardianship is one in which a woman has the choice to appoint a walī.

In this case, the woman must be adult and have reached the age of rushd.84 The guardianship of coercion is a complex term to define. However, some of the jurists define it as managing another individual’s affairs either due to age, gender, or if the individual lacks the legal capacity to act independently due to a defect or physical disability.85

The Marriage of Minors and the Legal Minimum Age of Marriage

While this section discusses the legal opinion regarding early marriage among Muslim jurists, it is noteworthy to mention that early marriage is not specific to Muslims only. The

82 Ali, “Marriage in Classical Islamic Jurisprudence,” 12; Man ūr b. Yūnus, al-Buhūtī, a h hāf al-qi ā a matn al-iq ā (al-Riyāḍ : Maktabat al-Na r al-Ḥadīthah, 1968 ), 5: 5; Muḥammad b. Abd al-Wāḥid b. al-Humām, Sharḥ fatḥ al-qadīr ([Egypt: Maktabat Mu ṭafā Bābī al-Ḥalabī, 1970), 3: 185. Al-Sarākhsī considers marriage to be the act of intercourse (waṭ’). See al-Sarakhsī, 4: 192-193. See also the Shāfi‘ī jurist al-Ramlī, 6: 176; al-Nawawī, 2002, 19: 5; al-Buhūtī, 5: 05. 83 Jamal Nasir, The Islamic Law of Personal Status (London; Boston: Graham & Trotman, 1990), 50; Ibn al- Humām, 3: 255; Ibn ‘ bidīn, 4: 154. See also Muhammad Khalid Masud, 2013, 127-147. 84 Ibid. 85 See Ibn Rushd, 2: 14; Masud, 2013, 128; Abū Zahrah, Al-Wilā a ‘alā al-nafs (Beirut: Dār al-Rāʼid al- Arabī, [1970]), 19-20, 48. 64 practice of early marriage predates Islam and was widespread among many cultures and religions. Harold Motzki mentions that the custom of early marriage was practiced in ancient

China, Japan, India, Rome, and among Jews and Christians of Europe.86

The majority of Shī‘ī and Sunni jurists agree that minors—boys and girls—may be married off before they reach bulūgh and may also be coerced into marriage.87 However, a few jurists opposed the marriage of some or all minors. Shāfi‘īs and the Ẓāhirī jurist Ibn Ḥazm (d.

496/1064) made certain exceptions to the coercion of minors in their rulings. While generally approving of the marriage of minors, al-Shāfi‘ī and Ibn Ḥazm do not approve of the coercion of a minor girl who was previously married or widowed, (thayyib).88 In agreeing not to allow coercion of a minor thayyib, the Shāfi‘ī jurists and Ibn Ḥazm relied on a Prophetic ḥadīth which states, “The widow or divorced woman (al-thayyib) is entitled to rights more than her walī,” and also, “al-ayyim, [the woman who was previously married] is more entitled to manage her affairs than her guardian.”89 Ibn Ḥazm also excluded the coercion of minor boys into marriage, stating

86 See Harold Motzki, “Child Marriage in Seventeenth-Century Palestine,” in Islamic Legal Interpretation: Muftis and Their Fatwas, eds. Masud, Muhammad Khalid, et all (Cambridge, Mass: Harvard University Press, 1996), 129. 87 Carolyn Baugh does a brilliant job on questioning the consensus of early jurists regarding coercion of minors into marriage. See Carolyn Baugh, “Compulsion in Minor Marriages as Discussed in Early Islamic Legal Texts," (Ph.D. Diss., University of Pennsylvania, 2011); Amirah El Azhari Sonbol, “Adults and Minors in Ottoman Sharia Courts and Modern Law,” in Women, the Family, and Divorce Law in Islamic History, ed. Amirah El Azhari Sonbol (Syracuse, N.Y: Syracuse University Press, 1996), 240-242; Ali, 2008, 17. For the Mālikī opinion regarding coercion of minors see al-Dardīr, 2: 353-354; Muḥammad b. Aḥmad Ibn Rushd, al-Qurtubī, The distinguished juri t rim r a tra lati f Bidā at al-mujtahid , trans. Imran Ahsan Khan Nyazee, and Muhammad Abdul- Rauf (UK: Centre for Muslim Contribution to Civilization, 1994), 2: 5. For Twelver Shī‘ī jurists’ opinions see, Badareen, “Deciding on Behalf of the Woman,” 2012; Ibn Qudāmah, al-Mughnī, 7: 40, no. 5137. For the Shāfi‘ī jurists see also Muḥammad b. Aḥmad, al-Ramlī, Nihā at al-muḥtaj il harḥ al- i hāj fī al-fiqh al madhhab al- Imām al-Shāfi ī (Beirūt: Dār al-Kutub al- Ilmīyah, 1993), 6: 228-229. 88 For the opinion of al-Shāfi‘ī see Ali, 2010, 33; al-Ramlī (al-Shāfi‘ī al- aghīr), 1993, 6: 229; Ibn Ḥazm, 11: 38-39, no. 1826. 89 Susan A. Spectorsky, Women in Classical Islamic Law: A Survey of the Sources. Leiden: Brill, 2012), 66; Alī b. Aḥmad Ibn Ḥazm, al- uḥallā (Egypt: Maktabat al-Jumhūrīya al- Arabīya, 1967), 11: 38-39, no. 1826; al-Ramlī (al- Shāfi‘ī al- aghīr, 1993, 6: 228; Masud, 2013, 135. A similar version of the ḥadīth could be found in Muḥammad b. ‘Īsā, al-Tirmidhī, Al-Jāmi al-ṣaḥīḥ wa-huwa Sunan al- irmidhī (Cairo: Maṭba‘at al-Madīna, 1937), “Bāb Mā Jā’a fī Isti’mār al-Bikr wa al-Thayyib,” 3: 107, no. 1107. 65 that boys have the right to dissolve their marriages once they reach bulūgh.90 The Shāfi‘ī jurists agreed that the paternal father and grandfather are the only individuals allowed to coerce their minor wards into marriage, while the Mālikī jurists approved of the father and his trustee (waṣī) coercing his minor daughters into marriage.91 Some Ḥanbalī jurists permit immediate male relatives to coerce their minor relatives into marriage.92 The Ḥanafī jurists, however, permit any walī to coerce any minor into marriage, granting minors the right to dissolve the contract once they reach bulūgh, should they desire to do so.93 Twelver Shī‘ī followed the majority of Sunni jurists and reached consensus on the coercion of minors into marriage.94

In consideration of the minimum legal age of marriage for girls, the majority of Sunni and

Shī‘ī jurists considered a girl ready for marriage once she was able to withstand intercourse. Both

Sunni and Twelver Shī‘ī jurists relied on evidence from the Qur’ān and aḥādīth to buttress this argument in favor of readiness for marriage. Most jurists from both sects cite Qur’anic verse

65:4, which states, “Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses

(it is the same): for those who carry (life within their wombs), their period is until they deliver their burden.” Sunni jurists cite the ḥadīth transmitted by ‘ ’isha (the Prophet’s wife) in which she states that “the Prophet contracted (her) at the age of six and wedded (her) at the age of

90 For al-Shāfi‘ī ’s school’s opinion see Ibn Rushd, 1994, 2: 5; see also al-Ramlī, 6: 228-229; Ibn Ḥazm, 11: 42-43, no. 1827; Dawoud S. El Alami, h arriag C tra t i I lami aw i th Shari ah a d r al Statu aw f Egypt and Morocco (London: Graham & Trotman, 1992), 51. 91 Ali, 2010, 29-42; Sonbol 1996, 248; Ibn Ḥazm, 11: 37, no. 1826. 92 Ali, 2008, 17. 93 See Badareen, Nayel “Deciding on behalf of the woman: Marriage Contract among the Shi‘a, Twelvers, Zaydis and Ismā‘īlīs.” Paper presented at the Forty-Sixth Annual Conference of the Middle Eastern and North Africa Association. Denver, November, 17-20, 2012. Shāfi‘ī is among the jurists who exclude a previously married or widowed minor from being coerced into marriage. See Ibn al-Humām, 3: 274; Khayr al-Dīn b. Aḥmad al-Ramlī, itāb al- atāw al-kha rī ah li- af al-barī ah al madhhab bī a īfah al-Nu mā (Egypt: Maṭba ah al-Kubr al-Mīrīyah al- mirah bi-Būlāq,1883), 1: 30; Ibn ‘ bidīn, 4: 174-175; Tucker, 2008, 124-125; Ali, 2008, 17; Sonbol, 1996, 248. 94 See Badareen, Nayel “Deciding on behalf of the woman.” 66 nine,” as the primary example for a girl’s readiness to face marriage.95 To them, a girl at the age of nine is considered a woman and is therefore able to withstand sexual intercourse.96

The majority of Twelver Shī‘ī jurists also consider a girl ready for marriage once she reaches the age of nine lunar years.97 Twelver jurists cite several aḥādīth to support this position, particularly the aḥādīth traced back to Imām Ja‘far al- ādīq (d. 148/765) which states, “once the young girl reaches the age of nine, her money is returned to her, she is able [to marry], and she is

95 Baugh, “Compulsion of Minor Marriages as Discussed in Early Islamic Legal Texts,” 386; Ali, 2010, 35; El Alami, 29; Ali, 2010, , 76; Spectorsky, 64; Man ūr b. Yūnus al-Buhūtī, a h hāf al-qi ā a mat al-iq ā (al- Riyāḍ: Maktabat al-Na r al-Ḥadīthah, 1968), 5: 46; Abū Bakr b. Mas ūd al-Kāsānī, itāb Badāʼi al-ṣa āʼi fī tartīb al- harāʼi (Beirūt: Dār al-Kitāb al- Arabī, 1974), 3: 1349; al-Sarakhsī, 4: 212; Ibn al-Humām, 3: 274-275; Ibn Rushd, 1994; al-Shāfi‘ī , 5: 57; Yaḥy ibn Abī al-Khayr, al- Imrānī, and Qāsim Muḥammad Nūrī. l-Ba ā fī madhhab al-Imām al-Shāfi i (Beirūt: Dār al-Minhāj lil-Nashr wa-al-Tawzī , 2000), 9: 178; Muḥammad b. Aḥmad Ibn Rushd, al-Qurtubī, l-Ba ā wa-al-taḥṣīl wa-al- harḥ wa-al-tawjīh wa-al-ta līl fī ma āʼil al-Mustakhrajah (Beirūt: Dār al-Gharb al-Islamī, 1988), 4: 282-283. This ḥadīth is found in al-Bukhārī. See Ibn Ḥajar al- Asqalānī. atḥ al-bārī bi- harḥ al-Bukhārī (Beirūt: Dār al-Ma rifah, 1959), “Bāb Inkāḥ al-Rajūl Waladahū al- ighār,” 9: 238, 5133. See also Muslim b. al-Ḥajjāj b. Muslim al-Qushayrī al-Nīsābūrī, Al-Jāmi‘ al-Ṣaḥiḥ (Beirūt: al-Maktab al- Tijārī lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī 1970-? ), “Bāb Tazwīj al-Ab al-Bikr al- aghīra,” 4: 141-142. See also the Ḥanbalī jurist, al-Buhūtī, 5: 46. Ibn al-Mundhir on the other hand, reports that ‘ isha was seven years old, not six, when the Prophet contracted her in marriage. See Muḥammad ibn Ibrāhīm Ibn al-Mundhir al-Naysābūrī, l- I hrāf al madhāhib al- ulamā’ (United Arab Emirate: Maktabat Makkah al-Thaqāfīyah, 2004), 5: 19. 96 Baugh, “Compulsion of Minor Marriages as Discussed in Early Islamic Legal Texts,” 386; Ali, 2010, 35; El Alami, 29; Ali, 2010, , 76; Spectorsky, 64; Man ūr b. Yūnus al-Buhūtī, a h hāf al-qi ā a mat al-iq ā (al- Riyāḍ: Maktabat al-Na r al-Ḥadīthah, 1968), 5: 46;al-Kasānī, 3: 1349; al-Sarakhsī, 4: 212; Ibn al-Humām, 3: 274- 275; Ibn Rushd, 1994; al-Shāfi‘ī , 5: 57; Yaḥy ibn Abī al-Khayr, al- Imrānī, and Qāsim Muḥammad Nūrī. l-Ba ā fī madhhab al-Imām al-Shāfi i (Beirūt: Dār al-Minhāj lil-Nashr wa-al-Tawzī , 2000), 9: 178; Muḥammad b. Aḥmad Ibn Rushd, al-Qurtubī, l-Ba ā wa-al-taḥṣīl wa-al- harḥ wa-al-tawjīh wa-al-ta līl fī ma āʼil al-Mustakhrajah (Beirūt: Dār al-Gharb al-Islamī, 1988), 4: 282-283. The ḥadīth could be found in al-Bukhārī. See Ibn Ḥajar al- Asqalānī. atḥ al-bārī bi- harḥ al-Bukhārī (Beirūt: Dār al-Ma rifah, 1959), “Bāb Inkāḥ al-Rajūl Waladahū al- ighār,” 9: 238, 5133. See also Muslim b. al-Ḥajjāj b. Muslim al-Qushayrī al-Nīsābūrī, Al-Jāmi‘ al-Ṣaḥiḥ (Beirūt: al-Maktab al-Tijārī lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī 1970-? ), “Bāb Tazwīj al-Ab al-Bikr al- aghīra,” 4: 141- 142. See also the Ḥanbalī jurists, al-Buhūtī, 5: 46; Judith Tucker observed that muftis of the Ottoman government took extra care to ensure that minors are ready for marriage before concluding the marriage contract. While minors were contracted into marriage before reaching bulūgh, muftis took extra care not to allow the couple to engage in intercourse before the readiness of the minor girl. See Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 44-45. 97 Muḥammad b. al-Ḥusayn b. ‘Ali Abū Ja‘far al-Ṭūsī, Al-Mabṣūṭ fī fiqh al-imāmī a, ( Tehrān al-Maktaba al- Murtaḍawīya li-Iḥyā al-Ᾱṭār al-Ja farīya 1967-1972]), 2: 282-285, “Bāb al-Ḥajr;” al-Ṭūsī, Al-Nihā a fī mujarrad al-fiqh wa- al-fatāwa. Beirut: Dār al- itāb al-‘Arabī, 1970), 490, 453, 468; al-Ṭūsī, al-I tibṣār fī-mā ikhtalafa mi al-akhbār (Tehrān: Dār al-Kutub al-Islāmīyya, 1970 ), 3: 237-238; Al-Ḥasan b. Yūsuf b. al-‘Allāma al-Ḥillī, aḥrīr al-aḥkām al-Shar‘ī a‘ala ma hab al-imāmī a (Qum: Mu’assasat al-Imām al- ādiq, 2000), 2: 534-535, no. 3858, “Bāb al-Ḥajr;” Abū al-Qāsim Najm al-Dīn Ja‘far b. al-Ḥasan al-Muḥaqqiq al-Ḥillī, Sharā’i‘ al-I lām fī a ā’l al- ḥalāl wa-al-ḥarām (Al-Najaf, Maṭba‘at al-Ᾱdāb, 1969), 2: 301; Abū Ja‘far b. ‘Alī al-Ṭūsī, Ibn Ḥamza, Al-Wa īla ilā nayl al-fa īla ([Qum : Maktabat yat Allāh al- U mā al-Mar a ī, 1987), 3: 30. 67 able to claim and receive legal punishment.”98 In citing Qur’anic verse 65:4, jurists consider the waiting period for minor girls (who have not attained the age of bulūgh yet) the same as that for women who have passed the age of menopause, thereby permitting the marriage of minors.99 In addition, Sunnis cite the various recorded stories of the Prophet’s Companions who were either married to minors or involved in contracting minor girls who had not reached the age of bulūgh.

Common evidence used to support this opinion includes the example provided by Ibn al-Zubayr, who betrothed his daughter to Qudāma b. Ma ‘ūn the day she was born, and the example set by

Ibn ‘Umar, who married off his minor daughter to ‘Urwa Ibn al-Zubayr, who in turn married off his niece to one of his nephews while both were still minors.100

The jurists’ interpretation of Qur’anic verse 65:4 and the numerous examples of the

Prophet’s Companions who married and contracted minors into marriage were considered to be clear evidence to support the coercion of minors, males and females, into marriage.101 Most importantly, the marriage of ‘ ’isha to the Prophet at the age of nine serves as the principal example in support of contracting minor girls into marriage, as well as the precedent for setting the minimum age of marriage at nine lunar years for girls considering them able to withstand sexual intercourse.102 The age of nine became the earliest age of attaining bulūgh for girls.

Jurists also permitted marriages between elderly men and minor girls by referencing the

Prophet’s age; he was in his fifties when he married ‘ ’isha. However, the Shāfi‘ī jurists al-

98 Izz al-Dīn Alī Baḥr al- Ulūm, al- ajr wa-aḥkāmuhu fī al- harī ah al-I lāmī ah baḥth fiqhī muqāra al awʼ al- adhāhib al-Khamsah. Beirūt: Dār al-Zahrāʼ lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī , 1980. 115; Muḥammad Jawād Maghnīyah, al- iqh al al-madhāhib al-kham ah al-Ja farī, al- a afī, al- ālikī, al- Shāfi ī, al- a balī (Beirūt: Dar al-‘Ilm lil-Malīyyn, 1977), 120. The ḥadīth can be found in Muḥammad b. Alī, b. Babawayh, a lā aḥ uruhu al-faqīh (Tihrān: Dār al-Kutub al-Islāmīyah, 1970), 4: 194, no. 574. 99 Al-Sarakhsī, 4: 212; Ibn al-Humām, 3: 274; al-‘Imrānī, 9: 178. 100 Baugh, 157; al-Sarakhsī , 4: 212; Ibn al-Humām, 3: 274; al-‘Imrānī, 9: 178. 101 Al-Sarakhsī, 4: 212. 102 These became the rulings of the four Sunni schools of law. See Al-Sarakhsī, 4: 212; Ibn al-Humām, 3: 274-275; Ibn ‘ bidīn, 9: 226. 68

Ramlī and al-Bulqīnī did not agree with the allowance of such marriages.103 In fact, al-Bulqīnī specifically forbade the marriages of elderly, blind, or handicapped men to minor girls. 104

While the majority of Sunni and Shī‘ī jurists accepted the evidence presented above as precedents which validated the marriages of minors, a few rejected this type of marriage. ‘Abd

Allāh b. Shubruma, Abū Bakr al-A amm, and ‘Uthmān b. Muslim al-Battī, rejected outright both the coercion and marriage of minors (boys and girls) before reaching the age of bulūgh.105 Ibn

Shubruma was a jurist and worked as a judge in the city of Kufa, Iraq.106 He was also a ḥadīth transmitter who was considered trustworthy by many ḥadīth experts.107 Born in the city of Kufa,

Al-Battī was a ḥadīth transmitter and was considered to be one of the prominent jurists in the city of al-Ba ra.108 While some ḥadīth experts like Aḥmad b. Ḥanbal ranked him as a trustworthy

ḥadīth transmitter, others considered him unreliable.109 Abū Bakr al-A amm was a jurist and was a member of the Mu‘tazilite party.110 He was born in Iraq and was known for his austerity and religious piety. The two jurists, Ibn Shubruma and Abū Bakr al-A amm maintain that minor boys and girls should not marry until they reach bulūgh, as per Qur’anic verse 4:6, which says, “Make trial of orphans until they reach the age of marriage.”111 Both jurists argue that minors receive no benefit by marrying before they reach bulūgh and, therefore, minors should not be married at all, let alone in need of a marriage guardian.112 Both Ibn Shubruma and al-A amm also state that the

103 For the opinion of al-Bulqīnī see al-Ramlī, 6: 261. 104 Ibid. 105 El-Alami, 1992, 50; Muḥammad b. Maḥmūd al-Bābirtī mentions the names of Ibn Shubruma and Abū Bakr al- A am without mentioning their opinions. See Muḥammad b. Maḥmūd al-Bābirtī, “Sharḥ al-‘Ināya ‘alā al-hidāya,” in Fatḥ al-qadīr, Ibn al-Humām, 3: 274; al-Kāsānī, 3: 1349. 106 Muḥammad b. Aḥmad al-Dhahabī, Si ar a lām al- ubalāʼ (Beirūt: Muʼassasat al-Risālah, 1996), 6: 500-501, 980. 107 Al-Dhahabī, 6: 500-501, no. 980. 108 Al-Dhahabī, 6: 364-365, no. 891. 109 Ibid., 6: 364-365, no. 891. 110 Ibid., 8: 257, no. 1444. 111 Al-Sarakhsī, 4: 212. 112 Ibid. 69 aim of marriage is procreation, and it is therefore relevant that minors (who have not reached the age of bulūgh) have no sexual desire and no ability to reproduce. In addition, both jurists argue that “the marriage contract and its results, children for example, remain a burden on these minors—who are unable to care for anyone else. Minors are also unable to take on the responsibility of marriage.”113 Most importantly, Ibn Shubruma argues that the marriage of the

Prophet to ‘ ’isha when she was nine (prior to her reaching bulūgh ) is specific to the Prophet only, like the Prophet’s having married without a dower and being married to more than four women at once.114 The above jurists argued that the marriage of minors before reaching bulūgh is not permitted for the reasons stated above. The Ḥanafī jurist al-Sarakhsī on the other hand, while not mentioning the opinions of Ibn Shubruma and al-Battī, singles out al-A amm. Al-Sarakhsī maintains that al-A amm was deaf (the name, al-A amm, in Arabic means deaf) and was therefore not able to hear the numerous aḥādīth which showed the permissibility of the marriage of minors before they reached bulūgh.115

From the above we can discern that Sunni and Shī‘ī jurists of the five madhāhib reached consensus regarding coercion and the marriage of minor girls into marriage. All of these jurists considered a girl who reached the age of nine to be capable of withstanding intercourse and the burden of marriage. These jurists considered the marriage of the Prophet to ‘ ’isha at the age of nine to be an exemplar behavior to follow and emulate. Shī‘ī jurists agreed with Sunni jurists of the four madhāhib that the age of nine (the age of ‘ ’isha when she married the Prophet) is the demarcation of the legal age of marriage. The opinion of the five madhāhib became part of a tradition which allowed for the marriage of minors. This tradition became an obstacle when

113 Ibid. 114 For the opinion of Ibn Shubruma, see Ibn Ḥazm, 11: 36, no. 1826. 115 Al-Sarakhsī, 4: 212. 70 states began codifying the minimum age of marriage. However, states abandoned the consensus reached by the members of the five madhāhib in favor of the minority jurists’ opinions to ban coercion of marriage and the marriage of minor girls (below the age of bulūgh). This was the beginning of the weakening of consensus within each school of law as the next chapters will show.

The Marriage Guardian (Walī)116

The majority of Muslim jurists agree that the pronouncement of a marriage (al-ṣīgha), a formal offer and acceptance (ījāb and qubūl), and the presence of the groom or his representative(s) are among the essential principles of a marriage contract117 However, a majority of Ḥanafī jurists agree that a marriage without the consent of a walī may still be valid.118 In addition, the majority of Ḥanafī jurists also approve of marriages conducted with a woman serving as walī.119 Mālikī, Shāfi‘ī, and some Ḥanbalī jurists, however, assert that the presence and consent of the walī or his representative is an essential part of the contract and, without it, the marriage is void (bāṭil).120 The Mālikī jurist Ibn Rushd, though, sides with the

116 Today, the term “walī al-Amr,” is normally used among Arab-Muslims instead of the term walī. 117 Al-Ghazālī, 5: 44, 55, 58-62. 118 Ibn Rushd, 1970, 11-13; Aḥmad b. Alī Ja ā , Sharḥ ukhtaṣar al- aḥāwī fī al-fiqh al- a afī (Beirūt: Dār al- Bashāʼir al-Islāmīyah lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī , 2010), 4: 256-274. 119 Ibn Rushd, 1994, 2: 10-11; al-Ja ā , 4: 256-274. 120 Spectorsky, 71. For the Ḥanbalī jurists, see Ibn Qudāmah, 7: 7-8, no, 5074; Shams al-Dīn Muḥammad b. Abī Bakr Ibn Qayyim al-Jawzīyah, ād al-ma ād fī had kha r al- ibād (Beirūt: Muʼassasat al-Risālah, 1979), 5: 101- 102. For the Māliki jurists, see Ibn Rushd, 1970, 2: 10-13; al-Damīrī, 2: 543; al-Dardīr, 2: 334-335; Abd al-Salām b. Sa īd Saḥnūn, l- udawwa ah al-kubr li-Imām ālik ib a al- ṣbaḥī ( Beirūt : Dār al-Fikr, 1991), 2: 251- 252; Yūsuf b. Abd Allāh Ibn ‘ bd al-Barr, itāb al-kāfī fī fiqh ahl al- adī ah al- ālikī (al-Riyād: Maktabat al- Riyāḍ al-Ḥadīthah, 1980), 521-523; Muḥammad b. Aḥmad Illaysh, a ḥ al-jalīl harḥ al ukhtaṣar al- allāmah halīl ma a taʼlīqāt mi ta hīl a ḥ al-jalīl lil-muʼallif (Beirūt: Dār al-Kutub al- Ilmīyah, 2003), 3: 163; Muḥammad b. Aḥmad al-Fāsī, Sharḥ a ārah al- ā ī bī bd llāh uḥammad ib ḥmad ... al uḥfat al- ḥukkām fī ukat al- uqūd wa-al-aḥkām li- bī Bakr uḥammad ib uḥammad ib ṣim al- dalu ī ... Wa-bi-al- hāmi h ḥā hi at bī lī al- a a ib Raḥḥāl al- a da ī ... āl harḥ al- uḥfah (Beirūt: Dār al-Kutub al- Ilmīyah, 2000), 1: 260.For Shāfi‘īs, see al-Shāfi‘ī , 5: 64; al-Ramlī, 1993, 6: 209; al-‘Imrānī, 9: 161-162; Muḥammad b. Muḥammad al-Ghazālī, Al-Wa īt fi al-madhhab (Cairo: Dār al-Salām, 1997), 5: 44, 55; see also Ibrāhīm b. Alī b. Yūsuf al-Shīrāzī, l- uhadhdhab fī fiqh al-Imām al-Shāfi ī (Damascus: Dār al-Qalam, 1996), “Bāb Mā Ya īḥ bi hī al-Nikāḥ,” 4: 118. 71

Ḥanafī jurists in permitting adult women to contract their own marriages if the groom is of her equivalent social status (kufu’).121

Regarding the qualifications of the walī, the majority of Sunni jurists agree that, in an

Islamic marriage contract, the walī must be a free, sane, Muslim male that has attained bulūgh.122

Jurists also agreed that a minor, a woman, or a non-Muslim man may not serve as a marriage guardian.123 They also insisted on the unity of religion between the walī and his ward. If a

Muslim man marries a non-Muslim woman, for example, her walī (according to the majority of jurists) should be a non-Muslim.124 However, some jurists forbade a non-Muslim walī from contracting the marriage of Muslim men and women. These jurists argued that there is no place for the guardianship of a non-Muslim over any Muslim. They justify their rulings by citing some of the Prophetic aḥādīth which state, “No two different faiths may inherit a thing from one another,” and, “The non-Muslim may not inherit the Muslim and the Muslim may not inherit the non-Muslim.”125 In addition, they claim that a non-Muslim walī may not serve as guardian over a Muslim according to Qur’anic verse 4:141, which says, “And never will Allah grant to the unbelievers a way to triumph over the believers,” and verse 8:73, which states, “The

Unbelievers are protectors, one of another.” Moreover, the Ḥanafī jurist al-Kāsānī (d. 587/1191) stresses that having a non-Muslim walī in charge of a Muslim degrades and humiliates the

Muslim.126 By stipulating this ruling, jurists prevented a non-Muslim father from contracting his

121 Ali, 2008, 14-15; Ibn Rushd, 1994, 11-12. 122 Ali, 2008, 14-15; Ibn Rushd, 2: 14-15; Ibn Abd al-Barr, 2: 522-523; Ibn al-Humām, 3: 255; Shihāb al-Dīn Aḥmad, b. al-Naqīb, mdat al- ālik wa- uddat al- ā ik (Beirūt: Dār al-Kutub al- Ilmīyah, 1970), 152; al-Ghazālī, 5: 5: 71; Al-shīrāzī, “Mā Ya īḥ bi hī al-Nikāḥ,” 4: 118; Buhūtī, 5: 53; Ibn Qudāmah, 7: 21-22, no. 5107. For the Twelver Shī‘ī madhhab, see Badareen, “Deciding on Behalf of the Woman.” 123 Ibn Rushd, 1970-1974, 2: 14; Buhūtī, 5: 41. 124 See Ibn Qudāmah, 7: 27, no. 5117. 125 Al-Kāsānī, 3: 1347-1348, no. 1132-1133. 126 Al-Kasanī, 1348, no. 1131-1133. Al-Kāsānī mentions that this is one of the reasons a woman may not marry a non-Muslim man. 72

Muslim daughter into marriage. While all jurists forbade a non-Muslim walī to contract a

Muslim woman’s marriage, the Ismā‘īlī jurist, al-Qāḍī al-Nu‘mān (d. 363/974), maintains otherwise. Al-Qāḍī al-Nu‘mān states that an adult Muslim woman may appoint her Christian father or brother as a walī if she so wishes.127 Mālikī, Shāfi‘ī and Ḥanbalī jurists, though, unanimously agree that the walī must always be male and must be from the bride’s agnatic kin.128 The majority of Ḥanafī jurists, however, permit a woman’s immediate relative or her mother to act as a walī if there are no male relatives left on either side of her family.129 In addition to the above condition, the walī may also be appointed by the bride herself. A majority of jurists also agreed that if a woman does not have a close male relative to act as a walī, the judge or the governor may act in his stead.130 Except for a few jurists, most Sunni and Shī‘ī jurists seem to distrust women when it comes to making pivotal decisions regarding their own marriage while since they allow a male walī to determine their future partner. By deciding on behalf of women, jurists considered them unable to make mature decisions independently and doomed them to forever remain minors.

127 For the unity of marriage see Ibn Rushd, 1970, 2: 14; al-Buhūtī, 5: 53. For the opinion of the Ismā‘īlī jurist see al- Qāḍī al-Nu‘mān, a‘ā’im al-I lām wa-dhikr al-ḥalāl wa al-ḥarām wa al-qa ā a wa al-aḥkām, ed. Asaf b. ‘Alī Asghar Faidi (Egypt, Dar al-Ma‘arif, 1951), 2: 217. 128 Ibn Rusd, 2: 522; Yaḥya b. Sharaf, al-Nawawī, Rawdhat al-ṭālibī wa-‘umdat al-muftī (Beirūt; Damascus; Ammān: al-Maktab al-Islāmī, 1991), 7: 50; Zakarīyā b. Muḥammad, al-An ārī, al- hurar al-bahī ah fī harḥ a ūmat al-bahjah al-Wardī ah lil-imām mar ib u affar ib mar ib al-Wardī (Beirūt: Dār al-Kutub al- Ilmīyah, 1997), “Bāb al-Nikāḥ,” 7: 308; Ibn al-Naqīb, 152; al-Buhūtī, 5: 53-55; See the opinion of the Ḥanbalī jurist al-Khirāqī, and Ibn Qudāmah in Ibn Qudāmah, 7: 6-8; Ibn Qayyim al-Jawzīyah, 5: 101-102. 129 Al-Shaybanī, 108: Ibn al-Humām, 3: 259. The Ḥanafī jurist al-Shaybānī (d. 189/805) disagreed with the rest of the Hanafī jurists and reaffirmed that the walī must be from the women’s agnatic kin. For the opinion of al-Shaybānī see Ni ām, and Ḥasan b. Ma sūr Awzjandī, al- atāwā al- i di ah al-mu ammā bi al- atāwā al- lāmkīri ah (Beirūt: Dār Iḥyā al Turāth al- Arabī, 1973), 1: 284; al-Kāsānī, 3: 1364-1365. 130 Nizam, 284. 73

The Marriage of a Single Adult (Bikr) Woman131

Muslim jurists have reached consensus that a man who has attained the age of bulūgh may not be coerced into marriage.132 Muslim jurists also agreed that the consent of an adult man and a woman who was a divorcée or widowed (al-thayyib) are required to approve of a marriage.133 That consent, according to jurists, may be indicated by the silence of the adult bikr woman in question.134 Jurists cite Prophetic aḥādīth to support this argument. The aḥādīth provided have similar format to the ḥadīth which states, “The adult (bikr) woman’s permission must be sought and her silence is her consent.”135 Sunni and Shī‘ī jurists also consider the adult bikr’s silence to represent her approval of a marriage. Jurists claimed that an adult woman is usually too shy to state her opinion verbally, therefore her silence connotes approval.136 Some

Shāfi‘ī jurists were also of the opinion that if a bride’s father or grandfather coerced her into marriage, her silence would be considered a sign of consent even if she meant to reject the marriage since she may legally be coerced into it.137

While a majority of Sunni and Twelver Shī‘ī jurists agree that minor children may be coerced into marriage, they disagree on the issue of marriage involving an adult virgin (bikr)

131 This section is concerned with the opinion of jurists regarding the marriage of the adult woman who has reached bulūgh and was never previously married (bikr). 132 Ibn Ḥazm, 11: 43, 1827. 133 Muḥammad b. Aḥmad Ibn Rushd, al-Qurtubī, h di ti gui h d juri t rim r a tra lati f Bidā at al- mujtahid , trans. Imran Ahsan Khan Nyazee, and Muhammad Abdul-Rauf (UK: Centre for Muslim Contribution to Civilization, 1994), 2: 4. 134Spectorsky, 66-67; Masud, 2013, 135; Ali, 2008, 19; Tucker, 2008l l-Shāfi‘ī, al-Umm, 5: 61, no. 15412; al- ‘Imrānī, 9: 181; Ibn Rushd, 2: 5; al-Kāsānī, 3: 1350; Ibn al-Mundhir, 5: 17. 135 Ali, 2008, 19; Masud, 2013, 135; Tucker, 2008, 127; al-Kāsānī, 3: 1358; Ibn Rushd, 2: 6; Al-Ghazālī, 5: 67; al- Nawawī, 19: 222; al-Kāsānī, 3: 1354; a ārah al- ā ī, 1: 269. The ḥadīth can be found in Ibn Mājah, “Bāb Isti’mār al-Bikr wa al-Thayyib,” 1: 295-296; al-Bukhārī, “Bāb lā Yankiḥu al-Ab wa ghayruhū al-Bikr wa al-Thayyib īllā bi Riḍāhimā,” 9: 240. 136 Spectorsky, 66; Alī, 2008, 19; Tucker, 2008, 127; al-Nawawī, 19: 222; al-Kāsānī, 3: 1354; a ārah al- ā ī, 1: 269. 137 Al-An ārī, 2002, 7:370, no. 725. 74 woman who has never married but has attained bulūgh.138 The reason for this disagreement, according to Ibn Rushd, is the interpretation of certain pieces of evidence—mainly Qur’anic verses and Prophetic aḥādīth.139 The interpretation of the following Qur’anic verses are among the major points of contention between jurists regarding the role of the walī in contracting an adult woman into marriage: 2:221, 2:230, 2:232, 2:234. 2:237, 2:240, 4:6, 4:25, 24:32, and

60:10. 140 Some of these verses will be discussed in the following paragraph.

Proponents of the marriage guardian bring to light Qur’anic verses 2:232 and 2:221 as evidence. These two verses state, “When ye divorce women, and they fulfil the term of their

('Iddat), do not prevent them from marrying their (former) husband,” and, “Do not marry unbelieving women (idolaters), until they believe,” respectively. These two verses, according to jurists, clearly address walīs.141 Furthermore jurists maintain that if walīs had no authority over women, the Divine address would not be able to prevent a woman from marrying.142 Further, jurists draw on the Qur’anic verse 24:32, which states, “Marry those among you who are single, or the virtuous ones among yourselves, male or female.” According to proponents of the walī, this verse specifically directs men to contract women into marriage.143 In addition, jurists who argue for the necessity of the consent of a walī in marriage support their position with verse 4:34, which says that “Men are the protectors and maintainers of women,” and 4:25 (“Wed them with

138 For a summary of Sunni opinions, see Ibn Rushd, 1994, 2: 5-10, and al-Nawawī, “Bāb Mā Ya īḥḥū bihī al-Nikāḥ, 19: 168; al-Buhūtī, 5:53. For Twelver Shī‘ī jurists opinions, see Badareen “Deciding on Behalf of the Woman,” 2012. Ibn al-Mundhir also states that jurists disagreed whether the father may marry her off without her permission. On the marriage of the adult bikr woman. See Ibn al-Mundhir, 5: 16. 139 Ibn Rushd, 1994, 2: 5. 140 Some of these verses are mentioned by Ibn Rushd, 1994, 10-14, al-Ja ā , 4: 256-264. See also Muhammad Khalid Masud, 2013, 133. 141 Ibn Rushd, 1994, 2: 9. The term iddat means waiting period of a woman, usually divorcee or recently widowed. 142 Ibid. 143 Yūsuf b. Abd Allā b. Abd al-Barr, atḥ al-mālik bi-tabwīb al- amhīd li-Ibn bd al-Barr al uwaṭṭaʼ al- imām ālik (Beirūt: Dār al-Kutub al- Ilmīyah, 1998), 7: 150-51. 75 the leave of their people.”) which they maintain are both examples of God addressing walīs.144 In addition to the above evidence, Shāfi‘ī jurists provide the ḥadīth attributed to ‘ ’isha, which states that she heard the Prophet saying, “Any woman married without the permission of the walī, her marriage is void, repeated three times,” as well as the ḥadīth, “no marriage without the permission of] a walī.”145 The interpretations of Qur’anic verses and Prophetic aḥādīth become the primary issue between the two camps. However, while investigating the various Qur’anic verses one may observe that not one verse mentions the term walī or wilā a.

Shāfi‘ī jurists maintain that if the father or the grandfather of an adult bikr woman contracts her in marriage, he is not required to obtain her approval.146 Some Shāfi‘ī jurists, like al-Nawawī (d. 676/1277), recommend that the walī (the father or the grandfather) obtain the woman’s consent before contracting her into marriage, nonetheless.147 Al-Nawawī considers the marriage contract to be conducted between two men: the male-walī (or his representative), and the groom (or his male representative).148 The Shafi‘ī jurist al-Shīrāzī (d. 476/1083) joins the other Shāfi‘ī jurists in denying women the right to contract their marriages, claiming that a woman may not be trusted with her vulva (bi ‘) since she is easily deceived by men and is inherently deficient in intellect.149 Shāfi‘ī, Mālikī, and Ḥanbalī jurists also agree that a marriage contract may not be pronounced or conducted by a woman, and that if a marriage is contracted

144 Al-Shāfi‘ī, 5: 31-41; Zakarīya b. Muḥammad al-An ārī, atḥ al-Wahhāb bi- harḥ Manhaj al-ṭullāb (Beirūt: Dār al-Ma rifah, 198-?]), 2: 36; Sirāj al-Dīn Umar b. ‘ lī, b. al-Mulaqqin, jālat al-muḥtāj il tawjīh al- i hāj (Irbid: Dār al-Kitāb, 2001), 3: 1203. 145 Al-Shāfi‘ī, 5: 41, no 15335; al-An ārī, 2002, “Kitāb al-Nikāḥ,” 7: 309-310. Al-Shīrāzī, 6: 118-19. The ḥadīth can be found in Muḥammad b. ‘Īsā, al-Tirmidhī, Al-Jāmi al-ṣaḥīḥ wa-huwa Sunan al- irmidhī (Cairo: Maṭba‘at al- Madīna, 1964-1965), “Bāb Mā Jā’a lā Nikāḥa Illā bi Walī,” 3: 407-408, no. 1101 and 1102. 146 Spectorsky, 70-71; al-Ghazālī, 5: 67; al-‘Imrānī, 9: 170. 147 Ibid. 148 Al-Nawawī, 1991, 7: 50; al-Shāfi‘ī, 5: 41; al-Ghazālī, 5: 58; al-Ḥusayn b. Mas ūd, al-Baghawī, al- ahdhīb fī fiqh al-Imām al-Shāfi ī (Beirūt: Dār al-Kutub al- Ilmīyah, 1997), 5: 257. 149 Al-Shīrāzī, 6: 118. 76 by a woman, that marriage is void.150 However, the majority of the Shāfi‘ī jurists do not call for criminal consequences should an adult woman contract her marriage without the consent of a walī.151 Most of the Shāfi‘ī jurists agree that the father or paternal grandfather of an adult bikr woman may coerce his ward into marriage provided she is marrying a man of her equivalent social status.152 However, they recommend that the walī/father request his daughter’s permission to do so.153 All Shāfi‘ī jurists appear to have reached consensus on the issue of the coercion of the adult bikr woman into marriage by following in the footsteps of their leader, al-Shāfi‘ī.

In supporting the coercion of an adult bikr woman, but not of minor thayyib women, al-

Shāfi‘ī considered the sexual status of women (whether or not her virginity is intact) to be the differentiating factor in the decision as to whether or not she may be coerced into marriage.154 To

Shāfi‘ī jurists, the virgin (bikr) woman— minor or adult—may be coerced, while a minor or adult non-virgin woman (al-thayyib) needs to give her consent to a marriage.155 In maintaining this double standard, al-Shāfi‘ī was following a Prophetic ḥadīth transmitted by Ibn ‘Abbās which states that “al-ayyim [the woman without a husband] has more rights than her walī, and the bikr’s permission must be sought and her permission is her silence.”156 The Shāfi‘ī jurist al-

Ghazālī compares the status of the father coercing his daughter to that of a helpless hungry child

150 Yaḥya b. Sharaf Al-Nawawī, Sharḥ al-muhadhdhab lil-Imām bī I ḥāq Ibrāhīm ib lī ib ū uf al-Shirāzī (Beirūt: Dār al-Kutub al- Ilmīyah, 2002), 19: 168; al-An ārī, 2002, “Kitāb al-Nikāḥ,” 7: 308-2-309; al-Buhūtī, 5: 53; al-‘Imrānī, 9: 179; Ibn al-Naqīb, 152. 151 Al-An ārī, 1993, 6: 226. The Ḥanbalī jurist Ibn Qudāmah reports that Aḥmad Ibn Ḥanbal and the Shāfi‘ī jurist al- Samarqandī called for criminal punishment of partners engaged in a marriage without a walī. See Ibn Qudāmah, 7: 12, no. 5085. 152 Al-Shāfi‘ī, 5: 61, no. 15412; al-Nawawī, 1991, 53-54; al-Baghawī, 5: 255; al-Shīrāzī, 6: 125; ; al-Ghazālī, 5: 5: 63; al-‘Imrānī, 9: 170. Ibn al-Mullaqin, 3:1204-1205. Ibn al-Mullaqin stipulates that the husband be of the same social status (kufū’) as his bride, otherwise the marriage is void. See Ibn al-Mullaqin, 1231. 153 Ibid. 154 Spectorsky, 67; El Alami, 52; Masud, 2013, 136; Sonbol, 1996, 242; Ibn Rushd, 2: 7. 155 See al-Ghazāli, 1997, 5: 65; Ibn Rushd, 2: 7. 156 Al-Ghazālī, 1997, 5: 65; al-Nawawī, 19: 222; Ibn Rushd, 1970, 2: 11; Masud, 2013, 136. The ḥadīth can be found in Muslim, al-Jāmi‘ al-Ṣaḥīḥ, “Bāb Isti’zān al-Thayyib fī al-Nikāḥ bi al-Nuṭq wa-al-Bikr bi al-Sukūt,” 4: 141; al-Tirmidhī, “Bāb Mā Jā’a fī Isti’mār al-Bikr wa al-Thayyib,” 416, 3: 1108; Ibn al-Mundhir, 5: 16. 77 pleading for food.157 In another word, al-Ghazālī considers the single adult daughter to be a child dependent on the help of the father.

Jurists made an exception, however, for orphaned (fatherless) women, of any age. In their decision to make this exception, Shāfi‘ī jurists and others who agreed with them relied on a

Prophetic ḥadīth which states that “The orphan must be consulted regarding her marriage. If she consented silently, it is permission, and if she refuses [the marriage proposal] no one may coerce her.”158 This ḥadīth is also considered by many Shāfi‘ī jurists as evidence that the adult bikr woman who has a father may be coerced into marriage. Jurists who interpret the ḥadīth in this way maintain that, since the ḥadīth requires the fatherless woman only to consent to a marriage proposal, a woman with a father may still be coerced into marriage.159 While Shāfi‘ī and Mālikī jurists consider a fatherless adult woman an orphan who therefore may not be coerced, the

Ḥanbalī jurist al-Buhūtī (d. 561/1641) maintains that only a minor may be considered an orphan.160 He buttresses his opinion by citing Qur’anic verse 4:6, and arguing that the verse referred to orphans as minors until they reach the age of marriage, meaning that an orphan ceases to be orphan after attaining bulūgh.161

Mālik b. Anas (d. 179/795) and the majority of the Mālikī jurists agree with al-Shāfi‘ī jurists on the requirement of the walī in marriage.162 However, the Mālikī jurist Ibn al-Qāsim

(according to Ibn Rushd) did not consider the walī a requirement in marriage so much as a recommendation.163 Most of the Mālikī jurists, though, maintain that a woman’s father only may coerce his adult bikr ward into marriage, and that the woman may not contract her marriage

157 Al-Ghazālī, 5:65. 158 Al-Shīrāzī, 4: 126; al-Nawawī, 19: 222; Masud, 2013, 136-137. 159 Al-‘Imrānī, 9: 181; al-Shīrāzī, 4: 126; al-Nawawī, 19: 222; al-Ghazālī, 5:65. 160 Man ūr b. Yūnus Buhūtī, Sharḥ muntahā al-irādāt. (Beirūt: lam al-Kutub, 1980), “Kitāb al-Ḥajr,” 2: 290-291. 161 Buhūtī, 2: 290-291. 162 Ibn Rushd, 1970, 2: 10. For the opinion of Mālik and Saḥnūn see Abd al-Salām b. Sa īd Saḥnūn, l- udawwa ah al-kubr li-Imām ālik ib a al- ṣbaḥī ( Beirūt : Dār al-Fikr, 1991), 2: 251-252. 163 Ibn Rushd, 1970, 2: 10. 78 without the consent of a walī.164 The Mālikī jurist al-Dardīr (d. 1200/1786) joins Mālik in this opinion and states that the father may coerce his adult female ward even if she was a spinster who had reached the age of sixty.165 The late Mālikī jurists, al-Dardīr and Khalīl however, were of the opinion that, if the father decided that his adult bikr daughter had reached the age of rushd, he may not coerce her into marriage and she must give her consent to be married.166 According to Ibn Rushd, the decision of the Mālikī majority not to have the adult bikr woman contract herself in marriage may be based on their definition of interdiction (ḥajr).167 Mālikī jurists considered the bikr legally incompetent (unable to manage her finances), saying she is inclined toward men more than toward her ability to manage her own financial affairs, which inevitably impedes her decision-making with regard to marrying the right individual.168 Therefore, most of the Mālikī jurists reached consensus (ijmā‘) that the father may coerce his adult bikr daughter even if she were to become a spinster (‘ā i ).169 However, like the Shāfi‘ī jurists, Mālikīs recommend that the father seek the consent of his adult daughter in marriage.170 Shāfi‘ī and

Mālikī jurists (except for Ibn Rushd and Ibn al-Qāsim) reached consensus on coercing the adult bikr woman by considering her to be a minor and therefore unable to conduct her marriage contract. Jurists of both schools of law stayed loyal to their eponym and maintain the same doctrine throughout the centuries.

164 Spectorsky, 67; Ibn Rushd, 1994, 2: 09. Ibn al-Niqāb states that the paternal grandfather may also coerce his adult granddaughter into marriage. See Ibn al-Naqīb, 153; Ibn ‘Abd al-Barr, 2: 522-523; Mayyārah al-Fāsī, 1: 265. 165 Al-Dardīr, 2: 353. 166 Al-Dardīr, 2: 353-354; al-Khurashī, 4: 145 and 6: 242. 167 Ibn Rushd, 1970, 2: 13. 168 2: 13-14. 169 Al-Dardīr, “Bāb al-Nikāḥ,” 2: 353-354; al-Bājī, 3: 272-273. It was reported that one of Mālik’s opinions was against coercing the bikr woman if she became spinster. See al-Bājī, 3: 272. Some of the Mālikī jurists considered a woman spinster if she reached the age of thirty while single, while others considered her a spinster if she reached the age of sixty. See al-Bājī, 3: 272-273. 170 For the opinion of Ibn al-‘ im al-Mālikī and Mayyārah al-Fāsīsee Mayyārah al-Fāsī, 1: 265-266. 79

While a majority of Shāfi‘ī jurists agree that the father and paternal grandfather may coerce their female adult bikr wards in marriage, Mālikī jurists state that only the father may coerce an adult bikr into marriage. Ibn Rushd cites the opinion of Mālik, who maintains that even the

Qur’ān did not mention that the father must obtain the adult bikr’s consent in marriage. He cites

Qur’anic verse 28:27, which says, “ … I intend to wed one of these my daughters to thee.”171 In his elaboration on the opinion of Mālik, Ibn Rushd argues that Mālik wanted to show the precedence in Mālik’s ruling in favor of coercing an adult bikr into marriage. Mālik also maintained that the father may only coerce his daughter into marriage, and any other walī must obtain the consent of his ward according to the Prophetic ḥadīth which states that “The bikr’s permission must be sought regarding her marriage and her consent is her silence.”172 In addition to the above verse, Ibn Rushd cites Qur’anic verse 24:32, which states, “Marry those among you who are single, or the virtuous ones among yourselves, male or female.” In illustrating the verse according to the Mālikī madhhab, Ibn Rushd states that the injunction came as a general ruling ordering walīs to contract their unmarried women (single, divorced, and widowed) without any mention of the need for women’s consent in marriage.173 Ibn Rushd also explains that the ḥadīth states that the only walī who may coerce his female adult bikr ward into marriage is her father, just as a master marries off his female and male slaves without their permission.174 In addition,

Ibn Rushd records the opinion of Mālik, who asserts that “since jurists reached consent that the father may coerce his daughter before she obtains bulūgh, he may also coerce her after she reaches bulūgh. Anyone else who says otherwise must bring forth evidence to support that.”175

While Ibn Rushd analyzes the opinion of Mālik to mean that only the father may coerce his

171 Ibn Rushd, 1988, 4: 260. 172 Ibn Rushd, 1988, 4: 260-261. 173 El Alami, 57; Ibn Rushd, 1988, 262-263. 174 Ibn Rushd, 1988, 282-283. 175 Ibid. 80 daughter into marriage, one may observe that all Mālikī jurists have reached the same conclusion. See table (1-1) for the opinions of Mālikī jurists regarding coercion of an adult bikr woman into marriage.

Most Ḥanbalī jurists side with a majority of Mālikī and Shāfi‘ī jurists in the belief that a marriage may not be contracted without the consent of a walī.176 Ḥanbalī jurists, while agreeing on the necessity of the walī in marriage, disagree on the issue of the coercion of adult bikr women. The Ḥanbalī jurist al-Khiraqī (d. 334/945) reports that the eponym of the madhhab,

Aḥmad b. Ḥanbal (d. 241/855), had two opinions on this matter: one permitting the marriage of an adult bikr woman without a walī, providing she marries a man of the same social status

(kufu‘); the other forbidding marriage without a walī.177

The Ḥanbalī jurist al-Buhūtī maintained an opinion similar to that of Ibn Ḥanbal whereby he approved of allowing only an adult female bikr’s father to coerce her into marriage.178 In his reasoning, al-Buhūtī relied on some of the same aḥādīth jurists had previously used to show evidence in favor of coercion of the bikr woman: “the al-ayyim [without a husband] woman has more rights than her walī, and the bikr’s permission must be sought and her permission is her silence.”179 Al-Buhūtī is of the opinion that, since in the ḥadīth the Prophet allowed al-ayyim to share the wilā a with the walī, the bikr could therefore be coerced. As for obtaining the consent of the bikr, al-Buhūtī states that it is only a recommendation.180 Ibn Qudāmah (d. 620/1223) sides with jurists in the belief that a woman needs a male walī to contract her marriage on her

176 Al-Buhūtī, 5: 05. 177 For the first opinion of Ibn Ḥanbal, see al-Zarakashī, 5: 11-17, no. 2396-2402. For a second opinion, see al- Zarkashī, 5: 39, no. 2410. 178 For the opinion of al-Buhūtī see al-Buhūtī, 5: 43. 179 Al-Buhūtī, 5: 43. 180 Ibid. 81 behalf.181 Ibn Qudāmah also states that women should be prevented from contracting their own marriages because of their deficiency in intellect.182 To him, having a male guardian protects the woman from immorality (e.g., mixing with men during contract negotiation) and preserves the woman from the deception of men while preventing her from displaying insolence.183 Ibn

Qudāmah follows the majority opinion of the Mālikī jurists as well as that of Ibn Ḥanbal in maintaining that an adult bikr may be coerced into marriage.184 However, he recommends that her consent to the marriage be sought.185 In addition, Ibn Qudāmah suggests obtaining the consent of the woman’s mother, according to a ḥadīth related to the Prophet in which he states,

“Request the mothers’ opinion in the marriage of their daughters.”186 Ibn Qudāmah argues that the mother feels compassion for her daughter and also shares with her husband the responsibility of caring for her.187 Requesting the mother’s opinion, says Ibn Qudāmah, is therefore in the best interest of the family.188

Relying on another opinion made public by Ibn Ḥanbal, Ibn Qayyim al-Jawzīyah (d.

751/1350) argues that an adult bikr woman who has reached bulūgh and attained the age of rushd may not be married without her consent.189 He presents the following rationale for his ruling:

It is legally known that the father may not touch the assets of the adult ra hīda bikr woman without her permission. The father also may not coerce his daughter in taking the least bit of her assets without her approval. How can a father force his daughter into giving up her vulva to someone he wants, and coerce her into selling herself as a slave (into marriage) to someone her father chose for her whom she abhors and detests? It is known that usurping a woman’s entire assets is easier for her than marrying someone she was coerced to marry.190

181 Ibn Qudāmah, 7: 7-8 182 Ibid., 7: 8. 183 Ibid. 184 Ibid., 7: 43, 5139. 185 Ibid., 7: 41-42. 186 Ibid., 7: 43, no. 5141. 187 Ibid. 188 Ibid. 189 Ibn Qayyim al-Jawzīyah, 5: 97. 190 Ibid., 97. 82

Ibn al-Qayyim says that the Prophet’s aḥādīth are clear in granting the bikr the choice of whomever she pleases to marry, and therefore rejects the reasoning which claims that, since the father is to find a groom who is from the same social status as his daughter, his daughter must marry the man he selects for her.191 The Ḥanbalī jurist Ibn Taymīyah (d. 728/1328) rejects the legal coercion of adult bikr women.192 He argues that since no one has authority over the assets and finances of an adult ra hīda woman without her consent and approval, it follows that no one may have the right over her vulva.193

Ibn Taymīyah approves of the coercion of minors into marriage, though, claiming a consensus of jurists and clear evidence (naṣṣ) in the ḥadīth of ‘ ’isha.194He also rejects the claim made by Shāfi‘ī jurists that virginity is a justifiable reason to allow for the coercion of adult bikr women.195 Ibn Taymīyah states that “Making the woman’s virginity a reason for her interdiction

(ḥajr) is contrary to the foundations of Islam. The Shar‘ did not consider virginity a reason for the ḥajr over the [adult bikr woman.”196 Ibn Taymīyah also rejects the Mālikī and Shāfi‘ī jurists who call for coercion of the adult bikr, claiming that they ignored the Prophetic ḥadīth which provides the adult woman a right more than the walī in selecting her husband.197 Ibn Taymīyah sides with the rest of the Ḥanbalī jurists, though, in the belief that a marriage without a walī is void and must be dissolved.198 However, Ibn Taymīyah sides with Abū Ḥanīfa in his claims against coercing an adult bikr woman into marriage.199 Unlike Shāfi‘ī and Mālikī jurists,

Ḥanbalīs are split into two camps: one camp sides with the Shāfi‘ī and the majority of the Mālikī

191 Ibid., 97-98. 192 Aḥmad b. Abd al-Ḥalīm, Ibn Taymīyah, ḥkām al-zawāj (Beirūt: Dār al-Kutub al- Ilmīyah, 1996), 99-100. 193 Ibn Taymīyah, 1996, 99-100. 194 Ibid. 195 Ibid. 196 Ibn Taymīyah, 1996, 100. 197 Ibid., 101. 198 Aḥmad Ibn Taymīyah, ajmū fatāw Sha kh al-I lām ḥmad ib a mī ah ([S.l: s.n.], 1961-1997), 32: 20-21. 199 Ibn Taymīyah, 1961, 32: 22-23 83 jurists by approving of the coercion of adult bikr women into marriage, and the other rejects such coercion. However, like the Shāfī‘ī and most of the Mālikī jurists, Ḥanbalīs will not validate a marriage without the consent of a walī.

The Ḥanafī jurist Abū Ḥanīfa permits the adult bikr woman (bāligha, ‘āqila) to contract her marriage, providing that the future husband is of the same social status (kufu’).200 Additionally— and contrary to the majority of Muslim jurists— Abū Ḥanīfa permits women to act as walīs for the marriages of other women. The Ḥanafī jurist al-Shaybānī has produced two opinions on the subject: where he once required a male walī, he later approved of a woman acting as a walī for another woman.201 The Ḥanafī jurist Ibn al-Humām (d. 861/1457) maintains that the majority of

Ḥanafī jurists followed the opinion of Abū Ḥanīfa in agreeing that an adult woman may conduct her own contract, providing that the husband is of her equivalent social status (kufu’).202

Therefore, says Ibn al-Humām, the walī may object to the husband if the husband is from a lower social status than that of the woman. At first glance the opinion of Abū Ḥanīfa may sound more liberal than that of the rest of the jurists; however a careful look at the stipulation of kafā’a, or suitability, suggests otherwise. The majority of Ḥanafī jurists maintain that if a woman marries herself to a man of lower social status, the walīs may have the right to object to or even dissolve the marriage.203 afā’a of the groom, according to the Ḥanafīs, Shāfi‘īs, and other Sunni jurists may include the groom’s status as a free man (not a slave), genealogy, wealth, career or skillsets,

200 Sonbol, 1996, 247-248; Tucker, 2008, 124-125; Ali, 2010, 41-4; al-Ṭaḥāwī, 2: 247, 713. Ibn al-Humām, 3: 255; Ibn ‘ bidīn, 4: 159; Khayr al-Dīn al-Ramlī, 1: 23, 25. 201 Ali, 2010, 37; Nasir, 50; Tucker, 2008, 133; al Alami, 57; Khayr al-Dīn al-Ramlī, 1: 23, 25; Ibn al-Humām, 3: 255; al-Sarakhsī, 5: 10; Muḥammad b. al-Ḥasan al-Shaybānī, itāb al-ḥujjah al ahl al- adī ah (Beirūt: lam al- Kutub, 1980), 3: 98-122 202 Tucker, 2008, 124-125; Spectorsky, 70; Khayr al-Dīn al-Ramlī, 1: 23, 25; Ibn ‘ bidīn, 4: 159; Ibn al-Humām, 3: 258-259. Ibn al-Humām also points out the inconsistency in the opinions of Ḥanafī jurist Abū Yūsuf, who had three differing opinions on the same subject, one of which was to not permit women to conduct their own marriages without a male walī. See Ibn al-Humām, 3: 259. In her 1998 work Tucker illustrates how muftis in the seventeenth and eighteenth century in Syria and Palestine under the Ottoman government paid careful attention to the kafā’a between husband and wife. See Tucker, 1998, 40-42. 203 Ali, 2008, 15; Sonbol 1996, 248; Ibn al-Humām, 3: 294. 84 the amount of the dower (it must be similar to that of the bride’s peers), the ability to financially support a wife, and freedom from physical and health impediments.204 In addition, Abū Ḥanīfa and Abū Yūsuf also consider religion as part of the kafā’a.205 Unlike the rest of the Sunni schools of law, Ḥanafīs follow the eponym Abū Ḥanīfa in permitting the adult bikr woman to contract her marriage, however, only with the caveat that she choose a man of her equivalent social status

(kufu’). Social status (kafā’a) becomes an issue since a walī may object to the marriage on its basis alone and may petition the judge to dissolve a marriage between individuals of different classes.

To support the right of an adult bikr woman to contract her own marriage, Ḥanafī jurists provided Qur’anic and Prophetic aḥādīth as well as logical reasoning. First, Ḥanafī jurists brought forth Qur’anic verse 2:230, which states, “So if a husband divorces his wife

(irrevocably), he cannot, after that, re-marry her until after she has married another husband and he has divorced her.” Ḥanafī jurists state that the section which states, “…until after she has married another husband,” permits the wife the right to contract her marriage independently.206

The part of the verse which follows—“there is no blame on either of them if they re-unite”—

Ḥanafī jurists also claim is evidence for a woman’s ability to contract her marriage independently and without a walī.207 Ḥanafī jurists interpret the Qur’anic directives 2:232 and 2:

234, differently than those who use it as evidence of the essentiality of a walī in marriage. To the

Ḥanafī jurists, verse 2:232 clearly permits a woman to conduct her own marriage without a walī.208 The directive in verse 2:234, according to Ḥanafī jurist al-Ja ā (d.370-980), addresses a

204 Ali, 2008, 15; Spectorsky, 76-78; al-Ghazālī, 5: 85; 1997, al-Rāfī‘ī, 7: 573-582; Ibn al-Humām, 3: 291-303; Ibn ‘ bidīn, 4: 217-220 205 Ibn al-Humām, 3: 291-303; Muḥammad b. Muḥammad al-Ghazālī, Al-Wa īt fi al-madhhab (Cairo: Dār al-Salām, 1997), 5: 85-88. 206 Al-Ja ā , 4: 256-247; Ibn Rushd, 1994, 2: 10-11. 207 Ibid. 208 Ibid. 85 woman’s former husband— not her walīs —asking that the husband not prolong the divorce so the woman may remarry quickly.209 Al-Ja ā argues that, even if the Qur’anic directive addresses the walīs, it only commands them not to prevent a woman from marrying again since the known custom was for a divorced woman to return to the home of her walī. Regarding verse

2:221, Ḥanafī jurists argue that this verse addresses the entire Muslim community—not the walīs alone. Finally, the Ḥanafī jurists maintain that the Qur’anic verse 2:240, which states, “but if they [divorced women] leave [the residence], there is no blame on you for what they do with themselves, provided it is reasonable,” indicates that women are not to be blamed for acting independently in executing their marriage contracts without the permission of a walī.210

As for evidence from the aḥādīth of the Prophet, al-Ja ā brings forth the ḥadīth which states, “The widow or divorced woman (al-thayyib) is entitled to rights more than her walī,” and also, “al-ayyim, [the woman who was previously married] is more entitled to manage her affairs than her guardian.”211 These two aḥādīth, according to al-Ja ā , provide evidence that the walī may not prevent the woman from contracting her marriage. 212 The majority of the Ḥanafī jurists follow in line with Abū Ḥanīfa in permitting a woman to contract her marriage without a walī provided that the groom is of the same social status as his bride.213 Ḥanafī jurists interpret this

Qur’anic directive as an address by God to all husbands—not walīs. Ḥanafī jurists also reject the

ḥadīth, “no marriage without the permission of the walī,” as unreliable.214 For the same reason,

Ḥanafī jurists also reject other aḥādīth used as evidence for the requirement of a walī in marriage, particularly the ḥadīth related to ‘ ’isha in which the Prophet was heard stating that a

209 Al-Ja ā , 4: 260. 210 Ibn Rushd, 1994, 10-11. 211 Al-Ja ā , 4: 262; Masud, 2013, 135. 212 Ibid. 213 Nasir, 50; Ali, 2008; Tucker, 2008; al-Ja ā , 4: 262; Masud, 2013, 135. 214 Al-Ja ā , 4: 264; Ibn Rushd, 1994, 2: 13-15; Masud, 2013, 135. 86 woman may not contract her marriage, and that should she do so, the marriage is “void, repeated three times.”215 To support their position regarding the right of a woman to contract her own marriage, Ḥanafī jurists appeal to reason in addition to the above Qur’anic verses and aḥādīth, arguing that, since people have agreed that the marriage contract of a man who is able to conduct his financial transactions is valid even if conducted without a walī, women who are able to conduct their own financial transactions should also be able to conduct their marriage contracts.216

However, proponents of the necessity of a walī maintain that, since women are inclined toward men more than they are inclined toward financial transactions, it is wise to keep them in interdiction (ḥajr) permanently.217 The reason for this interdiction is that a woman may bring shame on her family if she were to expose herself to men while contracting herself into marriage.218 In addition, she could bring shame to herself and the rest of her family if she were to contract herself to a man of a lower status.219 In this case, Ḥanafī jurists maintain that the walīs have the right to object if a woman marries a man of a lesser social status. Moreover, say the

Ḥanafī jurists, if God intended to stipulate the necessity of the marriage guardian, He would have illustrated this in more details outlining the ranks and types of guardianship. Ḥanafī jurists argue that if there was a ḥadīth regarding the necessity of the walī, the ḥadīth would have been narrated through a communal transmission (mutawāttur) or through a similar narration.220 Further, among the women living in Medina, some had no walīs. Despite this fact, the Prophet never appointed a walī to them, nor did he administer marriage contracts among those who had no walī .221 Only

215 Ibid. 216 Al-Ja ā , 4: 273, Ibn Rushd, 1994, 12-13. 217 Ibn Rushd, 1994, 12-13. 218 Ibn Rushd, 1994, 12-13. 219 Aḥmad b. Idrīs Qarāfī, itāb al- urūq a wār al-burūq fī a wāʼ al-furūq (Cairo: Dār al-Salām, 2001), 3: 916. 220 Ibn Rushd, 1994. 2: 11. 221 Ibn Rushd, 2: 11; Al-Ja ā , 4: 268. 87

Ibn Ḥazm takes the middle ground concerning the marriage of an adult bikr woman. To him, the walī and the woman must both consent to the contract—to Ibn Ḥazm the wilā a is a partnership, and not a relationship of coercion.222 Table (1-1) below shows the opinions of some of the Sunni jurists of the four Sunni schools of law regarding coercion of the minor girls into marriage and the marriage contract of single adult virgin (bikr) women.

Table (1-1): Jurist Opinions on the Marriage Contracts of Minor and Single Adult Virgin (Bikr) Women Name A minor may Coercion into A walī is May conduct her May act be coerced marriage required own marriage as walī Mālikīs223 Mālik (d. 179/795) Yes Yes Yes No No Ibn al-Qāsīm Yes Yes Yes No No (d. 191/806) Saḥnūn (d. 240/856) Yes Yes Yes No No Ibn ‘Abd al-Barr Yes Yes Yes No No (d. 463-1071) Al-Bājī (d. 494/1100) Yes Yes Yes No No Al-Qarāfī (d. 684/1285) Yes Yes Yes No No Ibn Rushd (d. 595/1198) Yes No No Yes Yes Khalīl (d. 767/1365) Yes Yes. Not the Yes No No ra hīda woman Al-Damīrī (d. 805/1402) Yes Yes Yes No No Ibn al-‘ im Yes Yes Yes No No (d. 829/1425) Al-Dardīr (d. 1200/1786) Yes Yes. Not the Yes No No ra hīda woman Al- āwī (d. 1241/1825) Yes Yes Yes No No Al-Tusūlī (d. 1258/ 1842) Yes Yes Yes No No Illaysh (d. 1299/1882) Yes Yes Yes No No Shāfi‘īs224 Al-Shāfi‘ī (d. 204/ 820) Yes Yes Yes No No Al-Shīrāzī (d. 476/1083) Yes Yes Yes No No Al-Ghazālī (d. 505/1111) Yes Yes Yes No No

222 Ibn Ḥazm, 11: 33; El Alami, 57. 223 The Mālikī jurists who approved of the coercion of adult bikr women into marriage permitted the father alone to coerce her while other walīs must obtain her consent. 224 Shāfi‘ī jurists permitted only the father and paternal grandfather of an adult bikr woman to coerce her into marriage. Other walīs may not coerce her into marriage. 88

Name A minor may Coercion into A walī is May conduct her May act be coerced marriage required own marriage as walī Al-‘Imrānī (d. 588/1192) Yes Yes Yes No No Al-Rāfī‘ī (d. 623/1226) Yes Yes Yes No No Al-Nawawī Yes Yes Yes No No (d. 676/1277) Ibn al-Mullaqin Yes Yes Yes No No (d. 804/1401) Al-An ārī (d. 926/1520) Yes Yes Yes No No Al-Ramlī al-Shāfi‘ī Yes Yes Yes No No Al- aghīr (d. 1004/1595) Ḥanbalīs Aḥmad b. Ḥanbal Yes Two opinions Two opinions No No (d. 241/855) (Yes/No)225 (Yes/No) Al-Khiraqī (d. 334/945) Yes No Yes No No Ibn Qudāmah (d.619/1223) Yes Yes Yes No No Ibn Taymīyah (d.728/1328) Yes No Yes No ? Ibn Qayyim al-Jawzīyah Yes No Yes Yes No (d. 751/1350) Al-Zarkashī Yes Yes Yes No No (d. 772/1370) Ibn Muflīḥ (d. 884/1479) Yes No Yes No No Al-Buhūtī (d. 1051/1641) Yes Yes Yes No No Ḥanafīs Abū Ḥanīfa (d. 150/767) Yes No No Yes Yes Al-Shaybānī (d. 189/805) Yes No Yes No No Al-Ja ā (d. 370/980) Yes No No Yes Yes Al-Sarakhsī (483/1090 Yes No No Yes Yes Al-Kāsānī (d. 587/1191) Yes No No Yes Yes Khayr al-Dīn al-Ramlī Yes No No Yes Yes (d. 1081/1671) Badr al-Dīn al-‘Aynī Yes No No Yes Yes (d. 855/1451) Ibn al-Humām Yes No No Yes Yes (d. 861/1457) Ibn bidīn Yes No No Yes Yes (d. 1252/1836) Independent jurists Al-Battī (d. 143/760) No ? ? ? ? Ibn Shubruma (d. 144/761) No ? ? ? ? Al-A amm (d. 201/816/17) No ? ? ? ? Table 1-1

225 Ibn Ḥanbal has two opinions regarding coercing the adult bikr woman. In one opinion he approves of it and in another, he disapproves of it. See Ibn Qudāmah, 7: 40, no. 5137. 89

The table above shows that, except for three independent jurists, all jurists of the Sunni madhāhib reached consensus regarding the coercion of minors into marriage. The table also shows the loyalty of jurists to their madhhab. It is clear that Shāfi‘ī, Mālikī, and the Ḥanafī jurists remained faithful to their eponyms for centuries. The Mālikī jurists (except for Ibn Rushd) remained loyal to the opinion Mālik from the time of the Mālikī jurist Saḥnūn (d. 240/856) until the death of the Mālikī jurist Illaysh (d. 1299/1882). All Mālikī jurists except for Ibn Rushd have reached consensus that a male walī is required to conduct his ward’s marriage. In addition, the same Mālikī jurists reached consensus that an adult bikr woman may be coerced into marriage. Al-Shāfi‘ī jurists also reached consensus and stayed loyal to al-Shāfi‘ī from the ninth century until the seventeenth century. All Shāfi‘ī jurists, without exception, agreed that a walī is necessary to validate the marriage of the adult bikr woman. In addition, Shāfi‘ī jurists also agreed that the father may coerce his adult bikr daughter into marriage. Ḥanafī jurists remained loyal to their eponym, Abū Ḥanīfa, from the late seventh century until the nineteenth century.

Almost all of the Ḥanafī jurists agreed with Abū Ḥanīfa in granting women the right to contract her marriage with the caveat of kafā’a of the husband. Most importantly, all jurists of the Sunni and Shī‘ī schools of law reached consensus that a minor girl may be coerced into marriage.

Conclusion

As this chapter has demonstrated, jurists of each Islamic school of law remained faithful to the doctrines of their school throughout Islamic legal history. This was also made obvious by the consensus reached by jurists regarding the demarcation of the age of rushd, the legal age of marriage, and the role of the adult bikr woman in marriage. The chapter also showed how the ijmā‘ within a madhhab affected a woman’s rights in marriage, as well as with respect to the management of her financial assets. Despite the loyalty of the majority of jurists to their 90 madhhab, we have seen that there is almost always a minority of jurists which stands in opposition to the majority. This disagreement is most obvious in the rejection of the marriage and coercion of minors (opinions of Ibn Shubruma, ‘Uthmān al-Battī, and al-A amm) and also in the opinion of Abū Ḥanīfa (a minority among the eponyms of the Sunni schools of law) which granted the adult bikr woman the right, not only to conduct her marriage, but also to act as a marriage guardian for other women. It is apparent that more jurists remained faithful to the opinions of their schools of law in almost every ruling concerning the topics discussed above despite the uncertainty of the evidence provided. Ibn Rushd’s analyses of the evidence provided by many of the jurists concluded that evidence for and against the requirement of a walī in marriage is at best only probable rather than definitive.226 Although none of the Qur’anic verses for example, explicitly mentions the walī, jurists of each school of law sided with the eponym on the interpretation of these Qur’anic verses to support their position against other schools of law.

While there was some deviation among the late Ḥanbalī jurists, Shāfi‘ī and Mālikī jurists were mostly loyal to the opinions of the eponyms of their schools of law as it related to restricting the rights of women in marriage. The opinions of al-Shāfi‘ī and Mālik stood as the pillars upon which the majority of later jurists built their arguments against other jurists from the

Ḥanafī madhhab. While the Ḥanafī eponym Abu Ḥanīfa granted women a wider role in marriage by allowing them to contract their own marriages as well as the chance to become a walī themselves, in the absence of a male walī, he stipulated that the future husband must be of the same social status as his bride. In fact, Abū Ḥanīfa authorized the walīs of married women without their consent to petition the judge in order to dissolve marriages in which the husband

226 The contemporary scholar Muhammad Khalid Masud sides with Ibn Rushd and maintains that none of the Qur’anic and ḥadīth evidence provides concrete evidence for the necessity of the marriage guardian. In addition, Masud observes that none of the Qur’anic verses provided by proponents of the wilā a uses the term walī or even the term wilā a. See Masud, 2013, 133-134.

91 was of a lower social status than his wife. Ḥanafī jurists stayed loyal to Abū Ḥanīfa’s opinion and kept this ruling as part of the madhhab’ doctrine of marriage.

Shāfi‘ī and Mālikī jurists were even more restrictive to women than the rest of the madhāhib. Jurists of these two schools did not consider the adult bikr woman capable of managing her affairs until she had been financially tested and/or married. Shāfi‘ī jurists followed al-Shāfi‘ī in keeping the adult bikr’s assets under the custody of her father until she was married or until she passed a test of financial competence and religious piety. Mālik and Mālikī jurists went further still in restricting the rights of women by considering marriage the gateway for a woman’s emancipation from her father’s custody. In fact, some of the jurists were not satisfied with marriage alone and considered the married daughter a minor (in managing her financial affairs) until a period of one-to-seven years after she was married.

By staying loyal to one’s madhhab, women were rendered minors even after marriage.

Fortunately, thanks to the preservation of the minority jurists’ opinions in some of the writings of the majority jurists, those opinions were able to be called upon when modern Islamic family law was being codified in Arab-Muslim states in the twentieth century. These opinions where preserved in fiqh textbooks by jurists like Ibn Ḥazm, Ibn al-Humām, al-Kāsānī, and al-Sarakhsī, where they criticized the minority jurists’ opinions on topics like the marriage of minors and other social transactions. These opinions, though, served as precedent to modern intellectuals while reforming Islamic family law and attempting to eliminate the marriages of minors.

Chapter 2

The Role of Minority Jurists in Reforming Family Law

The middle of the twentieth century marked a new beginning for many Arab regions. It was a period when many of the colonized Arab states were gaining their independence and it marked a new era of codifying Islamic family law in many of these states in what came to be known as the Personal Status Law (PSL) or (al-Aḥwāl al-shakhṣī a).1 Egypt began codifying its family law much earlier than the rest of the rest of the Arab states.2 Arab-Muslim intellectuals debated and wrote on the newly codified personal laws, juxtaposing them with Islamic family law. The topics of debate included marriage, divorce, the rights of husbands and wives, the custody of children, genealogy, inheritance, and other subjects dealing with personal issues which concern Arab-Muslim families. This chapter presents debates between Arab-Muslim intellectuals over certain issues of the marriage contract, the role of the walī in marriage, and the legal age of marriage that have taken place since the middle of the twentieth century through the present day. It is divided into four parts. Part I shows the reaction of Arab-Muslim intellectuals to the first codification of Islamic family law (the minimum age of marriage and the role of the

1 According to the Egyptian intellectual Aḥmad Ibrāhīm, this term is foreign to Islamic family law, which connoted any legal issue concerning the person such as, marriage, dissolution of marriage, maintenance, the woman’s waiting period, genealogy, nursing infants, guardianship of the individual and or his/her financial assets, bequests, and inheritance. These rulings according to Ibrāhīm are listed under transactions (mu‘āmalāt) in fiqh books. See Aḥmad Ibrāhīm, and Wā il Alāʼ al-Dīn, ḥkām al-aḥwāl al- hakhṣī ah fī al- harī ah al-I lāmī ah ( Egypt : Maṭba at al- Kharbūṭlī, 1994), 25. 2 While Egypt began codifying its PSL in 1923, other states like Syria, Jordan, Tunisia, Morocco, and Sudan codified their PSLs during the 1950s. Bahrain on the other hand, codified its family law in 2009 while Saudi Arabia still did not codify its family law, but instead continues to follow the Ḥanbali school of law. See Abd Allāh Aḥmad An-Na īm,. Islamic Family Law in a Changing World: A Global Resource Book. London: Zed Books, 2002. 137; Lynn Welchman, “Bahrain, Qatar, UAE: First time Family Law Codifications in Three Gulf States,” in The International Survey of Family Law 2010 Edition, ed. Bill Atkin (Bristol Family Law, 2010), 163-178. For Saudi Arabia, see Khaled Abou el Fadl, Speaking in God's name: Islamic law, authority and women (Oxford: Oneworld, 2001), 170-208. 93 walī) in Egypt.3 Part II illustrates the debates of Syrian individuals as well as Twelver Shī‘ī intellectuals; Part III outlines debates that occurred among Arab-Muslim intellectuals in Saudi

Arabia and other parts of the Arab world during the 1990s. Part IV covers debates from the beginning of the year 2000 through the present, with a focus on debates concerning the appropriate age of marriage. This section begins with a discussion of the reforms and debates in

Egypt to set a point of reference for the debates in the other Arab states. Debates in Syria and

Saudi Arabia were chosen to illustrate the diversity of opinions within the relevant topics.

Lebanon on the other hand, was selected since it is one of the few Arab states (aside from Iraq) with a population that has a majority made up of Twelver (Ja farī) Shī‘ī Muslims. Chapters three and four explore the longstanding PSL debates in Morocco. In this chapter I argue that, despite the prominent position of jurists’ consensus (ijmā‘) in Islamic law regarding coercion in marriage and the appropriate age of marriage, reformers elected to follow the minority opinions in order to improve women’s rights in marriage.

In calling for a minimum age of marriage and for an adult woman to contract her marriage without the consent of a walī, reformers chose to follow the opinions of Ibn Shubruma, al-A amm, al-Battī, and Abū Ḥanīfa.4 The three jurists, Ibn Shubruma, al-A amm, and al-Battī rejected the majority jurists’ opinions in calling for coercing and marrying off minors prior to attaining bulūgh.5 Abū Ḥanīfa, on the other hand, maintained that an adult bikr woman may conduct her marriage without the consent of the walī as long as she marries a man of her social status (kufu’).6

3 On the traditional custom of the marriage contract in Egypt and the role of the walī see Dina Ezzat, “Sacred Knots and Unholy Deals,” in No Paradise Yet: the world's women face the new century, ed. Judith Mirsky and Marty Radlett (London : PANOS/Zed, 2000), 39-41. 4 For the opinion of the three jurists see chapter one or the rest of this chapter. 5 For the opinion of Ibn Shubruma see chapter one. See also Ibn Ḥazm, 11: 36-37, no. 1826. 6 See chapter one for the opinion of Abū Ḥanīfa. See also Ibn Ḥazm, 11: 30-31. 94

This chapter concerns itself with certain Arab intellectuals who have written on the role of women in contracting marriage through Islamic fiqh and/or the personal status law as it concerns particular marriage issues throughout the last few decades. The works of these individuals are either regularly cited by other scholars and intellectuals or are taught in Arab-

Muslim universities. Due to the sheer number of intellectuals who wrote on the topic of women in family law, I focus on a few who remain either understudied in the West, or whose work has proven essential to the debates in the region. I also had to limit the number of intellectuals from certain states—namely Egypt, Syria, Lebanon, and Saudi Arabia—in order to illustrate their work. Moroccan intellectuals were also omitted from this chapter since the next two chapters of this dissertation are dedicated to Moroccan debates. Unlike the other Arab-Muslim states,

Morocco witnessed dynamic debates over the years, which required more than one chapter to illustrate. The number of men who wrote on this topic during the selected period heavily outweighs the number of women who did so—a fact which is reflected in this chapter. In order to further simplify the topic to the reader, intellectuals in this chapter are divided according to the

Arab state in which they reside. While I focus on Sunni intellectuals, three Twelver Shī‘ī intellectuals are included in order to cover the majority of the Twelver Shī‘ī populations in some of the Arab states, specifically Lebanon and Iraq. While intellectual debates in the Arab region started before the twentieth-century, I chose debates which occurred after the Arab states gained independence, focusing on the period after the 1950s.7

In the early twentieth century, Arab-Muslim men and feminist women started publicly debating and discussing the topic of women’s rights. Feminist organizations, men, and women from various parts of the Arab world advocated for reforms and for expanding the rights of

7 For more on early feminist debates in the Arab Muslim world see Margot Badran, Feminist, Islam, and Nation (Princeton, N.J: Princeton University Press, 1995). See also Albert Hourani: Arabic Thought in the Liberal Age 1798-1939 (Cambridge [Cambridgeshire]; Cambridge University Press, New York: 1983). 95 women in marriage, divorce, education, and public space.8 Women’s organizations like the

Egyptian Feminist Union (al-Ijtiḥād al-Ni ā’ī al-Maṣrī) were also instrumental in advancing women’s rights in Egypt beginning in the latter part of the nineteenth and beginning of the twentieth centuries.9 Among the many demands of the feminist organizations were the extension of a mother’s custody of her children, the regulation of men’s unilateral right of divorce, restrictions on polygyny, and an increase to the minimum age of marriage.10 Women like ‘ ’isha al-Taymūrīya (d. 1902), Zaynab Fawwāz (d. 1914), Malak Ḥinfī Na īf (d. 1918), Munīrah Thābit

(d. 1967), Hudā Sha‘rāwī (d. 1947), Nabawīyah Mūsā (d. 1951), and Zaynab al-Ghazālī (1917-

2005) were among those who joined women’s movements and publicly spoke in favor of women’s legal rights.11

Egyptian scholar Muḥammad ‘Abduh (d. 1905) was another reformer who aimed at granting women freedom in marriage and divorce.12 ‘Abduh called for curbing men’s unilateral rights in divorce by advocating that divorces be conducted through family court.13 Like ‘Abduh, the Egyptian intellectual Qāsim Amīn (d. 1908) was also critical of past jurists’ misogynistic attitudes toward women.14 Amīn called for the regulation of polygyny and restrictions to men’s

8 Badran, 3-110. 9 Badran, 1994, 20, 125. 10 Ibid., 126. 11 Badran, 124-130. Zaynab al-Ghazālī joined the Muslim brotherhood and became one of its spokesperson. See Badran, 1991, 207-211. Na īf was strongly against early marriage and the marriage of elderly men to much younger women. See Malak Ḥifnī Na īf, al-Ni āʼi āt majmū at maqālāt nushirat fī al-jarīdah fī maw ū al-marʼah al- iṣrī ah (Cairo: Multaqá al-Marʼah wa-al-Dhākirah, 1998), 57; Judith Tucker, Women, Family and Gender in Islamic Law (Cambridge, UK; New York: Cambridge University Press, 2008), 69. For Zaynab al-Ghazālī’s views on marriage and independence, see Valerie J. Hoffman, “An Islamic Activist: Zaynab al-Ghazali,” Women and the Family in the Middle East: New Voices of Change, ed. Elizabeth Warnock Fernea (Austin: University of Texas Press, 1985), 234-237. 12 On the biography of Muḥammad ‘Abduh and his reforms see Charles, C. Adams, Islam and Modernism in Egypt: a study of the modern reform m m t i augurat d b uḥammad bduh (New York: Russell & Russell 1968); Hourani, 130-192; Margot Badran, “Competing Agenda: Feminists, Islam and the State in nineteenth –and Twentieth-Century Egypt,” in Women, Islam, and the state, ed. Deniz, Kandiyoti (Philadelphia: Temple University Press, 1991), 204. 13 Ibid. 14 Badran, 1994, 18; idem, 1991, 204-205; Amīn, 147-153. 96 unilateral rights in divorce over women, saying that divorce should only be permitted when performed in front of a judge.15 Tunisian intellectual Ṭāhir al-Ḥaddād (d. 1935)—another reformer who advocated for women’s rights—was one of very few Arab-Muslims who criticized

Muslim ‘ulamā’ for their consideration of women as slaves.16 Citing the Mālikī jurist Ibn ‘ im who equates women with slaves, al-Ḥaddād states that “since jurists stipulated freedom from slavery as a precondition for the qualification to become a walī, women therefore, must be considered slaves since they were excluded from this position.”17

PART I

The Codification of Personal Status Law: the Case of Egypt

In Egypt, the first attempt at codifying the Egyptian Personal Status Law (PSL) took place in 1915.18 It was in that year that a committee of Muslim ‘ulamā’ representing the four

Sunni madhāhib was formed with the purpose of codifying Islamic family law.19 However, due

15 Badran, 1994, 18; idem, 1991; Amīn, 168-197. 16 Ṭāhir al-Ḥadād was a Tunisian intellectual. He wrote several books on Islamic law and nationalism. His work on women’s rights in Islam, Imra’atu ā fī al-Sharī‘a wa al-mujtama‘, caused an uproar among Tunisian ‘ulamā’ and the religious establishment in Tunisia. Due to his critical view of jurists’ rulings regarding women, he was ostracized and excommunicated by the religious establishment and was banned from work and publishing. He died alone due to depression caused by the retaliation from the Tunisian religious community in 1935. Ṭāhir al-Ḥaddād, Imra’atu ā fī al-Sharī‘a wa al-mujtama‘(Tunisia: al-Dār al-Tunisīya lil-Nashr, 1972), 113-119. See also Ziba Mir-Hosseini, “Justice, Equality and Muslim Family Laws: New Ideas, New Prospects,” in Gender and Equality in Family Law: Justice and Ethics in the Islamic Legal Tradition, ed. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe, 127-152 (London: I.B. Tauris, 2013). 13-19. For Ibn ‘ im’s opinion see, Muḥammad b. Aḥmad Fāsī, Sharḥ a ārah al- ā ī alā Tuḥfat al-ḥukkām fī ukat al- uqūd wa-al-aḥkām (Beirut: Dār al-Kutub al- Ilmīyah, 2000), 1: 260-261. 17 See al-Ḥadād, 113-116. For Ibn ‘ im’s opinion see, Muḥammad b. Aḥmad Fāsī, Sharḥ a ārah al- ā ī al Tuḥfat al-ḥukkām fī ukat al- uqūd wa-al-aḥkām (Beirut: Dār al-Kutub al- Ilmīyah, 2000), 1: 260-261. 18 During the nineteenth-century and the early part of the twentieth-century Egypt followed the Ḥanafī madhhab. However, this changed after 1923 when Egypt began incorporating other Sunni madhāhib within the newly codified Egyptian Personal Status Law. See Baber Johansen, "The Constitution and the Principles of Islamic Normativity against the Rules of ‘Fiqh’: A Judgment of the Supreme Constitutional Court of Egypt," Dispensing Justice in Islam: Qadis and Their Judgments (Leiden; Boston: Brill, 2006), 171-172. Dawoud S. El Alami, The Marriage Contract in Islamic Law (Graham & Trotman, 1992), 4-6; Oussama Arabi, “The Dawning of the Third Millennium on Shari'a: Egypt's Law no. 1 of 2000, or Women May Divorce at Will,” Arab Law Quarterly 16, no. 1 (2001), 2. 19 Muḥammad Abū Zahrah, al-Aḥwāl al-shakhṣī ah (Cairo: al-Qāhirah : Dār al-Fikr al- Arabī, 1957? ), 10; Muḥammad Dijwī, al-Aḥwāl al-shakhṣī ah lil-Miṣrī ī al- u limī fiqha wa-qa āʼa , dirā ah taḥlīlī ah 97 to extreme opposition to the new law, none of the committee’s opinions was published.20 In 1917 the Ottoman government in Egypt published the first personal law in what came to be called the

Ottoman Law of Family Rights (OLFR).21 The PSL was then postponed for a few years and was subsequently codified several times in 1920, 1923, 1929, 1943, 1946 and 1955.22 The PSL was then again amended and reformed in 1979, 1980, 1985, and in the year 2000,23 though debates over the codification of the law began before Egypt gained its independence. Among the many

muqāra ah bi-al-ta hrī āt al- rabī ah (Cairo: Maṭba at Dār al-Nashr lil-Jāmi āt al-Mi rīyah, 1969); Muḥammad Sallām Madkūr, Aḥkām al-u rah fī al-I lām (Cairo: Dār al-Nahḍah al- Arabīyah, 1969-1970), 1: 26-27; Muḥammad Bultājī, irā āt fī al-aḥwāl al- hakhṣī ah buḥūth fiqhī ah muʼaṣṣalah (Cairo: Dār al-Salām lil-Ṭibā ah wa-al-Nashr wa-al-Tawzī wa-al-Tarjamah, 1973), 8. 20 Ibid. 21 Tucker, 2008, 20; John Esposito, Women in Muslim Family Law (Syracuse, N.Y: Syracuse University Press, 1982), 51; Welchman, 2008, 39; Annelies, Moors, “Public Debates on Family Law Reform Participations, Positions, and Styles of Argumentation in the 1990s,” Islamic Law and Society 10, no. 1(2003), 3; Deniz, Kandiyoti, “Introduction,” in Women, Islam and the State, ed. Deniz Kandiyoti (Philadelphia: Temple University Press, 1991), 11; J. N. D. Anderson, “The Syrian Law of Personal Status,” Bulletin of the School of Oriental and African Studies 17, no. 1 (1955), 34. 22 Abū Zahrah. uḥā arāt fī aqd al-zawāj wa-āthāruh (Cairo: Dār al-Fikr al- Arabī, 1971 ), 27; Abū Zahrah, 1957, 11-12; Mu ṭafā al-Sibā‘ī , al- arʼah ba a al-fiqh wa-al-qā ū , dirā āt har ī ah wa-qā ū ī ah wa- ijtimā ī ah (Ḥalab: al-Maktabah al- Arabīyah 1967 ), 55-56; Abū Zahrah, Sharḥ qā ū al-aḥwāl al- hakhṣī ah wa-fh i mabāḥith aqd al-zawāj wa-i ḥilāluh ( Ammān : Maktabat Dār al-Thaqāfah lil-Nashr wa-al-Tawzī , 1966 ), 9-13; Bultājī, 1973,45-51; Madkūr, 27-31; Zakī al-Dīn Sha‘bān, al- ḥkām al- har‘ī ah lil-aḥwāl al-shakhṣī ah ( Cairo : Dār al-Nahḍa al-‘ rabīya, 1966-1967), 26-31; Bandouin Dupret, “The Practice of Judging: The Egyptian Judiciary at work in a Personal Status Case,” in Dispensing Justice in Islam: Gadis and Their Judgements, eds. Muhammad Khalid Masud, Rudolph Peters, and David Stephan Powers (Leiden; Boston: Brill, 2006), 147, 150-153; Esposito, 1982, 120-121; Lynn Welchman, Women and Muslim Family Reform (London, UK; New York, Palgrave Macmillan, 2004), 13; Y. Qassem, “Law of the Family: Personal Law Status,” in Egypt and Its Laws, eds. Nathalie Bernard-Maugiron and Baudouin Dupret (London; New York: Kluwer Law International, 2002), 19-32; El Alami, 4-6; J. N. D. Anderson, 1955, 34; Esposito, 60; Dawoud S. El Alami, The marriage contract in Islamic law in the Shari ah a d r al tatu law f Eg t a d r (London: Graham & Trotman, 1992), 5-6; Yakare-Oule Jansen, “Muslim Brides and the Ghost of the Shari’a: Have the Recent Law Reforms in Egypt, Tunisia and Morocco Improved Women’s Position in Marriage and Divorce, and Can Religious Moderates Bring Reform and Make It Stick?,” Northwestern Journal of International Human Rights 5, no. 2(2007) 182, accessed January 24, 2014, http://scholarlycommons.law.northwestern.edu/njihr/vol5/iss2/2. 23 The Egyptian personal law was reformed several times in 1979 to grant the woman the ability to divorce her husband by financial compensation. The law was later repealed by the Egyptian Parliament in 1980. The Egyptian personal law was then reformed in 2000. See Amira El-Azhary Sonbol, “Law and Gender Violence in Ottoman and Modern Egypt,” in Women, the Family, and Divorce Law in Islamic History, ed. Amira El-Azhary Sonbol (Syracuse, N.Y: Syracuse University Press, 1996), 284; Marwa Sharafeldin, “Egyptian Women’s Rights NGOS Personal Status Law Reform between Islamic and International Human Rights,” Gender and Equality in Family Law: Justice and Ethics in the Islamic Legal Tradition, ed. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe, 127-152 (London: I.B. Tauris, 2013), 58; Ibrāhīm, 24-39; El-Alami, 4-6; Ibrāhīm, 24-39; Aziza Hussein, “Recent Amendments to Egypt’s Personal Status Law,” in Women and the Family in the Middle East New Voices of Change, ed. Elizabeth Warnock Fernea (Austin: University of Texas Press, 1985), 229-232; al-Bashrī al-Shurbajī “Mushkilāt al-zawāj,”eastlaws.com, accessed January 21, 2014, http://previous.eastlaws.com/Uploads/Morafaat/124.pdf. See also al-Bashrī al-Shurbajī “Mushkilāt al- zawāj,”eastlaws.com, accessed January 21, 2014, http://previous.eastlaws.com/Uploads/Morafaat/124.pdf. 98 individuals who wrote on the Egyptian PSL is the Egyptian intellectual Muḥammad Abū Zahrah

(1898-1974).24 One of the most cited intellectuals in the Arab world, Abū Zahrah lectured throughout the Arab world on various Islamic topics, particularly marriage and divorce.25 He wrote on Egyptian personal law, Islamic law, theology, rituals, and other religious topics. In his lifetime Abū Zahrah published a number of scholarly articles and authored more than sixty books on various topics related to Islam.26

When considering the law of personal status in the Arab-Muslim states, the first thing one might observe is the elimination of the fiqh term for marriage, “ ikāḥ” and its replacement with the new term “zawāj.” Intellectual Arabs did not have a firm definition of zawāj. While there is no unified legal definition for the term, Abū Zahrah defines it as “a contract which connotes making cohabitation and collaboration between a man and a wife licit with the purpose to increase the population of the Muslim umma, preserve humanity with the aim of settling down.”27 As for the definition of wilā a, al-Shādhilī defines the wilā a as “a legal authority over another.”28 Abū Zahrah cites past jurists who maintained that guardianship (wilā a) over an individual is based on an individual’s level of disability, such as the need for protection or a lack of capacity to independently manage one’s affairs. This may be due to an individual’s status as a minor, to the fact that they are mentally challenged, or because of their gender if they are

24 Muḥammad ‘Uthmān Shubayr, Muḥammad bū ahrah imam al-fuqahā’ al-mu‘āṣirī wa-al-mudāfi‘al-jarī’ ‘a ḥaqā’iq al-dī , 1316-1394 H= 1898-1974 (Damascus: Dār al-Qalam, 2006). 25 Abū-Zahrah’s book, uḥā arāt fī ‘āqd al-zawāj wa-āthārih, is a collection of his lectures on various topics. See Muḥammad Abū Zahrah, uḥā arāt fī aqd al-zawāj wa-āthāruh (Cairo: Dār al-Fikr al- Arabī, 1971 ). 26 Shubayr, 181. 27 Abū Zahrah and others support the use of the new term zawāj by numerating some of the Qur’anic verses which mention one of the derivatives of the term zawāj. Qur’anic verse 30:21 is often cited as evidence, “And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts). See Muḥammad Abū Zahrah, al-Aḥwāl al-shakhṣī ah (Cairo: Dār al-Fikr al- Arabī, 1957? ), 18-19; Abū Zahrah, 1972, 43; Badran, 1994, 9-11. 28 Ḥasan ‘Alī, al-Shadhilī, al-Wilā ah ‘alā al- af dirā āt muqāra a baī a al-fiqh al-Islāmī wa-al-qā ū (Cairo: Dār al-Ṭibā ah al-Muḥammadīyah, 1979), 4-5. 99 female.29 Jurists according to Abū Zahrah divided the wilā a into two types: guardianship of coercion (wilā a ijbārī a) and guardianship of choice or partnership (wilā a ikhti ārī a or wilā at al-sharika).30 The former is a guardianship where the walī alone may coerce his ward into marriage without any shared decision from anyone else. The guardianship of choice or partnership is a dominion over the adult woman in which the walī shares in a decision with the adult woman in question.31 Abū Zahrah is of the opinion that one of the conditions of conducting a marriage contract is that the contractor must have the capacity to execute its demands.32 The contractor, his representative (wakīl), or a walī must be legally competent.33 Adhering to the

Ḥanafī madhhab, Abū Zahrah believes that an adult woman may conduct her marriage and may not be coerced into marriage.34 He also maintains that, because marriage is a contract with wide ramifications in that it brings with it the family of the bride or groom, it is recommended that a woman allow a walī to conduct the contract, though her consent is necessary.35 Because of the serious nature of the contract, the marriage of an adult woman, according to Abū Zahrah, was entrusted to a male walī from the agnates of the woman being married. To support his opinion,

Abū Zahrah discards the opinion of Abū Ḥanīfa and follows the Mālikī jurist al-Qarāfī (d.

684/1285) instead. Al-Qarāfī was of the opinion that the marriage contract is different from that

29 Muḥammad Abū Zahrah, al-Wilā ah alā al-nafs (Beirūt: Dār al-Rāʼid al- Arabī, 1970 ), 19. For an excellent study on the meaning of wilā a see Muhammad Khalid Masud, “Gender Equality and the Doctrine of Wilaya,” in Gender and Equality in Family Law: Justice and Ethics in the Islamic Legal Tradition, ed. Ziba Mir-Hosseini, Kari Vogt, Lena Larsen and Christian Moe (London: I.B. Tauris, 2013), 127-147; Kecia Ali, “Marriage in Classical Islamic Jurisprudence,” in The Islamic marriage contract: case studies in Islamic family law , eds. Quraishi, Asifa, and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008), 14-15. 30 Abū Zahrah, 1970, 123; Masud, 2013, 128-130. 31 Ibid. 32 Abū Zahrah, 1970, 121. 33 Ibid. 34 Abū Zahrah, 1957, 146-48; Lynn Welchman, B d th C d u lim amil aw a d th Sharī‘a Judi iar i the Palestinian West Bank (Hague: Kluwer Law International, 2000), 125. 35 Abū Zahrah, 1957, 141, 147-148. 100 of the commercial contract.36 Citing al-Qarāfī, Abū Zahrah states that the vulva of the woman is much more important than financial assets, since the value of preserving a woman’s chastity is greater than that of any financial transaction.37 “The loss of a woman’s chastity, according to

Abū Zahrah, does not only affect the woman, but it also affects the reputation of her male walī .

The walī ’ reputation will be permanently tarnished if the woman was to marry a man of a lesser social status and/or without the consent of her walī.”38 However, despite Abū Zahrah’s opinion regarding the woman’s role in contracting her marriage, he was a proponent of codifying Islamic family law. Not only did he defend Egypt’s new PSL locally, he also traveled throughout the

Arab-Muslim states lecturing on the topic.

The following pages list some of the Articles that pertain to the marriage contract as it was first published under the Egyptian PSL. In 1923, Article 56 of the Egyptian PSL was published to limit the walī’ authority to marry off their minor wards. The Article states that the court will not hear any marital claims from a married couple if the husband and wife did not reach the age of eighteen and sixteen lunar years respectively at the time of the contract.39 The

Article also states that a court will not approve a marriage below the specified minimum age.40

According to Abū Zahrah, the law was immediately criticized by many ‘ulamā’ and scholars alike, primarily because it ignored the opinion of the majority of jurists and instead relied on the

36 Abū Zahrah, 1957, 148. For the opinion of al-Qarāfī see, Aḥmad b. Idrīs al-Qarāfī, itāb al- urūq a wār al- burūq fī a wāʼ al-furūq (Cairo: Dār al-Salām, 2001), 3: 916, no. 1978-1980. 37 Abū Zahrah, 1957, 148; al-Qarāfī, 3: 916, no. 1978-1980. 38 Ibid. 39 This means that for the court officer to register a marriage claim, the couple must not have been married before both spouses had reached the minimum age stipulated by the new personal law. See Sha‘bān, 125-126; Ezzat, 42. 40 Abū Zahrah, 1957, 13, 142; Aḥmad Ḥu arī, al- ḥwāl al- hakhṣī ah 1, al-Wilā ah. , al-Wiṣā ah.3, al- alaq (Maktabat al-Kullīyāt al-Azharīyah, 1968), 20-21; Muḥammad, al-Dijwī, al-Aḥwāl al-shakhṣī ah lil-Miṣrī ī al- u limī fiqha wa-qa āʼa , dirā ah taḥlīlī ah muqāranah bi-al-ta hrī āt al- rabī ah (Cairo: Maṭba at Dār al- Nashr lil-Jāmi āt al-Mi rīyah, 1969), 41;Umar ‘Abdallah, ḥkām al- harī ah al-I lāmī ah fī al-aḥwāl al- hakhṣī ah ( al-Iskandarīyah : Dār al-Ma ārif, 1968), 104; Bultājī 1973, 46; Badrān, 74; ‘Abd al-Salām Fīqhū, Aḥkām al-fiqh al-I lāmī al-‘amalī ah fī ma ā’il al-aḥwāl al-shakhṣī ah (al-Rabāṭ :Bābīl, 2000), 1: 85; Esposito, 50; Lynn Welchman, Women and Muslim Family Laws in Arab States : A Comparative Overview of Textual Development and Advocacy ([Amsterdam] : Amsterdam University Press, 2007), 62; J. N. D. Anderson, 1955, 38. 101 minority jurists’ opinions, like those of ‘Abd Allāh b. Shubruma, ‘Uthmān b. Muslim al-Battī, and Abū Bakr al-A amm.41 The idea that a minority opinion might prevail over the majority came as a surprise to many since early marriage (below the age of bulūgh) was common in Egypt and the rest of the Arab-Muslim regions. Further, to select the opinion of the above three independent jurists who did not belong to a certain madhhab was unprecedented at the time, and many of the ‘ulamā’ objected to relying on their opinions while neglecting the rulings of the four

Sunni madhāhib.42 This was the beginning of challenging the consensus of the madhāhib as well as the weakening of the religious institutions which teach these madhāhib, such as al-Azhar

University.

To insure that people followed the new law, the Egyptian government published a new penal code in the same year to reduce and eventually eliminate the coercion of minors into marriage. Article 44 criminalizes anyone who participates in falsifying of documents in the marriage of minors. The Article states that the court will punish anyone who collaborates to provide false evidence in order to deliberately misrepresent the age of minor spouses with two years in prison and a fine not to exceed one-hundred Egyptian pounds.43 Further, the law penalizes any official or state employee who participates in falsifying marriage documents with the knowledge that at least one of the spouses in question is under the age of marriage with two years imprisonment and a fine of two-hundred pounds.44 Over time laws, according to many

Arab intellectuals, helped reduce the occurrence of marriages involving minors, though they

41 Abū Zahrah, 1957, 13; 1979, 123; al-Dijwī, 1: 16-17, 1: 41; Bultājī, 1973, 46; Muḥammad Bultājī, irā āt fī ‘aqd al-zawāj ( Cairo : Maktabat al-Shabāb, 1992), 166; Zakarīyā, al-Barrī, al-Aḥkām al-a ā ī ah lil-usrah al-I lāmī ah fī al-fiqh wa-al-qā ū (Cairo: Ma had al-Dirāsāt al-Islāmīyah, 1974 ), 74-75; J. N. D. Anderson, Law reform in the Muslim world (London: Athlone Press, 1976), 50; Ḥasab Allāh, 79. 42 Al. Dijwī, 1: 41. 43 Abū Zahrah, 1957, 140; Badrān, 1967, 75; ‘Abd Allāh, 104-105. 44 Badrān, 1967, 75. 102 were not completely eliminated.45 In 1931, a new law was written in order to reform Article 56.

Article 99 of law 78 states in paragraph five that “the petition for marital claims will not be heard by the judge if the two spouses or one of them did not reach the minimum specified age of marriage at the time of the court petition—eighteen and sixteen Gregorian years for men and women respectively—except by an order from a judge .”46 The law engendered a wave of criticism from the Egyptian society which saw it as a threat to their custom of early marriage.

While the law was intended to reduce and ultimately ban the marriage of minors, people mostly ignored it since it did not prevent the marriage of minors but only discouraged the petition of any marital claims of minor spouses. The new law did not restrict the walī’ right to his minor children nor did it invalidate the marriages of minors.47 In addition, as discussed in chapter one the marriages of minors that were conducted with the consent of a walī are religiously valid according to the five Islamic schools of law. For these reasons, people did not stop marrying off their minor daughters.48 In fact, people began hiding the birth certificates of minors and instead produced false testimonies and fraudulent certificates “estimating” the age of minor girls in order to contract them in marriage.49 There was, however, some reduction in minor marriages.50 In addition, a new Article was published to ensure that the marrying couple had at least reached bulūgh. Article 19 (a) states that having reached bulūgh is a condition for the capacity of marriage. The marriages of minors who had not yet reached bulūgh when married were,

45 Badrān, 1967, 75; al-Barrī, 74-75. 46 Abū Zahrah, 1957, 141-142; Ḥu arī, 20-21; Ibrāhīm, 129; Badrān, al-Fiqh, 1967, 77; Esposito, 2001, 50; Sha‘bān, 126-127; Dijwī, 1: 43; ‘Alī Ḥasab Allah, al- awāj fī al- harī‘ah al-I lāmī ah ( Cairo: : Dār al-Fikr al- Arabī, 1971), 79; Adel Azer, “Law as an Instrument for Social Change: An Illustration from Population Policy,” in Law and social change: problems and challenges in contemporary Egypt, ed. Cynthia nelson and Klaus Friedrich Koch (Cairo: American University of Cairo, 1979), 64-65;Welchman, 2007, 62.Today, this law is under Article 17 of the Egyptian Personal Law after its reform in 2000, no. (1). See al-Bashrī al-Shurbājī “Mushkilāt al- zawāj,”eastlaws.com, accessed January 21, 2014, http://previous.eastlaws.com/Uploads/Morafaat/124.pdf. 47 Al-Barrī, 75. 48 Sha‘bān, 126-127; al-Dijwī, 42. 49 Sha‘bān, 126-127; al-Dijwī, 42; Azer, “Law as an Instrument for Social Change,” 64-65. 50 Sha‘bān, 126-127. 103 therefore, considered void.51 In addition, the Egyptian PSL published the following Articles regarding marriage guardianship: Article 23 (a) states that the walī of a woman who is between the age of bulūgh and the age of financial rushd, or twenty-one Gregorian years of age, must be from the male agnates of the woman according to the inheritance law;52 Article 23 (c) states that the adult male who passed the age of bulūgh may marry himself without a walī;53 Article 24 (b), states that if a woman contracted her marriage after the consent of her walī was given, the marriage is valid, but if one of the spouses contracted the marriage without the other’s consent, the marriage is not valid until the other gives consent;54 Article 25 states that if her walī refuses to consent, a woman may petition the judge.55 These laws were a topic of debate among Egyptian and Arab intellectuals alike.

Muḥammad al-Dijwī was among the minority Egyptian intellectuals who wrote on the

Egyptian Personal Law and criticized some of its newer articles.56 A contemporary of Abū

Zahrah, al-Dijwī was a judge who later headed the court of appeals and was eventually appointed chancellor.57 Al-Dijwī was one of the intellectuals in favor of codifying Egyptian Islamic law and reforming the Ottoman Law of Family Rights (OLFR) established in 1917.58 Al-Dijwī criticized the OFRL, accusing the Ottoman government in Egypt of contributing to the closing of the gate of ijtihād.59 He goes on to say that the Ottoman government first limited the legal work

51 Al-Dijwī, 1: 43. 52 Ibid., 1: 48. 53 This is in accordance with Islamic jurisprudence, Sunni and Shī‘ī alike. 54 Al-Dijwī, 1: 49. 55 Ibid. 56 Al-Dijwī is a contemporary of Abū Zahrah. 57 Al-Dijwī, 1: introduction. Abū Zahrah’s passed away in 1974. 58 On the Ottoman Law of Family Rights (OLFR) see Tucker, 2008, 20. 59 Dijwī, 1: introduction. 104 to the four Sunni madhāhib and then restricted it to the Ḥanafī madhhab.60Throughout the years, says al-Dijwī, Muslims remained prisoners to the old fiqh, which was legislated centuries ago and related to them through numerous narrations which lacked a unified opinion.61

Al-Dijwī criticized the committee that oversaw the law for not including women, saying that the new codified law governed not just individuals, but the entire family.62 Al-Dijwī was also critical of the OFLR for permitting polygyny and for using the Ḥanafī madhhab, saying that madhhab included far too many opinions which make rulings difficult and confusing.63 He brought forth the example of the Egyptian politician Sa‘d Zaghlūl (d. 1927), who refused to stand in front of the high court of Sharī‘a because there were too many opinions within the madhhab which confuse judges and lawyers alike.64 Al-Dijwī also criticized Abū Ḥanīfa and other madhāhib for permitting the coercion and marriage of minors.65

Unlike other intellectuals, al-Dijwī defines guardianship (wilā a) as legal representation.

The walī to him is strictly a legal representative, or one who is appointed by the court.66 Al-Dijwī argues that Egyptian law maintained the wilā a over a woman between the age of bulūgh and the age of rushd, while excluding the wilā a over a man after his bulūgh.67 Another restriction placed on adult women is the stipulation of kafā’a, which states that the husband must be of the same social status as his wife and determines a woman’s dower according to the Ḥanafī madhhab. Al-Dijwī maintains that while Article 23 (c) of the Egyptian PSL states that a sane

60 Al-Dijwī, 1: introduction; Amira El-Azhary Sonbol. “Adults and Minors in Ottoman Sharia Courts and Modern Law,” in Women, the Family, and Divorce Law in Islamic History, ed. Amira- El-Azhary Sonbol (Syracuse, N.Y: Syracuse University Press, 1996), 254. 61 Ibid. 62 Al-Dijwī, introduction. 63 Ibid. 64 Ibid. 65 Ibid. 66 Ibid. 67 Ibid. 105 adult male does not require a walī to conduct his marriage contract, an adult woman on the other hand does not have the right to contract her marriage until she has reached the age of twenty-one.

According to al-Dijwī, the new law (Article 19 and then Article 88) did not resolve the custom of early marriage in remote regions of Egypt. The resolution, according to him, is to make the minimum age of marriage (eighteen for men and sixteen for women) a condition for contracting a marriage rather than a prelude for hearing marital claims. Minor marriages

(individuals below the codified age of marriage) were not eliminated when the minimum age law was published, says al-Dijwī. Instead, people falsified medical records and provided false testimonies to marry off minor wards.68 Comparing the newly codified Egyptian PSL to that of other Arab states, al-Dijwī suggests that Egypt follow other Arab states by raising the minimum age of marriage and by refusing to permit minors to marry except in dire situations, such as those outlined by Tunisian personal law.69 Al-Dijwī was among the minority of intellectuals who challenged past jurists’ ijmā‘ and advocated for wider agency for women in Egyptian PSL. He also called for male legislators to include women in committees responsible for codifying

Egyptian PSL. Al-Dijwī did not consider granting women their due rights to be a challenge to

Islamic traditions nor did he see it as a threat to Egyptian identity, but rather as an integral part of improving the lives of women in an Egyptian Islamic society.

68 Al-Dijwī, 1: 41-43; Azer, 64-65. The term minor now took on a different meaning. A minor is an individual who may have reached the age of bulūgh but did not reach the state’s legal minimum age of marriage. 69 Al-Dijwī, 1: 43-45. See also Azizah al-Hibri who agrees with al-Dijwī that the Egyptian law indirectly restricted women from contracting their own marriage. Azizah al-Hibri, “Islamic Law and Custom: Redefining Muslim Women's Rights,” in Women and international human rights law, ed. Kelly D. Askin, Dorean M. Koeni (Ardsley, N.Y: Transitional, 1999 <20001>), 3: 392-393. 106

Opposition to the Newly Codified Egyptian Personal Law

Muḥammad Bulṭājī (1939-2004) was among the individuals who opposed certain Articles within Egypt’s newly codified law. A traditionalist intellectual, al-Bultājī was appointed the head of the Sharī‘a department at al-Azhar University where he later became the dean of the college of social sciences.70 While he approves of the newly codified family law, Bultājī is concerned with the role of the walī in marriage. Bultājī recognizes that the Egyptian government followed the

Ḥanafī madhhab by allowing an adult woman to contract her walī. However, he is concerned that women may not be safe making their own choices in marriage.71 Bultājī is of the opinion that a marriage contract is unlike any other contract; it is a sacred document, as per numerous Qur’anic verses and aḥādīth concerning marriage which were revealed.72 Unlike sales contracts, the marriage contract, according to Bultājī, grants the man complete ownership of his wife and therefore makes sexual relations with her licit.73 Bultājī states that Islam took this into consideration since during the marriage contract the wife is not to appear too eager to marry in front of witnesses.74 Thus Islam preserves the dignity, respect, and honor of women and protects their reputation in society.75 To Bultājī, a woman’s eagerness to marry lessens her value in society and erases the natural shyness a woman must possess as part of her sensitive personality.76 Therefore, there must be a man—here a walī—to represent the woman in her negotiations of her marriage among men. Second, Bultājī suggests that women in such cases tend

70 Muḥammad Bultājī, irāsāt fī al-aḥwāl al- hakhṣī ah buḥūth fiqhī ah muʼaṣṣalah (Cairo: Dār al-Salām lil- Ṭibā ah wa-al-Nashr wa-al-Tawzī wa-al-Tarjamah, 2006). 71 Bultājī, 1973, 192. 72 Muḥammad Bultājī, akā at al-marʼah fī al-Qurʼā al-karīm wa-al-sunnah al-ṣaḥīḥah dirā āt muʼaṣṣalah muqāra ah mu taw abah li-ḥaqīqat ma zilat al-marʼah fī al-I lām (Cairo: Maktabat al-Shabāb, 1996 ), 478. 73 Ibid. While Bultājī may not consider the marriage contract an exchange of goods or a sales contract, others see similarities between the traditional marriage contract and sales. This was the opinion of the prominent Moroccan jurist Aḥmad al-Khamlīshī in an interview I conducted in May, 2013. 74 Ibid. 75 Bultājī, 1973, 192-193; Bultājī, 1996, 478. 76 Ibid., 1996, 478. 107 to rely on their emotions rather than their rational faculties.77 He goes on to say that, “the woman is often fast in making a commitment for anyone who may show his love or desire to marry her.

The task of the walī in this case is to investigate and examine the man proposing.”78 Like many other intellectuals, Bultājī maintains that the walī is the expert investigator and examiner who is rational, wise, and is there to safeguard her against deceiving men.79

Bultājī maintains that even Ḥanafī jurists did not grant women complete freedom in contracting a marriage. Citing the Ḥanafī jurist Ibn al-Humām, Bultājī states that Ḥanafī jurists recommended that the walī take over the marriage contract of an adult woman.80 In addition, they granted the walī the right to dissolve the marriage if the woman married a man of lesser social status.81 Bultājī goes on to say that marriage in Islam creates a new relationship not only among the couple, but also among the two families.82 He maintains that the walī must have an opinion on whether or not to accept the family of a potential husband.83 “It is common that women are usually swayed by deceitful dishonest men who may appear to be honest but once the marriage is contracted, women find out the ugly truth about these men. Such marriages often reflect negatively on the reputation of the family and bring dishonor and shame to the walī and to the rest of the woman’s family.”84 Bultājī affirms that the wilā a over women is not guardianship from coercion, nor an authoritarian role as some pro-Western Muslims may

77 Bultājī, 1973, 192-193; Bultājī, 1996, 478. 78 Bultājī, 1973, 193. 79 Bultājī, 479. 80 Bultājī, 1973, 193; Bultājī, 1996, 479. For the opinion of the Ḥanafī jurists see Ibn al-Humām, 3: 255-60. 81 Bultājī, 1973, 193; Ibn al-Humām, 3: 255-260. The Ḥanafī opinion is also cited in El-Alami, 59-60; Esposito, 1982, 15, 21; Lama Abu-Odeh, “Modernizing Muslim Family Law: the case of Egypt,” George Town Law Center, accessed January 28, 2014, 1068-69, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1031&context=facpub. For more on the right of an adult woman to marry in Ḥanafī madhhab see chapter one. 82 Bultājī, 1973, 193. Halim Barakat affirms Bultājī’s statement that marriage is a relationship between two families. See Halim Barakat, “The Arab Family and the Challenge of Social Transformation,” in Women and the Family in the Middle East, ed. Elizabeth Warnock Fernea (Austin: Texas University Press, 1985), 38. 83 Bultājī, 1973, 193. 84 Ibid. 108 suggest. The wilā a of men, he says, is in place for the interest and benefit of women.85 To support his position, Bultājī numerates several aḥādīth which call for the consent of the woman and her walī to ensure a long lasting marriage, providing that the walī represent her in contracting her marriage. To him, the consent of the woman may be a silent consent, following the rest of the jurists.86

However, Bultājī admits that, unlike daughters, sons are free to make their own decisions without the oversight of a walī. “Sons do not bring such shame and dishonor to their families since men are in charge of women,” he says.87 Bultājī cites Qur’anic verses to support his argument that men are naturally able to take on more responsibilities than women.88 He asserts that “men are naturally able to differentiate between decisions and opinions.”89 Bultājī is vehemently against women calling for gender equality—a fact made clear when he criticized a women’s conference headed by female former minister Ḥikmat Abū Zayd in Egypt in 1967. In this conference women called for officials to strip men of their unilateral right of divorce, and instead asked that the family judge make the final decision in matters of divorce. This enraged many religious organizations and individuals in Egypt, including Bultājī.90 Bultājī is also critical of Dijwī’s supportive position on women’s rights. He criticizes Dijwī for breaking away from the

85 Ibid. 86 Bultājī, 1973, 194; Bultājī, 1996, 482-83. 87 Bultājī, 1973, 194. 88 Bultājī cites the Qur’anic verse 2: 228, which states, “And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them,” and the verse 4: 34 which also states that, “men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means.” Bultājī, 1973, 550. 89 Bultājī, 1973, 550. 90 Muḥmmad Bultājī, akā at al-marʼah fī al-Qurʼā al-karīm wa-al-sunnah al-ṣaḥīḥah dirā āt muʼaṣṣalah muqāra ah mu taw abah li-ḥaqīqat ma zilat al-marʼah fī al-I lām (Cairo: Maktabat al-Shabāb, 1996 ), 164. For the opinion of Dijwī see Dijwī, 1973, 174-176. Bultājī is also critical of the Egyptian intellectual Qāsim Amīn since Amīn is of the opinion that, like men, women must also be able to initiate divorce through the Egyptian court system. Bultājī, 1996, 176-177. For the Opinion of Qāsīm Amin see, Amīn, 146-53 and 168-97. 109 consensus (ijmā‘) of jurists who all agreed, according to Bultājī, that divorce is a man’s unilateral right alone.91

Aḥmad al-Ḥu arī—a professor of Comparative Jurisprudence at the College of Sharī‘a in al-Azhar—was one of many Arab traditionalist intellectuals who opposed the codification of

Islamic law. He criticized the new Egyptian law since it did not mention the marriage of minors that were deemed insane. He emphasizes that walīs maintained their right to marry insane minors as the right to do so was in place prior to the codification of the Egyptian PSL.92 In addition, al-

Ḥu arī argues that the newly reformed law did not strip walīs of their rights to marry their wards.93 “The wilā a is the right of the walī , and no one else but God may restrict or resend it” says al-Ḥu arī.94 Therefore, the walī , according to al-Ḥu arī, may coerce minors into marriage using the common local custom of oral contracts.95 Al-Ḥu arī maintains that the newly codified law, which specifies a minimum age for marriage, is there to urge people to register their marriage and to discourage early marriage since minors are not able to carry the burden and responsibility of marriage like adults.96 However, al-Ḥu arī admits that minor marriages are on the decline after the issuance of the new laws.97

The Egyptian Arab traditionalist and intellectual Aḥmad Ibrāhīm (d. 1945), also opposes the codification of an age of marriage as well as the restriction of the walī’ authority in marrying off minors. Ibrāhīm defines the wilā a as imposing one’s authority over another regardless of the other’s wishes or responses.98 In other words, he sees the wilā a as an authoritarian position. Like many other intellectuals and ‘ulamā, Ibrāhīm criticizes the minimum

91 Bultājī, 1996, 164-66. 92 Al-Ḥu arī, 22. 93 Ibid. 94 Ibid. 95 Ibid. 96 Ḥu arī, 22-23. 97 Ibid., 22. 98 Ibrāhīm, 130. 110 age law established in Egypt in 1923. To him, this law only prevented family courts from hearing any marital claims which might arise from a married couple without addressing the issue of the potential coercion of those minors into their marriage.99 Therefore, if the walī married off his ward, no one could object to the marriage since his right to contract it had been granted to him not only by Islamic law, but also by the newly codified law.100 In addition, Ibrāhīm is of the opinion that Islamically, any walī may coerce his minor ward into marriage even though the new law does not support this Islamic interpretation.101 As for the marriages of adult women, Ibrāhīm admits that they are among the most complex contracts to conduct due to the numerous varied opinions among jurists.102 While he recognizes that the Egyptian law followed Abū Ḥanīfa’s madhhab in permitting an adult woman to contract her own marriage, he disagrees with this law and sides with the Andalusian Zāhirī jurist Ibn Ḥazm, who is of the opinion that an adult bikr woman requires a walī to contract her marriage in order to preserve her dignity and honor.103

Muḥammad Sallām Madkūr, who was the head of the college of law at al-Azhār

University, maintains that the Egyptian PSL banned the marriage of minors and forbade the contracting of minors into marriage.104 Although the Egyptian law did not prevent minors from marrying, he maintains that the law eliminated the marriages involving minors. Unlike many intellectuals, Madkūr states that Article 23 (a) of the Egyptian PSL relied on the opinion of the

Ḥanafī jurist Muḥammad b. al-Ḥasan al-Shaybānī with regard to the marriages of adult women who had reached bulūgh but were below the age of rushd.105 In these cases, Madkūr says that a

99 Ibid., 129. 100 Ibid., 129. 101 Ibid., 141. 102 Ibid., 147-49. 103 Ibid., 147-48. For the opinion of Ibn Ḥazm, see Ibn Ḥazm, al-Muḥallā, 11: 23-30. 104 Madkūr, 1: 27. 105 Madkūr, 105. 111 marriage contract requires the consent of a male walī.106 He argues that by maintaining this standard the legislature aims to protect women from deceptive men and their own quick, irrational emotions which might cause them to fall into immorality.107 This also preserves the reputation of the woman’s family by preventing the woman from rushing into a decision without consulting a walī.108 To Madkūr the decision to require a walī is the right one since it guarantees the woman a long-lasting marriage so long as the walī does not abuse his authority over her.109

However, after reaching the age of rushd, the Egyptian law followed Abū Ḥanīfa’s madhhab and granted women complete freedom in contracting marriages without the need for a walī.110

Egyptian traditional intellectual and writer Muḥammad al-Aḥmadī Abū al-Nūr (b. 1930), also took a stance against restricting the role of the walī.111 Abū al-Nūr holds two doctorates; one from al-Azhar University in Egypt, the other from Muḥammadīyah University in Indonesia.112

Abū al-Nūr also served as a professor of ḥadīth at al-Azhar University and was appointed to the

Ministry of Endowments in Egypt.113 Abū al-Nūr also authored several books on Islamic law and theology.114 Like many other intellectuals, he is of the opinion that the walī exists to help and support a woman in her marriage so she may avoid becoming emotional and irrational, which could lead her, without his help, to make the wrong decision.115 Abū al-Nūr argues in favor of preserving of the role of the walī as much as possible. To him, the presence and consensus of a

106 Ibid. 107 Ibid. 108 Ibid. 109 Ibid., 106. 110 Madkūr, 106. 111 Muḥammad al-Aḥmadī Abū al-Nūr, Manhaj al- u ah fī al-zawāj (Cairo: Dār al-Turāth al- Arabī 1972 ), 99- 159. 112 See “al-Qur’ān fī Hayatihim,” al-Fajr TV Station, accessed January 14, 2014, https://www.youtube.com/watch?v=3EwyIV0l_4Q. 113 See “al-Qur’ān fī Hayatihim,” al-Fajr TV Station, accessed January 14, 2014, https://www.youtube.com/watch?v=3EwyIV0l_4Q. 114 “Al-Daktr Aḥmdī Abū al-Nūr,” maghress, accessed January 14, 2014, http://www.maghress.com/almithaq/2773. 115 Ibid., 156. 112 walī is an integral part of the marriage contract and, without it, the marriage is void.116 Obtaining the consent of the woman, according to Abū al-Nūr, is merely a way to preserve her dignity and show her respect.117 Abū al-Nūr enumerates several aḥādīth and Qur’anic verses to support his stance for the necessity of the walī in marriage.118 In his eyes a woman may not contract her own marriage. However, her consent—and her signature on the actual contract—is necessary and an integral part of the contract.119 He therefore opposes the Ḥanafī madhhab, which allows a woman to contract herself into marriage without a walī. To him, the evidence in favor of requiring the presence and consent of a walī is overwhelming and all indicate the necessity of the walī in marriage.120 Abū al-Nūr also is of the opinion that minors should be allowed to be coerced into marriage even though Egyptian law has discouraged and banned this practice since the early part of the twentieth-century.121

This section of the chapter succeeded in demonstrating that not all traditionalists have the same opinion. While some supported the new law which specified a minimum age of marriage, others opposed this reform. Most traditionalists, however, called for preserving the role of the walī in marriage for various reasons. Almost all agreed that the walī is there to protect and preserve the dignity of the woman. In addition, they also claimed that, due to women’s emotional and irrational natures, a man (who according to them is rational and capable of making better decisions) is better suited to make the decision for a woman. It seems that these traditionalists wanted to preserve the long standing custom of having a male walī act as a decision maker for his female ward. Believing that the role of the walī is inherent in Islamic Sharī‘a, traditionalists

116 Abū al-Nūr, 99. 117 Ibid., 100. 118 Ibid., 101-58. 119 Ibid. 120 Ibid., 155-56. 121 Ibid. 113 also wanted to preserve the Islamic Sharī‘a as they understood it to include jurists’ opinions. Put differently, traditionalists who wanted to protect and preserve Islamic society in Egypt presented the walī as a protector of the Muslim woman in order to preserve a crucial aspect of the identity of Islamic society while relying on past jurists’ authority. Minority Egyptian intellectuals, on the other hand, while seeking to preserve Islamic society, saw the role of the walī as restricting women’s agency and the progress of Islamic society as a whole. To provide women with wider agency so they might become independent of men, they proposed raising the minimum age of marriage and eliminating the role of the walī completely. To argue against the role of the walī and in favor of raising the minimum age of marriage, minority intellectuals had to look back to the opinions of minority jurists Ibn Shubruma, al-A amm, al-Battī, and Abū Ḥanīfa in order to ground their argument in Islamic tradition and to counter the consensus of past jurists.

New Liberal Voices

‘Ali Ḥasan al-Shādhilī (b. 1924), a traditionalist and a professor of comparative fiqh at the college of law and Sharī‘a at Cairo University, sides with Abū Ḥanīfa’ regarding the wilā a of adult women. To him, though an adult woman may contract her marriage, it is recommended that she appoint a male walī to preserve the dignity of woman from mixing with men at the time of the marriage contract.122 The walī also has the right to object to the marriage, according to al-

Shādhilī.123

Al-Shādhilī defines forced guardianship (wilā at al-ijbār) as an absolute and oppressive authority where the guardian is able to exercise his authority in order to coerce his ward into

122 ‘Alī, Ḥasan, al-Shādhilī, Wilā ah al al-nafs: dirā ah muqāra ah ba a al-fiqh al-I lāmī wa-al-qā ū (Cairo: Dār al-Ṭibā ah al-Muḥammadīyah, 1979), 288. 123 Al-Shādhilī, 288. 114 marriage.124 Al-Shādhilī maintains that jurists agreed that the wilā a of coercion is the result of disability, deficiency, and incapability of the ward, as well as the result of the ward’s lack of experience with men, which calls for such authority.125 The wilā a could also be instituted in response to the individual’s age, mental capabilities, or gender.126 Since marriage is a contract conducted based on the approval of the parties engaged, the contracts therefore, must also be based on the consensus of the two parties involved.127 Al-Shādhilī states that, due to a minor’s lack of physical and mental capability to conduct a marriage contract, the marriage of a minor should be considered void. To al-Shādhilī, the marriage contract is one of the most unique and serious contracts because of the risk of danger inherent in such a contract.128 Therefore, al-

Shādhilī does not permit contracting minors into marriage. To support his argument he cites the opinions of ‘Uthmān al-Battī, Ibn Shubruma, and the Ibāḍya sect, all of whom rejected the coercion of minors.129 These jurists, according to al-Shādhilī, considered the Prophet’s marriage to ‘ ’isha to be specific to him only.130 Second, these jurists maintained that the wilā a of coercion is not required for minors since minors have no need for marriage—they do not reproduce nor do they feel the need to do so. 131 Third, the three jurists claimed that, according to the Qur’anic verse 4: 6, the bulūgh is the demarcation which differentiates a minor from an adult.

Therefore, it is not permitted to marry a minor before reaching the age of bulūgh.132 Finally, al-

124 Ibid., 270. 125 Ibid. 126 Al-Shādhilī, 275; Ali, 2008, 14-15. 127 Al-Shādhilī, 2711. 128 Ibid., 270-271 129 Ibid., 272. 130 Al-Shādhilī, 272. See Muḥammad ibn Yūsuf Aṭṭafayyish, Sharḥ kitāb al-Nīl wa- hifāʼ al- alīl ([Muscat]: Salṭanat Umān, Wizārat al-Turāth al-Qawmī wa-al-Thaqāfah, 1986-<1989 >), 6: 80. 131 Ibid. 132 Ibid., 273; Masud, 2013. The Qur’anic verse states, “Make trial of orphans until they reach the age of marriage.” 115

Shādhilī is of the opinion that a coerced marriage may bring with it more harm than benefit, particularly when the coerced couple detests one another.133

Al-Shādhilī argues that Muslim jurists who approve the marriage of minor girls base their ruling on Qur’anic verse 65: 4, which states, “Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same).” Jurists who approve of this type of marriage considered minors eligible for marriage, maintaining that the waiting period of a minor is similar to that of a woman who passed menopause—three months.134 Jurists also took the marriage of

‘ ’isha at the age of nine to the Prophet as strong evidence in support of the marriage of minors.135 Al-Shādhilī states that Muslim laymen and legal jurists consider the Prophet the perfect individual to emulate, supporting their claim with Qur’anic verse 33: 21, which states

“Ye have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day.”136

Al-Shādhilī, on the other hand, sides with the three jurists previously mentioned who forbade the marriage of minors. He considers the marriage of the Prophet to ‘ ’isha’ as specific to him only.137 Al-Shādhilī states that the prophet was the only individual who may marry

133 Ibid., 273. 134 Al-Shādhilī, 275. 135 Al-Shādhilī cites al-Shawkānī, who recorded the ḥadīth attributed to ‘ ’isha in which she states that she was “contracted to the Prophet at six and married to him at the age of nine.” The ḥadīth could be found in Muḥammad b. ‘Alī al-Shawkānī, Nayl al-awṭār mi aḥādīth a id al-akh ār (Cairo: Maktabat al-Qāhirah, 1978), 7: 285. The ḥadīth could also be found in al-Bukhārī. See Aḥmad b. Alī b. Ḥajar al- Asqalānī, atḥ al-bārī harḥ Ṣaḥīḥ al- Bukhārī (al-Riyāḍ: Maktabat dār al-Salām, 1997), Bāb inkāḥ al-rajul waladahū al- ighār,” 9: 238, no. 5133. For the story of the marriage of ‘ ’isha to the prophet see, Leila Ahmed, Women and Gender in Islam: Historical Roots of Modern Debates (New Haven [Conn.]: Yale University Press, 1992), 51-52; Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, Mass: Harvard University Press, 2010), 76. 136 Ali, 2010, 76; Kecia Ali, ""A Beautiful Example": The Prophet Muḥammad as a Model for Muslim Husbands," .Islamic Studies 43 (2): (summer, 2004), 273-291. 137 Al-Shādhilī states that the prophet had certain acts that are specific to him only, his marriage to more than four women, his marriage without dower and marrying ‘ ’isha when she was a minor. Al-Shādhilī, 275. See also Ali, “A Beautiful Example,” 2004, 280-282, 284. 116 minors.138 He supports his opinion by providing a ḥadīth where the Prophet said to ‘ ’isha that he had a dream where God ordered him to marry her.139 To al-Shādhilī, this was a true and accurate vision which defined this type of marriage as specific only to the Prophet since the dream was a divine order to the Prophet alone.140 In addition, al-Shādhilī interprets the term bikr to mean women in general—minors and adults—in the Prophet’s ḥadīth which states that “the father must ask the bikr for her consent [in marriage .” Because minors are deficient in judgment, their consent is not considered until they reach the legal age of marriage.141 Regarding the interpretation of verse 65: 4, al-Shādhilī maintains that the verse revealed the waiting period of women and did not permit the marriage of minors.142 Al-Shādhilī also refutes the argument of jurists who claim that a minor must be married since the opportunity of finding a qualified husband of the same social status (kufu’) may not reoccur. To him, this argument is invalid since an older man does not qualify to marry a minor and, in most instances, such marriages often result in divorce.143

For the reasons mentioned above, al-Shādhilī does not permit the marriage of minor girls unless there is an extreme necessity, and even then only with the permission of a judge, provided that the girl is close to the age of bulūgh.144 Aware that some of the past jurists have agreed on either the first sign of bulūgh or the ages of fifteen for boys and nine for girls as the legal age of marriage, al-Shādhilī does not share these opinions.145 To Al-Shādhilī, the appropriate age for

138 Al-Shādhilī, 275. 139 Ibid., 275. 140 Ibid. 141 Ibid., 276. 142 Ibid. 143 Ibid,. 275. 144 Ibid,. 275-78. 145 Al-Shādhilī cites the Ḥanafī and Mālikī opinions which named several ages for the legal age of marriage. While some agreed that fifteen is the appropriate minimum age for marriage for boys and girls, others considered eighteen appropriate for boys and seventeen acceptable for girls. Al-Shādhilī, 290-91. 117 marriage in both men and women is eighteen.146 He reasons that bulūgh alone is not sufficient enough for marriage: “while bulūgh might be the first signs of competency, complete competency is not reached by the bulūgh alone.”147 To him, the period of bulūgh is a precarious one since men and women are in a state of transition from the age of children into adulthood. In addition, boys and girls in this stage experience several changes which influence their thinking and decision making.148 Therefore, he sides with the opinion of Abū Ḥanīfa in saying that the legal age of marriage is eighteen for boys and seventeen for girls, since this is the natural age where boys and girls experience mental stability and maturity, respectively, and they are therefore able to make rational decisions at that point.149 Al-Shādhilī refutes jurists who consider the legal age of marriage to be fifteen based on the ḥadīth attributed to Ibn ‘Umar. In it, the

Prophet rejected Ibn ‘Umar’s engagement in jihād when he was fourteen, but accepted it when he was fifteen.150 To al-Shādhilī, the ḥadīth is specific to the act of jihad and not marriage. Jihād, says al-Shādhilī, requires a certain amount of physical strength for individuals who may engage in battle, while it might require a different level of strength in individuals who help in ways other than by engaging directly in battle. Ibn ‘Umar’s role in jihād, according to al-Shādhilī, was a supportive one, standing guard or bringing water to the other soldiers.151

Al-Shādhilī approves of codifying Islamic family law in Muslim states. To him, while some states like Morocco set the minimum age of marriage for girls at fifteen, others considered the age of marriage for girls to be seventeen or eighteen.152 In addition, he agrees that most of the Arab-Muslim states have restricted the role of the walī in marriage and delegated the primary

146 Ibid., 277. 147 Ibid., 292. 148 Ibid., 292. 149 Ibid., 292. 150 Ibid., 290-291.The ḥadīth could be found in al-Bukhārī, 1996, “Bāb bulūgh al- ibīyan wa Shahādātihum,” 4: 376, no. 2399. 151 Ibid., 292. 152 Ibid., 300-301. 118 role to the judge instead.153 Most significantly, al-Shādhilī applauds the elimination of coercion in marriage (wilā at al-ijbār),154 and rejects al-Shāfi‘ī’s reasoning for marrying minor girls based on their intact virginity. He also rejects the Mālikīs’ argument in support of coercing a minor into marriage due to her lack of experience with men.155

Muḥammad al-Sayyid al-Dasūqī—another traditionalist intellectual who sees no need for a walī when contracting a marriage—is the head of Islamic jurisprudence at the college of

Sharī‘a at the University of Qatar.156 Al-Dasūqī also opposes any type of coercion in marriage and takes the minority opinion regarding the marriage of minors.157 Marriage, says al-Dasūqī, is a great responsibility and minors are not ready for such commitments.

Similarly, al-Dasūqī also opposes coercion of adult women into marriage. Al-Dasūqī states that jurists’ evidence from the Qur’ān and Sunna which is used to justify the coercion of women into marriage is not strong or clear-cut enough to render such a harsh interpretation. Al-

Dasūqī maintains that adult men and women who have reached the age of rushd are free to exercise their rights in all contracts, including the marriage contract.158 Further, the jurists’ standard reasoning behind coercing an adult bikr into marriage—her lack of experience in men— is unacceptable to al-Dasūqī.159 To him, an adult bikr is similar to an al-thayyib woman as long as she has reached the age of bulūgh. If an adult woman contracts her own marriage, according to al-Dasūqī the marriage is valid. Citing the opinion of Ibn al-Qayyim, al-Dasūqī maintains that the walī is not permitted to coerce a woman into marrying a man of whom she does not

153 Ibid., 301. 154 Ibid., 302. 155 Ibid., 277-278. 156 Muḥammad al-Sayyid al-Dasūqī, Al-Usrah fī al-tashrīʻ al-Islāmī (al-Doḥa, Qaṭar: Dār al-Thaqāfah, 1995), 8. 157Al-Dasūqī, 83. 158 Ibid., 83. 159 Ibid., 83-84. 119 approve.160 The fundamental principle of guardianship according to al-Dasūqī is a guardianship of choice (wilā at ikhtī ār), and jurists’ ijtihād that somehow justifies coercion of the adult woman into marriage is only an opinion and should not be taken as Islamic law.161 Marriage guardianship, according to al-Dasūqī, is limited in cases of extreme necessity—such as might concern individuals with disabilities if it were ever necessary for them to marry.162

However, al-Dasūqī maintains that he does not call for the woman to conclude her contract without the consent of her walī, but instead he says the contract should be decided upon with the help and guidance of the walī.163 To him, the traditions and customs of society must be taken into consideration in such cases as marriage since the marriage contract is one which brings two independent families together.164 Therefore, he approves of a walī’ right to object to the marriage of his ward if she chooses a man of lesser social status (kufu’).165 The traditionalist jurist Maḥmūd Shaltūt (d. 1963) also sides with al-Shādhilī and al-Dasūqī in the belief that a woman has the right to contract her marriage. He argues that, since she has the right to contract her commercial contracts, then she has the right to conduct her own marriage.166

Philosophy Professor Zaynab Raḍwān (1943-2013) was a female intellectual who publically advocated for the rights of women. An extremely accomplished academic and politician, her accolades and titles include member of the Shūrā Council, dean of Cairo

University, Egyptian parliament member, and member of the National Democratic Party.167

160 Ibid., 84. For the opinion of Ibn al-Qayyim, see Ibn al-Qayyim, 1979, 5: 96. 161 Al-Dasūqī, 84. 162 Ibid., 84. 163 Ibid., 84-85. 164 Ibid. 165 Ibid., 85. 166 Maḥmūd, Shaltūt, Shaltut on "the Quran and woman": (annotated English version with Arabic text) (Cairo: al- Azhar, International Islamic Center for Population Studies and Research, 1980), 11-13. 167 “Obituary: Woman of substance,” al-Ahram Weekly, accessed January 13, 2014, http://weekly.ahram.org.eg/News/2038/17/-Obituary--Woman-of-substance.aspx. “Zaeinab Radwan,” al-Ahram Weekly, accessed January 13, 2014, http://weekly.ahram.org.eg/2000/491/profile.htm. 120

Raḍwān represented Egypt in several world conferences where she called for increased rights for women and for the elimination of all forms of discrimination against them.168 Raḍwān was a member of the committee to reform the Egyptian PSL. She also authored several books and spoke against minor marriages and violence against women.169 Among the many reforms she and other committee members were working toward, restrictions on polygyny, the abolition of men’s unilateral right to divorce women in absentia, and expanding the rights of women in marriage and divorce.170 In response to men who were against her proposals, she once quipped, “Men in this country are not used to the idea that women have rights."171

Unlike some Arab-Muslim feminists, Raḍwān argues for women’s rights by supporting her position from within the Islamic tradition.172 She calls for equality between men and women with respect to their duties and responsibilities, supporting her opinion by citing various Qur’anic verses, such as 2: 102, 4: 1, 9: 71-72, 92: 3-7, and other verses which, according to Raḍwān, consider men and women as equal in front of the law.173 Therefore, both men and women, she says, are equal in terms of both receiving punishment and petitioning the court system.174 She maintains that, like men, women are required to consent in marriage but may not be coerced into it.175 Moreover, Raḍwān also states that the walī may not conduct a woman’s marriage without

168 “Zaeinab Radwan,” al-Ahram Weekly, accessed January 13, 2014, http://weekly.ahram.org.eg/2000/491/profile.htm. 169 “Obituary: Woman of substance,” al-Ahram Weekly, accessed January 13, 2014, http://weekly.ahram.org.eg/News/2038/17/-Obituary--Woman-of-substance.aspx. 170 “Redrawing Personal Status,” al-Ahram Weekly, accessed January 13, 2104, http://weekly.ahram.org.eg/2008/921/eg3.htm. 171 Zaynab, Rawḍwān, al- ar’ah ba a al-mawrūth wa-al-taḥdīth [Egypt: Al-Hay’ah al-Masriya al-Amma lil-kitāb, 2004), 80-81. 172 “Obituary: Woman of substance,” al-Ahram Weekly, accessed January 13, 2014, http://weekly.ahram.org.eg/News/2038/17/-Obituary--Woman-of-substance.aspx. 173 Raḍwān, 2004, 61-85. 174 Raḍwān, 2004, 81; Zaynab Raḍwān, al-Islam wa-qa ā a al-mar’ah ([Egypt]: al-Haīy’a al-Ma rīya lil-Kitāb, 1988), 11-19. 175Ibid, 2004, 85. 121 her consent and approval in order for the marriage to be considered valid.176 Using several prophetic aḥādīth, Raḍwān stresses that a marriage without the woman’s consent is void.177 She also suggests that the fact that jurists stipulated that the husband must be of equal status (kafā’a) to the wife, and not the other way around, meant that women are inherently equal to men.178

Raḍwān is also of the opinion that men and women must be close in age when they marry.179

This demonstrates how some of the traditionalists, though educated in religious traditional institutions, challenged these establishments and the madhāhib taught at these institutions by calling for reforms to Islamic family law. These reformists recognized the obstacle presented by past jurists’ consensus in reforming Islamic family law to grant women some of their due rights.

In addition, contrary to the common perception, we observed how traditionalists differed in their opinions and did not adhere to one monotheist doctrine. While some call for preserving the walī’s role in marriage, for example, others call for eliminating it. These individuals were paramount in influencing many of their students and others throughout the Arab world to call for the codifying of Islamic family law. In fact, Syria was among few Arab-Muslim states which were influenced by Egyptian reformists when Egypt codified its PSL in 1953.

176 Ibid. 177 Ibid. 178 Ibid. 179 Raḍwān, 1988, 59. 122

PART II

Syrian and Lebanese Intellectuals: Codifications and Reactions

On July 09, 1953 the Syrian government codified its family law through a presidential decree that came to be known as “Law No. 59”. The decree concerned itself with marriage, divorce, custody of children, legal capacity, wills, and inheritance.180 Following the Egyptian government and influenced by some of the Egyptian traditional-intellectuals, the codified Syrian family law (al-Aḥwāl al-Shakhṣī a) restricted the coercion of minors into marriage and attempted to ban the marriage of children who had not reached the age of bulūgh.181 The new

Syrian PSL also aimed at restricting the role of the walī providing the adult single woman with the right to conduct her marriage without the walī’ consensus. The following are some of the

Articles of the Syrian codified law regarding marriage: Article 15 stipulated that bulūgh and the presence of a sound mind (‘aql) are preconditions for the capacity of marriage182; Article 16 states that the full age of rushd for marriage is the completion of eighteen years of age for men and seventeen for women.183 In placing this age as a minimum age for marriage, the law according to Mu ṭafā al-Sibā‘ī followed the opinion of Abū Ḥanīfa.184 While placing the appropriate age of marriage at eighteen and seventeen for boys and girls, the Syrian Islamic

180 Maurits S. Berger, “The Legal System of Family Law in Syria,” Bulletin d'études orientales T. 49, (1997), 118; Jamal Nasir, The Islamic Law of Personal Status (London; Boston: Graham & Trotman, 1990), 32-33; Elham Manea, The Arab State and Women's Rights :The Trap of Authoritarian Governance (New York : Routledge, 2011), 160; J. N. D. Anderson, 1955, 34. 181 Al-Sibā‘ī , 1966, 137; Wahbah al-Zuḥaylī, al-Fiqh al-I lāmī wa-adillatuh : al- hāmil lil-adillah al- har ī ah wa- al-ārāʼ al-madhhabī ah wa-ahamm al-na arī āt al-fiqhī ah wa-taḥqīq al-aḥādīth al-Nabawī ah wa-takhrījihā mulḥaqqan bi-hi fahra ah alfabāʼī ah hāmilah lil-ā āt wa-al-aḥādīth wa-al-maw ū āt al-fiqhī ah (Damascus; Syria; Beirūt, Lebanon: Dār al-Fikr, 1997), 9: 6688. 182 Al-Sibā‘ī, 1966, 138; Nasir, 38. 183 Ibid. 184 Al-Sibā‘ī maintains that in choosing this age, the government also considered that the couple must be able to manage their financial affairs independently. This follows Article 162 of the book of Legal Capacity and Legal Representations, which states that the age of complete legal capacity in financial matters is eighteen for both men and women. Al-Sibā‘ī, 1966, 140. 123

Personal Status Law also allowed the marriage of minors if the judge permitted it.185 Article 18

(1) states that if an adolescent boy claims that he has reached bulūgh at the completion of the age of fifteen or a girl who has completed bulūgh by the age of thirteen petitions the court for marriage, the judge may grant them permission subject to their sincerity and full physical capabilities to carry on the responsibilities of marriage.186 In doing so, the Syrian legislator considered bulūgh to be a precondition for marriage.187 Debates over the newly-codified Syrian law began to appear in public immediately after its codifications. The following traditionalist intellectuals took part in this debate throughout the years: Mu ṭafā al-Sibā‘ī, and Wahbah al-

Zuḥaylī.

Mu ṭafā al-Sibā‘ī (1915-1964) was a Syrian traditionalist intellectual who wrote on the marriage contract and Syria’s new codifications. Al-Sibā‘ī was born and raised in the Syrian city of Ḥom before moving to Egypt to attend al-Azhar University.188 In Egypt, he met the head of the Muslim brotherhood, Ḥasan al-Bannā, and was taken by his philosophy.189 After meeting al-

Bannā, al-Sibā‘ī founded the Syrian branch of the Muslim brotherhood with the help of

Muḥammad al-Ḥāmid.190 Al-Sibā‘ī authored numerous books on Islam and Islamic law.191 He also published several newspapers and was appointed a professor of law (fiqh) at Damascus

University, where he eventually became head of the department.192 Wahbah al-Zuḥaylī (b. 1932), another Syrian jurist who also wrote on Islamic jurisprudence and Syrian Personal Law, was

185 Al-Sibā‘ī, 141; Nasir, 48. 186 Al-Sibā‘ī, 141; Nasir, 48; Fīghū, 1: 85. 187 Al-Sibā‘ī, 1966, 137. 188 ‘Abd al-‘Azīz al-Ḥājjaj Mu ṭafā, Muṣṭafā al-Sibā‘ī rajul fikr wa-qā’id da‘wah (‘Ammān: Dār ‘Ammār lil-Nashr wal-Tawzī‘, 1984), 19-23; See also “Mu ṭafā al-Sibā‘ī ,” al-Jazeera, accessed December 06, 2013, http://www.aljazeera.net/specialfiles/pages/fae0d17a-83e4-40b1-b3dc-91aff343d5f2. 189 See Joshua Teitelbaum, “The Muslim Brotherhood in Syria, 1945—1958: Founding, Social Origins, Ideology,” Middle East Journal 65, no. 2 (Spring 2011), 214. See also “Mu ṭafā al-Sibā‘ī ,” al-Jazeera, accessed December 06, 2013, http://www.aljazeera.net/specialfiles/pages/fae0d17a-83e4-40b1-b3dc-91aff343d5f2. 190 Teitelbaum, 214; Mu ṭafā, 1984, 31. 191 “Mu ṭafā al-Sibā‘ī ,” al-Jazeera, accessed December 06, 2013, http://www.aljazeera.net/specialfiles/pages/fae0d17a-83e4-40b1-b3dc-91aff343d5f2. 192 Ibid. 124 born in a small village in Damascus. Al-Zuḥaylī obtained his PhD in Islamic Sharī‘a after attending al-Azhar University, Cairo University, and the university of ‘Ain Shams in Egypt.193

He then taught at the University of Damascus and later became dean of the same department.194

Al-Zuḥaylī authored more than fifty books on different topics in Islam and Islamic law, in addition to penning over five hundred articles and attending numerous worldwide conferences on

Islam and interfaith marriage.195

Al-Sibā‘ī appears to commend the Syrian government for codifying Islamic law. In making the ages of eighteen and seventeen the maximum ages of bulūgh, the law according to al-

Sibā‘ī took into consideration the spouse’s ability to manage their financial and marital affairs in modern times. Al-Sibā‘ī maintains that “today, life has become more complicated with the constant increase of financial demands. Therefore, it is not possible for someone who lacks financial and life experience to marry. In addition, it is not wise for minors to take on the burden and responsibility of marriage at a young age.”196 In permitting boys to marry at the age of fifteen and girls at the age of thirteen, the law took into consideration the local Syrian customs in rural areas. Al-Sibā‘ī states that, in this case, the law permitted the couple to marry according to the opinion of the majority (jumhūr) of jurists. The law according to al-Sibā‘ī also takes into consideration the interests of the youth since it is in their interest as soon as they reach the religious age of rushd—the age of financial competency for men and women—to preserve and safeguard their chastity and to protect themselves from falling into vice by taking a spouse.197

193 “Ḥadīth al-Zikraīyāt,” alolamaa.com, accessed January 23, 2014, http://www.youtube.com/watch?v=JiypwMdXEuY. 194 Ibid. 195 Ibid. 196 Al-Sibā‘ī, 140. 197 Ibid., 1966, 141. 125

In his commentary on the Egyptian PSL, al-Sibā‘ī maintains that Egypt did not place clear restrictions on the marriage of minors but called for the completion of a certain age— eighteen for boys and sixteen for girls—before any marital claim could be made.198 In doing so, says al-Sibā‘ī, Egypt attempted to respect people’s social custom of early marriage while at the same time attempting to impose restrictions on this type of marriage.199 Due to an abuse of this type of marriage within Syrian society, the Syrian government, says Sibā‘ī, followed the opinions of Ibn Shubruma, al-Battī, and al-A amm in considering the marriage of minors void.200

According to Sibā‘ī, early marriage reflects negatively on the relationship of a couple, particularly when they are coerced into marrying a partner they detest.201 These types of marriages, says al-Sibā‘ī, are usually conducted in rural and remote areas according to the wishes of their guardians.202 Al-Sibā‘ī is of the opinion that while coercion in marriage was the custom of ancient society, Islamic Sharī‘a came to change these ugly customs and improve the lives of women.203 He considers coercion in marriage to be a clear attack on the freedom of minors— boys and girls.204 Further, al-Sibā‘ī states that experience has shown the failure of coerced marriages often results in moral crimes—specifically, honor crimes—against women.205

Therefore, he applauds the Syrian family law for invalidating marriages of such nature regardless of the relationship of the walī to the ward.206 Al-Sibā‘ī is also pleased with the Egyptian law since, while not annulling the marriages of minors, Egyptian courts refused to register such marriages and rejected to hear any claim rising from any minors married without the permission

198 Al-Sibā‘ī, 1966, 137. 199 Ibid., 1966, 137; J. N. D. Anderson, 1955, 37. 200 Al-Sibā‘ī, 1967, 57, 1966, 137; Masud, 2013, 134. 201 Al-Sibā‘ī, 1967, 57; al-Sibā‘ī, 1966, 136. 202 Ibid., 1967, 57-58. 203 Ibid. 204 Al-Sibā‘ī, 1967, 58. 205 Ibid. 206 According to al-Sibā‘ī states that the Syrian law followed the Ottoman’s Law of Family Rights (OLFR). Al- Sibā‘ī, 1967, 58. 126 of the court.207 However, despite al-Sibā‘ī’s praise for the Egyptian and Syrian PSLs, he stands against codifying the age of marriage, arguing that Islamic fiqh never codified a specific age for marriage.208 Al-Sibā‘ī states that Islamic fiqh estimated the age of marriage through the first signs of bulūgh, or the age of fifteen for men if they had not shown any signs of bulūgh by that age.209

In his argument against codifying the minimum age of marriage, al-Sibā‘ī states that

Article 16 does not prevent parents from marrying off their minor daughters as soon as they reach the age of bulūgh, or fourteen years of age.210 Al-Sibā‘ī maintains that many fathers in

Syria elect to deceive judges when they wish to marry off their minor daughters. “Often times a father presents another older daughter, an adult cousin, a relative, or even an older neighbor in place of his minor daughter. This usually goes on unnoticed by the judge who usually approves the marriage of minors.”211 In fact, al-Sibā‘ī states that he is not aware of a single case where the judge denied the marriage of a minor girl.212 Therefore, al-Sibā‘ī does not see the need for raising the minimum age of marriage for girls, or the need for a judge to preside over such cases. To him, the first sign of bulūgh is sufficient enough for the girl’s capacity to marry.213 Al-Sibā‘ī is of the opinion that the walī and the father of the ward are more compassionate and aware of the interests of their wards than a judge. To him, the interference of Syrian law in this issue has no meaning since it already permitted the marriage of minors, albeit with the consent of a judge.214

Restricting the age of marriage for girls to seventeen according to al-Sibā‘ī is not supported by the opinions of Muslim jurists, but borrowed from Western laws. Al-Sibā‘ī states

207 Ibid. 208 Ibid., 1967, 59. 209 Ibid. 210 Al-Sibā‘ī , 1966, 142. 211 Al-Sibā‘ī , 1967, 59. 212 Al-Sibā‘ī , 1966, 142; 1967, 59. 213 Ibid. 214 Ibid. 127 that, “because Western customs and societies are different than ours I see that this restriction is in conflict with the period of bulūgh of boys and girls in our Islamic society and does not fit with our Islamic morals.”215 When comparing the new Syrian PSL to that of France, al-Sibā‘ī states that “even in France the minimum age of marriage is fifteen although France has different customs and traditions and morals than our society.” He also states that

[R]aising the minimum age of marriage—to seventeen for girls—is something strange and has no logical reasoning except imitating Western laws. This type of restriction exposes young girls to immorality (fitna). Our Islamic community (umma) and its laws do not approve of delaying marriage. Our custom of early marriage is in the interest of young men and women. Early marriage preserves morals, prepares men and women for the future, and enhances the health of the married couple.216

Accordingly, al-Sibā‘ī concludes by stating that delaying marriage until after college is a dangerous phenomenon which leads to several harmful social effects.217

Regarding the disparity in age between married couples, al-Sibā‘ī maintains that the

Islamic Sharī‘a was wise not to stipulate an age difference between the two spouses, instead leaving it to the local customs and traditions of each society.218 Al-Sibā‘ī warns that a few ill men tend to marry their young daughters to elderly men in exchange for a pricy dower. These men, he says, harm their daughters by marrying them off to older men who only bring unhappiness and misery to their young brides.219 Al-Sibā‘ī applauds the new Syrian codified law under Article 19, which stipulates that if the engaged couple are disproportionate in age and no benefit results from the marriage, the judge may reject the marriage.220 However, he observes that the law did not specify an age but only recommended that the difference of age be suitable

215 Al-Sibā‘ī, 1967, 59. 216 Al-Sibā‘ī provides examples of Western scholars who wrote on the benefits of having children in marriage. He concludes that none of the scholars stated that having children is a detriment to the health of mothers. Al-Sibā‘ī , 1967, 60-61. 217 Ibid., 61. 218 Ibid., 63. 219 Ibid., 63-64. 220 Al-Sibā‘ī, 1967, 156; Nasir, 49; J. N. D. Anderson, 1955, 36. 128 for marriage—according to what the judge see fit. Al-Sibā‘ī suggests that in most cases an age difference of twenty years between the couple is considered appropriate.221

Al-Sibā‘ī has a unique opinion regarding guardianship (wilā a) in marriage. Article 18

(2) of the Syrian personal law, consent of the walī is required if the walī was the father or the grandfather.222 Al-Sibā‘ī observed that before codifying its family law, the old customs and traditions among the Syrian societies stripped adult women of the freedom to choose their own partner in marriage.223 As soon as a girl reached the age of fourteen in Syria, often she was married.224 In some cases parents imposed marriage on daughters who could not object to the parents’ wishes, thus potentially agreeing to a marriage they might detest.225 “Women often are shy and do not reject their suitors due to social pressure and old customs,” says al-Sibā‘ī. He goes on to say that, although there is no clear evidence to support coercion in marriage in Islamic

Sharī‘a, some of the madhāhib approved of a father coercing his adult bikr daughter into marriage.”226 Fortunately, says al-Sibā‘ī, Syrian law took the opinion of Abū Ḥanīfa and prevented the father or other walīs from coercing their adult female wards into marriage. Further,

Article 21 of the Syrian PSL states that the marriage guardianship is of the male agnates according to the inheritance law of the Islamic system, as long as the walī is selected from the men who are forbidden to marry the ward.227 By adding that final clause, the Syrian personal law, according to al-Sibā‘ī, deviated from the majority opinion of Muslim jurists and the rest of

221 Al-Sibā‘ī, 1967, 64-65. 222 Al-Sibā‘ī, 141; Nasir, 48; J. N. D. Anderson, 1955, 37; Elham Manea, “ h rab Stat a d W m ’ Right ,” 160-62. 223 Al-Sibā‘ī, 1967, 65 224 Sameera Nazir concurs with al-Sibā‘ī since early marriage customs are still practiced in Syria in rural areas; see Sameera Nazir, and Leigh Tomppert, Women's rights in the Middle East and North Africa: Citizenship and Justice (New York: Freedom House, 2005), 281. 225 Ibid. 226 See chapter one for more information on the opinions of the various madhāhib in coercing the adult woman in marriage. 227 This article prohibits a man from contracting his female cousin into marriage. This article puts an end to the monopoly of male cousins over their female cousins who are permitted to marry according to Islam family law and customs. 129 the Arab-Muslim states, which included male cousins among the walī .228 Article 22 of the

Syrian personal law states that the walī must be of sound mind (‘āqil) and have reached the age of bulūgh —without specifying the walī’s gender.229 This Article according to al-Sibā‘ī followed the Ḥanafī madhhab, in permitting the adult woman to contract her marriage. This was also supported by Article 27 which states that if the adult woman contracts her marriage without the consent of the walī, the contract is valid if the husband was of the same social status (kufu’), otherwise the walī may petition the court to dissolve the marriage.230 According to al-Sibā‘ī, the law in this case took into consideration advancement and changes within society. While the law permitted the father to object to the marriage of his adult daughter without his permission if the husband was of lower social status (kufu’), in general, the Syrian law prevented other men from monopolizing and controlling the marriage of their wards.231 However, following in the steps of many other traditionalist intellectuals before him, al-Sibā‘ī considers the wilā a necessary to preserve the rights of minors and incapable individuals.232 In addition, al-Sibā‘ī maintains that as long as the husband is of the same social status no walī may object to an adult woman contracting her marriage.233

While al-Sibā‘ī calls for early marriage and preserving guardianship over adult women, the Syrian intellectual Wahbah al-Zuḥaylī disagrees with him on those two issues. Al-Zuḥaylī agrees that, like Egypt, the Syrian law took the opinion of the minority jurists Ibn Shubruma, Al-

A amm and al-Battī instead of the majority opinions.234 The three jurists, according to al-

Zuḥaylī, maintained that minors are not to be contracted into a marriage until they reach bulūgh

228 Ibid., 1966, 165. 229 Ibid., 165. See also “Qā ū al-aḥwāl al-shakhṣī a,” accessed December 10, 2013, http://www.syrianbar.org/index.php?news=167. According to Article 28, the kafā’a follows the local custom. 230 Al-Sibā‘ī, 1966, 173; al-Sibā‘ī, 1967. 66. 231 Ibid., 1967, 65-66. 232 Al-Sibā‘ī, 1966, 157. 233 Ibid. 234Al-Zuḥaylī, 9: 6682; Masud, 2013, 234. 130 according to Qur’anic directive 4: 6, “until they reach the age of marriage.”235 The majority of jurists, however, did not consider reaching bulūgh a condition for marriage and instead allowed for the marriage of minors.236 In fact, al-Zuḥaylī says that Ibn al-Mundhir (d. 318/930) claimed that jurists reached consensus (ijmā‘) that a man may marry off his minor daughter as long as she is married to a man of her equivalent social status.237 To justify allowing the marriage of minors jurists presented evidence from the Qur’an, the aḥādīth, and stories of Companions of the

Prophet who also were married to minors.238 According to al-Zuḥaylī, the evidence brought to light included verse 65: 4, in which jurists claimed that the waiting period for a minor girl to be three months—similar to that of an adult women experiencing menopause. Jurists understood that the verse states that minor women may be married and divorced without their permission, says al-Zuḥaylī.239 In his comments on the interpretation of Qur’anic directive 24: 33, al-Zuḥaylī states that jurists interpreted the term a āma (single. ayyim) to mean any single, unmarried woman, minor or adult.240 In addition, jurists’ primary example was the marriage of the Prophet to ‘ ’isha at the age of nine.”241 Finally, jurists took the Prophet’s action of contracting his cousin’s marriage when she was a minor as another example in support of minors marrying.242

However, al-Zuḥaylī maintains that in taking the minority opinion, the Syrian law took into consideration the seriousness and responsibility of marriage as well as the interests of Syrian

235 Ibid. 236 Ibid. 237 Ibid. For the opinion of Ibn al-Mundhir see Muḥammad ibn Ibrāhīm Ibn al-Mundhir al-Naysābūrī, al-Ijmā ata amma u al-ma āʼil al-fiqhī ah al-muttafaq ala hā i da akthar ulamāʼ al- u limī (Alexandria: Dār al- Da‘wah, 1981 or 1982 ), 74, no. 350. 238 Al-Zuḥaylī, 9: 6682-6683. 239 Ibid., 9: 6683. 240 Ibid. 241 Ibid. 242 Al-Zuḥaylī maintains that while the ḥadīth states that ‘ ’isha may have been married at nine, there is another story, which is much more realistic—where ‘ ’isha was married at the age of thirteen. However, al-Zuḥaylī does not provide the source. See al-Zuḥaylī, 9: 6683. 131 society.243 The Syrian law also took the minority opinion in placing the minimum age for marriage at eighteen and seventeen for men and women respectively, while at the same time allowing the judge to marry minors if he sees it as appropriate.244

Two Syrian traditionalists—al-Sibā‘ī and al-Zuḥaylī—were the product of the same religious institution, al-Azhar, however they disagreed on a number of important issues, most notably the codifying of the legal minimum age of marriage. Further, both individuals aimed at preserving the identity of the Syrian Islamic society, but they disagreed on which of the above issues to preserve. Both relied on past Islamic authority and tradition; the Qur’ān, the Sunna of the Prophet, and Islamic fiqh. In his effort to stay loyal to Islamic fiqh, al-Sibā‘ī elected not to codify the age of marriage and rather to follow Islamic fiqh in using bulūgh as a measuring stick for the readiness of girls for marriage. At the same time, he applauded the Syrian PSL for restricting male relatives—who are permitted to marry their female wards—from becoming walī , thereby abandoning the opinions of all Islamic madhāhib on this issue.245 Al-Zuḥaylī also deviated from the doctrine of Islamic madhāhib by applauding the Syrian PSL for codifying a legal minimum age for marriage. In doing so, both Syrian intellectuals challenged al-Azhar’s authority and that of other Islamic schools of law on the above two issues in order to provide women with expanded rights in marriage while at the same time preserving the identity of the

Syrian Islamic society.

243 Ibid. 244 Ibid. 245 All five Islamic madhāhib permit the cousins for example to marry their female wards. See chapter one for more information on the qualification of the walī. 132

Shī‘ī Intellectuals

Reaction to the Arab states’ codification of Islamic family law was not limited to Arab

Sunni intellectuals since Twelver Shī‘ī intellectuals also participated in this debate. Shī‘ī jurists had to also address contemporary problems regarding marriage and other mundane issues. In the following pages I discuss some of the opinions of Arab-Muslim Shī‘a who had mixed reactions to the newly codified law. From the Shī‘ī intellectuals, I focus on Alī al-Ḥusaynī Sīstānī,

Muḥammad Jawād Maghnīyah, and yat Allāh Ḥuysan Faḍl Allāh. Sīstānī is the famous

Twelver (Imāmī) Shī‘ī muftī, jurist, and Shī‘ī marji‘—the supreme Shī‘ī authority for religious and judicial emulation—in Iraq.246 He was born in 1930 in the city of Mashhad in Iran. He then moved to Najaf, Iraq in 1961 and remained there since.247 Sīstānī enjoys numerous followers in

Iraq, Lebanon, and the rest of the world as the Twelver Shī‘ī religious source of tradition and emulation (marja‘ al-taqlīd). Following the opinions of the majority of the Twelver Shī‘ī jurists,

Sīstānī is of the attitude that the walī of a minor must be the father or grandfather only, and not his mother or any other female relatives.248 To him, the father or grandfather may not marry off his adult ward without her consent if she has reached the age of bulūgh and the age of rushd, and she is able to manage her affairs independently.249 In exchange, the adult woman may not contract her marriage without the consent of her walī.250 In his views regarding bulūgh, Sistānī states that for men, the signs of bulūgh are one of the following: the appearance of pubic or facial hair, nocturnal emission, or the completion of fifteen lunar years.251 Regarding the age at which

246 See Sistānī‘s website “Biography,” accessed December 30, 2013, http://www.sistani.org/english/data/2/. 247 Ibid. 248 The majority of Sunni jurists and religious intellectuals are of the same opinion regarding the walī of minors. See the previous chapter for the qualifications of the walī among the Sunni jurists. See also http://www.sistani.org/arabic/book/16/860/, accessed December 30, 2013. 249 Ibid., no. 67. 250 Ibid., no. 71. 251 “Bulūgh fatwās in men and women,” accessed December 30, 2013, http://www.sistani.org/arabic/qa/0363/. 133 women may marry, Sistānī is of the opinion that girls reach bulūgh at the completion of nine lunar years.252

The Imāmī Shī‘ī Muḥammad Jawād Maghnīyah (1904-1979) has opinions similar to those of Sistānī. Maghnīyah was born in Lebanon, where his family lived for generations. In

1935, after studying Imāmī fiqh in the city of Najaf, Maghnīyah was appointed a judge for the

Ja‘farī court in Lebanon, of which he would later act as its chief.253

After gaining its independence, the Lebanese government followed the Ottoman Law of

Family Rights (OLFR), (Qā ū uqūq al-‘ ’ilī a) published in 1917, and again with minor modifications in 1942.254 Due to the many varied faiths present in Lebanon, its courts were divided into different sects to accommodate its constituents. Islamic courts, therefore, were also divided into sects. There are courts for the Druze minorities in addition to Sunni and Ja‘farī Shī‘ī courts.255 Ja‘farī courts follow the Twelver Shī‘ī madhhab within the guidelines of the OLFR.256

Lebanon followed the OLFR and codified its minimum age of marriage. This was done through

Articles 4, 6, and 7. Article 4 states that an engaged individual must have completed his eighteenth year, seventeen for women, to possess the capacity for marriage.257 Article 5, however, states that an adolescent who has not reached the age of eighteen may petition the judge to marry, and the judge may permit him to do so after ensuring that the adolescent has reached the age of bulūgh and is physically and mentally able to carry the burden and responsibility of marriage. An adolescent girl may also petition the judge for marriage if she had not yet reached the age of seventeen. If she claims that she has reached bulūgh, the judge may

252 Ibid. 253 For more on Maghnīyah see “Mawqi‘al-Imam al-Hādī,” accessed December 12, 2013, http://www.alhadi.ws/wp/?page_id=4856. 254 Badrān Abū al- Aynayn, Badrān, awāj wa-al-ṭalāq fī al-I lām fiqh muqāra ba a al-madhāhib al-arba ah al- u ī ah wa-al-madhhab al-Ja farī wa-al-qā ū (Alexandria: Muʼassasat Shabāb al-Jāmi ah, 1967-]), 4-5. 255 Badrān, awāj, 4-7. 256 Ibid. 257 Badrān, al-Fiqh, 75. 134 marry her off if he sees that she is fit to carry on the physical duties of marriage.258 However,

Article 7 states that no one may marry off a minor boy who has not reached the age of seventeen or a minor girl who has not reached the age of nine.259 Article 111 of the OLFR states that the

Ja‘farī judge rules according to the Ja‘farī madhhab within the parameters of the OLFR.260

Article 7 of the Ja‘farī family law states that each of the engaged couples must be adult, ra hīd, sane (‘āqil), and have reached the age of bulūgh. If one member of a couple had reached the age of bulūgh but not the age of rushd, the marriage is contingent upon the consent of the walī.261

Article 8 of the Ja‘farī family law states that if the girl completed the age of nine, the judge may grant her permission to marry if he saw that she was ra hīda. The judge may also permit the marriage of a young boy who has reached the age of rushd and completed his fifteenth year of life.262

Maghnīyah strongly emphasizes the role of bulūgh not only in marriage but also in most legal transactions, such as divorce, guardianship, and acting as a legal witness.263 He states that all the Islamic madhāhib, Sunni and Shī‘ī, agree that bulūgh is the age of discretion and with it individuals are able to marry and reproduce.264 Shī‘ī jurists according to Maghnīyah agree that among the signs of bulūgh are the following: First, nocturnal emission, according to Qur’anic verses 4: 6 and 24: 59, and the ḥadīth—narrated by both Sunni and Shī‘ī—which states that,

“three are not to blame: the minor boy until he experiences nocturnal emission, the insane until

258 Badrān, al-Fiqh, 1967, 75-76. 259 Ibid., 75. 260 Muḥammad Jawād Maghnīyah, al- uṣūl al- har ī ah al madhhab al-Shī ah al-Imāmī ah (Beirūt: Dār al- Thaqāfah, 1974), 7. 261 Maghnīyah, 1974, 11. 262 Maghnīyah, 1974, 11; Abd Allāh Ni mah, alīl al-qa āʼ al-Ja farī (Beirūt: Dār al-Fikr al-Lubnānī, 1982), 196. 263 Ibid., 119. 264 Ibid., 120. 135 he becomes sane, and the asleep until he/she wakes up.”265 Second, all Islamic madhāhib agreed that the bulūgh signs for women are menstruation and pregnancy.266 Third, the appearance of pubic hair is also agreed upon as a sign of bulūgh.267 Fourth, Maghnīyah states that the maximum age of bulūgh for men is fifteen.268 Maghnīyah says that according to the

Imāmī Shī‘a, nine is the age of bulūgh for women.269 He supports his statement by citing a

ḥadīth attributed to Imam Ja‘far al- ādīq (702-765).270According to Maghnīyah, at the age of nine the woman’s reproductive organs are complete and she is able to withstand the act of intercourse. Experience according to Maghnīyah, showed that the woman is able to become pregnant at that age.271 Taking into consideration the opinions of Sunni and Shī‘ī jurists,

Maghnīyah states that one must take into consideration age as a sign of readiness for marriage only if none of the bulūgh signs are visible or experienced—the age is then considered to be the maximum age for bulūgh.272 This was the intention of the law when it was published, says

Maghnīyah.273 Maghnīyah maintains that one cannot find any mention of age in any of the ruling verses in the Qur’ān. Instead, the Qur’ān mentions bulūgh of marriage (Q. 4: 6), and nocturnal emission (Q. 24: 59).274

265 Ibid., 120. The Qur’anic verses are 4: 6, states, “Make trial of orphans until they reach the age of marriage; if then ye find sound judgment in them, release their property to them,” and 33: 59, which states, “But when the children among you come of age, let them (also) ask for permission, as do those senior to them (in age).” 266 Maghnīyah, 1974, 120. The Twelver Shī‘ī intellectual ‘Abd Allāh Ni mah considers menstruation and pregnancy a late sign of bulūgh. See Ni mah, 197. 267 Maghnīyah states that this was the opinion of the Imāmī Shī‘a, Mālik, and Ibn Ḥanbal. See Maghnīyah, 1974, 120. 268 Maghnīyah, 1974, 120; Ni‘mah, 197. 269 Ni‘mah, 197. Muḥammad Jawād Maghnīyah, al- iqh al al-madhāhib al-kham ah al-Ja farī, al- a afī, al- ālikī, al-Shāfi ī, al- a balī (Beirūt: Dar al-‘Ilm lil-Malīyyn, 1977), 300; Muḥammad Jawād Maghnīyah, al-Aḥwāl al-shakhṣī ah ‘alā al-mdhāhib al-khamsa (Beirūt: Dār al- Ilm lil-Malāyīn 1964 ), 16. 270 The ḥadīth states that, “Once the young girl reaches the age of nine, her money is returned to her, she is able to marry , and she is able to claim and receive legal punishment.” See Maghnīyah, 120; see also Maghnīyah, 1977, 300. The ḥadīth could be found in Muḥammad b. Alī, b. Babawayh, a lā aḥ uruhu al-faqīh (Tihrān: Dār al- Kutub al-Islāmīyah, 1970), 4: 194, no. 574. 271 Maghnīyah, 1974, 120-21. 272 Ibid., 121. 273 Ibid., 122. 274 Maghnīyah, 1974, 120-21. 136

Muḥammad Ḥūsayn Faḍl Allāh is among the most widely-respected Arab intellectuals.

Faḍl Allāh was born in 1935 the city of Najaf in Iraq to a Lebanese couple.275 Faḍl Allāh was educated in one of the Twelver Shī‘ī religious institutions “Ḥowza” in city of Najaf. In 1966, he was invited to visit Lebanon where he stayed until his death in 2010.276 Faḍl Allāh moved to

Lebanon where he began his career as a religious leader and political advisor. In 1972 the Iranian leader and marjī‘al-Khu’ī appointed Faḍl Allāh as his deputy in Lebanon.277 He was later appointed a Shī‘ī majra‘, ḥujjat al-Islam, by the Iranian leader Ayatollah Khomeini.278 Faḍl

Allāh was also considered by many to be the spiritual leader of the Lebanese Shī‘ī party,

Ḥizbuallāh. He was also known for his political opinions and his support for the Palestinian and

Shī‘ī cause.279 Faḍl Allāh wrote numerous books on different religious topics, Shī‘ī fiqh, family law concerning women, theology, politics, as well as an interpretation of the Qur’ān.280

According to Ja far al-Shākhūrī, Faḍl Allāh did not follow the majority of the Twelver

Shī‘ī jurists regarding the legal age of marriage. Al-Shākhūrī is of the opinion that Faḍl Allāh did not consider nine years of age to be the appropriate age of marriage for women; instead he considered bulūgh alone to be the correct age of marriage.281 However, al-Shākhūrī adds that

Faḍl Allāh never declared this in public.282 Al-Shākhūrī states that Faḍl Allāh maintained that a woman reaches the age of marriage, bulūgh, when she is sexually able to withstand the act of

275 Marie-Claude Thomas, Women in Lebanon Thomas, Marie-Claude. Women in Lebanon: living with Christianity, Islam, and multiculturalism (New York [N.Y.]: Palgrave Macmillan., 2013), 133-134; Jamal Sankari, Fadlallah: The Making of a Radical Shi'ite Leader (London: SAQI, 2005), 44. 276 Alī Ḥasan Sarūr, al- llāmah a l llāh wa-taḥaddī al-mam ū ( Lebanon : tawzī al-Sharikah al- mmah lil- Khadamāt al-Inmāʼīyah, 1992), 54; Sankari, 133. 277 Thomas, 134. 278 Thomas, 134; Sankari, 226. 279 Thomas, 134. On the life of Faḍl Allāh see Thanassis Cambanis, “Grand Ayatollah Fadlallah, Shiite Cleric, Dies at 75,” New York Times, accessed February 5, 2014, http://www.nytimes.com/2010/07/05/world/middleeast/05fadlallah.html?_r=0. 280 Ibid., 134-142; 281 Baḥrānī, Ja far al-Shākhūrī, itāb al-Nikāḥ: taqrīra li-baḥth amāḥat at llāh al- má al-Sayyid Muḥammad usayn Fa l llāh (Beirut: Dār al-Malāk, 1996-), 1: 07. 282 Al-Shākhūrī, 1: 07. 137 intercourse—through marriage—which is mentioned in the Qur’ān and several different aḥādīth.283 According to Faḍl Allāh, a man is considered ready to marry when he experiences the first sign of bulūgh—nocturnal emission, while a woman reaches bulūgh by experiencing menstruation.284 However, Faḍl Allāh also states that the age of marriage could be fifteen for boys and nine for girls if they experience bulūgh by then. He states that, “if the girl does not show any signs of bulūgh at that age, jurists may look into this matter and decide if she is not ready for marriage.”285

Faḍl Allāh is also of the opinion that minors may not be coerced into marriage. To him, the couple marrying must marry by choice and not by coercion.286 The father, the grandfather, or other Muslims (if the father and the grandfather are deceased) may marry off their minor wards

(children or grandchildren) if they see an extreme necessity in this type of marriage, says Faḍl

Allāh.287 Unlike Sistānī and other Shī‘ī jurists, Faḍl Allāh is of the opinion that the adult woman has complete authority in choosing her husband and no one may force her to marry.288 Faḍl Allāh argues that “a woman is a complete independent human who is free to manage her social and financial affairs. He maintains that “no one has a right over an adult woman unless it is prescribed according to the divine.”289

For a comparison among some of the Articles in the Egyptian, Syrian and the Lebanese

Ja‘farī Shī‘ī personal law, see the table (2-1) below.

283 Muḥammad Ḥusayn Faḍl Allāh, iqh al- harī ah (Beirūt: Dār al-Malāk, 1999-), 3: 394-395, no. 648. Al- Shākhūrī, 1: 177. Fadl Allāh cites the Qur’anic directive 4: 6 to support his argument. 284 Muḥammad Ḥusayn Faḍl Allāh, Min waḥ al-Qurʼā . Beirūt: Dār al-Malāk., 1998), 7:82-85. 285 Fadl Allāh, 7: 85. 286 Fadl Allāh, 1998, 3: 395, no. 643. 287 Fadl Allāh, 1998, 2: 24-26, no. 5-7. See also Fadl Allāh, 1998, 3: 397, no. 650. 288 Fadl Allāh, 4: 324. 289 Ibid. 138

Table (2-1) Family Personal Law in Egypt, Syria and Lebanon: Shī‘ī Ja‘farī The Age of Marriage and the Role of the Walī Egypt Syria Lebanon: Ja‘farī Code Bulūgh-1923 Bulūgh-1953 -Article 19 (a). Reaching -Article 15 stipulates that -Article 7. Each of the bulūgh is a condition for the bulūgh and being of sound engaged couple must be adult, capacity of marriage. The mind (‘aql) are preconditions ra hīd, sane (‘āqil), and have marriage of minors who did for the capacity of marriage. reached the age of bulūgh. If not reach the bulūgh is void. one of the couple did not reach -Article 16 states that the full the age of bulūgh but not the age of rushd for marriage is age of rushd, the marriage is the completion of eighteen contingent upon the consent of years of age for men and the walī. seventeen for women. -2008, Article 143. It is not -Article 18 (1) states that if an -Article 8. If the girl permitted to register a adolescent boy claims that he completed the age of nine, the marriage contract to any of the reached bulūgh at the judge may grant her two sexes unless they have completion of the age of permission to marry if he saw completed eighteen Gregorian fifteen or a girl who has that she was ra hīda. The years. completed the age of thirteen, judge may also permit the and petitioned the court for marriage of the young boy marriage, the judge may grant who has reached the age of them permission subject to rushd and completed the age their sincerity and full of fifteen. physical capabilities to carry on the responsibilities of marriage. -Article 23 (a). The walī of a -Article 21. The walī must be woman who is between the of the male agnates according age of bulūgh and the age of to the inheritance Islamic rushd (twenty-one Gregorian system as long as he is from years) is the male agnates of the men who are forbidden to the woman, according to the marry the ward. inheritance law. -Article 22. The walī must be -Article 23 (c) states that the of sound mind (‘āqil) and adult male who passed the age have reached the age of of bulūgh may marry himself bulūgh. without a walī. -Article 18 (2). If the walī is -Article 24 (b), If the adult the father or the grandfather, woman contracted her his consent is required. marriage after the consent of -Article 27. If the adult her walī, the contract is valid. woman contracts her marriage If one of them contracted the without the consent of the marriage without the other’s walī, the contract is valid if consent the marriage is not the husband was of the same valid until the other consents. social status (kufu’), otherwise

139

Egypt Syria Lebanon: Ja‘farī Code -Article 25. If the walī refuses the walī may petition the court to consent, the woman may to dissolve the marriage. petition the judge. -1931 law, Article 99, paragraph 5 of law 78. The petition for marital claims will not be heard by the judge if the two spouses or one of them did not reach the minimum specified age of marriage at the time of the court petition—eighteen and sixteen Gregorian years for men and women respectively—except by an order from us [the judges]. Table (2-1)

Like the Sunni jurists, Ja‘farī jurists did not reach consensus regarding the legal age of marriage or the role of the walī in marriage. While the above three Shī‘ī jurists were educated in

Shī‘ī religious establishments, the Ḥowza of the city of Qum, Iran and the Ḥowza in city of

Najaf, Faḍl Allāh disagreed with the other two jurists regarding the legal age of marriage and the agency of women to conduct her own marriage contract. Both Shī‘ī jurists al-Sistānī and

Maghnīyah approved of a girl who has reached the age of nine to be married, but Faḍl Allāh, on the other hand, considered bulūgh to be a precondition for the capacity to marry. In addition, al-

Sistānī and Maghnīyah did not permit a woman who reached the age of bulūgh to conduct her own marriage while Faḍl Allāh did. Faḍl Allāḥ aligns himself with a minority of Twelver Shī‘ī jurists on the above two issues. Instead of following the majority of Shī‘ī jurists, he chose to consider the social and economic factors of the day before rendering his ruling which would provide women with more agency in Islamic family law.

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PART III

Opposition Voices:

Opposing al-Zuḥaylī and other Arab intellectuals who wanted more rights for women in their marriage contract is the Palestinian Salafi intellectual ‘Umar Sulaymān al-Ashqar (d. 2012).

Born in the city of Nablus, in 1940, al-Ashqar studied at al-Madīna University in Saudi Arabia before moving to Cairo, where he received his PhD from al-Azhar University.290 He taught various Islamic topics at different universities in Kuwait and Jordan and was well-known as a conservative Salafi who wrote on the Sunni faith, Islamic law, theology, and women in Islam.291

Al-Ashqar is one Salafi intellectual who stood in opposition to those that wanted to codify

Islamic family law. He is also a strong proponent for the requirement of a walī to contract any marriage, whether involving adults or minors.292 Al-Ashqar agrees with the consensus of jurists that a man who has reached the age of bulūgh and rushd may contract his own marriage and therefore requires no permission from others. Al-Ashqar also shares the opinion reached by jurists in consensus that no minor may contract his/her marriage without a walī.293 Like many other intellectuals, al-Ashqar claims that the wilā a is not an authoritarian institution but rather exists to protect and support women.294 In addition, he claims that since Islamic Sharī‘a requires an announcement of any marriage, the walī is as much a part of that public announcement as the witnesses and the wedding party.295 Al-Ashqar cites Abū Zahrah, who states that “the wilā a is

290 See “Fī Riḥāb ‘ lim,” arīq al-I lām TV channel, accessed January 06, 2013, http://www.youtube.com/watch?v=Byxas-IsNjg. See also “Al-‘Allāma ‘Umar Sulaymān al-Ashqar,” echoroukonline, accessed January 06, 2013, http://www.echoroukonline.com/ara/articles/138515.html. 291 Ibid. 292 “Al-‘Allāma ‘Umar Sulaymān al-Ashqar,” echoroukonline, accessed January, 06, 2013, http://www.echoroukonline.com/ara/articles/138515.html. 293 Al-Ashqar, 119. 294 ‘Umar Sulaymān al-Ashqar, ḥkām al-zawāj fī ū’ al-Qur’ā wa al-Sunna (Ammān: Dār al-Nafā’īs, 1997), 119. Al-Ashqar reiterates the reasons past jurists and Arab intellectuals call for the presence of the walī in marriage. See al-Ashqar, 119. 295 Ibid., 119. 141 required since the results of marriage are not reflected on the couple alone, but on the entire family. The family either experiences honor and happiness or shame and bitterness.”296

Concerning the legal age of marriage, al-Ashqar cites the opinion of jurists who define bulūgh as the power which transfers to the minor child when he exits childhood and enters manhood.297 Jurists meant that bulūgh is the threshold whereby a minor becomes able to receive the obligation that God has ordained for him/her.298 He also considers an individual who has reached the age of bulūgh to have the right to manage his/her affairs, including commercial interests, marriage, divorce, and other affairs.299 Al-Ashqar follows past jurists’ regarding signs of bulūgh that demarcate adulthood in men and women, with a particular emphasis on nocturnal emissions.300 In fact, al-Ashqar states that jurists have reached consensus (ijmā‘) that the occurrence of nocturnal emissions is the primary indicator that an individual is ready to accept responsibility for religious obligations and is able to receive legal consequences.301 Al-Ashqar cites the two Qur’anic verses jurists use to support his argument—Q. 24: 58 and 59—in addition to the prophetic ḥadīth in which the Prophet pardoned three individuals from religious obligation, including a young boy who had yet to experience a nocturnal emission.302 As for minor girls, al-Ashqar is of the opinion that jurists have also reached consensus that pregnancy and menstruation are signs of bulūgh.303 While jurists did not agree on a specific age for the

296 Ibid., 120. See Abū Zahrah, 1957, 108. 297 Al-Ashqar, 111. 298 Ibid. 299 Ibid. 300 Ibid. 301 Ibid. 302 Ibid., 112. 24: 58, states “O ye who believe! let those whom your right hands possess, and the (children) among you who have not come of age ask your permission (before they come to your presence), on three occasions: before morning prayer; the while ye doff your clothes for the noonday heat; and after the late-night prayer: these are your three times of undress: outside those times it is not wrong for you or for them to move about attending to each other.” Verse 24: 59 states, “But when the children among you come of age, let them (also) ask for permission, as do those senior to them (in age).” 303 Al-Ashqar, 113. Jurists however, considered pregnancy to be a late sign of bulūgh. See chapter one for jurists’ opinions’ regarding pregnancy as a sign of bulūgh. 142 minimum age indicating the capacity for marriage, al-Ashqar prefers signs of bulūgh over age since bulūgh may occur at different ages.304

Regarding the newly codified Islamic family laws in Arab states, al-Ashqar criticizes these states, saying that they followed Western nations in increasing the minimum age of marriage.305 Al-Ashqar is for early marriage even in cases involving elderly grooms. To him, if the couple (the elderly man and the minor girl) consents to the marriage contract there should be no legal objection to their marriage, even if one party in the marriage is a minor and the other is not. To support his argument, al-Ashqar cites the marriage of the Prophet to his first wife

Khadīja, who was his senior by fifteen years. He also cites the Prophet’s marriage to ‘ ’īsha when she was six years old and he was in his fifties.306 In addition, al-Ashqar states that al-

Bukhārī’s section on the marriage of minors to adults (Bāb I kāḥ al-Rajūl waladahū al-Ṣighār) is clear evidence for the permission of minors and adults to marry each other.307

Al-Ashqar therefore, is critical of the Egyptian, Syrian, and Tunisian laws for raising the minimum age of marriage for men and women, and for not following the opinions of the minority jurists by disallowing the marriage of minors.308 He is also critical of the few jurists and intellectuals who stood against contracting minors into marriage.309 Al-Ashqar claims that not permitting walīs to marry off their wards goes against the majority opinion.310 To him, the opinion these minority jurists accepted into law is an anomaly ( hādh), that is contrary to jurists’ consensus, and should therefore not be taken into consideration.311 He states that jurists have

304 Ibid., 114. 305 Ibid., 115. 306 Ibid., 116. 307 Ibid., The section (Bāb Inkāḥ al-Rajūl waladahū al- ighār), and the ḥadīth can be found in Ṣaḥīḥ al-Bukhārī. See Ibn Ḥajar al-‘Asqalānī, 1997, 9: 238, no. 5133. 308 Ibid., 115. 309 Ibid., 121. 310 Ibid. 311 Ibid. 143 reached consensus regarding the marriage of minors according to the contributions of Ibn al-

Mundhir, Ibn Qudāmah, and Ibn Ḥajar.312 Al-Ashqar attacks those jurists who refuse to permit the marriage of minor girls, saying, “we must not consider the opinion of those who did not permit the walī to marry off his minor female wards as equal to the famous ‘ulamā’ who approved of such a marriage.”313 Among those jurists who did not approve of minor marriages, according to al-Ashqar, is Abū Bakr al-A amm, the Mu‘tazilī jurist.314 Al-Ashqar states that the opinion of a Mu‘tazilite in this case is not important and must be ignored among the people of

Sunna (ahl al-Sunna), since ahl al-Sunna have reached consensus on the topic.315 “None of the ahl al-Sunna jurists ever disagreed on this matter,” says al-Ashqar “except the city of Kufa’s judge, Ibn Shubruma.”316 To al-Ashqar, relying on the opinion of Ibn Shubruma while discarding that of the majority is against the norm in Islamic law.317

To discredit the authority of the minority independent jurists, al-Ashqar states that, unlike the rest of the jurists, Ibn Shubruma did not belong to a madhhab. To support his claim, al-

Ashqar cites Ibn Qudāmah, who wrote that Ibn Shubruma was not consistent in his opinion regarding the marriage of a minor girl.318 While he initially invalidated the marriage of minor girls, he changed his opinion by not allowing the marriage of a minor girl who is not able to withstand the act of intercourse without entirely forbidding the minor girl’s marriage.319 Al-

Ashqar also includes Ibn Ḥazm among the minority jurists who would not permit the marriage of

312 Al-Ashqar, 121. For the opinion of Ibn al-Mundhir see Ibn al-Mundhir al-Ijmā‘, 74, no. 350. For Ibn Qudāmah, see al- ugh ī, 7: 379, and for Ṣaḥīḥ al-Bukhārī see Ibn Ḥajar al-‘Asqalānī, 9: 238, no. 5133. 313 Al-Ashqar, 121. 314 Ibid., 121. 315 Ibid. 316 Ibid. 317 Ibid., 121-122. 318 Ibid., 122. See Ibn Qudāmah, al- ugh ī, 7: 382. 319 Ibid., 122. 144 minor boys while still allowing the marriage of minor girls.320 Al-Ashqar supports his argument in favor of allowing the marriages of minor girls by reiterating the argument of other jurists who support the marriage of minors. As evidence he cites Qur’anic verse 65: 4, the marriage of the

Prophet to ‘ ’isha as a minor and the section of al-Bukhārī’s compendium titled, “Section on the

Man marrying his son/daughter.”321 Rejecting the opinion of those who interpret Qur’anic verse

65: 4 to mean that the waiting period in this verse applies only to women who have reached adulthood, al-Ashqar claims that the verse refers to the waiting period of both adult and minor women.322 In response to jurists who maintain that the marriage of the Prophet to ‘ ’isha was specific to him, al-Ashqar says that those who raised this claim have no evidence to support their opinions.323

Al-Ashqar maintains that those jurists who opposed the marriage of minors have deviated from clear evidence within the Sunna madhhab as well as the consensus of ahl al-Sunna wa al-

Jamā‘a. He also states that, while he is for the marriage of minors, the marriage must be contracted by the father of the minor. If another walī contracts the minor into marriage, the groom must be of the same social status.324 Finally, he suggests that the minor girl must be able to withstand intercourse to be ready for marriage. Due to the overwhelming evidence for permitting the marriage of minors, al-Ashqar states that no one may claim that this type of marriage is forbidden or not Islamically legal. Citing twentieth-century Arab intellectual ‘Alī

Ḥasab Allāh, al-Ashqar maintains that states may curb such practices by issuing certain laws to punish the walīs who contract such marriages.325 Such legal penalties, according to al-Ashqar

320 Al-Ashqar, 122. For the opinion of Ibn Ḥazm, see al-Muḥallā, 11: 42-43, no. 1827. 321 Ibid., 122. For al-Bukhārī’s ḥadīth see Ibn Ḥajar al-‘Asqalānī, 9: 238, no. 5133. 322 Ibid., 123. 323 Ibid., 125. 324 Ibid., 126. 325 Ibid.,126. For the opinion of ‘Alī Ḥasab Allah see ‘Alī Ḥasab Allah, al- awāj fī al- harī‘ah al-I lāmī ah ( Cairo: : Dār al-Fikr al- Arabī, 1971), 78. 145 and Ḥasab Allah, may not nullify the marriage, though, since it is Islamically valid.326 States, says al-Ashqar, may not establish a legal law (ḥukma har‘īa ) to permit the forbidden nor to forbid the permissible.327 According to al-Ashqar, these laws “are but state’s stipulations and have nothing to do with divine legal rulings.”328 Many Arab-Muslim intellectuals have differentiated between states’ laws (qā ū wa ‘ī) and Sharī‘a, those intellectuals have always claimed that Sharī‘a rulings are above rulings of the state (qā ū wa ‘ī). A dichotomy of the two types of laws has thereby been created by the Arab-Muslim traditionalists: the type that is respected—Sharī‘a rulings, including the many opinions of the fuqahā’—and the type that is less respected, or that of the states.329

Al-Ashqar represents many of contemporary Salafi intellectuals who are opposed to any type of reforms which might threaten traditional Islam as they perceive it to be, the pristine

Islam. Fearing that any new reform is a threat to the identity of Islamic society, many Salafis reject any new state’s laws calling them un-Islamic and human based laws verses the Divine law

(Sharī‘a). Salafis also consider the Prophet’s conduct and his aḥādīth to be superior to any codified law. Therefore, any individual or jurist who calls for reforming Islamic family law is marginalized and his/her opinion is discarded.

326 Al-Ashqar, 126; Ḥasab Allah, 78. 327 Ibid. Ḥasab Allāh maintains that once a marriage is contracted according to Islamic law—not state’s law—the contract is religiously and legally valid. See Ḥasab Allāh, 78. 328 Ibid., 126. 329 Almost every religious intellectual has pointed to this dichotomy. This was also stated to me in an interview with the famous Moroccan intellectual Aḥmad al-Khamlīshī in May 2013. 146

Opposition Voices: Saudi Salafis

While most Arab states have codified their Islamic personal law, Saudi Arabia has yet to follow suit.330 Instead, Saudi Arabia follows the Ḥanbalī madhhab loosely, while instituting a system of decrees, or fatwas, through the Permanent Council for Scientific Research and Legal

Opinions (Dar al-Iftā’).331 Saudi Arabia also allows muftīs and judges to rule on personal issues following Ḥanbalī as well as other past ‘ulamā’ and jurists ungoverned by a codified personal law.332 The Saudi judicial system has been criticized for discriminating against women despite having published Article 8 of the country’s Basic Law, which states that, “the government in the

Kingdom of Saudi Arabia is based on the premise of justice, consultation, and equality according to Islamic Sharī‘a.”333 In addition, many intellectuals maintain that the marriage contract in

Saudi Arabia is a contract conducted between the husband-to-be and the male-walī of the bride— making it a contract between two men.334 Women in Saudi Arabia have yet to gain basic rights, let alone equality in family law.

The lack of equality between men and women notwithstanding, Saudi Arabia has witnessed heated public debates regarding women’s legal rights in the kingdom. The following pages discuss the viewpoints of two prominent Saudi intellectuals: ‘Abd al-‘Azīz b. Bāz (1910-

1999) and Muḥammad āliḥ al- Uthaymīn (1928-2000). Both individuals have been cited in countless academic works, and their rulings have been incorporated into the country’s legal

330 Mir-Hosseini, 2013, 11. 331 Abou El Fadl, 173. See also “Saudi Arabia, Kingdom of,” accessed February 1, 2014, http://www.law.emory.edu/ifl/legal/saudiarabia.htm. 332 In his work, S aki g i d’ Nam , Abou El-Fadl shows his concern regarding Saudi Arabia’s authoritarian rulings with respect to family law issues, particularly women. This type of blind imitating, according to Abou El- Fadl, is a threat to individuals and to Islamic fiqh, which is reduced to the mere narration of aḥādīth instead of engaging in the process of ijtihād to resolve contemporary issues. For more on Abou El-Fadl’s critique of Saudi fatwās/rulings see Abou El-Fadl, 170-208. 333 Eleanor Abdella Doumato “Saudi Arabia,” in W m ’ Rights in the Middle East and North Africa: Citizenship and Justice, ed. Sameera Nazir and Leigh Tomppert (New York: Freedom House; Lanham, Md: Rowman & Littlefield. 2005), 258-259. 334 Doumato, 262. 147 fatwas. Ibn Bāz was born in Saudi Arabia. In 1931, Ibn Bāz lost his sense of sight while still a child and was left permanently blind thereafter.335 After studying under some of the major

‘ulamā’ in Saudi Arabia, Ibn Bāz was appointed as a judge and imam to one of the local mosques. Later in his life, Ibn Bāz headed a number of the Saudi religious universities and in

1975 he was appointed the head of the Iftā’ Institution.336 In 1993, King Fahd of Saudi Arabia appointed him the state muftī.337 Ibn al-‘Uthaymīn was also an intellectual and a prominent Saudi muftī. He was a member of the Council of Senior Scholars and the Institute of Iftā’ and the

Institution of Scholarly Research.338

Ibn al-‘Uthaymīn is of the opinion that marriage takes precedence over education. This was illustrated in his response to an enquiry regarding the priority of education.339 Ibn al-

‘Uthaymīn supports the requirement of a walī in marriage.340 However, he disagrees with many others on the coercion of women and children into marriage. Ibn al-‘Uthaymīn maintains that the presence and the consent of the walī is an integral part of a marriage contract, and that without it the marriage is void.341 Further, Ibn al-‘Uthaymīn asserts that among the many qualifications of a walī is the requirement that the walī be a practicing Muslim male from the woman’s agnates

(‘uṣba).342 Ibn al-‘Uthaymīn is of the opinion that if the walī/father/grandfather, does not pray the five daily prayers, he should be stripped of his authority as a walī.343 Ibn al-‘Uthaymīn cites several aḥādīth and Qur’anic verses as evidence for these requirements. To him, the ḥadīth,

335 Mūsā, Muḥammad b. Mūsā, Jawā ib mi īrat al-Imām bd al- zīz ib Bāz (al-Riyāḍh: Dār Ibn Khuzaymah, 2002), 33. 336 Ibn Mūsā, 46-47. 337 Ibid., 47. 338 Mansoor Jassem Alshamsi, Islam and Political Reform in Saudi Arabia: the Quest for Political Change and Reform (Milton Park, Abingdon, Oxon: Routledge, 2011), 55. 339 Ibid., 716. 340 Muḥammad b. ālih al-‘Uthmayin, Mudhakarat fiqh (Cairo: Dār Al-Ghad, 2007), 2: 41-42. 341 Ibn al-‘Uthaymīn, 2007, 2: 41-42. See also Nayel Badareen, “The Role of Women in Marriage as Seen by Three Salafis: Obstacles,” paper presented at the Forty Seventh Annual Conference of Middle Eastern and North African Associations (New Orleans, October 10-13, 2013), 3. 342 Ibn al-‘Uthaymīn, 2007, 2: 41-42; Badareen, 2013, 3-4. 343 Ibid. 148

“There is no marriage without the permission of a walī,” is a prime example of his belief in the necessity of a walī when contracting a marriage.344

Perhaps uniquely, Ibn al-‘Uthaymīn interprets some of the Qur’anic verses as specifically addressing men and not woman; particularly, Qur’anic verse 2: 221, which says, “Do not marry unbelieving women (idolaters), until they believe,” and Qur’ān 2: 232, which states “When ye divorce women, and they fulfill the term of their ('iddat), do not prevent them from marrying their (former) husbands.”345 To justify his reasoning behind requiring a male walī to conduct a woman’s marriage, Ibn al- Uthaymīn argues that men have more experience in the affairs of men than do women. Also, he says, men have long term vision and are not as easily swayed as women.346 Ibn al-‘Uthaymīn is of the opinion that a woman may be easily tricked by any man who might deem to deceive her by way of his charm or appearance, which could cause her to fall victim to him. Therefore, according to Ibn al-‘Uthaymīn, having a male walī will protect a woman and help her to choose a suitable long-term partner and husband. The walī, according to

Ibn al-‘Uthaymīn, is a form of mercy to women.347

With respect to coercion in marriage, Ibn al-‘Uthaymīn concurs with other intellectuals that the appropriate age of marriage is the first sign of bulūgh. To him, girls must be married as soon as they are ready to marry in order to avoid immorality and premarital sexual relations

(zi ā). However, Ibn al-‘Uthaymīn disagrees with most jurists and ‘ulamā’ by maintaining that a minor girl cannot be coerced into marriage.348 He argues that no one has the right to coerce a

344 Muhammad b. Saleh b. ‘Uthaymīn, Sharḥ Bulūgh al-maram min adillat al-aḥkām lil-imām Ib ajar al- ‘ qala ī, (Beirut: Dar al-Kotob al-‘ilmiyah, 2007), 4: 416; Abdul Aziz b. Abdullah Ibn Bāz Muḥammad b. al- Uthaymīn, and Abd Allāh b. Jibrīn, atāwā I lāmī ah (Riyadh: Dār al-Watan, 1994), 3: 148-49. 345 Ibn al-‘Uthaymīn, Mudhakarat fiqh, 3: 39; Ibn Bāz, Ibn al- Uthaymīn, and Ibn Jibrīn, 3: 148-149. 346 Ibn al-‘Uthaymīn, Mudhakarat fiqh, 3: 39. 347 Ibn al-‘Uthaymīn, 2006, 4: 416; Badareen, 2013, 3-5. 348 Muḥammad ālih, b. al-‘Uthaymīn, Fiqh al-mar‘ h fī- aw’ al-kitāb wa-al-sunnah (Cairo: Maktabat al- afā, 2006), 298; Badareen, 2013, 4-5. 149 minor girl into marriage, even her father or grandfather.349 His evidence for rejecting coercion in marriage is the Prophetic ḥadīth which states that a single virgin (bikr) woman (al-ayyim) “may not be married without her permission.”350 Ibn al-‘Uthaymīn states that a minor bikr is not to be married until she reaches the age of bulūgh, and not without her consent.351 He also considers this ḥadīth to be a general rule (ḥukm).352 In his rulings, Ibn al-‘Uthaymīn interprets the term bikr to include minor and adult women, regardless of their age.353 Ibn al-‘Uthaymīn agrees with past jurists Ibn Shubruma, al-A am, and al-Battī in forbidding the marriage of minors since there is no benefit to the minors in marriage.354

While many Muslim ‘ulamā permit the coercion of minors into marriage by citing the marriage of ‘Ᾱ’īsha to the Prophet at the age of six, Ibn al-‘Uthaymīn rejects such coercion for the following reasons: first, Ibn al-‘Uthaymīn rejects the jurists’ claim that a father/walī is more compassionate toward his daughter than the daughter is toward herself.355 Second, he interprets the ḥadīth where the Prophet states that a single virgin (bikr) woman (al-ayyim) may not be married without her permission to include minor and adult women.356 Third, he maintains that today a father may not compel his daughter to sell the bracelet from her watch or force her to do a certain skill, let alone coerce her to sell herself to a man of whom she has not approved.357

Finally, Ibn al-‘Uthaymīn challenges the proponents of coercion in marriage to produce for him a modern groom comparable to the Prophet, and a wife that exemplifies the qualities of ‘Ᾱ’īsha

349 Ibn al-‘Uthaymīn, Fiqh, 298; Ibn al-‘Uthaymīn, Muzakarat fiqh, 3: 38; Ibn al-‘Uthaymīn, Muḥammad āliḥ Uthaymīn, al-Sharḥ al-mumti al ād al-mu taq i (al-Riāyḍh: Dār al-Juzī, 2006), 12: 56. 350 Ibn al-‘Uthaymīn, Sharḥ al-mumti‘, 12: 57-58. 351 Ibid., 12: 58. 352 Ibid. 353 Ibid., 12: 51. 354 Ibid., 12: 57. 355 Al-‘Uthaymīn, 2006, 3: 37. 356 Ibid., 3: 37. 357 Ibid., 3: 38; Ibn al-‘Uthaymīn, al-Sharḥ al-mumti , 12: 56-57 . 150 before he will allow this type of marriage to take place.358 Ibn al-‘Uthaymīn therefore forbids the coercion of women into marriage, and says that if a father coerces his daughter into marriage— whether she is a minor or an adult—the marriage should not be valid and the court may interfere in this type of marriage.359 While Ibn al-‘Uthaymīn does not approve of coercing a minor girl into marriage, he does approve of the coercion of a minor man into marriage since a man may dissolve his marriage unilaterally if he wishes when he reaches bulūgh.360

In contrast to Ibn al-‘Uthaymīn and other intellectuals, Ibn Bāz expressed his opinions through the many fatwas he issued through various social media outlets which were available throughout the Arab and Muslim world. Among his fatwas on women were those regarding the age of marriage and the role of the walī. Ibn Bāz was also known for advocating early marriage, even if it meant prioritizing marriage over education. He is of the opinion that delaying marriage may cause women to miss the opportunity to marry the right man.361 If a woman wants to continue her education, she may stipulate that in her marriage contract.362 However, he argues that “it should be enough for a woman to finish her elementary education where she is able to learn how to write, recite the Qur’ān, and be familiar with its interpretation, with the exception to those women who may be studying medicine or any other similar type of field where people may benefit from such education.”363

Regarding the codifications of Islamic family laws in most of the Arab states, Ibn Bāz illustrated his opinion upon hearing that United Arab Emirates was planning on codifying its

358 Ibid. 359 Al-Sa‘īd, 716-717. 360 Ibn al-‘Uthaymīn, Sharḥ al-mumti‘, 12: 59. 361 alāḥ al-Dīn Maḥmūd al-Sa īd, aw ū at al-aḥkām wa-al-fatāw al- har ī ah / li- bd al- zīz ib bd llāh ib Bāz, ... et al. (Cairo: Dār al-Ghad al-Jadīd, 2006), 701-702. 362 Ibid. 363 Al-Sa‘īd, 704. 151

Islamic family law.364 Ibn Bāz issued a fatwā strongly objecting to codifying the minimum age of marriage. In his fatwā, Ibn Bāz argues that codifying and specifying the minimum age of marriage is un-Islamic and unfounded in the Qur’an and aḥādīth of the Prophet.365 He claims that codifying the age of marriage is against God’s law ( har‘) and the teachings of the Prophet. Ibn

Bāz maintains that the Qur’an and the Prophet’s aḥādīth urged Muslims to marry without limiting them by age—whether a maximum or a minimum.366 To buttress his opinion, Ibn Bāz provides the following Qur’anic verse (4: 127), which states, “They ask thy instruction concerning the women say: Allah doth instruct you about them: And (remember) what hath been rehearsed unto you in the Book, concerning the orphans of women to whom ye give not the portions prescribed, and yet whom ye desire to marry.” Ibn Bāz argues that the term “orphan women” in the verse means minor women, which he says is clear evidence that God has permitted the marriage of minors.367 In addition, Ibn Bāz cites the marriage of the Prophet

Muḥammad to ‘ ’isha when she was a minor, as well as the marriage of some of the Prophet’s

Companions to minor and adult women.368 To Ibn Bāz, the evidence is enough to condemn anyone “who may attempt to forbid what God and his Prophet have decreed, and no one has the right to change what God and his messenger have decreed. Anyone who does so is creating dissention (fitna) among the Muslim umma.”369

364 For the more on the codifications of some of the Arab-Muslim states’ PSL see Lynn Welchman, Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy ([Amsterdam]: Amsterdam University Press, 2007), 41. 365 “ ulāḥa āt ata‘llaqu bi mā Nu hira awla a hrū‘ Qā ū al-Aḥwāl al-Shakhṣī a fī ba‘ al-Buldā Observations related to what was Published on Personal Law Status in some of the Arab States,” accessed January 8, 2014, http://www.ibnbaz.org/mat/8224. 366 Ibid. Ibn Bāz was addressing the news of the UAE who called for a minimum age of marriage and a maximum age for men restricting their marriage by a court’s permission if the difference in age is more than half age of the man. See Welchman, 2007, 41. See also http://www.ibnbaz.org/mat/8224/print. 367 “ ulāḥazāt,” accessed January 8, 2014, http://www.ibnbaz.org/mat/8224. 368 Ibid. 369 Ibid. 152

Both Ibn al-‘Uthaymīn and Ibn Bāz are well known Saudi Salafi-Ḥanbalī mufīs who, while they agree on several legal issues, disagree on the issue of the coercion of women into marriage. While Ibn Bāz sides with some of the madhāhib who permit the coercion of minors and adults into marriage, Ibn al-‘Uthaymīn on the other hand, chose to reject the madhāhib rulings and instead relied on the opinions of the minority jurists (Ibn Shubruma, al-Battī, and al-

A amm). In doing so, Ibn al-‘Uthaymīn considered the opinion of minority jurists to be more of an authority on the topic than the previous consensus of the five Islamic schools of law which had agreed to allow the coercion of minors into marriage. The two contemporary Salafi muftīs provide us with concrete evidence that even traditionalist Salafis from within the same party and the same state may disagree on the authority of consensus and on contemporary legal issues concerning women.

PART IV

The Twenty-First Century Debates

The twenty-first century began with calls to reform many of the codified and un-codified family laws among the Arab states, such as those in Morocco, Saudi Arabia, Bahrain and

Egypt.370 Due to the restrictive nature of PSLs toward women in some of the Arab-Muslim states and the lack of women’s rights in Islamic fiqh, professional men and women continue to struggle to this day. Morocco responded and led the way by reforming its family law, the Mudawwana, in

2003.371 Debates over the codifications of fiqh and the role of women in marriage continued circulating among Arab intellectuals in many parts of the Arab world. In Egypt, women’s organizations, professional men and women, and Non-Governmental Organizations (NGOs)

370 For a Survey on the codification of some of the Arab personal laws see, Welchman, 2007. 371 Debates regarding Moroccan family law will be discussed in detail in chapters three and four. 153 lobbied for reforms to improve the rights of women in Egypt’s personal law. While many NGOs in Egypt and other Arab and Muslim countries are supported by Western states, they all learned that in order for them to engage in a public debate in Islamic states, they needed to address reforms through the language of fiqh instead of Western terminology if they hoped to achieve any tangible progress.372 Mona Zulficar, the head of one of the international NGOs for the advancement of women in Egypt, is among the many NGO leaders to incorporate Islamic legal language to advance women’s rights in her home country.373 Zulficar was a prominent intellectual and activist who fought for women’s rights while running her own law firm.374 She was elected vice chair of the UN Human Rights Council Advisory Committee and was a member of the National Council for Human Rights in Egypt. She is also a practicing lawyer, heading the international law firm Zulficar and Partners.375

In 1985, Mona Zulficar headed a committee of seven women called the “Group of

Seven” with the aim of drafting a new marriage contract which contained new stipulations favoring women.376 Due to the strong opposition met by the committee, the proposed new contract was put aside for several years. In 1995, the new marriage contract proposal was finally

372 Chapter four examines the role of NGOs in Morocco and how their publications shifted their language to include legal religious language in order to reach a wider audience. For NGOs in Egypt and their influence in Egyptian personal law see, Sharafeldin, 57-81. 373 Zulficar was the deputy chairwoman of The National Committee of NGOs for Population and Advancement, and a member in the legislative sub-committee of the National e National Council for Human Rights in Egypt. For more on Zulficar’s struggle to achieve rights for women in Egypt see Ron Shaham, "State, Feminists and Islamists: The Debate over Stipulations in Marriage Contracts in Egypt," Bulletin of the School of Oriental and African Studies 62, no. 3 (1999). 374 Shaham, "State, Feminists and Islamists”, 466. For the biography of Zulficar see http://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/CVMembers/MonaZulficar.pdf, accessed January 30, 2014. 375 See http://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/CVMembers/MonaZulficar.pdf, accessed January 30, 2014. 376 Mona Zulficar, “The Islamic Marriage Contract in Egypt,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, eds. Quraishi, Asifa, and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School, 2008), 231-237; Ron Shaham, "State, Feminists and Islamists,”1999, 466; Welchman, 1999, 77-80; Welchman, 2000, 181. 154 published after the collaboration between the committee and the Egyptian Ministry of Justice.377

The new marriage contract stipulations included permission to work outside the home, a stipulation to grant the wife the right to divorce her husband (‘ìṣma), along with a blank page so the couple can add other stipulations they both agree on.378 The proposal was met with vigorous opposition from certain ‘ulamā’ and other secular members of the Egyptian parliament.379 The newly published draft was approved by the grand muftī of Egypt, Muḥammad Sayyīd Ṭanṭāwī, but it was vehemently opposed and rejected by Shaikh al-Azhar Jādd al-Ḥaqq.380 The rejection of the proposal by Jādd al-Ḥaqq was not based on any religious evidence but rather on his assumption that the new marriage contract would discourage young people from marrying and could cause social problems.381 However, muftīs and other ‘ulamā’ accused the committee of attempting to westernize Islamic marriage.382 A watered-down version of the contract was finally passed as law No. 1 in the year 2000 after a new version was agreed upon which did not include the proposed stipulation to restrict a man’s right to marry more than one wife.383 The new marriage contract covered divorce (khul‘), child custody, inheritance, and also amended the regulations governing marriage registration to ensure the identities of the couple and that they are of the legal age to marry.384 The commitment by Egyptian women like Zulficar resulted in small

377 Shaham, 1999, 467, 472; Zulficar, 243-252; Ezzat, 48-51. 378 In the end a total of nine new stipulations were included in the new marriage contract. See Zulficar, 243-52; Shaham, 1999, 466-73. 379 Zulficar, 242; Shaham, 1999, 462. 380 Zulficar, 242; Shaham, 1999, 462; Ezzat, 48-51; Arabi, 5. 381 Ibid. 382 Ezzat, 49; Shaham, 466-73. 383 Ezzat, 49; Shaham, 466-73; Zulficar, 240-41. Amira El-Azhary Sonbol, “Egypt,” in Women’ Right i th Middle East and North Africa: Citizenship and Justice, ed. Sameera Nazir and Leigh Tomppert (New York: Freedom House; Lanham, Md: Rowman & Littlefield. 2005), 71; Arabi, 2000, 3-4. 384 Zulficar, 240; Diane Singerman, “Rewriting Divorce in Egypt: Reclaiming Islam, Legal Activistsm, and Coalition Politics,” in Remaking Muslim politics: pluralism, contestation, democratization, ed. Robert W. Hefner (Princeton, N.J: Princeton University Press, 2005), 161; Ezzat, 49; Arabi, 3-4. On the struggle of Zulficar and women to pass this law see Mariz Tadros, “What Price, Freedom?” al-Ahram Weekly, accessed January 30, 2014, http://weekly.ahram.org.eg/2002/576/fe1.htm. 155 steps in the advancement of women’s personal rights.385 The debate over women’s rights in

Islam did not stop with women’s organizations and Egyptian feminists, however—other intellectuals continued the discussion from there.

Egyptian intellectual Yūsuf al-Qaraḍāwī is one of the most famous individuals to publically speak and write on the topic of women in Islam. Al-Qaraḍāwī (b. 1926) attended al-

Azhar University, where he became an active member of the Muslim brotherhood.386 A controversial figure, al-Qaraḍāwī was imprisoned several times during his life. In 1961 al-

Qaraḍāwī travelled to Qatar for a teaching assignment, where he has remained since.387 Al-

Qaraḍāwī is an active scholar who wrote on political Islam, Islamic jurisprudence, and many other topics. Despite his advanced age al-Qaraḍāwī is active in politics as well as religion. Aside from issuing fatwas using various media outlets, al-Qaraḍāwī is a regular guest on the al-Jazeera

TV Channel and hosts the popular program, “The Sharī‘a and Life (al-Sharī‘ā wa- al- a ā).388

As an active Muslim figure, al-Qaraḍāwī lectures throughout the world and issues fatwas on TV and on his popular website, Islamonline.net.389

According to al-Qaraḍāwī, the walī must obtain an adult woman’s consent to contract her marriage. He disagrees with many jurists, particularly Shāfi‘īs, who call for the coercion of women into marriage.390 Al-Qaraḍāwī supports his argument by bringing forth several aḥādīth

385 While Zulficar maintains that the new marriage contract improved the lot of women in Egypt, Amira Sonbol disagrees with her and argues that the Egyptian marriage contract still favors men and places women in the “custody” of men and leaves women little rights to negotiate the terms of their lives under this permanent contract. See Amira El-Azhary Sonbol, “A History of Marriage Contracts in Egypt,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law eds. Asifa Quraishi and Frank E. Vogel (Cambridge, Mass: Islamic Legal Studies Program, Harvard Law School: Distributed by Harvard University Press, 2008), 90. 386 Amr Abd al-Karīm Sa dāwī, Qa ā ā al-marʼah fī fiqh al-Qara āwī (Jīzah: Qaṭr al-Nadá, 2006), 17. 387 Sa‘dāwī, 17-28. 388 Al-Qaraḍāwī established the famous website Islamonline.net separately from another website which bears his name: Qaradawi.net. See Sa‘dāwī, 25-28. 389 Ibid. 390 Yūsūf Qaraḍāwī, i udā al-I lām atāwā mu‘āṣirah (Beirūt; Damascus; Ammān: al-Maktab al-Islāmī, 2000), 2: 376-377. 156 and opinions of various jurists, particularly Ḥanafīs.391 Al-Qaraḍāwī is also of the opinion that coercing an adult woman into marriage is contrary to the fundamental principles of Islam.392 He states that, “God did not permit the walī to force his ward to wear a certain garment or to coerce her to execute commercial sale or lease without her consent. How can God allow the walī to force his ward to sleep with someone she detests? God wanted spouses to live with love and compassion.”393 In addition, Al-Qaraḍāwī cites the opinion of the Ḥanbalī jurist Ibn Qudāmah who stated that “an adult woman must consent to marriage and is not to be coerced into marriage. This is the opinion of the majority of the predecessors and the madhhab of Abū Ḥanīfa and Aḥmad b. Ḥanbal. This is also in agreement with the Prophet’s opinion and the principles of

Sharī‘a.”394Al-Qaraḍāwī also suggests that the mother be consulted regarding her daughters’ marriages, just as the father is. He supports his opinion by citing a ḥadīth where the Prophet said,

“Seek the opinion of mothers in their daughter’s marriage .395 While calling on walīs to obtain mothers’ opinion’s in marriage, al-Qaraḍāwī maintains that taking the opinions of mothers does not mean that they have the right to contract their daughters in marriage.396 Instead, he considers it a show of respect to the mother who, he says, is usually closer to her daughters than their father.397 Al-Qaraḍāwī is also of the opinion that a woman may not contract her marriage without the consent of her walī based on the aḥādīth which states, “no marriage without the consent of the] walī,” as well as the ḥadīth attributed to ‘ ’isha which states, “any woman who contracts her marriage, her marriage is void, repeated three times.”398 To him, the contract must be

391 Al-Qaraḍāwī, 2000, 2: 378-373. 392 Ibid., 2: 372. 393 Ibid. 394 Ibid., 2: 372-373. Ibn al-Qayyim’s opinion could be found in Muḥammad b. Abī Bakr Ibn Qayyim al-Jawzīyah, ād al-ma ād fī had kha r al- ibād (Beirūt: Muʼassasat al-Risālah, 1979), 5: 96. 395 Yusūf al-Qaraḍāwī, Markaz al-mar’ah fī al-ḥayāh al-I lāmī ah (Cairo: Maktabat Wahba, 2005), 84. 396 Al-Qaraḍāwī, 2005, 84-85. 397 Ibid., 85. 398 Ibid., 86-88. 157 conducted with the approval and consent of the daughter, mother, and the father /walī so as to avoid any tension or confrontation within the family.399

While al-Qaraḍāwī does not believe in allowing women to be coerced into marriage (he considers the marriage contract to be a partnership), many Arab intellectuals differ with him on this issue. Nashwah al- Ilwānī is a Syrian intellectual extensively published in the realms of

Islamic family law and the rights of women in Islam.400 Al- Ilwānī is a researcher at al-Asad

Library in Syria and holds a PhD from the University of Karachi.401 Al-‘Ilwānī is of the opinion that a woman requires a walī to contract her marriage.402 She supports her opinion by the ḥadīth attributed to ‘ ’isha in which she states that “any woman who marries herself without a walī her marriage is void, repeated three times.”403 Al-‘Ilwānī maintains that a marriage without a walī ought to be void, although the Syrian law permits this type of marriage.404 Al-‘Ilwānī also agrees with past jurists who are of the opinion that reaching bulūgh is not a requirement for marriage.405

She disagrees with the Syrian personal law which considers the marriage of girls below the age of thirteen to be void (fā id).406 She suggests that if judges start rejecting minor marriages that are conducted outside the court, they would have to throw out the majority of marriages.407 Al-

‘Ilwānī therefore argues for early marriage, maintaining that girls need to be married as soon as they reach bulūgh.408 She supports her argument by citing Qur’anic verse 24:32, which states,

399 Ibid., 88-89. 400 “Al-Murāhaqa bayyna al-A‘rāf wa al-Sharī‘a,” al-Jazeera, accessed January 10, 2014, http://www.aljazeera.net/home/print/0353e88a-286d-4266-82c6-6094179ea26d/b86e17e1-0ffb-4e88-bcd3- f10d8bcbf751. 401 “Al-Murāhaqa bayyna al-A‘rāf wa al-Sharī‘a,” al-Jazeera, accessed January 10, http://www.aljazeera.net/home/print/0353e88a-286d-4266-82c6-6094179ea26d/b86e17e1-0ffb-4e88-bcd3- f10d8bcbf751. 402 Nashwah, al- Ilwānī, aw ū at aḥkām al-marʼah al-Muslimah (Damascus: Dār al-Maktabī, 2002), 2: 650. 403 Al-‘Ilwānī, 2: 650. 404 Ibid., 2: 651, 657. 405 Ibid. 406 Al-‘Ilwānī, 2: 657-658. 407 Ibid. 408 Ibid., 2: 718. 158

“Marry those among you who are single, or the virtuous ones among yourselves, male or female: if they are in poverty, Allah will give them means out of His grace.” Al-‘Ilwānī claims that the verse encourages early marriage by directing walīs to hasten the marriage of minors who have reached bulūgh so as to protect their chastity.409 In addition to the above verse, al-‘Ilwānī brings forth a ḥadīth attributed to ‘Alī in which the Prophet says to him, “Oh ‘Alī, three things cannot be delayed, the prayer on time, the funeral procession, and the [marriage of] alayyim [the single woman] if she found a kufu’.”410 Al-‘Ilwānī argues that since the marriage of a single woman is attached to the obligatory prayer and the funeral procession, the marriage of a young girl is also obligatory and must take precedent over any other matter in the girl’s life.411 Al-‘Ilwānī suggests that delaying the immediate marriage may have serious consequences. Al-‘Ilwānī says:

[D]elaying marriage may cause the single woman to fall into vice and immorality. The young woman may stay single and miss the period of marriage.412 The right man, kufu’, may not knock on her door if she is not immediately married at bulūgh. The woman may become unhappy, angry, and may become depressed if she was not married by the time she reaches bulūgh.413

Al-‘Ilwānī also maintains that a girl who reaches the age of nine may be married if she so wishes. She is of the opinion that the walī may not prevent her from marrying the kufu’ man she chooses.414

The two Arab intellectuals, al-Qaraḍāwī and al-‘Ilwānī, called on past authority to support their opinions. However, al-Qaraḍāwī rejected the consensus of jurists to allow for the coercion of women (minors and adults) into marriage. Al-‘Ilwānī, on the other hand, rejected the

409 Ibid. 410 Ibid. The ḥadīth could be found in Musnad Ibn anbal. See Ibn Ḥanbal, al-Musnad (Egypt: Dār al-Ma ārif), 2: 144-145, no. 828. 411 Ibid., 718. 412 “fawāt qiṭār al-zawjī a,” is a common phrase used for women who are not married by certain age among Arabs, the phrase literally means, the train of marriage has passed her.” 413 Ibid., 718-719. 414 Al-‘Ilwānī cites the Qur’anic verse 2: 232 to support her argument. See al-‘Ilwānī, 2: 719-720. 159

Syrian PSL by providing women with the right to conduct their marriage, and siding instead with the consensus of the five madhāhib in that a minor woman may be coerced into marriage. She also sided with the majority of the madhāhib in her belief that a walī is required for a woman’s marriage to be valid. The two intellectuals, while contemporaries and from states with codified

PSLs that are mostly based on the Ḥanafī madhhab, disagree on the role of the walī in marriage and the topic of early marriage. This is evidence that, while intellectuals may be the product of similar traditional religious institutions, they may still disagree with one another on certain legal issues.

Recent Debates over the Age of Marriage: The Case of Saudi Arabia

Recently the news of minor marriages in Yemen, Saudi Arabia, Egypt and other Arab states has resurfaced due to the increased presence of media outlets like satellite channels and the internet, including social media platforms like Facebook, Youtube, Twitter, etc. It is well-known that minor marriages are common in many of the Arab states, particularly in rural and remote areas. In 2008, two cases of forced minor marriages in Yemen made international news. Both cases involved female children who were forced to marry elderly men.415 In both cases poverty, illiteracy, and tribal customs were all factors which led to the contracts in question.416 Another case which gained media attention in Saudi Arabia involved the coerced marriage of a ten-year- old girl to a man who was in his eighties.417 The news of the minor marriage spread throughout the media like wildfire, and the resulting public outcry against minor marriages in Yemen and

415 See “Tiny Voices Defy Child Marriage in Yemen,” New York Times, accessed January, 09, 2013, http://www.nytimes.com/2008/06/29/world/middleeast/29marriage.html?pagewanted=all&_r=0 and also “Tragedy Shines Light On Lives Of Yemeni Child Brides,” National Public Radio, accessed January 09, 2013, http://www.npr.org/templates/story/story.php?storyId=126110751. 416 Ibid. See also http://www.alrakoba.net/articles-action-show-id-26127.htm, accessed January, 09, 2013. 417 Accessed March 20, http://elaph.com at http://archive.is/vVc2i 160

Saudi Arabia prompted many to publicly denounce such marriages unilaterally. However, many others opposed raising the age of marriage or any codification of the legal age of marriage at all.418 In Yemen, two demonstrations organized by women were held in front of the Parliament building in the city of an‘ā’.419 While one side called for the end of minor marriages and an increase in the minimum age of marriage to seventeen, the other side called for the preservation of the custom following the example of the marriage of the Prophet to ‘ ’isha.420 Due to the publicity of such cases, intellectuals, activists and conservatives began debating the topic. Due to the number of cases of minor marriage in Saudi Arabia, activists, medical experts, and professionals started calling for the institution of a minimum age for marriage, and for the codification of Saudi Islamic family law.421 On the other hand, many individuals, intellectuals, muftīs, and imams called for the preservation of minor marriages following the example of the

Prophet Muḥammad’s marriage to ‘ ’isha.422

Among the individuals who called for a minimum age for marriage in Saudi Arabia is the

Saudi Salafi jurist Muḥammad al-Nujaymī, who maintains that women may not be married before reaching the age of bulūgh and the age of rushd—fifteen years of age.423 Al-Nujaymī also suggests that the Saudi government institute a law to prevent the marriage of minors so as to eliminate early marriages.424 He also called on judges to prevent such marriages unless there is an extreme necessity for them, provided that medical and social experts testify to this urgent

418 “Al-Shaykh āliḥ al-Maghāmsī: Zawāj al-Qā īrāt: Marriage of Minors,” al-arabia, accessed January 09, 2013, http://www.youtube.com/watch?v=nAcPOB65qDU. 419 See “Ta ā‘ud al-Jadal fī al-Yemen Ḥowla Taḥdīd Sin al-Zawāj,” al-Bawāba, accessed January 09, 2013, http://www.albawaba.com/ar/%D8%A3. 420 See “Ta ā‘ud al-Jadal fī al-Yemen Ḥowla Taḥdīd Sin al-Zawāj,” al-Bawāba, accessed January 09, 2013, http://www.albawaba.com/ar/%D8%A3. 421 For more on cases of minors coerced into marriages see the following, http://elaph.com at http://archive.is/vVc2i. See also http://www.qassimnews.com/news-action-show-id-4222.htm; and http://www.alriyadh.com/2010/03/10/article505174.html. 422 “Al-Fawzān,” Al- adī a, accessed January 09, 2013, http://www.al-madina.com/node/315238. 423 http://elaph.com at http://archive.is/vVc2i. 424 Inid. 161 need, and that the walī give his consent.425 Al-Nujaymī cites Ibn al-‘Uthaymīn, who shares his opinion that the marriage of the Prophet to ‘ ’isha is specific to him with the Egyptian intellectuals, al-Shādhilī, and the minority of past jurists. Al-Nujaymī argues that the marriage of

‘ ’isha to the Prophet occurred prior to the Prophet’s ḥadīth requiring the permission of the bikr in marriage.426

While medical and social experts sided with Nujaymī, citing the various harmful results of early pregnancy, religious conservative traditionalists and ‘ulamā’ still called for early marriage, saying that the marriage of ’isha is a prime example to follow.427 ‘Abd al-‘Azīz al-

Ṭurayfī, a Salafi researcher at the Religious Affairs Department in Saudi Arabia, strongly defends the practice of minor marriages, citing the marriage of ‘ ’isha to the Prophet.428 He argues that “any codifying to eliminate the marriage of minors goes against Islam and emulating the Prophet.”429 In addition to al-Ṭurayfī, other high profile individuals—like the popular satellite TV muftī Muḥammad al-‘Arīfī—also supported early marriage custom. Al-‘Arīfī maintains that it is the norm for women in certain Islamic societies to marry young. He mentions

Yemen and Saudi Arabia as two states among many where it is the custom for girls to marry at the age of thirteen or younger, saying that they are following in the steps of the Prophet, who married the young ‘ ’isha.430

Joining al-‘Arīfī is the popular Saudi Salafi muftī āliḥ b. al-Fawzān, who also calls for the preservation of the custom of early marriage. Al-Fawzān is a member of the High Council of

Fuqahā’ and a member of the Permanent Council for Scientific Research and Legal Opinions

425 Ibid. 426 Ibid. 427 http://www.okaz.com.sa/new/Issues/20100521/Con20100521351562.htm, accessed January 09, 2014. 428 See the opinion of ‘Abd al-‘Azīz al-Ṭurayfī, a researcher at the religious affairs in Saudi Arabia “Zwāj al- Qā irāt: Marriage of Minors,” accessed January 09, 2013, http://www.youtube.com/watch?v=Iu17Xab6tUw 429 Ibid. 430 “Muḥammad al-‘Arīfī,” accessed January 10, 2013, http://www.youtube.com/watch?v=vIL8MTGkrjA. For the biography of al-‘Arīfī see http://arefe.ws/ar/index.php?com=content&id=1. 162

(C.R.L.O).431 In response to calls to raise the minimum age of marriage in Saudi Arabia, al-

Fawzān responded strongly by claiming that past Muslim jurists have reached consensus on the issue of the marriage of minors.432 Al-Fawzān also decreed that calls for regulating the minimum age of marriage are against God’s order and are contrary to the Qur’an and the Sunna of the

Prophet.433 Like many others who opposed raising the minimum age of marriage, al-Fawzān cites Qur’anic verse 65:4 and the Prophet’s marriage to ‘ ’isha as strong evidence in favor of the marriage of minors—provided that the husband is kufu’.434 Maintaining that Muslim jurists have reached consensus on the topic, al-Fawzān warns anyone who is not a member of the ‘ulamā‘ not to interfere with God’s rulings and the Prophet’s Sunna.435 In his efforts to continue the custom of early marriage in Saudi Arabia, al-Fawzān wrote a letter asking the C.R.L.O to permit the marriage of minors in saying that jurists have reached consensus on the issue.

In response to this request, and to the heated public debate regarding the marriage of minors, the Saudi muftī ‘Abd al-‘Azīz al-Shaykh asked the universities to look into the marriages of minors and their ramifications and consequences.436 Another Saudi jurist who opposed the call of al-Fawzān regarding the minimum age of marriage is Ḥātim b. ‘ rif al-‘Awnī, a Salafi intellectual and assistant professor at the University of Umm al-Qurā in Saudi Arabia.437 Al-

431 See http://www.alfawzan.af.org.sa. 432 “Al-Fawzān: al-Munādūn bi taḥdīd sin al-Zawāj Khārijūn ‘alā Shar‘Allāh: Those who are calling for codification of the minimum age of marriage have violated the Divine Law” ‘ kāz, accessed January 09, 2013, http://www.al- madina.com/node/315238. Al-Fawzān cites the opinion of the jurist al-Muhallab in atḥ al-Bārī, where he stated that jurists have reached consensus on contracting minors according to ‘ ’isha’s ḥadīth in which she stated that the Prophet contracted her marriage when she was six years old. For the opinion of al-Muhallab see Aḥmad b. Alī b. Ḥajar al- Asqalānī, atḥ al-bārī harḥ Ṣahīḥ al-Bukhārī (Beirūt: Dār al-Ma‘rifah, 1959),”Bāb Inkāḥ al-Rajul wa Waladahu al- aghīr,” 9: 189-190. Al-Fawzān also cites the opinion of Ibn Bāz and the jurist Ibn al-Mundhir. See Ibn al-Mundhir, al-Ijmā‘, 78. 433 Ibid. 434 Ibid. 435 Ibid. 436 “Haī’at kibār al-‘ulamā’ tuṭālib al-Jāmi‘āt bi dars qaḍīyat ‘zawāj al-qā irāt’,” akhbaar24 , accessed January 09, 2013, http://akhbaar24.argaam.com/article/detail/40971. 437 “Biography,” accessed January, 09, 2013, http://www.ahlalhdeeth.com/vb/showthread.php?t=141844; see also his facebook page at https://ar-ar.facebook.com/Al3uny. 163

‘Awnī argues that there has never been consensus regarding the marriage of minors or their coercion into marriage.438 He brought forth the opinions of Ibn Shubruma, al-Battī, and the Saudi jurist Ibn al-‘Uthaymīn as jurists who never agreed to such a marriage.439 Second, al-‘Awnī maintained that there was never consensus at the time of the Companion of the Prophet as al-

Fawzān claims, since the method of consensus had not started until generations after the death of the Companions.440 In addition, al-‘Awnī stresses that even if consensus was reached on this issue centuries ago, today’s social and economic issues have changed, and one must not follow consensus if it may harm society’s members.441 Al-‘Awnī also reminds al-Fawzān that al-

Fawzān himself has called for the practice of ijtihād if previous consensus on certain issues began to be detrimental to society.442 Al-‘Awnī also cited the examples of religious and secular experts from Egypt who saw the harm of minor marriages and placed a minimum age to avoid potentially harming or risking the lives of minor girls.443 Al-‘Awnī calls on the state to set a minimum age for marriage so as to eliminate the marriage of minors.444 Since the year 2009, many individuals and organizations, including human rights organizations, have joined al-‘Awnī in calling on the Saudi government to set a minimum age for marriage in order to protect minor girls from being married too early.445

438 The respond of al-‘Awnī appears on his facebook page, https://ar-ar.facebook.com/notes. See also “Waqfāt ma‘ Dr. al-‘Awnī,” lojainaiat, accessed January 09, 2013, htttp://lojainiat.com/main/Content. 439 Ibid. 440 Ibid. 441 Ibid. 442 Ibid. 443 Ibid. 444 Ibid. 445 “Qānūn al-Aḥwāl al-Shakh īya,” al- a āt, accessed January 09, 2013, http://alhayat.com/Details/582316; see also“Qānūn al-Aḥwāl al-Shakh īya,” al-Arabia, http://arabic.arabia.msn.com/news/ksa-news/8144134; see also “al- Abādī: “Qānūn al-Aḥwāl al-Shakh īya,” cnbcarabia TV, accessed January 09, 2013, http://www.youtube.com/watch?v=xjd-ZqGMcFk; and al-Shaykh āliḥ al-Maghāmsī: Zawāj al-Qā īrāt,” al-arabia, accessed January 09, 2013, http://www.youtube.com/watch?v=nAcPOB65qDU; see also “Qānūn Jadīd,” halījī a TV Channel, accessed January 09, 2013, http://www.youtube.com/watch?v=GfcHOguzkqQ. 164

A few months ago, news media and websites reported that the Saudi Institution of Iftā’

(C.R.L.O), had asked the Saudi Parliament (majlis al- hūra) to draft a new Saudi personal law

(Qā ū aḥwāl hakhṣī a), which includes laws that regulate marriage, divorce, the custody of children, and other family matters.446 The new personal law, according to the Saudi newspaper al- a āt, should provide women with rights that are equal to those of men.447 The new personal law is expected to set the minimum age of marriage at eighteen and considers marriage a partnership instead of centering the authority in the hands of the husband.448 The new personal law, according to many sources, provoked a fierce new debate in Saudi Arabia. While some are calling to put an end to minor marriages, others oppose the codifications altogether and call on people to emulate the example of the Prophet and his companions in marrying minor girls.449

Individuals who call for an end to minor marriage point out the physical and psychological harm and the risk of death inherent to minor girls who are married early. In addition, they point out that a minor’s place is in school and not at home serving an elderly husband.450 The activist and researcher Hāla al-Dousarī stated that most minor marriages are the result of extreme poverty, unemployment, and a lack of education with respect to the minor’s parents.451 Al-Dousarī also maintains that, due to the old custom that says girls bring shame to their family by committing immoral acts, many poor families tend to marry their daughters young452. Al-Dousarī also stated that there are more than three-thousand cases of minor marriages in Saudi Arabia. Most importantly, many have stated that these marriages were criminal acts against children. “In these

446 Ibid. 447 Ibid. 448 Ibid. 449 “Qānūn Jadīd,” halījī a V Cha l, accessed January 09, 2013, http://www.youtube.com/watch?v=GfcHOguzkqQ; see also http://www.youtube.com/watch?feature=player_detailpage&v=ECNUTGofZ8Y#t=1691. 450 Ibid. 451 Ibid. 452 Ibid. 165 marriages, children are often sold to be raped and, in many instances, die as a result of sexual acts perpetrated by elderly men since these marriages often occur between children and elderly men—children’s ages might be as low as eight while men’s ages often reach eighty.”453

The debate over the legal minimum age of marriage and right of early marriage in Saudi

Arabia refutes the perception that all religious Salafi intellectuals have one unified opinion.

Despite the similarity of religious institutions and reliance on the same madhhab (Salafi-

Ḥanbalī), religious figures in Saudi Arabia have vastly differing opinions. In fact, some of them strongly disagree with the Sunni madhāhib and called instead for codification of Islamic fiqh in order to eliminate early marriage and coercion of minors into marriage (where the four Sunni schools of law had already reached consensus on the topic of coercion of minors into marriage).

On the other hand, proponents of early marriage keep invoking the issue of consensus to buttress their argument and to pressure the Saudi religious community to permit this custom to continue in Saudi Arabia. However, the state’s muftī rejects the madhāhib’s consensus in favor of the opinion of minority jurists (Ibn Shubruma, al-Battī, and al-A amm) to prevent the coercion of minors in Saudi Arabia. All of these muftīs call on past and contemporary authorities (muftīs from within Saudi Arabia) intent on preserving the past Islamic tradition in order to save the identity of the Islamic Saudi society from moral deterioration (presented in the persona of women). Other Arab-Muslim states face similar issues. The question of how to deal with past jurists’ consensus in order for women to be granted wider agency in Islamic societies has been an issue for almost all Arab-Muslim states in the region.

453 http://www.youtube.com/watch?feature=player_detailpage&v=ECNUTGofZ8Y#t=1691. 166

Debates in Egypt

The debate over early marriage and coercion in marriage did not cease in other parts of the Arab world. In 2008, Egypt raised the age of marriage for girls to eighteen. Article 143 of

Egypt’s personal status law states that “it is not permitted to register a marriage contract for individuals of the two sexes unless they have completed eighteen Gregorian years.”454 The backlash from ultraconservative individuals in response to this new law was massive and immediate.

The Egyptian Salafi Shaykh Mu ṭafā al-‘Adawī was among the first to vehemently object to the new minimum age of marriage, calling individuals who rallied behind the new law

“collaborators of the infidels of the West.”455 In addition, he harshly criticizes Egyptian feminist

Hudā Sha‘rāwī, who was the first to call for codifying a minimum age of marriage, according to al-‘Adawī.456 Following the rest of the ultraconservative ūlamā, al-‘Adawī supports his views by citing Qur’anic verse 65:4 and the example of the Prophet and his Companions, who wedded minor girls.457 He considers the new law un-Islamic and says it is unfounded in the Qur’an and the Sunna.458 To him, the new law is an invalid (bāṭil) law.459 He also calls on muftīs and judges to repeal the newly codified law.460 However, Egyptian jurist and state muftī ‘Alī Jum‘a agrees with the new minimum age of marriage, saying that today’s world is different from that of the

454 “Taṭawur sin al-zawāj fī al-qānūn,” The National Council for Women, accessed January 29, 2004, http://www.ncwegypt.com/index.php/ar/docswomen/pslara/275-marrara; “Al-Qawmī lil ṭifūla,’ albawabanews, accessed January 29, 2014, http://www.albawabhnews.com/print.aspx?2449. 455 “Buṭlān Qānūn Taḥdīd Sin al-Zawāj,” accessed on January 29, 2014, http://www.youtube.com/watch?v=vaQ- n0FJ-F8. 456 Ibid. 457 Ibid. 458 Ibid. 459 Ibid. 460 Ibid. 167 time of the Prophet and his Companions.461 Jum‘a also maintains that the new minimum age of marriage prevents wealthy, elderly men from coming to Egypt and abusing minor girls by contracting them for a temporary (‘urfī) marriage .462 To prevent this type of abuse and to help maintain an Islamic family, Jum‘a forbids the marriage of minors, stating that “today’s society is unlike the old Islamic society. Men at some point stopped following the example of the Prophet and his Companions and instead began abusing their authority.”463

After the Arab Spring, Egypt began to grapple with new calls to reduce the age of marriage to emulate the marriage of the Prophet to ‘ ’isha. During the reign of the former president Muḥammad Mursī, public debates regarding the Egyptian PSL continued. Calls from within the Egyptian parliament to reform the Egyptian PSL to allow minor girls to marry were on the rise.464 In September 2012, al-Nūr (a member of the Egyptian Salafī party) and Yāsīr

Burhāmī (a member of the Egyptian constitution committee) publicly called for the legal permission for girls to marry as soon as they showed any signs of bulūgh. By doing so, Burhāmī discarded the Egyptian minimum age of marriage, claiming that he was following the example of the marriage of the Prophet to ‘ ’isha.465 Burhāmī also cited Qur’anic verse 65:4, claiming that the verse clearly permits the marriage of minors.466 Burhāmī also argued that early marriage is far better than education or secret marriage (‘urfī), where girls are married young for sexual exploitation.”467 In his own words, Burhāmī stated that it was “better to marry a young girl rather

461 “Taḥdīd Sin al-Zawāj lil-fatāh,” ār al-Iftā’ al-Maṣrī a, accessed February 6, 2014, http://www.youtube.com/watch?v=eL1iXTqaC6M. 462 Ibid. 463 Ibid. 464 Dream 2 TV Channel, accessed January 13, 2004, http://www.youtube.com/watch?v=kNhoAn197Ro. 465“Burhāmī,” alwatan, accessed January 13, 2014, http://www.alwafd.org; see also his interview on the satellite TV station Dream2, http://www.youtube.com/watch?v=kNhoAn197Ro, accessed January 13, 2014. 466 Ibid. 467 Ibid. ‘ rfī marriage is a secret marriage, not legally registered. It has become common in certain Arab states due to poverty and various economic factors. Normally elderly men are engaged in secret marriages to minor girls for a price, or dower, knowing that the marriage was intended as temporary for the purpose of sexual relations alone. For 168 than imitate the West where girls are constantly engaged in sexually explicit premarital relations.”468 He also accused the United Nations of being “complicit in permitting such premarital sexual relations.”469 A few months later, in January, 2013, the head of al-Nūr’s party,

Yūnus Makhyūn, reiterated comments similar to those of his colleague, Burhāmī. Addressing the

Egyptian Parliament, Makhyūn argued that his party would call for the cancellation of the section of the law which permitted a girl to marry at eighteen and instead amend it to allow her to marry as soon as she reaches bulūgh.470 Makhyūn argued that, since Spain permits girls of fifteen to marry, and some of the states in the United States permit fourteen year-olds to marry,

Egypt should follow the Islamic Sharī‘a and allow girls younger than eighteen to marry.471

Makhyūn also mentioned that, after careful research within the Egyptian laws, he found many laws, particularly the personal status law, which were against Islamic Sharī‘a.472 “We will demand that these laws be cancelled since these laws include oppressing articles, particularly laws that are called after former past ladies, Jihān al-Sadāt and Suzan Mubārak,” he said.473

This sparked an outpouring of anger from Egyptian men and women alike. The activist and writer Fāṭima Nā‘ūt called on the Salafis to “lift their hands off children and allow them to

more on ‘urfī marriage see Sherifa Zuhur, “Women and Empowerment in the Arab World,” Arab Studies Quarterly 25, no. 4 (Fall 2003), 31. 468 “Burhāmī,” alwafd, accessed January 13, 2014, http://www.alwafd.org; see also his interview on the satellite TV station Dream2, http://www.youtube.com/watch?v=kNhoAn197Ro, accessed January 13, 2014 469 Ibid. 470 “’al-Nūr’ Uṭālib,” el-watannews, accessed January, 14, 2014, http://www.elwatannews.com/news/details/118331. 471 “’al-Nūr’ Yuālib,” el-watannews, accessed January, 14, 2014, http://www.elwatannews.com/news/details/118331. Some of the states in the United States approve the marriage of minors who have reached the age of fourteen providing the consent of the legal guardian and a judge. For the legal minimum age of marriage in the different states in the United States see http://www.law.cornell.edu/wex/table_marriage, accessed March 19, 2014. According to the Uniform Marriage and Divorce Act (UMDA) 201 (1), a person under the age of sixteen may be married with both parents and judicial consent. See Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989), 48. 472 Ibid. 473 Ibid. the laws referred to as Jihān al-Sadāt and Suzan Mubārak are reforms that women’s organizations have fought for in order to improve the status of women in Egypt, specifically, divorce laws. 169 preserve their childhood and live as children and without coercion or oppression.”474 She also stated that, “women are not a place for fertility…Salafis believe that women have achieved all rights in Egypt except for the age of marriage.”475 She went on to say, “instead of calling for women to continue their education so as to have a brighter future, Salafis are busy with women’s bodies and men’s desire to subdue these bodies.”476

In January 2014, after the ousting of former president Mursī, a new Egyptian constitution was drafted promising equality between men and women.477 The draft includes a few reformed

Articles which concern our topic, Articles 19 and 80. Article 19 makes attending school

“compulsory until the end of the secondary stage or its equivalent.”478 Whether this Article might have any impact on early marriage remains to be seen. Article 80 states that “anyone under the age of eighteen shall be considered a child.”479 This Article is now in agreement with the

UNICEF definition of a child and could have a positive impact on the adhering to the minimum age of marriage in Egypt—eighteen for both men and women.480 So far there seems to be no opposition to Article 80 from the Egyptian Islamists.481 However, ultraconservative Salafis have

474 “Fāṭima Nā‘ūt,” elwatannews, accessed January, 14, 2014, http://www.elwatannews.com/news/details/118407. 475 Ibid. 476 Ibid 477 “What's in Egypt's proposed new constitution?,” al-Jazeera, accessed February 6, 2014, http://www.aljazeera.com/news/middleeast/2014/01/what-egypt-proposed-new-constitution -201411312385987166.html. See “Egypt referendum: '98% back new constitution',” bbc news, acceded February 15, 2014, http://www.bbc.co.uk/news/world-middle-east-25796110. See also http://www.sis.gov.eg/Newvr/Dustor- en001.pdf, accessed February 15, 2014. 478 Previously, Egyptian children were to attend elementary school only. See the State Information Service, The Arab Republic of Egypt Draft Constitution 2013 New Constitutional Document (2014), 9. 479 State Information Service, The Arab Republic of Egypt Draft Constitution 2013 New Constitutional Document (2014), 22. See also “Constitution of the Arab Republic of Egypt, 2014,” accessed February 15, 2014, http://www.sis.gov.eg/Newvr/Dustor-en001.pdf. 480 Article 1 of the uncif states that a child is anyone who is under the age of 18 unless the states set the legal age for adulthood younger. See “The Convention on the Right of the Child,” unicef, accessed February 15, 2014, http://www.unicef.org/crc/files/Guiding_Principles.pdf. 481 The term ‘Islamists’ is an extremely controversial term, and presents the academic community with a complex challenge. The term has been used in a pejorative way and has often been equated with violence and terrorism. For this reason, some Muslim and non-Muslim scholars in the West refrain from using it, while others like Daniel Pipe and Claire Spencer choose to associate the term with violence and terrorism. Syed Farid Alatas, Feisal Abdul Rauf, and Daniel M. Varisco have decided to avoid the term altogether since it has become synonymous with violence. I, 170 never renounced their position concerning early marriage. The coming months will show whether the two new reformed Articles will have any impact on Egyptian society. 482 Salafis are not the only obstacle for Muslim women’s rights these days. A few weeks ago the Iraqi Council of Ministry passed a new draft concerning the Twelver Shī‘ī sect in Iraq (Jā‘farī Personal Status

Law), which permits the marriage of a nine-year-old girl.483 This draft, while it is facing tremendous oppositions from Iraqi citizens from various sects, is awaiting the vote of the Iraqi parliament for final approval.484 A woman member of the Iraqi Parliament, Suzan al-Sa‘d, approves of this draft saying, “that it is known among the ‘ulamā’ that the age of bulūgh for women is nine.” Regardless of the outcome, one is concerned with the authority of Shī‘ī ‘ulamā’ and the powerful loyalty among many Twelver Shī‘īs in Iraq to past jurists. One also fears for the continuation of the ancient custom of coercing minor girls into marriage following the example of ‘ ’isha’s marriage.

on the other hand, join a third group in defining the term so as to engage with other scholars on this controversial topic. Therefore, I borrow the term “Islamist” from Leslie Euben and Muhammad Zaman, who define it as contemporary movement with the aim of returning to the revealed texts (the Qur’ān and Sunna of the Prophet) to resolve social and political issues in the Muslim community (umma). In general, Islamists aim at restoring the Islamic norms as they perceive them to have existed during a pristine period—the time of the Prophet and a few generations after—in order to rescue Muslims from the moral and political corruption of today’s world. Islamists do not advocate quietism nor do they advocate “salvation by withdrawing from worldly things.” Instead they call for participation from within the social, economic, and political institutions of the world. This term includes the Muslim Brotherhood in Egypt, the Salafi party in Egypt, the Justice and Development Party (JDP) in Morocco, and other Islamic parties that are active socially and politically. For the opinions of Daniel Pipe and Claire Spenser see Martin S. Kramer, and Daniel Brumberg, ed., The Islamism Debate (Tel Aviv: Moshe Dayan Center for Middle Eastern and African Studies, 1997), 51-67, 81-99. For the opinions of Syed Farid Alatas, Feisal Abdul Rauf, and Daniel M. Varisco see Richard Martin and Abbas Barzegar, Islamism: Contested Perspectives on Political Islam (Stanford, Calif: Stanford University Press, 2010), 87-92, 116-124, 125-132. For the definition of Islamists see Leslie, R. Euben, and Muhammad Qasim Zaman, Princeton Readings in Islamist Thought: Texts and Contexts from Al-Banna to Bin Laden. Princeton: Princeton University Press, 2009), 4. 482 “Iraq: Don’t Legalize Marriage for 9-Year-Olds,” Human Rights Watch, accessed March 24, 2014, http://www.hrw.org/news/2014/03/11/iraq-don-t-legalize-marriage-9-year-olds. 483 “Iraq: Don’t Legalize Marriage for 9-Year-Olds,” Human Rights Watch, accessed March 24, 2014, http://www.hrw.org/news/2014/03/11/iraq-don-t-legalize-marriage-9-year-olds. See also “Jadal ‘Irāqī Ḥowla Shar‘anat Zawāj al-Qā īrāt,” accessed March 24, 2014, http://www.iraqhurr.org/content/article/25281871.html; “Qānūn al-Ja‘farī,” Monte Carlo Doualiya, accessed March 24, 2014, http://www.youtube.com/watch?v=jjw1aLJ-nFo. 484 Ibid. 171

It is noteworthy to mention the names of the Arab-Muslim intellectuals who followed the opinions of minority jurists like Ibn Shubruma, al-A amm, al-Battī, and Abū Ḥanīfa. These individuals argued for granting women wider rights in marriage and in advancing women’s rights in society. See table (2-2) below for names of some of the Arab-Muslim intellectuals who followed the minority jurists.

Names of Intellectuals Who Used the Opinions of Minority Jurists. Table (2-2) Intellectual Location Al-Barrī Egypt Al-Dijwī Egypt Al-Shādhilī Egypt Al-Qaraḍāwī Egypt Abū Zahrah Egypt Ibn al-‘Uthaymīn Saudi Arabia Al-‘Awnī Saudi Arabia Al-Sibā‘ī Syria Al-Zuḥaylī Syria

Conclusion

The past century has witnessed the codifications of Islamic law throughout all of the Arab states save Saudi Arabia. Most of these codifications were drafted by intellectuals and experts in various fields like law, fiqh, and literature. The intellectuals who produced the new laws had to consider Islamic law sources, such as the Qur’ān, Sunna of the Prophet, the opinions and consensuses (ijmā‘) of past jurists. Ijmā‘ of past jurists—from the early formation period through the post-classical period—has always been one of the strongest methods and sources of Islamic law.485 Jurists have always prided themselves on being included among those who consented to

485 On the doctrine of consensus see Jonathan P. Berkey, The formation of Islam: religion and society in the Near East, 600-1800 (New York: Cambridge University Press, 2003), 146-147. According to Wael Hallaq, once consensus is reached regarding a legal issue, consensus renders the opinion irrevocable and may not be challenged 172 certain rulings. Ijmā‘, however, brought with it many obstacles which stood to discriminate against women. This was particularly obvious when states began codifying their family laws.

Jurists’ consensus stood to place restrictions on women’s rights in family law, and began to become a complex constraint toward women’s advancement in Arab-Islamic society.

To provide women with certain rights, Arab-Muslim intellectuals—from the nineteenth- century through the present day—used several arguments, particularly the opinions of minority classical jurists, to advance the rights of women in family law. This influenced the personal law of almost all Arab states. However, this was not received well by all Arab-Muslims. As soon as new state laws were published, opposition started mounting. Religious establishments and many of the ‘ulamā’ began writing against the newly codified laws. Meanwhile, Arab intellectuals who agreed with the new laws and the right to improve women’s status in society also began to publicly write and advocate for women’s rights. Men and women throughout the Arab world started communicating with each other across boundaries, at times applauding and at other times criticizing each other’s opinions regarding the newly codified laws. This created a new environment in which men and women could publicly debate the topic of women’s rights in society. These included the right to coerce minors into marriage and the role of the walī in marriage, which, though it was an old custom among Arabs in the region, was hotly debated among intellectuals therein. In order for intellectuals to debate the topic with the opposition, they constantly had to employ arguments and evidence from classical fiqh, the Qur’ān, and anecdotes on the Prophet and his Companions.

by future generations. See Wael Hallaq, “On the Authoritativeness of Sunni Consensus,” International Journal of Middle East Studies 18, no. 4 (Nov, 1986), 427. 173

In classical Islamic fiqh, the majority of Sunni and all Shī‘ī jurists agreed that fathers may coerce their minor girls into marriages, taking into consideration the marriage of the Prophet

Muḥammad to ‘ ’isha, the marriage of his Companions to minor girls, the interpretation of one verse in the Qur’an (4:6), and the consensus of peer jurists as clear evidence for the permissibility of this ruling. This decision contributed to the continuing coercion of minor girls into marriage—unfazed by new state laws which attempted to restrict and eliminate this traditional custom. Fortunately, not all past jurists approved this type of marriage. In addition, and due to the nature of Islamic jurisprudence (most of jurists’ work was done independent of the state) opinions of the minority oppositions were preserved in several books of fiqh.486 Therefore, opinions of jurists like Ibn Shubruma, Abū Bakr al-A amm, and ‘Uthmān al-Battī, remain with us and are readily available to use as evidence. This was evident during the twentieth-century after Arab states began gaining their independence. The newly formed Arab states began to codify their laws, including family laws. To provide women with wider rights in the newly codified laws, experts ignored the most fundamental method of Islamic law, ijmā‘, and instead followed the minority opinions. By taking the minority opinions instead of the majority, some of the Arab intellectuals were able to suggest and provide certain bits of legislation that were more liberal to women than the opinions of the majority of past jurists. In codifying Islamic family law in what came to be known as al-aḥwāl al-shakhṣī a, Arab states’ new laws restricted the role of the walī in the marriages of minors and succeeded in reducing the occurrence of coercion of minor girls into marriage.

486 See the opinion of Ibn Ḥazm regarding coercion of minor boys, Ibn Ḥazm, al-Muḥallā, 11: 42-43, no. 1827. For the opinion of Ibn Shubruma see Ibn Ḥazm, al-Muḥallā, 11: 36. For the opinion of Abū Bakr al-A amm see al- Sarakhsī, 4: 212. For another opinion to Ibn Shubruma see Ibn Qudāmah, 7: 41, 5138.

174

Contemporary Arab-Muslim intellectuals aimed at preserving the identity of the Muslim society in their region. To do so, intellectuals had to rely on past authority to ensure the continuity of the Islamic tradition in order to safeguard society from foreign (specifically

Western) moral corruptions. Due to the cruel and bitter experience Arab-Muslim societies endured during the colonial period, intellectuals feared for the identity of local Islamic societies.

To safeguard the Islamic traditions and to preserve the Muslim family—the foundation of

Islamic society—intellectuals were always on guard against any new Western innovations that might infiltrate Muslim society. Therefore, many conservative traditionalists wanted to preserve the old traditions—the past jurists consensus and authority— by remaining loyal to the doctrines of each madhhab. Past jurists’ authority and consensus became paramount and any new reforms had to address past authority in order to propose any reforms.

This chapter also showed that, by following the opinion of minority jurists and not the consensus of jurists, states and intellectuals were able to propose reforms which granted women more agency in their marriages and also to implement actual reforms to newly codified Islamic family laws. In addition, the chapter demonstrated that opinions varied widely among Muslim intellectuals. We have seen that Sunni intellectuals differ in their opinions regarding two issues in marriage: the age of marriage and the role of the walī. We have also seen that Arab Twelver

Shī‘ī intellectuals do not share similar opinions regarding these two issues. More importantly, the chapter demonstrated that even reformer or traditionalist intellectuals do not hold a unified opinion. While some reformers like al-Shādhilī and Al-Qaraḍāwī called for an increase to the minimum age of marriage, many remained faithful to the role of the walī as stipulated by past jurists. Similarly, traditionalist intellectuals did not seem to have a unified voice either. Some traditionalists (like Ibn Bāz, al-Fawzān, and al-‘Ilwānī ) called for preserving the role of the walī

175 and the old custom of coercing minors into marriage, while others rejected the call for coercion but demanded that the role of the walī remain as a protector and supporter of women. This demonstrates that the creation of a dichotomy among Muslim intellectuals whereby there exists only a reformist and a traditionalist voice —two parties each with unified voices—at odds with each other is a fallacy that has no real supporting evidence among Arab-Muslim intellectuals. In addition, the chapter showed that even traditionalist intellectuals may produce works that granted women more agency in Islamic family law. The work of the Egyptian scholar and jurist Abū

Zahrah, the Syrian jurist al-Zuḥaylī, the Lebanese jurist Faḍl Allāh, and the Saudi jurist Ibn al-

‘Uthaymīn are but a few intellectuals among many who granted women more agency in their marriage contracts than did the majority of Arab-Muslim intellectuals.

These debates have had a tremendous impact on gender and legal issues in the Arab-

Muslim world. From the beginning of the nineteenth century until the present, Muslim women have struggled to gain some of the rights they have been denied by Islamic jurisprudence and states’ PSLs. Having a supportive voice from within the Islamic tradition makes reforming states’ PSLs easier to present to the opposition (religious traditional institutions, traditional men and women, and the majority of the ‘ulamā’). More importantly, while gender issues have traditionally been taboo to discuss, today, even in the most traditional societies (e.g., Saudi

Arabia) the issues are discussed and debated publicly. The chapter also demonstrated that the dichotomy of having only two parties (reformist “liberals” and traditionalist “religious conservatives”) in the Arab-Muslim states has been oversimplified by Western scholars and media outlets alike. This study shows that, in order to better understand gender issues in the

Middle East and among Arab-Muslim societies, Western scholarship needs to unpack the opinions within each party so as to understand the issues at hand in lieu of making sweeping

176 generalizations regarding religious intellectuals and religious parties. Western journalistic and popular media outlets might gain a better understanding of Islamic family law by considering an individual’s opinions as representative of those individuals only and not of an entire party, state, or religion (Islam) with which they are affiliated. We have seen the difference of opinions in

Saudi Arabia from within the Salafis and how different these opinions were regarding the two issues discussed above. Minimizing the stereotyping of Arab-Muslim individuals and parties eliminates misunderstanding of the real issues Muslim women face under the unjust and sometime draconian laws found in most of the Arab-Muslim states.

The debates concerning women’s rights in Arab states’ personal law are still continuing even through the Arab Spring uprisings. Whether this new uprising might influence the status of women in the Arab world is still up in the air. We can only wait and see when the dust settles how the results of the Arab Spring and any future Arab-Muslim leaders might alter the role of women in Islamic society, for better or worse.

177

Chapter 3 Intellectual Debates on Islamic Marriage Contract in Morocco

This chapter addresses the debates among Arab intellectuals in Morocco, focusing on certain aspects of the marriage contract as outlined by articles in the Moroccan Mudawwana including the role of the marriage guardian (walī), the role of the woman in negotiating her marriage contract, coercion in marriage, and the appropriate age of marriage. The chapter is divided into two parts: Part I includes the Moroccan debates from the time of the first publication of the Mudawwana in 1957-58 until the first reform of the Mudawwana in 1993. Part II focuses on debates that occurred after the 1993 reform through the year 2000. The debates over women’s rights in Morocco included women’s rights in marriage and divorce, custody of children, inheritance, maintenance, and other aspects of Islamic family law in Morocco.1 This study is concerned with two aspects of the marriage contract, namely, the role of the walī and the minimum age for marriage. I argue that some of the traditionalist Muslim ‘ulamā’ produce liberal work which contributes to the advancement of women’s rights in Islamic family law. One of the most understudied Islamic figures in the modern Arab world is the Moroccan scholar

Aḥmad al-Khamlīshī. Al-Khamlīshī wrote over a dozen books on Islamic family law and Islamic fiqh however hardly any of these books were translated into English. The work of al-Khamlīshī aided in raising the legal status of women in Islamic family law and contributed to the safe guard of women’s rights in Morocco. Unlike many scholars who were influenced by Western laws, al-

1Aḥmad al-Khamlīshī, a‘līq ‘alā qā ū al-aḥwāl al-shakhṣī ah ( Al-Rabat : Dār Nashr al-Ma ārifah, 1994), 1: 8- 10. 178

Khamlīshī’s work draws on indigenous Islamic tradition to help raise women’s voice in

Morocco.2

The chapter begins by introducing the period before the publication of the Mudawwana, followed by an introduction of scholars and activists I will be discussing. Following this introduction, the recommendation of the commissioned committee will be briefly discussed.

Finally, the chapter presents the opinions of several Moroccan individuals regarding the role of the walī and the age of marriage according to their interpretation of the articles as originally published in the Mudawwana.

Throughout the centuries and since the time of the Almoravid (al-murābiṭū ) dynasty

(1064-1147), Morocco followed Mālikī jurisprudence (fiqh) to regulate its family law.3 During the French protectorate, Moroccan personal law was left to Moroccan courts, which mostly followed Mālikī fiqh and later added elements of the Berber Custom (Berber Dahir or ‘urf) to mediate between the different parties instead of a codified Islamic law.4 Under the French protectorate, Moroccan Muslims followed Mālikī jurisprudence (fiqh) concerning family issues while Western and French citizens were subject to their own family laws according to a 1913 treaty.5 After obtaining its independence in 1956, Morocco followed other Arab Muslim states by codifying its personal law in 1957 and 1958.6 It was King Muḥammad V (1957-1961) who

2 Leon, Buskens, “Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere,” Islamic Law and Society 10, no. 1 (2003), 78. 3Clifford E. Bosworth, The New Islamic Dynasties: A Chronological and Genealogical Manual. Edinburgh: Edinburgh University Press, 1996), 37-38; Muḥammad, al-Kashbūr, Qā ū al-aḥwāl al- hakhṣī ah al-zawāj wa-al- ṭalāq (Al-Dār al-Bayḍāʼ: Maṭba‘at al-Najāḥ al-Jadīdah, 1991), 14. 4 Aḥmad al-Khamlīshī, Wijhat na ar: Point of view (Al-Dār Al-Bayḍā’: Maṭba‘at al-najāḥ al-jadīdah, 1988), 11; see also al-Kashbūr, 1991, 15; Buskens, 72; Fatima Harrak, “The History and Significance of the New Moroccan Family Code.” Institute for the Study of Islamic Through in Africa (ISITA), Accessed on September 17, 2013, http://www.cics.northwestern.edu/documents/workingpapers/ISITA_09-002_Harrak.pdf. 5 Al-Kashbūr, 1991 15, 36-37. Al-Kashbūr is currently a professor at the University of King Ḥassan II. See also, 6 Buskens, 72; Muḥammad b. Ma‘jūz, Aḥkām al-u ra fī al- harī‘a al-i lāmī a wufqa udawwa at al-aḥwāl al- shakhṣī a (1983), 12; Katie Zoglin, “Morocco’s Family Code: Improving Equality for Women,” Human Rights 179 commissioned a committee of religious jurists7 to codify the Moroccan personal family law (Al- aḥwāl al-shakhṣī a).8 The following pages reflect the debates that ensued over the marriage contract immediately after the publication of the Mudawwana and throughout the twentieth century. While some of the individuals engaged in these debates supported the Mudawwana’s position on the role of the walī in marriage and were interested in raising the minimum age of marriage, the ideas were met with resistance.9 For the first time in the history of Moroccan fiqh, women competed with Muslim jurists, and began publicly calling to reform the Islamic family law. While male ‘ulamā’ (jurists, muftīs, preachers, and teachers) accepted that women transmit aḥādīth, as is the case with ‘ ’isha, the wife of the Prophet, though women were never allowed to participate as jurists or even as part of the ‘ulamā, let alone in the deduction of legal rulings.

This was the case in Morocco and throughout the Muslim world, though several factors led to a change in this way of thinking at least in the case of Morocco. First, the change of the

Quarterly, 31, no. 4 (November, 2009), 964-984; 259, John Hursh, “Advancing Women’s Rights Through Islamic law: The Example of Morocco,” Berkeley Journal Of Gender, Law & Justice, 27, no. 2 (Summer2012), 259; Mounira M Charrad, States and Women's Rights: the making of postcolonial Tunisia, Algeria, and Morocco (Berkeley: University of California Press, 2001), 162; Fatima Sadiqi, “The Central Role of the Family Law in the Moroccan Feminist Movement,” British Journal of Middle Eastern Studies 35, no. 3 (December, 2008), 329. 7 The committee was headed by the king’s son Ḥassan II who was not involved in writing the Mudawwana. A minister of justice was also assigned but did not participate in the writing of the Mudawwana. See Ḥammād Al- ‘Irāqī, al-Wathā’iq al‘adlī h wufqa udawwa at al-aḥwāl al- hakhṣī ah (Al-Rabāṭ: 1960), 121; see also Kashbūr, 1991; Yolanda Aixelà Cabré, “The Mudawwana and Koranic Law from a Gender Perspective. The Substantial Changes in the Moroccan Family Code of 2004,” Language and Intercultural Communication, 7: no. 2 (2007), 135. 8 J. N. D. Anderson, “Reforms in Family Law in Morocco,” The Journal of African Law vol. 2, no. 3 (autumn, 1958): 146-159; al-Kashbūr, Qā ū al-aḥwāl al- hakhṣī ah, 1991; Muḥammad b. Ma‘jūz, 1983, 12; ‘Allāl al-Fāsī, Al- aqrīb harḥ udawwa at al-aḥawāl al- hakhṣī ah al-kitabā al-awwal wal-al-thā ī. Compiled by Mu’assasat ‘Allāl al-Fāsī, ed, ‘Abd al-Raḥmān al-Ḥurayshī. 2nd edition (Al-Rabāṭ: Mu’assasat ‘Allāl al-Fāsī, 2000), 3. 9 It is noteworthy to understand that the walī’ role was and is still due mostly to the ritual of marriage proposal. According to Moroccan customs, the groom and men of his family, his father and other male relatives, often ask for the hand of the woman chosen by the groom or his family. According to the custom, men usually meet and sit to discuss the marriage proposal between the future bride and groom. It is the male relative of the woman (father/walī) who is entrusted in responding to the proposal of marriage. Because of the prevalent custom in Morocco and other Arab and Muslim countries, men and women are segregated in this occasion. Therefore, the verbal offer and the acceptance are uttered by men. This of course is normally done after obtaining the woman’s approval of the offer. After this verbal contract, the couple along with the woman’s father/walī head to the family court to document the marriage. This was the conclusion I reached after interviewing nine professional men and women in Morocco in the summer of 2013. 180 monarchy’s policies toward women; second, the work of women NGOs; and finally, the work of reformer-traditionalists, which permitted women to take part in lawmaking (ijtihād).

Among the first Moroccan scholars to write on the issue of marriage in Morocco, specifically on the need for reform, was the famous jurist and politician ‘Allāl al-Fāsī (1907-

1973).10 Al-Fāsī was a graduate of the conservative religious institution, the Qarawiyyīn

University in Fez.11 He was a political figure, a jurist and a Salafi reformist.12 He was also the head of the Independent Political Party (al-I tiqlāl).13 Prior to Moroccan independence, al-Fāsī wrote his famous book, Al-Naqd al-dhātī (Self-Criticism) in Cairo in 1952.14 In this book, he called for reforms to Islamic law in Morocco and advocated for women’s rights.15 In his quest for reform, al-Fāsī preached a unique role for the Moroccan Islamic family. He neither wanted to emulate the West, nor keep the old customs of some Moroccan villages. Al-Fāsī suggested a family built on strong Islamic foundations, and following in the footsteps of the Egyptian scholar

Muḥammad ‘Abdūh, he suggested that the Moroccan family was in need of renewal and reform.16

10 Al-Fāsī was a scholar, a jurist, an orator, a political leader, and a leading figure of the Salafi movement. He taught at the famous Qarawiyyīn University in Fez and was the head of the nationalist movement Morocco’s Independent Party (Al-I tiqlāl). Later in his life he became a member of the Moroccan parliament and a minister of Islamic Affairs. He was exiled several times. In 1947, he arrived in Cairo where he stayed for nine years. See Bernard, Reich, Political Leaders of the Contemporary Middle East and North Africa: A Biographical Dictionary (New York: Greenwood Press, 1990), 193-200; see also Daniel Zisenwine, The Emergence of Nationalist Politics in Morocco: the Rise of the Independence Party and the Struggle against Colonialism After World War II (London; New York, N.Y: Tauris Academic Studies, 2010), 16. 11 Zisenwine, 16. 12 Fatima Sadiqi, “The Feminization of Public Space: Women’s Activism, the Family Law, and Social Changes in Morocco,” J ur al f iddl Ea t W m ’ Studi , 2, no. 2 (spring, 2006): 96. 13 Reich, 193-200; Zisenwine, 16; Charrad, 163. 14 Reich, 199. 15 ‘Allāl al-Fāsī, Al-Naqd al-dhātī Beirūt: Dār al-Kashshāf lil-Nashr wa-al-Ṭibā ah wa-al-Tawzī , 1966 ), 269-80; Charrad, 163-164. 16 Al-Fāsī, 1966, 269; Charrad, 160-61. 181

Al-Fāsī argues that, due to centuries of neglect and oppression by government and society, the Moroccan woman started believing that she was inferior to men physically and mentally. Al-Fāsī asserts that differences between men and women are only physiological and the result of social factors.17 To get rid of this inherited illusion, al-Fāsī advises that Moroccan women needed time and effort to repair the damage to their psyches done over the course of centuries.18 He criticizes Moroccan customs in which early marriage and coercion are common practices.19 Al-Fāsī proposes that the Mālikī school of law is no longer viable in Morocco for many reasons.20 He explains that today, the Moroccan woman lives in a new world where she would not accept such an authoritarian manner of governing her future. In addition, he asserts that the Moroccan woman of today is more independent than she has ever been. 21 Therefore, according to al-Fāsī, the time has come to implement the opinion of alternative Islamic schools of law, which allows the previously adult woman (bikr) to choose her future partner.22

Al-Fāsī is of the opinion that since evidence for the coercion of women into marriage according to the Mālikī madhhab is generally not very strong, it would be wise to reform and revise these opinions. He maintains that many of the Mālikī jurists are of the opinion that the marriage guardian (walī) is permitted to coerce his ward into marriage.23 This ruling, according to al-Fāsī, has become part of the Moroccan custom of today. However, he sees that much evidence suggests that the walī may not coerce his ward into marriage. To support his argument, al-Fāsī brings forth several aḥādīth traced back to the Prophet which state that the consent of the

17 Al-Fāsī, 1966, 277. 18 Ibid., 277. 19 Al-Fāsī, 1966, 279; Charrad, 159-161; Bruce Maddy-Weitzman, “Women, Islam, and the Moroccan State: The Struggle over the Personal Status Law,” Middle East Journal 59, no. 3 (summer, 2005), 399. 20 Ibid. 21 Al-Fāsī, 1966, 279-280. 22 Al-Fāsī, 1966, 280. 23 Ibid. 182 adult bikr woman in marriage is required. For example, the ḥadīth which states “the bikr should be consulted [in her marriage] and her consent is silence. And [the widowed or divorced] (al- thayyib) may pronounce her consent.” And also “The ayyim [the woman without a husband] may not be married without her consent and the adult bikr has to consent as well.”24 To al-Fāsī, these aḥādīth are clear evidence that the adult bikr has the right to choose whoever she desires as a husband and the walī may not object to her choice.25 However, al-Fāsī maintains that the walī is the one who may conduct the marriage contract in keeping with the Moroccan custom.26 He also states, “This Muḥammadan reform should be clear and available and women should not be prevented from its benefit, particularly in these days when woman became independent throughout the world. Any lack of action to provide women with the right to choose her husband is considered nothing but corruption (fitna) and a grave sin.”27

Al-Fāsī is also against early marriage and suggests that Morocco establish a law to set a legal limit for the minimum age of marriage according to Islamic law so as to benefit Moroccan women.28 He asserts that even in France, the French legal system established a minimum age of marriage of eighteen for men and fifteen for women.29 More importantly, al-Fāsī states that only the French president may approve the marriage of anyone below the age of marriage—providing special circumstances.30 He maintains that because early marriage has several harmful effects,

24 This is in addition to the incident where a woman came to the Prophet and complained that her nephew married her to another man [without her permission] so her nephew could raise his social status. The Prophet then provided her with the choice to accept or reject the marriage. See al-Fāsī, 1966, 280. The ḥadīth could also be found in the Ṣaḥīḥayn, Bukhārī and Muslim. See Ibn. Ḥajar al- Asqalānī, 9: 243, no. 5,136 and 5,137; see also Muslim b. al- Ḥajjāj al-Qushayrī, Ṣaḥīḥ u lim bi harḥ al-Nawawī (Beirut: Dār al-Kutub al- Ilmīyah, 1995), 5: 173-175, no. 1419-1421. 25 Ibid., 280. 26 Ibid. 27 Ibid. 28 Al-Fāsī, 1966, 280; Charrad, 161. 29 Al-Fāsī, 1966, 282. 30 Ibid. 183 and since there is nothing in Mālikī fiqh that may prevent the Moroccans from implementing a legal age of marriage, it is best to establish a law which sets a minimum age for marriage.31 Al-

Fāsī also suggests that since society in Morocco is different from that of the Egyptian and

European societies,32 Morocco needs to set its own legal age for marriage according to acceptable measures. He suggests that the legal age of marriage in Morocco should be set at fifteen for both men and women due to the influence of the local customs.33 He goes on to say that it is natural for the adult man to marry and not stay single. Otherwise this will encourage prostitution of single Moroccans.34 Most importantly, and as a method of encouraging marriage, al-Fāsī suggests imposing certain taxes on single individuals who pass the age of twenty-five without a legal reason for marriage. This tax, according to al-Fāsī, should be used to help individuals wishing to marry who are in need of financial support and perhaps may not be able to afford the hefty price of a dower.35 Al-Fāsī’s reforms were considered bold suggestions by many.36

A traditionalist figure, al-Fāsī was educated in one of the most traditional religious institutions—al-Qarawiyyīn University—which specialized in the teaching of the Mālikī madhhab. However, al-Fāsī was among the few Arab-Muslim intellectuals who called for improving women’s status in Islamic law by including rulings from other schools of law outside of the ālikī madhhab. Despite the traditional environment which was pervasive at the time, al-

Fāsī called for stipulating a legal minimum age of marriage in order to eliminate the coercion of minor girls into marriage. By doing so, al-Fāsī attempted to break away from the monopoly of

31 Al-Fāsī also suggested banning polygyny. See al-Fāsī, 282; Charrad, 160. 32 Al-Fāsī, 1966, 282. Al-Fāsī was aware that Europe and some of the Arab states had codified their family law before Morocco. 33 Al-Fāsī, 1966, 282. 34 Ibid. 35 Ibid., 286. 36 Charrad, 159. 184 the Mālikī madhhab in favor of all Islamic madhāhib. Unlike many other traditionalists, al-Fāsī considered women to be a pillar of Moroccan society. Educating women, according to al-Fāsī, was the best way to improve the Moroccan Muslim family and the society at large. While calling on the Moroccan government to emulate the French and Egyptian PSL’s, al-Fāsī was careful to stipulate a minimum age of marriage that would be suitable to Moroccan society. Al-Fāsī’s aim was to consider the local Moroccan custom which was different from both the French and the

Egyptian schools of thought. To al-Fāsī, improving the legal status of women goes hand in hand with preserving the identity of Moroccan Muslim society.

Part I Articles Concerning Marriage

Immediately after Morocco gained its independence, its new king Muhammad V, commissioned a group of Moroccan jurists to establish a new Moroccan family law. The king chose his son and heir, crown Prince Ḥassan II to head the committee while ‘Allāl al-Fāsī became the spokesman of the committee.37 The Moroccan Ministry of Justice came up with several recommendations regarding the new Moroccan personal law (Al-Aḥwāl al-shakhṣī a) or what came to be known as al-Mudawwana.38

The following were recommendations from the Ministry of Justice to the appointed committee.39 The Ministry first defined marriage and chose the term zawāj to connote marriage

37 The following were members of the first committee which wrote the first Moroccan Mudawwana, Muḥammad b. al-‘Arabī al-‘Alawī, Al-Mukhtār al-Sūsī, ‘Allāl al-Fāsī, Muḥammad Dāwūd, Aḥmad al-Baddāwī, ‘Abd al-Raḥmān al-Shafshāwinī, Al-Mahdi al-‘Alawī, ‘Abd al-Wāḥid al-‘Alawi, Al-Ḥusayn b. al-Bashīr, and Ḥammād al-‘Irāqī. See Ḥammād Al-‘Irāqī, 121. 38 The Mudawwana was named after the work of the famous Mālikī law book, al-Mudawwana al-kubra of Saḥnūn (d. 240/854). The term “Mudawwana” means “body of laws.” See Buskens, 73. 39 I selected certain recommendations which concern the topic of marriage since the other recommendations are beyond the scope of this study. 185 rather than using the legal fiqh term ikāḥ. The Ministry defined marriage as a legal covenant

(mīthāq) between a man and a woman who may unite with the aim of establishing a permanent and long lasting bond based on common conjugal life,40 under the authority of the husband41 and based on strong foundations with the desire to procreate and fulfill their reciprocal duties in security, peace and affection.42 This definition, which replaced the term ikāḥ with zawāj, was later adopted by the Moroccan Mudawwana, following many other Arab states.43

The Ministry of Justice also recommended that the woman be empowered to conduct her marriage contract. Therefore it recommended that the adult bikr have the choice of her husband and not to be coerced into marriage.44 In what came to be known as Article 5, the ministry recommended that the marriage contract be conducted in one meeting and require the presence of two upright male witnesses as well as the couple. The ministry also suggested that the consent of the walī be required to complete the marriage of the woman who had not reached the age of rushd.45 In Article 7 of the recommendation, the ministry advised a minimum age of marriage due to social and health risks of early marriage. 46 Therefore, it recommended that the age of marriage be eighteen and fifteen for men and women respectively. Article 8 states that the marriage of a minor who has not reached the age of rushd is contingent upon the consent of the walī; however, if the walī does not approve of the contract, then the couple may petition the

40 This came to oppose temporary (mut‘a) marriage permitted among Twelver Shī‘ī followers such as the case in Iran. For more on mut‘a marriage and the opinions of various jurists, see Muḥammad al-Kashbūr, Qā ū al-Aḥwāl al-Shakhṣī a (al-Dār al-Bayḍā’, Maṭba‘at al-Najāḥ al-Jadīda, 1993), 74-80. 41 Italics my emphasis. 42 Anderson, 1991, 148; Al-Fākhūrī, 1993, 74-80; Ziba Mir-Hosseini, Marriage on Trial: A study of Islamic Family Law: Iran and Morocco Compared (London; New York: I.B. Tauris; New York: St. Martin's Press, 1993), 34; Laura A. Weingartner, “Family Law & Reforms in Morocco—The Mudawana: Modernist Islam and Women’s Rights in the Code of Personal Status,” University of Detroit Mercy Law Review 82, no. 4 ( Summer 2004): 694. 43 Al-Khamlīshī, 1988, 18; Ann Elizabeth Mayer, “Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?” Middle East Journal 49, no. 3 (summer, 1995), 438: 432-446. 44 Al-Khamlīshī, 1988, 8-9. 45 Ibid., 8. The committee did not specify the age of rushd. 46 Ibid., 9. 186 judge.47 Article 9 states that it is permissible for the walī and the groom to appoint a representative or an agent (wakīl). It also recommends that the judge be forbidden from taking over the contract himself and acting as a walī for anyone who already has a walī.48

Article 10 of the recommendation defines the qualifications of the walī. The Ministry of

Justice followed the opinions of most of the previous jurists of the madhāhib regarding the classical qualifications of the walī. 41 It recommended that the walī be adult (bāligh), sane (‘āqil), mature (ra hīd), and from the agnates of the woman.49 It is noteworthy to mention that the ministry did not specify the walī’ gender.50

Article 11 states that the walī of the minor child is his father or the father’s agent. The judge is the walī of anyone who does not have walī.51 Article 12 of the recommendations states that it is not permissible for the walī–even if he were the father—to coerce the adult bikr woman into marriage without her permission. If it is feared that the woman may fall into immorality

(fa ād), the judge may coerce her to marry a man of her social status (kufu’) so the husband may protect and maintain her.52 Article 13 states that if the walī refuses to marry his ward off, the judge may order him to do so. If he still refuses, the judge may conduct the marriage providing that the woman receives a dower similar to her peers (mahr al-mithl).53 Most importantly, Article

14 of the recommendations states that if the wife marries herself without the consent of the walī, the marriage is valid provided the husband is of the same social status (kufu’). However, if the

47 Al-Fāsī, 2000, 11. 48 Ibid., 11-12. 41 Jurists of the early Islamic period through the post-classical period. 49 Al-Fāsī, 2000, 12. 50 Ibid. 51 Ibid. 52 Ibid. According to Anderson, this article eliminated coercion of minor girls into marriage by the parents. Anderson states that in preventing child’s marriage the committee took into consideration the physical and psychological harm that accompanies child marriage. In addition, Anderson is of the opinion that this article makes the marriage a binding contract between two consenting individuals. See Anderson, 1991, 148-49. 53 Al-Fāsī, 2000, 12; Anderson, 1991, 149. 187 husband is not of the same social status, the father may dissolve the marriage.54 In doing so, the ministry diverged from the Mālikī madhhab and instead chose the Ḥanafī madhhab after the

Egyptian and Syrian personal law.55 Article 15 of the recommendation is concerned with the definition of the term kafā’a. It states that 1) the kafā’a is a primary condition for marriage and it is the right of both the woman and her walī, 2) The kafā’a should be considered in the marriage contract and should follow the local custom (‘urf).56 Finally, Article 16 of the recommendations states that part of the kafā’a is the proportionality of age between the two spouses which must be set according to the local customary practice (‘urf).57

After the ministry’s recommendations, the new committee made several crucial changes and published their findings in what became the first Moroccan Mudawwana. Article 5 was changed to reflect the interference and authority of the walī. The article states that, for the marriage contract to be valid, it must be attended by two upright male witnesses. The formula of offer and acceptance (ījāb a d qubūl) must be pronounced by the husband or his agent and by the walī after obtaining the approval of the woman and her consent.58 It is noteworthy that the presence of the woman in negotiating her marriage contract is not required.

Article 6 of the first Mudawwana states that the couple must be sane, bride and groom must have reached the age of marriage (bulūgh) and be free from any legal impediment to marriage.59 Article 8 specifies the minimum age of marriage. The Article reads, “The legal age of marriage for men is the completion of the age of eighteen, and if there is fear of immorality

(‘i t), the matter may be referred to the judge. And the legal age of marriage for women is the

54 Ibid. 55 al-Khamlīshī, 1988, 18; Anderson also points out that the committee diverted from the Mālikī law and took the opinion of the Ḥanafīs’. See Anderson, 150. 56 Al-Fāsī, 2000, 12; al-Khamlīshī, 1988, 18; Anderson, 1991, 149. 57 Ibid., 13. 58 The rest of the article is of not related to our topic. See al-Fāsī, 2000, 70; Anderson, 1991, 148. 59 Al0Fāsī, 2000, 70; Anderson, 148 188 completion of the age of fifteen.”60 Article 9 states that marriage below the legal age of rushd is contingent upon the approval by the walī. If the woman and her walī do not agree, the matter is brought before the judge.61 This article permits the walī to coerce his ward into marriage if she had not yet reached the age of rushd.62 The Mudawwana considered the age of twenty one to be the age of rushd for both men and women.

Article 10 states that 1) it is permitted for the walī and for the husband to appoint an agent to conduct the marriage contract, 2) it is not permitted for the judge to take over guardianship (wilā a) of the ward if they already have a walī, and 3) that the judge may not marry his ward.63 The most important changes occurred in the following articles: Article 11 ranks the walīs according to the Mālikī madhhab, from the male agnates of the woman.

Therefore, the walī is first the son, then the father or his agent, followed by the brother of the woman, then by his son. In the absence of a walī, the judge takes the place of the walī. The walī must be male, sane, have reached the age of bulūgh.64 Here, the walī’ gender is specifically spelled out, excluding women from contracting their own marriages or the marriages of others.

Article 12 of the Mudawwana stipulates that: 1) The marriage guardianship (wilā a) is the right of the woman and the walī may not contract her without her delegating him to do so except in cases of coercion. 2) The woman may not initiate the contract but may delegate her walī to contract her marriage. 3) The woman—caretaker—must appoint a male testator (waṣī) to contract her wards. This paragraph prevents the woman who has custody of her children from

60 Al-Fāsī, 2000, 70; Anderson, 148; Harrak, 2. The Article states, “takmul ahlī at al-nikaḥ fī al-fatā bi-tamām al- thāmi at ‘a hra, fa-‘i khīfa al-‘i t rufi‘a al-amr ilā al-qā ī. Wa fī al-fatā bi-tamām al-khāmi at ‘a hra.” 61 Al-Fāsī, 2000, 70; Anderson, 1991, 149; Harrak, 2. 62 The Mudawwana defined the age of rushd in a different section other than the marriage section to be twenty one years of age. See al-Kashbūr, 1993, 71. 63 Ibid., 71. 64 Ibid. 189 contracting them in marriage due to her gender. 4) It is not permitted for the walī or the father to coerce his adult ward/daughter, even if she is bikr, into marriage without her approval and consent unless it is feared that the woman may fall into immorality (fa ād). In this case, the judge may coerce her into marrying a suitable man (kufu’) to protect and maintain her.65

Article 13 states that if the walī prevented the woman from marriage, the judge may order him to contract her into marriage. And if the male walī refuses, the judge may marry her off to a man of her social status (kufu’) and with a dower similar to those of her peers (mahr al-mithl). 66 Articles

14 and 15 remained the same as recommended by the ministry of justice.67 While the age of rushd was not specified in the first book of marriage in the Mudawwana, the committee instead placed it under a different topic. Therefore, paragraph two, Article 137 of book four of the

Mudawwana on Legitimacy and Legal Representation, states that an individual is considered legally incompetent (maḥjūr) if [he/she] did not complete twenty-one solar years.68 By doing so, the Mudawwana spelled out the age of rushd at twenty-one years of age. This prolonged the period in which the adult men and woman remained under the authority of the walī, and therefore potentially subject to his coercion.

In Articles 9 and 10 of the Mudawwana and contrary to the Ministry of Justice recommendations, the committee members spelled out the gender of the walī as “male” and provided him with the authority to coerce his female ward as long as she is under the age of twenty-one.69 In doing so, the committee excluded women from contracting their own marriage due to their gender and provided the walī with a broader authority over his female wards. While

65 Kashbūr, 1993, 71; Anderson, 1991, 149. The article did not specify conditions for suitability. 66 Kashbūr, 1993, 72; Anderson, 1991, 149. 67 14.1 The suitability (kafā’a) is the right of the woman and her walī. 14.2 The kafā’a must be considered in the marriage contract and it must follow the local customs (‘urf). See al-Fāsī, 2000, 72. Article 15 is concerned with the age difference between the spouses which may follow the local ‘urf. See Al-Fāsī, 2000, 72; Anderson, 1991, 149. 68 al-Kashbūr, 1993, 71. 69 al-Fāsī, 2000, 72. 190 admitting that Muslim jurists never reached consensus (ijmā‘) regarding the requirement of the walī, al-Fāsī followed the rest of the committee members by permitting the walī to coerce his female ward.70 By doing so, the committee followed the opinion of the majority of the jurists and neglected the opinion of Abū Ḥanīfa (d. 767 AD).71 As a spokesman of the committee, al-Fāsī explained that Abū Ḥanīfa did not follow the rest of the jurists in accepting several crucial aḥādīth which support the authority of the walī in marriage.72 Al-Fāsī also stated that the

Moroccan family did not progress enough to follow Abū Ḥanīfa’s fiqh.73 Further, the committee maintained that Moroccan society will understand that the adult woman who contracts her marriage without the consent of a walī has violated Islamic values.74 The committee also suggested that the Mudawwana has already eliminated part of the walī’ authority, and that it is befitting that the rest of the walī’ authority be preserved.75 Moreover, by publishing these

Articles, al-Fāsī seems to have changed his opinion. Previously he had called on Moroccans to follow other Islamic schools of law rather than the Mālikī school of law, and to allow for reforms

70 Mālik, al-Shāfi‘ī, and Aḥmad b. Ḥanbal, and Abū Ḥanīfa were the eponyms of the four Sunni schools of law. For more on the Sunni schools of law see Wael B. Hallaq, Authority Continuity and change in Islamic Law (Cambridge, UK; New York: Cambridge University Press, 2001), 57-85. Al-Fāsī cites Ibn Rushd regarding the qualifications of the walī which includes being a man. See al-Fāsī, 2000, 44. The qualification of the walī could also be found in Ibn Rushd’s book Bidā at al-mujtahid wa- ihā at al-muqtaṣid. See Abū al-Walīd Muḥammad b. Aḥmad b. Rushd al- Qurṭubī, Ibn Rushd, Bidā at al-mujtahid wa- ihā at al-muqtaṣid (Cairo: Maktabat al-Kullīyāt al-Azharīyah, 1970- 1974), 2: 9. 71 Al-Fāsī, 2000, 46. 72 Among the aḥādīth that al-Fāsī chose to buttress his argument are a ḥadīth attributed to the Prophet through ‘Ᾱ’isha which states, “There is no marriage without the permission of a walī.” The ḥadīth could be found in Muḥammad b. Yazīd Ibn Mājah, Sunan Ibn Majah ([Egypt]: al-Maṭba ah al- Ilmīyah, 1313 1895 or 1896 ), 1: 297; Sulaymān b. al-Ash ath al-Sijistānī, Sunan bī āwūd ( s.l. : Dār Iḥyāʼ al-Sunnah al-Nabawīyah, 197-]), 2: 229, no. 2085; Muḥammad b. Īs , Tirmidhī, Sunan al- irmidhī al-Jāmi al-ṣaḥīḥ (Cairo: Maṭbaàt al-Madīna, 1964- 1965), 2: 280, no. 1107. Al-Fāsī also mentions another ḥadīth traced to the Prophet through Ibn ‘Abbās which states, “Whores are those women who contract their marriage without a walī.” The ḥadīth could be found in Ibn Mājah, 1: 297. Al-Fāsī also maintains that Ibn Ḥazm mentions a similar statement regarding the wali’ issue. This could be found in ‘Alī b. Muḥammad, Ibn Ḥazm, al- uḥallā (Mi r: Maktabat al-Jumhūrīya al- Arabīya, 1387 1967 ), 11: 451-55; See al-Fāsī, 2000, 46. 73 Al-Fāsī, 2000, 46; Anderson, 1991, 150. 74 Al-Fāsī, 2000, 46. 75 Ibid. 191 which enhance the role of women in Moroccan society.76 Instead, the committee followed the

Mālikī madhhab closely—except in a few instances—limiting the role of adult women in marriage while placing them under the authority of the walī.77 However, in an interview with the prominent Moroccan scholar, Aḥmad al-Khamlīshī, he maintained that al-Fāsī did not change his opinion, instead the committee—which was made up of ultra-conservative-traditionalist

Qarawiyyīn jurists—forced its opinion and al-Fāsī as its spokesman was obliged to read its recommendation and follow the majority’s opinion.78

Due to the restricted role of women in family law in the 1957 Mudawwana, many

Moroccan women’s groups and individuals started calling for its reform in order to grant women more rights in the Moroccan social and legal system.79 On the other hand, many Moroccans opposed any reform to the Mudawwana. The following pages are dedicated to the opinions of

Moroccan professional, men and women, and activists who participated in opposing reforms and the ones who called for reforming the Mudawwana so to provide women with more rights in

Moroccan family law. It is noteworthy to introduce some of these individuals who have written on the role of woman in Moroccan family law before presenting their opinions.

76 In an interview I conducted with al-Khamlīshī in summer of 2013, he emphasized that al-Fāsī did not have a change of heart but had to concede to the opinion of the rest of the committee members. 77 Al-Fāsī, 2000, 46; al-Khamlīshī, 1994, 1: 4. See also Leila Hanafi and Christine S. Pratt, “Morocco’s 2004 family code Moudawana: improving access to justice for women,” in Women and Knowledge in the Mediterranean, ed. Fatima Sadiqi (London; New York: Routledge, 2012), 130; Charrad, 162-63; Buskens, 73-74; Weingartner, 695. 78 This was stated to me in an interview in summer of 2013. 79 Harrak, 2. 192

Al-Khamlīshī’s Criticism of the 1957 Mudawwana

One of the most prominent Moroccan scholars is Aḥmad al-Khamlīshī, who has written extensively on the Moroccan Mudawwana and the rights of women in Islamic jurisprudence.80

Al-Khamlīshī authored a dozen books on Islamic jurisprudence and the Moroccan Mudawwana.

He was born in a small village in the Bedouin region of al-Ḥusayma in Northern Morocco in

1935.81 Al-Khamlīshī was influenced by his father, a religious man and a member of the Sufi order al-Nāsrīya.82 Raised in an Islamic traditional conservative household, al-Khamlīshī memorized the Qur’ān at the age of ten.83 Later in his life, al-Khamlīshī worked as a judge in the

Moroccan Court of Appeal from 1960-1970 and served as a law professor at the University of

Muḥammad V, Souissi from 1971-2000. He was appointed to head the famous religious- conservative university, the Institution of Dār al- adīth al-Ḥassanīa from 2000 until the present.84 He currently teaches law at the University of Muḥammad V in Rabāṭ while heading the

Institution of Dar al- adīth al-Ḥassanīa. He was selected twice to be a member of the committee commissioned to reform the Moroccan Mudawwana in 1993 and in 2004.85

The second scholar of interest to us is professor Muḥammad b. Ma‘jūz. Ibn Ma‘jūz is a jurist from al-Qarawiyyīn University and a professor at the College of Law in Fez. He also served on the committee commissioned to reform the Mudawwana in 1993.86 Idrīs al-Fakhūrī is another Moroccan scholar and a professor at the University of Muḥammad I.87 He is also a

80 See Dār al- adīth Institution’s website at http://www.edhh.org/cv-directeur.php. 81 For more on the life of al-Khamlīshī see his interview on al-Raḥma TV channel at http://www.youtube.com/watch?v=Xk9pCXcnTx4. 82 Ibid. 83 Ibid. 84 Ibid. 85 See al-Kashbūr, 1993, 22. See also Dār al- adīth Institution’s website at http://www.edhh.org/cv-directeur.php. 86 For more on Ibn Ma‘jūz see al-Kashbūr, 1993, 21-22. 87 For more on Idrīs al-Fākhūrī see http://wwwdroit.univ-oujda.ac.ma/. 193 member of faculty at the college of law in city of Oujda in Morocco.88 The fourth scholar in this debate is Muḥammad al-Shāfi‘ī who wrote on the Moroccan Mudawwana and currently is a professor at the University of Law in Marrakish.89 Abd al-Kabīr al-‘Alawī al-Mudaghgharī

(Mdāghrī) is another Moroccan who wrote on the Mudawwana and participated in reforming it.

He was the minister of Religious Endowments and Islamic Affairs and a member of the committee commissioned in 1993 to reform the Mudawwana. He was released from his post in the year 2000 by King Muḥammad VI. Although a member of the committee to reform the

Mudawwana, Mdāghrī showed his fierce opposition to any reforms.90 Al-Saīyd Mawlāī Mu ṭafā al-‘Alawī is another individual who opposed the reforms. He was the head of the Religious

Board in the city of Miknās in Morocco and was appointed to be a member of the committee commissioned to reform the Mudawwana in 1993.91 Three other individuals also opposed the

Mudawwana‘s reforms: Muḥammad al-Ṭayyib, an inspector and regional coordinator of the

Islamic Education in the city of Miknās, Al-Ḥusayn Maḥjūbī, is an advisor at the court of appeal in Ṭanja,92 and Muḥammad al-Sadūra, a professor at the College of Arts and Humanities in the city of Miknās.93

From the women who joined the opposition to reform the Mudawwana, I will address the following individuals: Khadīja Mufīd and Bāsīmah Ḥaqqāwī. Mufīd is a leading Islamist activist and a representative of the al-Tawḥīd religious party.94 Al-Ḥaqqāwī, on the other hand, is the current Moroccan Minister and Justice and Development Party member (JDP). She was elected

88 Ibid. 89 Muḥammad al-Shāfi‘ī, Mudawwanat al-u ra fī al-ijtihād al-fiqhī (Marrākish, Maṭba‘at al-Warrāqa al-Waṭanīya, 2008). 90 See Salime, 75-77; see also Buskens 79; al-Kashbūr, 1993, 22. 91 See Al- ar’ah al- aghribī ah wa-Mudawwanat al-aḥwāl al-shakhṣī ah, al-wilā ah wa-al-ṭalāq (Miknās: Jāmi‘at al-Mawlā Ismā‘īl, 1993), 78; see also al-Kashbūr, 1993, 22. 92 Ibid., 93. 93Al- ar’ah al- aghribī ah, 92, 109. 94 For more on Khadīja Mufīd see Salime, 30, 92. 194 to the party in 2002. She became a member of the Moroccan Parliament and currently serves as the only woman minister within the Moroccan government dealing with social issues related to women. She also wrote on women’s rights in Morocco and the government proposal of the

NPA.95 Finally, I chose four women who called for further reforms to the Mudawwana. Khadīja al-Ḥayzūnī96 is a practicing lawyer in the city of Miknās in Morocco and was one of many scholars who fought for women’s rights and for reforming the 1957 Mudawwana.97 Second,

Na‘īma Ben Wākrīm, the head of the Moroccan Association of Human Rights (AMDH), opposes the walī’ position and calls for the reform of many of the udawwa a’s articles.98 Farīdah

Banānī is a professor at the college of law in Marrakesh. 99 Finally, Laṭīfa Binānī Smīrys the director of Women’s Organization of Independence or Organisation de la Femme

Istiqlalienne.100

One of the first Moroccan scholars who noticed the injustice that has been done to women through the publishing of the first Mudawwana was Aḥmad al-Khamlīshī. He was also one of the first Moroccan scholars to write about the Moroccan Mudawwana. Al-Khamlīshī argues that it was natural for the first Mudawwana to be founded on Islamic fiqh since the

Moroccans saw that the occupation of foreigners (the French) was an assault on the identity of

Moroccan society and on their Islamic faith and values.101 Therefore, as soon as Morocco announced its independence, the new king commissioned a committee to come up with a new

95 For more information, see the online magazine, “Bāsīmah al-Ḥaqqāwī wazīrat al-Ṭaḍāmun wa-al-Mar’ah wa-al- Usra wa-al-Tanmīya al-Ijtimā‘yīa,” Hespress, accessed January, 03, 2012. http://hespress.com/portraits/44620.html. 96 Khadīja al-Ḥayzūnī is a practicing lawyer at the city of Miknās. See Al- ar’ah al- aghribī ah, 74. 97 Ibid. 98 Al- ar’ah al- aghribī ah, 63. See also http://www.amdh.org.ma/ar. 99 Farida Binānī is a professor at the college of law in Marrakesh. See ‘Abd al-razzāq Mawlāy Arshīd, a dīlāt udawwa at al-aḥwāl al- hakhṣī ah bi- ahāʼir, 1 Shiti bir 1 3 ḥaṣīlah awwalī ah (al-Rabāṭ: Jāmi at Muḥammad al-Khāmīs, 1997), 40. 100 See https://www.facebook.com/femmeistiqlalienne. 101 Al-Khamlīshī, 1988, 11. 195

Moroccan personal law which differed from French law while basing its foundations on Islamic law.102 Al-Khamlīshī however, criticizes the Ministry of Justice and the committee headed by al-

Fāsī for their shortsightedness in family matters.103

Al-Khamlīshī argues that the committee did not practice ijtihād so as to legislate Islamic laws, where ijtihād takes into consideration social and economic factors of the time.104 He is of the opinion that while some Islamic rulings are founded on certain written evidence—from the

Qur’an and the Sunna of the Prophet—other rulings were based on the ijtihād of the jurists.105

The latter type of ruling, according to al-Khamlīshī, could be reformed if it was discovered that the rulings failed to execute the objectives of Sharī‘a (maqāṣid al- harī‘a) due to the change in time, custom, tradition, or the region’s political and economic systems.106 Al-Khamlīshī goes on to state that the Sharī‘a was revealed to protect the rights of the individual and to maintain these rights without transgressing those of others, according to the Qur’anic injunction, "Allah commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion.”107 Therefore, if the Islamic ruling does not achieve the objectives of Sharī’a, according to al-Khamlīshī, it should be ignored even if jurists reached consensus (ijmā‘) in the matter.108 According to al-Khamlīshī, the committee ignored this advice and the opinion of al-Fāsī, and instead followed the Mālikī madhhab closely, resulting in outdated laws.109 Nevertheless, al-Khamlīshī commends the committee for the great step of

102 Ibid., 12. 103 In this project, I focus only on al-Khamlīshī’s critique regarding certain aspects of Moroccan marriage contracts, the consent and the presence of the walī, the age of marriage, and the rights of women in marriage. See al- Khamlīshī, 1988, 13. 104 Ibid. Ijtihād is the process of legal reasoning and hermeneutics through which the jurist-mujtahid derives or rationalize law on the bases of the Qur’ān and the Sunna. For more on ijtihād see Hallaq, 2001, 24-56. 105Khamlīshī, 1988, 13. 106 Ibid. 107 Ibid., 14. 108 Ibid. 109 Al-Khamlīshī, 1988, 14; Buskens, 73. 196 eliminating the walī’ right to coerce adult women into marriage—which was widely practiced according to the Mālikī madhhab.

While objecting to the committee’s commitment to the Mālikī madhhab, al-Khamlīshī states that the committee had achieved the outcome it had because all of its members were

Moroccan ‘ulamā’ who belonged to the traditionalist religious university, al-Qarawiyyīn.110 Al-

Khamlīshī is careful to exclude al-Fāsī from the Qarawiyyīn’s jurist. To al-Khamlīshī, al-Fāsī stood for the rights of women and against the opinions of rest of the committee members.111 Al-

Khamlīshī states that, for hundreds of years, al-Qarawiyyīn institution adhered closely to the

Mālikī madhhab and ignored the rest of the Islamic madhāhib.112 He also is not happy with the selection of the committee members, since other scholars, legal experts, thinkers, and lawyers were not permitted to take part in this crucial process.113 He was also worried that the committee was rushed in its decision and pushed to decide on such important issues, which affected the entire Muslim community of Morocco.114 Al-Khamlīshī maintains that at the time of the establishment of the Mudawwana, and with the exception of the Ottoman personal law, only

Egypt and Syria from the Arab states had canonized their personal status laws. Therefore, the committee did not have much of a pool of models from which to choose. Even the language of many of the articles throughout the Mudawwana, according to al-Khamlīshī, parallels the language of the then-newly codified personal status laws in Egypt and Syria.115

110 Al-Khamlīshī, 15. This was the opinion of other Muslim and Western scholars. See Charrad, 160-61. 111 This was stated to me in an interview in the summer of 2013. 112 With the exception of Prince Hassan II and a Minister of Justice, the rest of the committee members were from the Qarawiyyīn University. See al-Khamlīshī, 1983, 17. 113 Ibid., 20. 114 Ibid., 17, 20. According to al-Khamlīshī, the committee took only three to four days to reach its decisions. See al- Khamlīshī, 1988, 17-20. 115 According to al-Khamlīshī, this becomes more obvious in the five exceptions where the Mudawwana did not adhere to the Mālikī fiqh and instead borrowed from the newly codified Syrian and the Egyptian family law which followed the Ḥanafī fiqh more closely. 197

Al-Khamlīshī also criticizes the committee for ignoring the Ministry of Justice’s recommendations, which attempted to grant women rights in conducting their marriages without the consent of the walī if the husband was of the same social classes (kuf’) in accordance with the

Ḥanafī madhhab.116 In addition, he objects that the committee allowed the judge to use coercion instead of the walī. Al-Khamlīshī warns that by so doing, the committee left the gate wide open for the judge to coerce the adult woman if he feared that the woman might fall into immorality.117 More importantly, al-Khamlīshī criticizes Article 10 of the Mudawwana, which prevents the judge from marrying his ward, since the article does not mention that other walīs should also be prevented from marrying their wards, as in the case of cousins of the ward.118 This article, according to al-Khamlīshī, is a combination of the opinions of Shāfi‘ī and Mālik. While al-Shāfi‘ī permits the walī to marry his ward, Mālik, on the other hand, prevents the walī from doing so.119 Al-Khamlīshī argues that if the aim of the Mudawwana is to protect the single woman’s rights, then the protection ought to be against all walīs.120 In addition, al-Khamlīshī is critical of the inaccuracy of formulating some of the articles, which in some cases contained ambiguity, contradictions, and created difficulty in implementation.121 For example, while

Article 9 neglects to mention the age of rushd, it specifies it under commercial transactions in

Article 137, to be twenty-one.122 Al-Khamlīshī argues that this ambiguity and contradiction in the Mudawwana’s article places the woman under the authority of the walī until she is twenty-

116 al-Khamlīshī, 1988, 15, 17. 117 Ibid., 15. 118 Al-Khamlīshī, 1988, 18. 119 Ibid. 120 Ibid. 121 Al-Khamlīshī is critical of other aspects of the Mudawwana, such as the man’s unilateral right of divorce, polygyny, custody of children, the legal issue of witnesses, and others. See al-Khamlīshī, 1983, 20-21; See also al- Khamlīshī’s unpublished dissertation “Al-Aḥwāl al-Shakh īya: Marriage,” (1976-1977), 12. 122 Article 137 of the Mudawwana stipulates that the age of rushd for men and women is the completion of twenty one solar years. See al-Khamlīshī, 1988, 20-21. 198 one years of age.123 Although the Mudawwana was subject to certain reforms immediately after its publication in 1958, al-Khamlīshī remains convinced that these reforms were not enough and that they did not address the crux of the matter—family issues and the role of women in contracting their marriages.124 Therefore, in 1979, among the many concerns that were presented to the Moroccan Parliament were raising the minimum age of marriage, coercion in marriage, the broad authority of the walī in marriage, the rights of women in marriage and divorce, and other issues pertaining to the rights of women according to the Mudawwana of 1957-58.125

Concerned with the family legal system headed by the ‘ulamā’, al-Khamlīshī calls for a new ijtihād so it may resolve the current issues accordingly rather than relying on the old outdated fiqh.126 Further, al-Khamlīshī is also worried about the graduates of religious institutions, such as al-Qarawiyyīn and others with similarly outdated educational systems. To him, these institutions are careful not to violate any classical principles or deviate from classical or early fiqh rulings.127 Al-Khamlīshī argues that fiqh students of today believe that ijtihād was limited to the four madhāhib and ended by the death of the eponyms of these madhāhib.128 This belief was due to the opinion of the majority of the ‘ulamā’, who decided that the gate of ijtihād is closed, and that the only madhhab that should be practiced in Morocco is the Mālikī, from which no one should deviate.129 Further, al-Khamlīshī maintains that these ‘ulamā’ and their students believe that only the absolute mujtahid (al-mujtahid al-muṭlaq) may exercise ijtihād,

123 Al-Khamlīshī, 1988, 20-21. 124 Al-Khamlīshī cites various reforms and modifications to the Mudawwana from 1959 to 1981. See al-Khamlīshī, 1983, 24-28. 125 al-Khamlīshī, 1983, 24-28. 126 Al-Khamlīshī, 1983, 30-33. 127 Ibid., 32-33. 128 Ibid., 32. 129 Ibid. 199 however, they believe that these mujtahids do not exist at the present time.130 Al-Khamlīshī concludes that Moroccan society is left with judges who are imitators of past Mālikī jurists.131

Some of these judges, according to al-Khamlīshī, cherish imitation (taqlīd) and consider it a sacred tradition. Al-Khamlīshī argues that because of imitation, judges’ gauge of what constitutes right from wrong becomes closely tied to agreeing or disagreeing with past jurists.132

In addition, al-Khamlīshī is critical of judges who obtained their education in the West and therefore lack any training in Islamic fiqh. To him, these judges are not qualified to practice any type of ijtihād since they attempt to avoid any religious legal case.133 Most significantly, al-

Khamlīshī is critical of Islamic fiqh which suffers, according to him, from the same disease as that of the court system of Morocco—that of being outdated.134

However, al-Khamlīshī is optimistic that many of the new graduates of traditionalist institutions are not as attached to the early Mālikī fiqh as their teachers. He also admits that there exists tension within Moroccan society. To him, the groups who are involved in debates regarding the Mudawwana can be divided into two: the Salafi traditionalists and the leftist socialists and feminists. The Salafi groups, according to al-Khamlīshī, are the most restrictive of the two. The Salafīyya (the religious party of Salafis), he says, are those who call for the return to the Qur’ān and the Prophet’s Sunna to rescue the new Moroccan society from the clubs of the

West.135 Therefore, this group tends to be loyal to the traditional old fiqh and strong proponents

130 For more on the qualifications of the mujtahids see Hallaq, 2001, 24-56. 131 Al-Khamlīshī, 1983, 32-33. 132 Al-Khamlīshī, 1983, 33. For more on the term taqlīd see Hallaq, 2001, 86-120. Contrary to many scholars, Mohammad Fadel considers taqlīd another method of ijtihād. Mohammad Fadel, "The Social Logic of Taqlīd and the Rise of the Mukhata ar," Islamic Law and Society 3, no. 2 (January, 1996): 193-233. 133 Ibid. 134 Ibid. 135 Ibid., 36. 200 of fiqh imitation.136 The second group is of mixed culture: traditional and Western, leftist parties and women’s groups. This group tends to imitate Western society and its philosophy regarding the Moroccan family. This group, according to al-Khamlīshī, uses a pragmatic approach to try to reform the Moroccan Mudawwana.137 It believes that most of the fiqh rulings can be reformed through new interpretations. However, while seeking to reform the Mudawwana, the less traditionalist group lacks clarity and depth in Islamic fiqh.138 Such groups and parties focus on specific articles, like the walī, women’s minimum age of marriage, polygyny and divorce.139

While focusing on the aforementioned issues, the parties do not provide an alternative solution, nor would they enter into debates to discuss whether the alternative is permitted in Islamic fiqh.140 Finally, al-Khamlīshī argues that most of the groups mentioned above are not able to reach a common solution.141

While al-Khamlīshī aims at reforming the Moroccan Mudawwana, he is well aware of the obstacles in his path, such as the loyalty felt by traditionalist jurists affiliated with al-Qarawiyyīn toward the Mālikī madhhab. However, al-Khamlīshī is careful to side with a leftist party who calls for reforms from outside the Islamic tradition. To him, preserving and safeguarding Islamic

Moroccan society must come from within the Islamic tradition and not from a foreign source.

136 Ibid, 37. 137 Ibid. 138 Al-Khamlīshī, 1983, 37. 139 Ibid., 37. 140 Ibid. 141 Ibid. 201

Debates over the 1957 Mudawwana

Idrīs al-Fākhūrī is one of the few intellectuals who agrees with al-Khamlīshī. Al-

Fākhūrī’s opinions parallel those of al-Khamlīshī with respect to their writings on the

Mudawwana, although he disagrees with him and many other Moroccans who were critical of the first Mudawwana and instead, praises the codification of fiqh in Morocco.142 Like al-

Khamlīshī he criticizes the committee for restricting their choices to the Mālikī madhhab instead of using the rest of the Sunni madhāhib. For him, focusing on the Mālikī madhhab opens the gates for error and restricts the legal rights of women in the Moroccan society.143Al-Fākhūrī is also critical of the contradictions of some of the articles within the Mudawwana.144 In his view, the Mudawwana did not address the essential issues concerning the Moroccan family, particularly the approval of the woman in her marriage as well as a woman’s right to work.145

However, he applauds many of the articles within the Mudawwana. For example, he praises the

Mudawwana for providing a minimum age for marriage and maturity and also maintains that the

Mudawwana succeeded in eliminating the coercion of women into marriage (wilā a al-ijbār).146

Regarding the age of marriage, al-Fākhūrī observes that, while the Mudawwana stipulated a minimum age for marriage, it did not specify an age for the qualified walī.147 Al-

Fākhūrī also criticizes the ambiguity of the Mudawwana regarding the minimum age of marriage. While Article 6 states that the marrying couple must have reached the age of

142 Idrīs al-Fākhūrī, ḥkām al-zawwāj fī adwwa at al-aḥwāl al- hakhṣī ah dirā ah muqāra ah ba a duwal al- aghrib al- rabī (al-Dār al-Bayḍāʼ: Markaz al-Khidmāt al-Muttaḥidah, 1993-), 17-20. 143 Al-Fākhūrī, 17. 144 Ibid., 18. 145 Ibid. 146 Al-Fākhūrī, 19. Al-Fākhūrī acknowledges that jurists agreed that a man who is sane, ra hīd, and has reached the age of bulūgh does not require a walī and may contract marriage with any woman he desires. However, jurists disagreed on the wilā a of the adult woman and whether or not she requires a walī to conduct her marriage. See al- Fākhūrī, 1993, 201. 147 Ibid., 99. 202 marriage,148 Article 8 specifies the age of marriage for each of the spouses. Al-Fākhūrī argues that the committee did not stipulate which of the two to accept, the age or the bulūgh, leaving the matter open to decision by the judges. By leaving this decision to the judges, judges often accept the age while ignoring the bulūgh, raising certain issues concerning the bulūgh of some women since some Moroccan women show signs of bulūgh before age fifteen.149 To resolve this issue, al-Fākhūrī makes a suggestion contrary to al-Khamlīshī’s opinion. He suggests that the

Mudawwana should combine age and bulūgh in order to determine the legal age of marriage.150

On the other hand, he commends the committee for specifying the age of marriage as a means of eliminating coercion of minors into marriage, and as a means of preventing potential health risks that early marriage may present mothers and their unborn children.151 More importantly, al-

Fākhūrī maintains that determining an appropriate age of marriage is consistent with the opinions of past jurists who would prevent the marriage of minors and considered such marriages invalid.152 While praising the committee for assigning a minimum age for marriage, al-Fākhūrī praises the merits of early marriage, and specifically Article 8 of the Mudawwana, which allows for the coercion of minors into marriage.153 Al-Fākhūrī sees early marriage as an acceptable method of curbing the youth’s tendency to commit fornication (zi ā) and vice.154 However, he suggests that the Moroccan Mudawwana should have followed some of the North African states in placing more restrictions and serious conditions before allowing minors to be coerced into

148 The term bulūgh refers to the acceptable signs used to differentiate a minor from an adult when deciding on the issue of marriage or other contractual transactions. See al-Fākhūrī, 103-14. 149 Ibid., 104. 150 Al-Fākhūrī, 104. 151 Ibid., 105. 152 Al-Fākhūrī states that the following jurists forbade the marriage of minors, ‘Abd al-Raḥmān b. Shubruma, ‘Uthmān al-Battī, Abū Bakr al-A amm, and Jābir b. Zayīd. See al-Fākhūrī, 1993, 108. 153 Ibid., 108. 154 Ibid., 108-110. 203 marriage, pointing out that the local custom (‘urf) of the Moroccan villagers was to marry their children off at a young age.155

Like al-Khamlīshī, al-Fākhūrī also objects to some of the Mudawwana’s articles regarding the imposition of the walī. He criticizes the committee for making the marriage guardianship (wilā a) a requirement for a valid marriage in Articles 5 and 12. He had hoped that the committee would consider the recommendation of the Ministry of Justice that women be allowed to contract their own marriages and wished that they had followed in line with Abū

Ḥanīfa instead of Mālik regarding this issue.156 Al-Fākhūrī states that the simple appearance of the Mudawwana may give the impression that there is no advocacy for coercion in its articles, even though a closer look at Articles 5 and 12 appear to be to the contrary. Like many

Moroccans, al-Fākhūrī believes that the Mudawwana granted the walī the right to contract the marriage of his female ward without her consent.157 He argues that the way the two articles are written does not require the bride to read the contract or even to have it discussed with her. The actual contract, according to al-Fākhūrī, is conducted between the groom and the walī (or his agent) in front of two male witnesses—a contract among men only.158

In addition, al-Fākhūrī agrees with al-Khamlīshī that some of the articles of the

Mudawwana contradict each other. While some articles grant the right of the wilā a to the woman and stipulate that the walī may not coerce his daughter into marriage without her consent, others provide the walī with the right to coerce his ward.159 Further, some of the articles, such as

Article 12, appear to restrict the objection of the walī to the amount of the dower and to the kafā’a of the husband, while the same article restricts the right of a woman to contract her own

155 Ibid., 109-110. 156 Ibid., 208. 157 Ibid., 211. 158 Ibid. 159 Ibid. 204 marriage without a walī and simultaneously provides the judge with the authority to coerce her into marriage.160 Most importantly, al-Fākhūrī argues that suspicion that a woman may “fall into immorality” should not be a legal reason to allow for the coercion of a ward into marriage within the framework of the Mudawwana since this could serve as a pretext for some walī s to do so.161

Khadīja al-Ḥayzūnī, a practicing lawyer, sides with al-Khamlīshī and al-Fākhūrī in criticizing some of the udawwa a’ articles. In a conference held in city of Miknās, al-Ḥayzūnī spoke about the need to reform the Mudawwana. In her speech, she addresses the role of women in divorce as well as the role of the walī in marriage. Al-Ḥayzūnī argues that the time has come to reform the Mudawwana, particularly its interpretation of the role of the walī. Al-Ḥayzūnī maintains that there is a need to find legal resolutions without violating the legislative text, since the text is based on the Qur’an.162 However, she objects to some of the articles that restrict the role of women in marriage and divorce. To her, the Mudawwana does not permit the woman to be a walī unless the husband authorized her to become a testator over her children.163 Even then, according to al-Ḥayzūnī, the woman must remain under the authority of the judge, while the husband with minor children does not face the same scrutiny as does the mother.164 Al-Ḥayzūnī argues that since the term wilā a means literally “protection and help” the walī must protect and help the woman instead of abusing his authority.165

160 Ibid. 161 Ibid. 162 Al- ar’ah al- aghribī ah, 75. 163 Ibid., 75. It is noteworthy to mention that while the witnesses and the state legal guardian must be men, some of the judges in Morocco are women. According to the Egyptian newspaper al-Ahram, women in Morocco entered the profession of the court system much earlier than any other Arab states. In addition, the first Moroccan woman to be appointed as a judge was in 1961. Since then women judges have been sharing the court bench with men at an increasing rate. In 2010 Moroccan women occupied 22% of the Moroccan court system. In 2010 there were 612 women judges out of a total of 3,157 judges. This includes criminal, civil as well as family courts. See http://digital.ahram.org.eg/articles.aspx?Serial=175150&eid=1452. 164 Ibid. 165 Ibid. 205

Regarding the origin of the wilā a, al-Ḥayzūnī argues that even the Mālikī jurists did not unanimously agree that it was necessary for a marriage. While Mālik considered the wilā a to be a requirement of marriage and an integral part thereof, the Mālikī jurist Abū al-Qāsim, reported that Mālik also considered it Sunna and therefore only a recommendation.166 Al-Ḥayzūnī points out that the disagreement between the people who call for the obligation of the wilā a and those who call for its elimination differ on their interpretation of Qur’anic verses 2: 232 and 2: 221.167

The majority of the ‘ulamā’, according to al-Ḥayzūnī, who considered the wilā a obligatory, are of the opinion that the verses address the marriage guardians (al-awli ā’ sing. walī), while the opposite side maintains that the Qur’anic injunctions address men and the public authorities.168

To al-Ḥayzūnī, the disagreement among the madhāhib is due to the absence of clear evidence

(naṣs ṣarīḥ) in the Qur’an and the lack of reliable aḥādīth pertaining to the subject. Therefore, al-

Ḥayzūnī concludes that the gate is open for reform since there is nothing involved in reforming the Mudawwana that might be considered an infringement on Islamic law, particularly with respect to articles 11 and 12.169 Like al-Fākhūrī, al-Ḥayzūnī questions Article 12 of the

Mudawwana which states that the wilā a is the right of the woman, and that the walī may not conduct her marriage unless the woman delegates the walī to do so, except in cases that involve the coercion of a minor (wilā at al-ijbār).170 She also questions the type of delegation mentioned in the article. Al-Ḥayzūnī suggests that if the woman has the right to conduct her marriage, as the beginning of the article states, then she has full capacity to manage her affairs, including conducting her marriage.171 She then expresses doubt as to why an adult woman should require a

166 Ibid. For more on Abū al-Qāsim’s opinion see Ibn Rushd, 1970-1974, 2: 9. 167 Ibid. 168 Ibid. 169 Al-Ḥayzūnī is referring to the two articles which pertain to the requirement of the walī. See al- ar’ah al- aghribī ah, 75. 170 Ibid. 75. 171 Ibid., 76. 206 walī to conduct her marriage on her behalf. To her, the answer lies with the jurists who wrote the

Mudawwana.

Al-Ḥayzūnī asserts that those jurists were ambivalent about whether or not to provide women the right to contract their own marriages immediately after the country’s independence since the country was not yet stable. Al-Ḥayzūnī argues that Moroccan women have reached an unprecedented status. They are sharing financial duties and responsibilities within the household and outside of it.172 Women are heading institutions and various organizations. To her, women in

Morocco are independent in managing their affairs and are in no need of a walī, or any other man, to oversee their decisions. The decision to require a walī, according to al-Ḥayzūnī, is an irrational one which has no Islamic legal foundations. She then goes on to argue that it is not logical for a mother who cared for her minor boy all of his young years to begin to defer to him when he reaches the age of maturity, since at that point he becomes legally his mother’s walī, meaning his permission is then required to contract her into marriage.173 Moreover, al-Ḥayzūnī questions the logic of the Mudawwana in that it requires a woman to assign a male walī or testator to serve as the marriage guardian of her minor wards. Al-Ḥayzūnī then concludes that either the Mudawwana states that the woman is a complete human being with equal rights as that of the man or it should consider her a minor child unable to conduct her affairs and in need of a walī at all occasions.174 Finally al-Ḥayzūnī stresses that she and the other reformers do not aim at changing the words of God but instead aim at reforming the Mudawwana.175

The Moroccan women’s activist and head of the Women’s Organization of

Independence, Laṭīfa Binānī Smīrys, disagrees with al-Ḥayzūnī about the issue of the walī since

172 Ibid., 76. 173 Ibid. 174 Ibid., 76-77. 175 She is referring to some of the aḥādīth which claim that women lack intellect and responsibility. 207 it has become a symbolic gesture.176 To her, the issue of wilā a is not that immediate since many of the government offices and a few judges have begun to limit the authority of the walī.177

However, Smīrys is concerned with the appropriate age of marriage and some of the contradictions within the udawwa a’ articles.178 Smīrys sides with al-Khamlīshī and al-

Fākhūrī that some of the Mudawwana’s articles—particularly Articles 8 and 9—contradict each other. To her, the issue of the age of rushd is of more immediate attention since Article 9 prolongs the period in which the woman remains under the authority of the walī.179

Much like the other female activists mentioned in this chapter, Na‘īma Ben Wākrīm opposes the walī’ position and calls for the reform of many of the udawwa a’s articles. Ben

Wākrīm agrees with al-Khamlīshī that the committee members were all conservative ‘ulamā’ from the religious university of al-Qarawiyyīn in the city of Fez who adhered closely to the

Mālikī madhhab.180 To her, this verifies the theory that the Mudawwana was nothing but a compilation of the Mālikī fiqh, with little attention having been paid to the Ministry’s recommendation or the needs or desires of the Moroccan society, which had undergone a great deal of change since obtaining its independence in 1956.181 Ben Wākrīm maintains that it was al-

Fāsī, the spokesman of the committee in 1957, who insisted on using the Mālikī madhhab, though this decision was contrary to his own advice set forth in his earlier book, al-Naqd al- dhātī, in which he called for the use of other madhāhib in lieu of the outdated Mālikī madhhab.182

176 al- ar’ah al- aghribī ah , 82-83. 177 Ibid., 84. 178 Ibid. 179 See al- ar’ah al- aghribī ah, 109. Article 137 of the Mudawwana states that the age of rushd is twenty-two. See al-Kashbūr 1993, 71. 180 Ibid., 63. 181 See al- ar’ah al- aghribī ah, 64. 182 Ibid., 64. 208

Ben Wākrīm maintains that in 1957 the Ministry of Justice did not consider the walī a primary principal in the marriage contract—following the opinion of Abū Ḥanīfa—nor did it allow for the coercion of the adult bikr.183 However, the committee in 1957 not only preserved coercion in marriage and kept the role of the walī as an essential part of the marriage contract, but also provided him with the authority to coerce his adult female ward if he feared she might fall into moral corruption (fa ād).184 According to Ben Wākrīm, this was largely due to the opinions of al-Fāsī, although al-Fāsī was only reiterating the opinions of the majority of the committee at the time. Ben Wākrīm states that al-Fāsī argued that the Moroccan family (usra) had not yet developed to the level required to support the views of Abū Ḥanīfa.185 Ben Wākrīm however, points to other Arab and Muslim countries which permit the adult woman to conduct her marriage contract without a walī, as is the case in Tunisia, Turkey, Senegal, Sudan, Pakistan and Algeria.186 Like al-Ḥayzūnī, Ben Wākrīm wonders about the virtue of a Moroccan society which permitted women to participate in a very public, national struggle for Moroccan independence, but prevents her from contracting her own marriage.187

Ben Wākrīm argues that the wilā a in the Mudawwana was put in place in order to strip women from their right to make decisions about their own future. And like al-Ḥayzūnī, she strongly believes that the Mudawwana considered any woman a minor and must be protected at all times.188 She criticizes laws which permit men, due to their gender, the right to decide the future of a woman, including her son, even when she was the one who raised and nurtured

183 See al- ar’ah al- aghribī ah, 64-65. 184 This was according to paragraph 4 of article 12. See al- ar’ah al- aghribī ah, 65. 185 According to al-Fāsī this meant that the Moroccan family had not progressed enough to allow a woman to contract her own marriage without the consent of her walī. See al- ar’ah al- aghribī ah, 65. 186 Ibid. 187 According to Ben Wākrīm, it was the wife of the famous ‘Allāl al-Fāsī who signed the declaration of independence. See al- ar’ah al- aghribī ah, 65. 188 Ibid., 66. 209 him.189 Ben Wākrīm also objects to the udawwa a’ articles which imply that a walī or a judge may coerce his adult ward into marriage, as in Articles 4 and 12.190

Furthermore, Ben Wākrīm also warns that the Mudawwana has allowed the rights of the walī to exceed the rights of the woman since he may appoint a representative to conduct the woman’s contract without providing any guidelines or description of the qualifications required of a walī. Ben Wākrīm also echoes others who call for reform to the Mudawwana, particularly those who object to coercion and the wide range of rights a walī or a judge possess over their wards.191 To her, this is due to the ambiguity of some of the udawwa a’ articles and the outdated views of the committee’s members responsible for drafting the Mudawwana. One of the articles that discriminates the most against women, according to Ben Wākrīm, is Article 12, which keeps the woman under the mercy of the judges and exposes women to abuses of power by some of these judges.192 Further, Ben Wākrīm maintains that the article attaches immorality only to women, as if a woman must become a man to finally rid herself of this stigma of corruptibility and fallibility not equally attributed to men.193

Ben Wākrīm goes on to state that the idea of the walī has always been attached to Sharī‘a with regard to the topic of marriage, though there is no clear evidence (naṣṣ) from the Qur’an or the Sunna of the Prophet to justify its requirement.194 Siding with many individuals who call for reform, Ben Wākrīm maintains that the aḥādīth which call for the walī are a topic of controversy among many Muslim jurists.195 To her, the evidence and rationale behind the preservation of the

189 Ibid. 190 Ibid., 67. 191 Ibid., 67-68. 192 Ibid., 68. 193 Ibid., 68-69. 194 Ibid., 69. 195 Ibid. 210 walī’s role in marriage is unreliable and boil down to mere speculation.196 Therefore, along with al-Khamlīshī, most women’s groups and political and social organizations in Morocco, Ben

Wākrīm supports the elimination of the wilā a.197 Further, she questions the logic behind forbidding women—who make up 17.2% of heads-of-households in Morocco and are allowed to work as professionals and public figures—from conducting their own marriage contracts. To her, the decision to strip women from the wilā a is not only an extreme violation of women’s rights, but it prevents them from being equal with men in the eyes of the law, despite the fact that this equality is guaranteed to them by the Moroccan constitution.198

A combination of economic, social, and political changes took place in the latter part of the twentieth century in Morocco which allowed for Moroccan Muslim women to begin debating women’s legal rights in public. The changes in the Moroccan Monarchy’s policy to allow for public debates along with the increase of women’s educational opportunities provided a venue for women to express their opinions with respect to the reform of the Moroccan Mudawwana.

Women began to share the space of the public sphere with men both at work and at public events. To express their opposition to many of the rulings in Islamic fiqh that are considered discriminatory to women, intellectual women had to delve into Islamic fiqh textbooks. This step of drawing on a recognized authority in order to preserve the past Islamic tradition and

Moroccan Muslim society was a necessary one. However, these calls for reform also faced strong oppositions from other Moroccan traditionalists and activists whose arguments were also grounded in Islamic tradition. The individuals presented below opposed reforming the

Mudawwana for various reasons.

196 Ibid., 70. 197 Ibid. 198 Ibid., 70-71. 211

The Opposition

The first of the individuals to oppose al-Khamlīshī and the reforms proposed by others, was the Moroccan scholar, Muḥammad b. Ma‘jūz. Although critical of some of the

Mudawwana’s articles, Ibn Ma‘jūz praised the committee for its efforts and for following the

Islamic tradition. He observes that the Mudawwana did not follow the Mālikī madhhab when it set the minimum age of marriage to eighteen for men and fifteen for women. In his view, the

Mālikī madhhab determined the age of marriage to be either the first signs of bulūgh or upon reaching a certain age which was set at a maximum of eighteen for both men and women.199 In his commentary on the minimum age of marriage for women, Article 12 paragraph 4, Ibn Ma‘jūz disagrees with al-Khamlīshī and maintains that although this paragraph may appear to coerce women into marriage (wilā at al-ijbār), it is actually a means of preventing her from falling into vice and immorality.200 In fact, Ibn Ma‘jūz suggests that if the judge sees that the minor girl wants to be married before the age of fifteen, he may delegate the walī to contract her into marriage.201 To Ibn ‘Ma‘jūz, the coercion phrase in Article 8 of the Mudawwana is directed toward men only and not women. Ibn Ma‘jūz understands that the article states that if it is feared that a minor-male may fall into immorality and commit zi ā or may harm himself through sexually transmitted diseases, it is then that the judge may coerce him into marriage.202

Like al-Khamlīshī, Ibn Ma‘jūz praises the committee for establishing a minimum age for marriage. He asserts that while the majority of Muslim jurists will validate the marriage of a

199 Ibn al-Ma‘jūz mentions that women’s signs of bulūgh may be, the appearance of pubic hair, menstruation, and pregnancy. See Muḥammad, Ibn Ma‘jūz, Aḥkām al-u ra fī al- harī‘a al-I lāmī a wufqa Mudawwanat al-aḥwāl al- shakhṣī a 1983), 53-54. 200 According to Article 12, paragraph 4 of the Mudawwana. Ibn Ma’jūz, 55. 201 Ibn Ma’jūz, 55. Clearly, this is contrary to what al-Khamlīshī stood for since he criticizes the Mudawwana for providing the judge with broad authority to coerce minors into marriage. 202 Ibid. 212 minor, the committee on the other hand chose a minimum age in order to curb the harms that are widely associated with early marriage, such as complications during pregnancy or childbirth that can lead to injury or death.203 In addition, according to Ibn Ma‘jūz, minors are unable to carry the burdens and responsibilities of a marriage at such a young age. However, Ibn Ma‘jūz states that despite a few benefits to the age limit set by the Mudawwana, preventing the marriage of minors might expose the youth to sin and lead them into immorality in the form of vice and fornication.204 This could also lead to the spread of sexually transmitted diseases, not to mention psychological and social diseases, which Islam has all but eliminated, within societies where the mixing of the sexes has become common.205 Ibn Ma‘jūz also points out that in the hot regions of

North Africa, children show signs of bulūgh much earlier than the minimum age of marriage set by the Mudawwana.206 For the above reasons, Ibn Ma‘jūz contradicts his earlier suggestion and instead declares that preventing marriage in such regions may raise numerous moral and social issues.207 Ibn Ma‘jūz then strongly suggests that legal courts must ease the restrictions on marriage and should start permitting minors to be married so as to avoid cultural immorality, and to help establish Islamic families based on strong Islamic foundations.

In his observation of Articles 9 and 137 regarding marriage prior to reaching adulthood

(sin al-rushd),208 Ibn Ma‘jūz states that in accordance with jurists’ consensus (ijmā‘), the marriage of a minor is dependent on the approval of the walī — not a minimum age set by the state.209 In addition, Ibn Ma‘jūz praises the Mudawwana for having placed the condition of the

203 Ibid., 54-56. 204 Ibn Ma’jūz, 54 205 Ibid., 54. 206 Ibid., 56. 207 Ibid. 208 Article 137 of the Mudawwana states that the age of adulthood (rushd) is marked by the completion of twenty- one solar years. See Ibn Ma‘jūz, 56. 209 Ibn Ma‘jūz, 56-57. 213 walī as an extra measure to prevent an incompetent minor (one who has not yet reached the age of twenty-one) from conducting his or her own marriage. Furthermore, the measure ensures that the walī has complete authority over decisions involving the minor. To him, the walī may approve of the marriage or he may dissolve it—which is in accordance with the common opinion of the jurists.210 This was criticized by al-Khamlīshī, who wanted to abolish coercion of women, minors and adults, and provide the woman the right to contract her marriage.

Ignoring the recommendations of al-Khamlīshī, Ibn Ma‘jūz praises the Mudawwana for being consistent with the opinions of the rest of the jurists by keeping the wilā a in the hands of the male walī, including uttering the formula of the marriage.211 According to him, a woman may not serve as a walī in any marriage in accordance with jurists’ consensus (ijmā‘).212 Ibn Ma‘jūz disagrees with al-Khamlīshī and women who sided with him and maintains that there is plenty of evidence to support the requirement of the walī. To support his position, Ibn Ma‘jūz brings forth several aḥādīth and argues that in the Qur’anic injunctions 2: 232 and 2: 221, God addresses men, not women, to conduct the marriage contract.213 In his observation regarding Article 4, Ibn

Ma‘jūz states that according to the Mudawwana, although the wilā a is considered the right of the bride, the judge has the right to coerce her into marrying a man of her equivalent social status to protect her if the judge sees that she may be at risk of falling into immorality. Ibn Ma‘jūz considers the judge to be the ultimate walī.214 He supports his opposition to a woman’s right to serve as a walī by providing several aḥādīth, particularly the ḥadīth traced to Abū Hurayra which states that “a woman may not contract other women’s marriage, nor her contract. A woman who

210 Ibid., 58. 211 Ibid., 91. 212 Ibid. Although Abū Ḥanīfa approved that a woman may contract her marriage, therefore acting as her own walī. For more on Abū Ḥanīfa’s opinion see Ibn Rushd, 197-1974, 2: 8-9. 213 The Qur’anic injunction 2: 232 states, “When ye divorce women, and they fulfill the term of their ('Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms,” and 2: 221 “Do not marry unbelieving women (idolaters), until they believe.” Ibn Ma‘jūz, 95. 214 Ibn Ma‘jūz, 97. 214 contracts a marriage is a whore (zā īa).”215 Therefore, Ibn Ma‘jūz stands against any future reforms of the Mudawwana which might provide the woman with more authority in her contract, in addition to his opposition of the minimum age for marriage which was set by the

Mudawwana. By so doing, Ibn Ma‘jūz stands on the opposite side of al-Khamlīshī regarding the right of women in marriage.

Al-Saīyyd Mawlāī Mu ṭafā al-‘Alawī sides with Ibn Ma‘jūz and disagrees with al-

Khamlīshī who is critical of the Mudawwana, who maintains that women are in need of a walī.

Al-‘Alawī also considers the Mudawwana to be fair and just to women. To him, God created men and women from a single person according to Qur’anic verse 7: 189.216 Therefore, God would have never allowed men to control women.217 The past jurists, according to al-‘Alawī did not deduce fiqh rulings in order to vilify women. According to him, the Qur’anic directive 2: 232 was revealed in order to curb and prevent the belittling and abuse of women.218 However, al-

‘Alawī is of the opinion that unlike men, women are naturally emotional beings while men are born rough and built for matters women may not be able to endure.219 To support this claim, al-

‘Alawī provides the example of the woman who came to the Prophet complaining that her father coerced her into marrying his nephew. The Prophet then granted her the choice to remain married or reject the contract, to which she replied that she would remain in marriage.220 Al-

215 Ibn Ma‘jūz, 101. The ḥadīth could be found in Ibn Mājah, 1: 297. 216 It is He Who created you from a single person, and made his mate of like nature, in order that he might dwell with her (in love). See al- ar’ah al- aghribī ah, 78. 217 Ibid., 78-79. 218 Al- ar’ah al- aghribī ah, 78. 219 Ibid., 78. 220 Ibid., 79. The ḥadīth is found in Sunan al-Na ā’í. See, Aḥmad b. Shu ayb, al-Nasāʼī. Su a al-Na āʼī bi- harḥ al-Imāma al-Su ūṭī wa-al-Si dī, edt, Al-Sayyid Muḥammad Sayyid, Alī Muḥammad, and Alī, Sayyid Umrān (Cairo: Dār al-Ḥadīth, 1999), 3: 404, no. 3269; see also Ibn Mājah, 1: 296. 215

‘Alawī considers this evidence that women are much more emotional than men and that women actually need men to help them make crucial decisions.221

Al-‘Alawī goes on to say that both men and women, while not equal, complement one another. To him, men are skilled at making crucial decisions for women while women, on the other hand, excel in raising and nursing children. Therefore, each possesses different skills to help the other. Al-‘Alawī considers the father’s wilā a a mere symbol of authority since the daughter has the right to either accept or reject the marriage. 222 According to al-‘Alawī, if the daughter rejects a marriage contract, the marriage is void unless her rejection is seen to be contrary to Islamic law or if that rejection may cause her to fall into immorality. In this case, according to al-‘Alawī, the judge may coerce her into marriage.223 Al-‘Alawī argues that his research through the entire articles of the Mudawwana did not find anything that might lead the reader to think that the Mudawwana allows for the coercing of women into marriage.224 The justification behind the requirement of a walī, according to him, is merely a consideration of the sensitivity of women, who may not be able to bear certain responsibilities. To him, the walī is there to ensure that women do not fall into the wrong hands. Finally, al-‘Alawī claims that the example of the woman who came to the Prophet complaining about her father’s coercion exemplifies the notion that women are unable to decide for themselves.225

Al-‘Alawī suggests that women should not feel repressed or degraded and blame men for their misery because Islamic law, he says, provides women with unparalleled justice.226 Al-

‘Alawī reiterates that women must understand that their position in society is to raise the new

221 Al- ar’ah al- aghribī ah, 79. 222 Ibid. 223 Ibid., 79. 224 Ibid. 225 Ibid., 79-80. 226 Ibid. 216 generation, and, he says, if women raised their children with a foundation of honesty and loyalty, and according to the legal Islamic teachings, issues between men and women would never arise.227 Al-‘Alawī therefore blames the Moroccan society of today for any discrepancy between the sexes and considers modern Moroccan society a lost society since it does not follow true

Islamic tradition.228 Al-‘Alawī therefore, joins Ibn Ma‘jūz and stands against the opinion of al-

Khamlīshī who is critical of the Mudawwana and the restricted role of women in contracting their marriage.

Muḥammad al-Sadūra is another Moroccan scholar who sides with al-‘Alawī’s against al-

Khamlīshī’s suggestions. Al-Sadūra claims that the wilā a existed to protect the woman.229 To al-Sadūra, the wilā a also preserves the dignity of women, since men were built with certain physiological and psychological capabilities that were not bestowed upon women. According to him, this is why a woman requires a male walī to negotiate her marriage contract.230

Muḥammad al-Ṭayyib opposes al-Khamlīshī in eliminating the wilā a and sides with Ibn

Ma‘jūz, al-‘Alawī and al-Sadūra on the issue. He maintains that women in Islam are considered equal to men but different in certain matters.231 While providing men with the great responsibility of wilā a, al-Ṭayyib goes on to state that God has also privileged women with great distinction of honor as mothers.232 To him, assigning a title or responsibility to either a man or a woman is not a privilege, but rather a huge burden.233 The two Qur’anic directives 2: 221 and 2: 232 according to al-Ṭayyib address men and provide them with the authority to contract

227 Ibid., 80-81. 228 Ibid., 81. 229 Al- ar’ah al- aghribī ah, 111-12. 230 Ibid., 112. 231 Ibid., 92. 232 Al-Ṭayyib provides the Qur’anic injunction, 2:228 which stipulates: “And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them.” See al- ar’ah al- aghribī ah, 94. 233 Ibid. 217 their female wards in marriage. Al-Tayyib maintains that this authority is not a gift given to men because of the superiority of their gender, but rather it is an extra responsibility expected of men which trumps all of a woman’s social duties.234 In addition to these two Qur’anic directives, al-

Tayyib provides the following two verses: 4: 25, which states, “Wed them with the leave of their owners,” and 28: 27, which states “I intend to wed one of these my daughters to thee.”235 To al-

Tayyib, these verses are clear evidence that the wilā a is intended for the man since these verses address men and not women.236 Al-Tayyib argues that, if it was permitted for a woman to marry herself off, God would have indicated thus. Al-Tayyib also cites several aḥādīth to support his claim that the walī is a requirement in marriage.237

While reformists and their opposition both hope to preserve the identity of the Moroccan

Muslim society, both are engaged in a battle over Moroccan Muslim women’s rights, and both parties support their arguments by relying on Islamic fiqh, the Qur’ān, and the Sunna of the

Prophet. While reformists maintain that the Mudawwana is only a legal document, the opposition

(religious institutions, ‘ulamā’, and traditionalist men and women) fight any reforms to the

Mudawwana on the basis that it is an extension of Divine Islamic law (Sharī‘a). The belief that

Islamic fiqh is part of Sharī‘a, and that God has provided women with their complete rights in

Islam, has complicated the issue for both sides. Reformists were forced to address women’s discourse from within the framework of Islamic fiqh. Traditionalists, on the other hand, saw an

234 Ibid. 235 Ibid. 236 Ibid., 95. 237 For example he brings few aḥādīth transmitted by Ᾱ’isha who stated that the Prophet once said, “Any woman married without the permission of her walī, her marriage is invalid, repeated three times” This ḥadīth could be found in al-Tirmidhī, 4: 408, no. 1102; see also Abū Dāwūd, 2: 229, no. 2083; Ibn Mājah, 1: 297. He also cited the ḥadīth, “there is no marriage without the permission of a wail.” In addition, he cites another aḥādīth traced back to Abū Hurayra where he stated, “A woman may not marry another woman. And the woman may not marry herself act as a walī]. The fornicator (zā ī a) is the one who herself off.” And finally he provides the ḥadīth where the Prophet stated that al-thayyib is more deserving if her affairs than her walī. And the adult bikr woman may not be married without her consent and her consent is her silence.” The ḥadīth could be found in Ibn Ḥajar al-‘Asqalānī, 9: 240, no. 5136; see also Ibn Mājah, 1: 296; al-Nasā’ī, 3: 400, no. 3260; al-Tirmidhī, 2: 286, no. 1113; See also Muslim, 5: 173, no. 1419; al- ar’ah al- aghribī ah, 95. 218 opportunity to respond to reformists as supported by a “Divine law.” This notion that Sharī‘a has provided women with their complete rights, has overshadowed reformists objectives in reforming Islamic family law. It has also placed huge obstacles in the way of improved rights for

Muslim women. More importantly, religious traditional institutions have supported these traditionalists all along in order to block any challenges to their religious establishment by utilizing the method of consensus of their madhhab as championed by traditional religious institutions so as to hold on to past rulings as part of a continuous and eternal Divine law. On the other hand, to gain ground in this battle, reformists had to turn to some of the prominent ‘ulamā’ and to the state itself. Only through the support of some of the prominent religious figures and the government can women gain some of their due rights.

Part II The First Reform of the Mudawwana, 1993

Over time, public debates over women’s rights according to the Mudawwana grew more intense. Women’s organizations grew more active in an effort to reform the Mudawwana and secure more rights in marriage, divorce, and other personal matters for women. Many Moroccan professionals, scholars, and activists—men and women alike—continued their campaigns to pressure the government to reform the Mudawwana.238 Women’s feminist groups were deeply disappointed since the Mudawwana considered women minors.239 In 1992, the feminist group,

Union de l’Action Feminine (UAF), succeeded in launching the One Million Signatures

238 See the introduction in Salime, Zakia. Between Feminism and Islam: Human Rights and Sharia Law in Morocco (Minneapolis: Minnesota Press, 2011); see also Muḥammad al-Shāfi‘ī, ḥkām al-u rah fī awʼ udawwa at al- aḥwāl al- hakhṣī ah (Marrākush: Dār Walīlī lil-Ṭibā ah wa-al-Nashr, 1998), 19; Mayer, Ann Elizabeth. “Mayer Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?” Middle East Journal 49, no. 3 (Summer, 1995), 439. 239 Sadiqi, 2008, 329; Harrak, 2; Hanafi and Pratt, 131. 219

Campaign to that end.240 The One Million Signatures was a call to amend certain issues in the

Mudawwana, including a reduction in the age of rushd (which was set at twenty-one), and the elimination of the marriage guardianship (wilā a).241 In addition, the UAF called for the reactivation of ijtihād since Moroccan women were living under different circumstances than those present when the Mudawwana was first published (1957-58).242 The UAF demands were similar to those of al-Khamlīshī, who advocated for opening the gate of ijtihād and for the elimination of the wilā a. The work of the UAF and feminist organizations angered Moroccan conservatives and Islamists who considered the Mudawwana a sacred document.243 In response, the Moroccan ‘ulamā’ denounced feminists, and many conservative groups published rejections of the campaign, accusing feminists and liberal men and women of making demands that were un-Islamic and outside the realm of Sharī‘a.244 Al-Khamlīshī, although not mentioned by name, was included in this smear campaign for his liberal ideas that were similar to those of the feminist groups. More importantly, some of the Islamist ‘ulamā’ issued fatwas and published pamphlets declaring that feminists and liberal men were infidels who apostatized from Islam.245

240 Salime, 30; Harrak, 2; Katie Zoglin, "Morocco’s Family Code: Improving Equality for Women,” Project Mouse, 31, no 4 (November 2009), 964-984; Sadiqi, 2008, 331; Hursh, 271; Katja Zvan Elliott, “Reforming the Moroccan Personal Status Code: A Revolution for Whom?,” Mediterranean Politics, 14, no.2 (July, 2009), 216; Hanafi and Pratt, 131. 241 The call also included the demand for equal rights between husband and wife, the abolition of polygamy, the regulation of divorce through courts, and the demand that women have equal rights to obtain a divorce. For more on the demands of the UAF see Salime, 33; Aḥmad al-Khamlīshī, Mina al-aḥwāl al-shakhṣī a ilā udawwa at al-usra (Al-Rabāṭ: Dar Nashr al-Ma‘rīfa, 2012), 26; Hanafi and Pratt, 131. 242 Salime, 37. 243 Elliott, 215; Moha Ennaji, “The New Muslim Personal Status Law in Morocco: Context, Proponents, Adversaries, and Arguments,” Rutgers University & University of Fès, Morocco, 9-10, accessed October 4, 2013, http://www.yale.edu/macmillan/africadissent/moha.pdf. 244 Salime, 46-47; Harrak, 4; Zoglin, 967; Mayer, 439; Elliott, 215-216. Lauri A. Brand, Women, the State, and Political Liberalization: Middle Eastern and North African Experiences (New York: Colombia University Press, 1998), 71-73; Harrak, 3; Elliot, 215-216; Buskens, 96; Maddy-Weitzman, 403. 245 Al-Khamlīshī, 2012, 26; Harrak, 3; Elliott, 215-216; Maddy-Weitzman, 403. 220

Some of the fatwas called for the killing of all who wanted to change the Mudawwana and those who signed the petition to reform it.246

Still, the UAF, other women’s organizations, and Non-Governmental Organizations

(NGOs), took it upon themselves to pressure the Moroccan king to reform some of the articles of the Mudawwana.247 The pressure on the street between women’s organizations and Islamists mounted. It was not until the king decided to intervene that the dispute between the two sides was deflated. In September 29, 1992, and as a result of their efforts, King Ḥassan II (1961-1999) invited some of the women activists and representatives of women’s organizations to his palace.

In a speech to the representative women present, the king presented himself as the commander of the faithful (amīr al-mu’mi ī ) and promised to establish a new committee to study the demands of women in order to reform some of the articles in question.248 In doing so, the king had considered women’s voices equal to those of male jurists for the first time in the history of

Morocco. This marked a milestone in the struggle of Muslim women to compete with jurists in reforming Islamic laws which pertain to women’s issues. Additionally, this was a departure from a centuries-old male-centered monopoly by jurists over Islamic jurisprudence.249 From that moment on, at least in Morocco, Muslim women were considered qualified to participate in the drafting of Islamic law just as men had been doing for hundreds of years.

246 Al-Jam‘īya al-Maghribīya li-Ḥuqqūq al-Insān, Mudawwanat al-aḥwāl al-shakhṣī a ‘a tagh īr (Al-Dār al- Bayḍā’: 1993), 66; al-Fākhūrī, al- arkaz al-qā ū ī lil-marʼah al- aghribī ah mi khilāl uṣūṣ mudawwa at al- aḥwāl al- hakhṣī ah (Wujdah: Maṭba‘at al-Jusūr, 2002), 15; Elliott, 216.When I asked al-Khamlīshī about these fatwas he dismiss them as angry individuals who had no supportive evidence but angry at others who were challenging them. 247 Other women’s organizations that worked alongside the UAF included the ADFM and the Moroccan Women’s Democratic Association. For more on women’s organizations see Salime, 2011; Marvine Howe, Morocco: The Islamist Awakening and other Challenges (New York: Oxford University Press, 2005), 164. 248 Buskens, 79; al- ar’ah al- aghribī ah, 32-35; al-Shāfi‘ī, 1998, 19. 249 Rahma Bourqia, Susan Gilson Miller; et al., “The Cultural Legacy of Power in Morocco,” in In the Shadow of the Sultan: Culture, Power, and Politics in Islam, eds. Rahma Bourqia and Susan G. Miller (Cambridge, Mass: Harvard University Press, 1999), 254. 221

However, as a commander of the faithful, the king also promised not to permit what God has forbidden, nor would he forbid what God has permitted.250 As a result of this crucial meeting, in October 13, 1992, the king commissioned a committee of twenty men to study the

Moroccan women’s demands, and to make the necessary changes to the articles in question.251

The committee was headed by ‘Abd al-Hādī Bouṭālib and included the Moroccan scholar Aḥmad al-Khamlīshī.252 The king also instructed representatives of the women’s organizations and the committee to reach consensus, saying that otherwise he himself would intervene as commander of the faithful.253 In 1993, King Ḥassan II ordered the reform through a royal decree.254 On

September 10, 1993, the reformed Mudawwana was published with reforms that were agreed upon by both the committee commissioned by the king and representatives of the women’s organizations involved.255 The reforms covered marriage guardianship, polygamy, divorce, maintenance, alimony, custody of children, and other issues that affected women directly.256

The new reforms included the required presence of the wife at the time of her contract negotiation, the cancellation of the coercion of marriage (wilā at al-ijbār), and permission for a fatherless woman to conduct her marriage without a walī.257 The new reformed Mudawwana was a symbolic gesture made by king Ḥassan to appease the public.258 What follows is a description of the affected articles, which were reformed to reflect the consensus of the committee members and the female representatives.

250 Al- ar’ah al- aghribī ah, 34. 251 Sadiqi, 2008, 331; Buskens, 79. Buskens states that the committee was twenty men and one woman. However, he does not provide the name of the woman. 252 Al-Jam‘īya al-Waṭanīya al-Ḥiḍn, Min mudawwanat al-aḥwāl al- hakhṣī ah ilā mudawwa at al-u rah ‘a jadīd (Al-Dār al-Bayḍā’: Maṭbaàt al-Najāḥ al-Jadīda, 2005), 28. 253 Buskens, 80. 254 Hursh, 259; Buskens, 79. 255 Buskens, 80. 256 Buskens, 85-89; Mayer, 1995, 439; Sadiqi, 2008, 331; Muḥammad, al-Kashbūr, Al-Waṣīṭ fī qā ū al-aḥwāl al- shakhṣī a (Al-Dār Al-Bayḍā’: Maṭba‘at al-najāḥ al-jadīdah 1999), 6. 257 Al-Kashbūr, 1999, 25. 258 Buskens, 83. 222

Article 5 cancelled the coercion clause in paragraph 1 and instead read as follows: “the marriage may not be concluded without the consent of the wife, and after obtaining her verbal and written approval, signature, on the contract. In all cases, the walī does not possess the right to coerce his ward (wīla at al-ijbār) while taking into consideration Article 12 and 13.”259 Article 11 remained the same where it stipulated the ranking of the walī and the gender of the walī remained the same

“male.” Paragraph 2 of the article remained the same as it appeared in the original.260 Article 12, paragraph 4 was changed to state that the adult (ra hīda) fatherless woman ( atīma) possesses the right to contract her marriage or to appoint any of her walīs to conduct her marriage contract.261 The age of al-rushd in Article 137—which discusses capacity and legal representation—was lowered from the completion of twenty-one to the completion of twenty years of age. 262 This means that the age of rushd is twenty years of age instead of twenty-one.

(See table (3-1) below for the Articles in concern and for the changes in some of articles in the

Mudawwana of 1957 and1993).

259 Khālid, Birjāwī, Qā ū al-zawāj bi-al-Maghrib bayna Mudawwanat al-Aḥwāl al-Shakhṣī ah wa-muqta a āt al- ittifāqī āt al-dawlī ah lil-ḥuqūq al-i ā ( Rabat? : Manshūrāt Maktabat al-Shabāb, 1999), 22; Mayer, 439. 260 In order to validate the contract the formula of offer and acceptance must be heard from the groom or his representative as well as the walī. See Birjāwī, 1999, 22. 261 Ibid. 262 Mudawwanat al-aḥwāl al-shakhṣī a (al-Rabāṭ: Dār al-Nashr al-Ma rifah, 1999), 74. 223

Table (3-1) Important Articles in the 1957 and 1993 Moroccan Mudawwana Concerned Articles in 1957 Mudawwana Concerned Articles in 1993 Mudawwana Article 1: defines the marriage as a legal covenant The definition of marriage remained the same. (mīthāq) between a man and a woman who may unite with the aim of establishing a permanent and long lasting bond based on common conjugal life, under the authority of the husband and based on strong foundations with the desire to procreate and fulfill their reciprocal duties in security, peace and affection. Article 5. Paragraph 1. For the marriage contract to Article 5. Paragraph 1. The marriage may not be be valid, it must be attended by two upright male concluded without the consent of the wife, and witnesses. The formula of offer and acceptance after obtaining her verbal and written approval, (ījāb and qubūl) must be pronounced by the and her signature on the summary of the contract husband or his agent and by the walī after in the presence of two court witnesses. In all obtaining the approval of the woman and her cases, the walī does not possess the right to consent. coerce his ward (wīlāyat al-ijbār) while taking into consideration article 12 and 13. The rest of the article remained the same. Article 6. The couple must be sane, bride and Article 6 remained the same. groom must have reached the age of marriage (bulūgh) and be free from any legal impediment to marriage. Article 8. The legal age of marriage for men is the The text of the article remained the same. completion of the age of eighteen, and if there is fear of immorality (‘int), the matter may be referred to the judge. And the legal age of marriage for women is the completion of the age of fifteen. Article 9. Marriage below the legal age of rushd is The article remained the same. contingent upon the approval by the walī. If the woman and her walī do not agree, the matter is raised to the judge Article 10 states that 1) it is permitted for the walī The article remained the same. and for the husband to appoint an agent to conduct the marriage contract, 2) it is not permitted for the judge to take over guardianship (wilāya) of the ward if they already have a walī, and 3) that the judge may not marry his ward Article 11. Ranking the walīs. The walī is first the The article remained the same. son, then the father or his agent, followed by the brother of the woman, then by his son. In the absence of a walī, the judge takes the place of the walī. The walī must be male, sane, have reached the age of the age of bulūgh.

Article 12 of the Mudawwana stipulates that: 1) Article 12. The first three paragraphs remained the

224

Concerned Articles in 1957 Mudawwana Concerned Articles in 1993 Mudawwana The marriage guardianship (wilāya) is the right of same. The crucial change came in paragraph 4. The the woman and the walī may not contract her paragraph was changed to state that the adult without her delegating him to do so except in (rashīda) fatherless woman (yatīma) possesses the cases of coercion. 2) The woman may not initiate right to contract her marriage or to appoint any of the contract but may delegate her walī to contract her walīs to conduct her marriage contract. her marriage. 3) The woman—caretaker—must appoint a male testator (waṣī) to contract her wards. 4) It is not permitted for the walī or the father to coerce his adult ward/daughter, even if she is bikr, into marriage without her approval and consent unless it is feared that the woman may fall into immorality (fasād). In this case, the judge may coerce her into marrying a suitable man (kufu’) to protect and maintain her. Article 13 states that if the walī prevented the The article remained the same. woman from marriage, the judge may order him to contract her into marriage. And if the male walī refused, the judge may marry her off to a man of her social status (kufu’) and with a dower similar to those of her peers (mahr al-mithl). Article 14 of the recommendations states that if The article was eliminated the wife marries herself without the consent of the walī, the marriage is valid provided the husband is of the same social status (kufu’). However, if the husband is not of the same social status the father may dissolve the marriage Article 15states that 1) the kafā’a is a primary The text of the article remained the same and was condition for marriage and it is the right of both labeled Article 14. the woman and her walī, 2) The kafā’a should be considered in the marriage contract and should follow the local custom (‘urf). Article 16 of the recommendations states that part The text of the article remained the same and was of the kafā’a is the proportionality of age between labeled Article 15. the two spouses according to the local customary practice (‘urf) Article 137 of book four of the Mudawwana on Article 137 of book four of the Mudawwana on Legitimacy and Legal Representation, states that Legitimacy and Legal Representation, states that an individual is considered legally incompetent an individual is considered legally incompetent (maḥjūr) if [he/she] did not complete twenty-one (maḥjūr) if [he/she] did not complete twenty solar solar years. years.263 Table (3-1)

263 Silsilat al-nu ū al-qānūnīyah, Mudawwanat al-aḥwāl al-shakhṣī a (Al-Rabāṭ: Dār al-Nashr al-Ma rifah, 1999), 8-14, 74. 225

However, almost a year after the reforms were passed, an amendment to the revised

Mudawwana was published which provided judges with the authority to contract women who showed signs of bulūgh earlier than the inscribed age of marriage, fifteen.264 These reforms were not well received by women’s organizations, which were demanding more extensive changes in the Mudawwana. To women’s groups, the 1993 Mudawwana was a huge setback and a great disappointment.265 Islamist groups, on the other hand, saw that liberal women’s groups were calling for Western customs and traditions to override Islamic law. Public debates over the

Mudawwana continued.

Reaction to the Reforms

Al-Khamlīshī, one of the committee members who participated in reforming the

Mudawwana, argues that the Mudawwana succeeded in making certain reforms to women’s demands. However, he asserts that the reforms were not all comprehensive and some of the articles in the Mudawwana still contradicted each other.266 Al-Khamlīshī objects to the

Mudawwana’s use of the term bulūgh without providing an age to determine the bulūgh.267 He states that judges do not request the marrying couple to provide evidence of bulūgh and instead request evidence of the age of the marrying couple.268 Al-Khamlīshī praises the Mudawwana for stipulating an age of marriage for a couple, but suggests that the Mudawwana should stipulate

264 Birjāwī, 1999, 50. 265 Sadiqi, 2008, 331; Buskens, 83; Harrak, 4. 266 Some of the Articles deal with the walī while others deal with divorce, maintenance, and the obedience of the wife. Al-Khamlīshī, 1994, 1: 240-262; Ann Elizabeth Mayer, “Mayer Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?” Middle East Journal 49, no. 3 (summer, 1995), 438-439. 267 Al-Khamlīshī, 1994, 128, no.144. 268 Ibid., 128-29 no 145. 226 criminal consequences for fathers and walīs who violate the legal age of marriage.269 He illustrates this point by arguing that, since the minimum age of marriage was stipulated to protect minors from abuse by adults, it is befitting that fathers and walī’s who violate the minimum age of marriage be held criminally responsible for their actions.270 This was an unprecedented suggestion from a traditional Muslim scholar who knows well that previous jurists never called for this type of consequences. More importantly, al-Khamlīshī argues that the Mudawwana discriminated between men and women in terms of their ability to conduct their marriages.

While the revised Mudawwana set the legal age of rushd for both men and women at twenty, it did nothing to prevent a man who had not yet reached the age of rushd from conducting his marriage contract if he could appoint an agent to represent him. Conversely, a woman who had a father and had not reached the age of rushd could neither appoint an agent nor contract her marriage.271 This suggestion resembles and echoes the demands of women organizations in

Morocco who were calling for the reforms of the Mudawwana.

According al-Khamlīshī, not only did the revision of the Mudawwana fail to accurately address women’s concerns, it followed the Mālikī fiqh in terms of the qualification of the walī without specifying the age of the walī.272 In addition, the Mudawwana preserved the requirement of the walī and still considered it an integral part of the marriage. The new committee did, however, restrict the walī’ authority to two cases.273 The first case involves the marriage of a husband from a lower social status to a woman of a higher social status (not kufu’), and the second involves a woman younger than the age of rushd who is accepting a dower that is less

269 Ibid., 130-31, no. 146. 270 Ibid. 271 Al-Khamlīshī, 1994, 132-33, no. 149, 150. 272 Ibid., 204-08 273 Ibid. 227 than that of her peers’ (mahr al-mithl).274 In these two cases only the walī has the authority to object to the marriage contract through the court system. Al-Khamlīshī though was a member of the committee, objected to the interference of the walī on issues concerning the dower, saying that a woman’s financial matters are not under the authority of the walī.275 He was satisfied, though, that the Mudawwana succeeded in eliminating coercion in marriage (wilā at al-ijbār) and replacing it with a guardianship of choice (wilā at al-ikhti ār) by stipulating that the woman must read and sign the contract, and that she must be present at the time of the contract negotiation, as per article 5.276

In his 1988 work, Wijhat nazar, Point of View, al-Khamlīshī, examined several sources regarding the wilā a. To him, the Moroccan government has signed several international treaties so as to eliminate the discrimination between men and women.277 Al-Khamlīshī recognizes the argument for and against the wilā a and argues that while many jurists argued for the necessity of the wilā a, the Islamic law did not stipulate its necessity nor did it forbid it.278 The wilā a, according to al-Khamlīshī, is not part of Islamic rituals ‘ibādāt), which are not open for negotiations or ijtihād, but is part of legal transactions (mu‘āmalāt).279 Therefore, it is open for

274 Ibid., 204-208, 220-221. 275 Ibid., 221. 276 Ibid. 277 Al-Khamlīshī, 1988, 2: 20. The Moroccan government signed on Articles 15 and 16 of CEDAW aside from the right of Child, however with reservation to Article 16. For more on these articles see also the United Nation’s declaration, CEDAW, “un.org,” accesses on April 24, 2013, http://www.un.org/womenwatch/daw/cedaw/cedaw.htm. The government also signed on articles 15 and 16 of CEDAW which calls for the equality between men and women in political as well public life. See “u.org,” accessed on April, 24, 2013, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16; Hanafi and Pratt, 131. On December 10, 2008, King Muḥammad VI announced the withdrawal of Morocco’s reservation on CEDAW, stating that after the equal rights granted to women the reservation has become obsolete. See Elliot, 224. See also the online magazine mgharebia.com accessed on September 25, 2013 http://magharebia.com/en_GB/articles/awi/features/2008/12/17/feature-02. However, CEDAW website maintains that until now no official request has been made by the Moroccan government to withdraw the reservation. See CEDAW website at http://cedaw.wordpress.com/2007/04/10/morocco/, accessed on September, 25, 2013. See also un.org available at http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm, accessed on September 25, 2013. 278 Al-Khamlīshī, 1998, 2: 23. 279 Ibid. 228 debates and ijtihād like many other commercial transactions.280 Al-Khamlīshī maintains that while the wilā a may have certain benefits to the family, it also possesses certain harm to women. In an interview I conducted with al-Khamlīshī, he asserted that the wilā a of today has become an authoritarian tool and belongs to men due only to their gender.281 Al-Khamlīshī considers that preventing women from contracting their marriage has long lasting negative effects on women.282 Therefore, he suggests that the woman and the rest of the family relatives, particularly the mother, be involved in the decision of marriage. He also suggests that the wilā a not be in the hands of men alone so they will not abuse such authority.283

Muḥammad al-Shāfi’ī is a Moroccan scholar who, similar to al-Khamlīshī, criticizes some of the Mudawwana’s articles while praising others. In his praises for the Mudawwana’s reform, al-Shāfi‘ī commends the requirement that women attend the negotiation of their own marriage contracts, the setting of a minimum age of marriage for both men and women, the elimination of coercion into marriage, and the prevention of the walī from objecting to the marriage of a woman who has reached the age of rushd.284 Al-Shāfi‘ī criticizes the Mudawwana, however, for the contradictory nature of several of the articles and for a lack of clarity in others.285 Like al-Khamlīshī, al-Shāfi‘ī is critical of the Mudawwana for not clarifying the age of bulūgh. He also expresses concern that the reformed Mudawwana restricted the authority of the walī with regard to objection to the kafā’a of the husband and the value of the dower if it was

280 Ibid. 281 The interview I conduced with him summer of 2013. 282 Al-Shāfi‘ī, 1998, 24-25. 283 Ibid., 25. 284 Muḥammad, al-Shāfi‘ī also names other positive reforms in the Mudawwana which has to do with divorce and other aspects of the marriage contract, which is beyond the scope of this project. See al-Shāfi‘ī, 1998, 14-15, 20. 285 Al-Shāfi‘ī, 1998, 15. 229 lower than what the local custom dictates.286 Other areas of objection according to al-Shāfi‘ī include the wilā a in the reformed Mudawwana and the decision of the committee of the first

Mudawwana not to grant women complete rights in marriage. This he attributed to a lack of consideration by the committee that Moroccan women had progressed enough socially to follow

Ḥanafī fiqh.287 Al-Shāfi‘ī questions the Mudawwana’s preservation of the wilā a despite four decades having passed since the publication of the first Mudawwana in 1957.288 He is critical of the contradictions in articles 8 and 9 regarding the age of marriage and the age of rushd. 289 He maintains that while the Mudawwana permits men who reach the age of marriage (eighteen) to conduct their own marriage, it does not allow women to do so, owing to the fact that the

Mudawwana specifies that a walī must be male.290 However, he considers the new position of the wilā a better than that of the original Mudawwana, since, he says, the new state of the wilā a is a choice made by the adult woman (wilā at al-ikhti ār) where the walī many not coerce her into marriage.291 According to al-Shāfi‘ī, on this issue the Mudawwana deviated from the Mālikī madhhab.292 He provides evidence for the prevention of women from conducting their own marriages—according to him, the Mudawwana followed a prophetic ḥadīth which condemns women who contract their own marriages or the marriages of other women.293

Another Moroccan scholar who did not believe that the reforms made to the Mudawwana went far enough to fulfill the demands made by Moroccan women is Farīdah Banānī, who joined

286 Al-Shāfi‘ī disapproves al-Mudawwana for other aspects of the Moroccan family law which is beyond this project. See al-Shāfi‘ī, 1998, 15-16. 287 Ibid., 128. Al-Fāsī was a primary member of the first committee commissioned in 1957 to draft the first Mudawwana. 288 Al-Shāfi‘ī, 1998, 129. 289 Ibid., 86. 290 The Mudawwana made an exception for the fatherless adult mature woman. See al-Shāfi‘ī, 86. 291 In doing so, al-Shāfi‘ī sides with al-Khamlīshī in his belief that the Mudawwana has successfully eliminated coercion in marriage. See al-Shāfi‘ī, 1998, 129. 292 Ibid., 1998, 129, 232. 293 Ibid. 230 al-Khamlīshī and al-Shāfi‘ī in criticizing the 1957 and 1993 Mudawwana. Banānī accuses past jurists of blindly imitating the ijtihād of early jurists saying:

Past jurists followed early jurists’ ijtihād without any scrutiny since it agreed with their economic, social, and political needs. Those jurists relied completely on their predecessors’ opinions without referring back to the Sunna of the Prophet and the Qur’ān. To them, Sharī‘a became the opinions of past madhhab leaders (imāms). These then considered each madhhab a religion of its own where they defended it against other members of different madhāhib who they considered enemies.294

Banānī believes that the newly revised Mudawwana still did not reflect the changes that had occurred in Moroccan society over the course of thirty-six years since the original publication of the document in 1957.295 Banānī, however, had not been optimistic that sweeping changes would take place with the reformation of the Mudawwana, since the committee that was commissioned to reform the document in 1993 was so similar to that of the original 1957 committee—most members from both committees were associated with the conservative

University of Qarawiyyīn.296 Further, the committee, according to her, did not acknowledge nor consider criticisms made of the first Mudawwana, and therefore hardly any meaningful changes were made.297 Banānī openly criticizes Article 5 of the Mudawwana, which she says still discriminates against women by providing the right to serve as a walī in a marriage only to men.298 Banānī also expressed discontent at the committee’s conclusion that Moroccan society was still not ready to function under Abū Ḥanīfa’s fiqh which, originally created in the eighth century, granted women the right to contract their marriages.299 Banānī goes on to question whether Moroccan society is advancing or is going backward. She argues that after thirty-six

294 Farīdah Banānī, aq īm al- amal ba a al-zawja fī awʼ al-qā ū al- aghribī wa-al-fiqh al-I lāmī al-ji mi āra (Marrākush: Kullīyah al- Ulūm al-Qānūnīyah wa-al-Iqti ādīyah wa-al-Ijtimā īyah, 1993), 2. 295 Al-Shāfi‘ī, 1998, 40. 296 Ibid. 297 Ibid. 298 Ibid., 44-45. 299 Ibid., 45. 231 years of progress, the committee was still unable to recognize that Moroccan women had achieved enough to be granted the right to contract their own marriage.300

Banānī also expresses concern regarding the discrimination between a woman who has a father and one who does not. She questions the logic behind the committee’s decision to differentiate between the two by considering the fatherless woman capable to contract her marriage, whereas a woman who has a father is not considered capable.301 Banānī extends this criticism to the apparent new moral gauge of the committee, which considers the act of a fatherless woman who conducts her marriage without a walī moral, but denies the same consideration to a woman who has a father.302 Banānī called attention to the motives of the new committee, charging that they still considered women to be inferior to men, and that they were holding on to the antiquated belief that women were generally emotional creatures that were incapable of making decisions for themselves.303

Not everyone, though, shared Banānī’s and other individuals’ progressive opinions with respect to reform of the Mudawwana. Al-Ḥusayn Maḥjūbī, an advisor at the court of appeal in

Ṭanja, considers the committee’s reform of Articles 5 and 12 a step in the right direction.304 In fact, Maḥjūbī maintains that these articles, in their newly reformed state, will effectively eliminate coercion in marriage and provide women with the right to express themselves and, thus, conduct their marriages to whomever they wish.305 In addition, Maḥjūbī holds that the

Mudawwana also grants fatherless adult women the right to contract their marriages or appoint

300 Ibid. 301 Ibid. 302 Article 12 of the Mudawwana, paragraph 4. 303 Ibid., 46. 304 Ibid., 93. 305 Ibid., 92. 232 an agent to do so on their behalf.306 Maḥjūbī also claims that by eliminating coercion, the

Mudawwana made a great step forward in respecting the wishes of women.307 To him, the judge in this case stands to protect a woman’s wishes by ensuring that the woman is not coerced by her father or anyone else. In addition, the judge must ensure that the woman being married has read the marriage contract and signed it in person, he points out.308

Abd al-Kabīr al-‘Alawī Al-Mudaghgharī (Mdaghrī) joins Maḥjūbī in his oppositions to women’s organizations. Known for his harsh opposition, Mdāghrī has a different opinion than that of al-Khamlīshī and the women organizations regarding the Mudawwana. Where al-

Khamlīshī and women’s groups generally felt that women deserved more rights and equal treatment under the Mudawwana, Mdāghrī stood against such opinions and demands. He reiterates that the Muslim woman is the center of the family and the one who shoulders the burden of tradition and the future of the children. Therefore, he says, the Muslim woman is the primary source of happiness to her entire family. She is the one, according to Mdaghrī, entrusted with the raising and general care of her children, and, he asserts, she has the added privilege of participating in familial decision making.309 However, Mdāghrī shares the opinion of many ultraconservative scholars that the natural profession of women is childbirth and nursing and raising her children.310 Like al-‘Alawī and al-Tayyib, Mdāghrī believes that women’s natural instincts as mothers, their emotional capabilities, and their tendency toward unpredictable decision-making prevent them from being equal to men in certain matters.311 Mdāghrī emphasizes that this

306 Ibid. 307 Maḥjūbī does not mention that the Mudawwana only eliminated coercion for fatherless women. Instead, he makes a general statement as if the Mudawwana eliminated coercion for all women. 308 Ibid., 93. 309 ‘Abd al-Kabīr al-‘Alawī, al-Mudaghgharī (Mdāghrī), al- arʼah ba a aḥkām al-fiqh wa-al-da wah il al- tagh īr (Al-Muḥammadīyah, al-Maghrib: Ṭab wa-nashr Maṭba at Faḍālah, 1999), 28-29. 310 Ibid., 32. 311 Ibid. 233 qualitative difference between men and women should be taken into consideration when creating laws concerning women.312 He reminds Moroccan Muslims that, during the time of the Prophet, women never objected to the Qur’anic injunctions or the Prophet’s aḥādīth, which clearly place men in charge of women.313 Further, he is critical of women who provide their opinions regarding Islamic law, and object to any of its rulings (aḥkām).314

Perhaps not surprisingly, Mdāghrī is strongly against equality between men and women within the Muslim family.315 To him, Qur’anic verse 4: 34 is a prime example that men are the providers and supporters of women, and that the husband is the primary decision maker at home.

To buttress his opinion, Mdāghrī cites the Egyptian intellectual, ‘Abbās Maḥmūd al-‘Aqqād (d.

1964), who was also against the equality of men and women, saying that women were naturally emotional individuals and, as such, were in need of men to protect them and make decisions on their behalf.316 Mdāghrī concludes that the walī is there to safeguard the interests of the woman, to preserve her rights, and ensure her part in the Moroccan local custom.317 In addition, he states that the walī is there to guarantee that the woman marries a man who is of her social status

(kufu’).318 Therefore, and contrary to the position of al-Khamlīshī, Mdāghrī insists on preserving the role of the walī in the Mudawwana.

In his comments regarding the Mudawwana’s decision to permit the adult fatherless woman to appoint her own walī, Mdāghrī claims that the Mudawwana succeeded in granting

312 Ibid. 313 Mdāghrī cites Qur’anic verse 4: 34 to support his claim “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means.” See Mdāghrī, 148. 314 Ibid. 315 Ibid. 316 According to al-‘Aqqād, nature itself determined that the two sexes are different, and history testifies that men and women were never equal in rights or in duties. Al-‘Aqqād is also of the opinion that men are superior to women. See Mdāghrī, 155. For the opinion of al-‘Aqqād see Abbās Maḥmūd al- Aqqād, al-Falsafah al-Qurʼā ī ah (Cairo: Dār al-Hilāl 1970 ), 53-81. 317 Mdāghrī, 167. 318 Ibid., 167. 234 women the right to conduct their marriage in a way which would protect their rights in the marriage process, thereby making the presence of the walī a mere formality.319 Mdāghrī considers this a departure from the Mālikī fiqh since the woman may, in this way violate the regulation of ranking the walī, which is a requirement of marriage according to Mālikī fiqh.320

However, Mdāghrī considers the changes in society and customs reason enough to permit an adult fatherless woman who has reached the age of rushd to conduct her contract in front of a judge, who acts as a walī.321 According to Mdāghrī, because the contract is conducted under the authority of a male judge and in front of two upright male witnesses, the woman is not violating any of the Mālikī rulings.322 Mdāghrī considers this to be a step forward since it prevents the woman from being abused by her walī.323 Like many of his predecessors, Mdāghrī supports the requirement of the walī by relying on the same aḥādīth and the Qur’anic verses as his predecessors, specifically 2: 221, 2: 232, and 24: 32.324 With respect to the ḥadīth in which the

Prophet granted the woman the choice of staying in her marriage (a marriage into which she had been coerced) or leaving it, Mdāghrī claims that it provides strong evidence that a marriage requires the presence of a male walī in order for it to be considered valid.325 In this case, according to Mdāghrī, the Prophet acted as a walī since he was the walī of all Muslims at the time.326 Mdāghrī also stresses that this was the opinion of the jurist al-Shāfi‘ī and the famous

ḥadīth compiler al-Tirmidhī, who also invoked this ḥadīth in support of the necessity of the

319 Ibid. Mdāghrī here makes a general statement that all women have the right to conduct their own marriages, though Article 12 of the Mudawwana specified that only a fatherless adult woman may do so. 320 Ibid., 68. 321 Ibid. 322Ibid., 172. 323 Ibid., 168. 324 The Qur’anic verses are as follows: 24:32—“Marry those among you who are single, or the virtuous ones among yourselves”; 2:221— “Do not marry unbelieving women (idolaters), until they believe”; 2: 232— “When ye divorce women, and they fulfill the term of their ('Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms.” In these Qur’anic verses Mdāghrī states that God addresses men and not women. See Mdāghrī, 167-168. 325 Ibid., 167-68. 326 Ibid., 168-69, Mdāghrī. 235 walī.327 Mdāghrī concludes that the principle of the walī is not open for debate nor is it open for ijtihād.328 According to him, Moroccan women’s organizations confused the right of the walī with the protection from coercion in marriage.329 This confusion, according to Mdāghrī led some of the women’s organizations to believe that al-Fāsī’s goal was to eliminate the position of the walī while al-Fāsī’, according to Mdāghrī, meant only to eliminate coercion by the walī.330

Mdāghrī also opposes women’s requests to reform some of the Mudawwana’s articles, particularly the elimination of the role of the walī and the increase in the minimum age of marriage.331 The minimum age of marriage is another issue over which he and women’s groups disagree. While Mdāghrī desires to leave the minimum age standard present in the original

Mudawwana, women’s groups wanted to raise the minimum age of marriage. Mdāghrī maintains that a woman who has not reached the age of rushd may not contract her marriage without the presence of walī, even if she has reached the minimum age of marriage (fifteen).332 While agreeing with some the demands of women to raise the minimum age,333 Mdāghrī prefers the

Mālikī fiqh, which considers age and the first signs of bulūgh when attempting to determine a

327 Ibid., 169. For the opinion of al-Tirmidhī see Sunan al- irmdhī, 4: 285, no. 4065. For the opinion of al-Shafī‘ī see Muḥammad b. Idrīs, al-Shāfi‘ī, aw ū at al-Imām al-Shāfi ī al-kitāb al-Umm (Beirūt: Dār Qutaybah, 1996), 5: 41, no. 15335, “Kitāb al-Nikāḥ.” 328 Mdāghrī provides the ḥadīth transmitted by ‘Ᾱ’isha which states that “any woman who marries without the permission of] a walī her marriage is void, repeated three times.” He also cites ‘Ᾱ’isha’s statement that a woman may not marry off another As well as the ḥadīth transmitted through Abū Hurayra which states that “a woman may not marry off another woman or herself.” But to Mdāghrī, the ḥadīth which states “There is no marriage without the permission of] a walī,” is the strongest, most accurate ḥadīth which he claimed it could be found in one of the major canonized books al-Ṣaḥīḥyan. Mdāghrī, 169. I could not find this book in al-Ṣaḥīḥyan, however it is found in other canonized books as indicated earlier. 329 Mdāghrī, 170. 330 Ibid., 170-71. 331 For more on Article 16 of the United Nations Conventions on the Elimination of All forms of Discrimination against Women. For information on article 16 see http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16. The article prohibits exploitation and discrimination against women. It also provides women with the right to represent themselves and states that they must approve and consent to their own contract. See also Mdāghrī, 165. 332 Ibid., 173. 333 Mdāghrī does not agree, however, with the age proposed by women’s organizations (twenty for men and eighteen for women). See Mdāghrī, 174. 236 woman’s readiness for marriage.334 To him, Islamic fiqh is much more representative of the interests of Moroccan society than the demand made by women to assign a definite minimum age for marriage.335 Though contradictory to his previously-stated opinion, which supported the designation of a minimum age for marriage, Mdāghrī opposes the opinion of al-Khamlīshī and instead sides with other conservative jurists like Ibn Ma‘jūz in maintaining that marrying at an early age can prevent youth from falling into fornication (zi ā) and may therefore protect their chastity. He also shares the opinion of Ibn Ma‘jūz that people in hotter regions reach bulūgh at an earlier age than those in more temperate climates.336 Therefore, he is against delaying marriage for any reason. Mdāghrī considers the modern materialistic life the cause of increasingly high dowers put on men, and says these dowers are the main reason for the delay of marriage. It is women, according to Mdāghrī, who are to blame for this delay since it is they who are making such outrageous demands.337

Despite great opposition from conservative organizations, feminist movements managed to pressure the government to produce a plan which would enhance the role of Moroccan women in society, particularly in the realm of family law.338 In March 1999, the new Moroccan socialist government led by Prime Minister ‘AbderrahmānYoussoufī proposed a plan presented by

Muḥammad Sa‘īd Sa‘ādī, known as the National Plan of Action for Integrating Women into

Development (NPA).339 The plan, according to many feminist groups, showed real progress in the battle for women’s rights in Morocco as it promised to reform certain laws as demanded by

334 Ibid., 174. 335 Ibid., 174-75. 336 Ibid., 175. 337 Ibid., 176. 338 Salime, xii; Harrak, 3. 339 Salime, xii; Harrak, 4; Howe, 165; Sadiqi, 2008, 331-32; Elliott, 215-16. Muḥammad Sa‘īd Sa‘ādī was the secretary of state for social affairs. See Elliott, 215-216; Manshūrāt al-Zaman, hawrah hādi’ah mi udawwa at al-aḥwāl al-shakhṣī ah ilā mudawwa at al-usrah (al-Rabāṭ, 2004), 106. 237

Moroccan feminists. 340 The Plan called for raising the minimum age for marriage from fifteen to eighteen, eliminating the role of the walī, restricting the unilateral right of men in divorcing their women, abolishing polygyny except in extreme cases, and granting mothers custody of their children in the absences of their husbands.341 The plan, though, was not met with unilateral acclaim and, as one might suspect, it drew criticism from Islamist groups and conservative

Muslims of both sexes.342

The religious Islamist organizations, al-Tawḥīd wa-I-I lāḥ along with al-‘Adl wa-al-iḥsān championed the opposition to the NPA, calling the proposed reforms un-Islamic and saying that they were outside the realm of Sharī‘a.343 Al-Tawḥīd objected to the new role of the walī, as described in the reformed Mudawwana of 1993, calling it a secondary role, and one that was no longer critical to negotiating a marriage. 344 Al-Tawḥīd argued that the NPA failed to illustrate that the presence of a walī was the reason for coercion in marriage. Additionally, the group objected to the proposed plan in the NPA to raise the minimum age of marriage from fifteen to eighteen, saying that the new proposed age was not from within the Islamic tradition, but rather a foreign proposal based on international treaties instead of social customs.345 Rather than postponing the age of marriage, al-Tawḥīd proposed that the government should work toward improving the conditions of neglected Moroccan villages. In fact, al-Tawḥīd was of the opinion that delaying the marriage of women was actually a hindrance to the uneducated, unskilled, and

340 Salime, xii; Harrak, 4; Howe, 164; Sadiqi, 2008, 332. 341 Salime, xxix; Howe, 165. 342 Sadiqi, 2008, 332, Howe, 164-67. 343 Ḥarakat al-Tawḥīd wa-al-I lāḥ, awqifu ā mimā umi a ma hrū‘ khiṭat āmāl al-wata ī ah li-idmāj al-mar’ah fī al-ta mī a (Al-Rabāṭ, 2000), 30-41. Ḥarakat al-Tawḥīd wa-al-I lāḥ is a Moroccan religious organization that is active in promoting Moroccan culture and social programs. While most key positions are held by men, the organization has a large base of educated professional women. For more on the background of this organization see Salime, 7, 17, 46-47; Harrak, 4; Zoglin, 967; Mayer, 439; Elliott, 215-16. Brand, 71; Elliot, 215-16; Buskens, 96-97. 344 Ḥarakat al-Tawḥīd wa-al-I lāḥ, 33. 345 Ibid., 41. 238 unemployed men and women in Morocco since there is hardly anything for them to do at that age.346 Nādīa Yassīne, the former spokesman of al-‘Adl wa-al-Iḥsān party did not object to the plan because of the nature of its demand, but to the way the government imposed it on

Moroccans; it was ordered from the top.347 According to the Moroccan scholar Salime, Yāssīne admitted that the Mudawwana was never a sacred document and reforms were needed due to the abuse of women by many Muslim men.348 Yāssīne also objected that the government and feminist groups had other ulterior motives since according to her the plan was sponsored by the

World Bank through the Beijing women conference.349

Khadīja Mufīd, a leading Islamist activist and a representative of the al-Tawḥīd, also objects to the NPA plan. Mufīd claims that the NPA plan is nothing but a Western conspiracy against the Moroccan family. Mufīd maintains that the type of ijtihād practiced in the reformed

Mudawwana was aimed at eliminating Sharī‘a.350 She sides with al-Tawḥīd and criticizes the new position of the walī in the reformed document. According to her, the feminist and the government demands in question were nothing more than imitations of American society.351

With regard to raising the minimum age of marriage, Mufīd argues that those who call for raising the minimum age of marriage because early marriage causes harm and endangers the life of the mother and her unborn child should take a second look at the horrible conditions of many of the villages. The real cause of harm, according to Mufīd, is not early marriage, but the lack of government social services available to the people of many Moroccan villages, such as hospitals,

346 Ibid., 41-42. 347 Salime, 17-19; Howe, 167-68. 348 Salime, 17-19. While marching with the oppositions in Casablanca against the reform, Salime reports that Nādīa Yāssīne admitted that “while marching with the opposition, her heart was with the feminists reformers in Rabāṭ’s rally;” Howe also reports a similar reaction from Nādīa Yāssīne when she interviewed her. See Howe, 166-67. 349 Howe, 166-67. 350 Basīmah Ḥaqqāwī; et al. uqūq al-marʼah ba a al-azmah wa-al-badīl qirāʼah aqdī ah fī ma hrū al-khiṭṭah al-waṭa ī ah li-idmāj al-marʼah fī al-tanmiyah (Al-Dār al-Bayḍāʼ: Manshūrāt al-Furqān, 2000 ), 37. 351 Ḥaqqāwī, 41. 239 medical clinics, and schools.352 In addition, Mufīd emphasizes that those who want to raise the minimum age of marriage for women are actually advocating premarital sexual relations in lieu of chastity.353

Current Moroccan Minister and Justice and Development Party member, Basīmah

Ḥaqqāwī, is a Moroccan activist who wrote on women’s rights in Morocco and the government proposal of the NPA.354 Ḥaqqāwī sides with other conservative Islamists in criticizing the NPA, which she considers a Western invention that is not based on Islamic sources (the Qur’an and

Sunna of the Prophet).355 Like Mufīd, she criticizes the minimum age proposed by the NPA maintaining that such a proposal is not from within the Islamic tradition. Ḥaqqāwī, also like

Mufīd, is of the opinion that the NPA has ignored the Qur’anic evidence and aims at eliminating whatever is left of Sharī‘a in Moroccan law.356 The Islamists organizations along with their spokeswomen, Mufīd, Yāssīne, and al-Ḥaqqāwī stand on the opposite side of al-Khamlīshī who called for the elimination of the role of the walī and for a minimum age for marriage so as to eliminate coercion of marriage and child marriage.

In the year 2000, the Islamist parties united to oppose the NPA. To stress their political and social authority, the Islamists staged a massive rally on March 12, 2000, in Casablanca while feminist organizations staged their rally in Rabat.357 It is reported that the Islamist rally

352 Ibid., 45. 353 Ibid, 45. 354 For more information, see the online magazine, “Basīmah Ḥaqqāwī wazīrat al-Ṭaḍāmun wa-al-Mar’ah wa-al- Usra wa-al-Tanmīya al-Ijtimā‘yīa,” Hespress, accessed January, 03, 2012, http://hespress.com/portraits/44620.html. 355 Ḥaqqāwī, 10-11; Iman, Ghazzala, “Sculpting the Rock of Women’s Rights: The Role of Women’s Organizations In Promoting the National Plan of Action To Integrate Women in Development in Morocco,” (2001), accessed September 26, 2013, http://www.hhh.umn.edu/centers/wpp/pdf/case_studies/sculpting_the_rock/sculpting_rock_women_rights.pdf. 356 Ibid., 13. 357 Salime, 70-73; Maddy-Weitzman, 393; Elliott, 215-16. 240 outnumbered the feminists’.358 The Islamist rally was made up of men and women who saw real danger in the proposed government plan (NPA). The Islamist parties objected to the demands of

Moroccan feminists and considered some of the NPA articles to be contrary to Islamic fiqh, therefore and non-Islamic and the product of Western feminist organizations.359 Islamist women began to gain a voice within religious organizations and had become active in calling for the preservation of some of the Islamic rulings which pertained to women’s roles in Islamic fiqh. In so doing and similar to Moroccan feminists, Islamist women entered the Moroccan public sphere, finally being considered equal to those of men with respect to participation in the preservation of the Islamic Moroccan fiqh. Despite the opposition of certain Islamist women’s groups, numerous women’s organizations kept calling for reforms since the Mudawwana of 1993 did not provide women with the rights they were demanding.360 In addition, many of the

Moroccan scholars, jurists, and activists joined women’s organizations and called for further reforms in the Mudawwana.361 More importantly, in 1993, the Moroccan government joined other countries and signed the United Nations declaration concerning the rights of Children.362

The government also signed on the Convention on Elimination of All Forms of Discrimination

358 Zoglin, 967; Maddy-Weitzman, 393; Howe, 167. 359Salime, 70-73; Elliot, 217; Maddy-Weitzma, 393 965-96; Zoglin, 967-968; Howe, 166-67. 360 Su‘ād, Akhrīsī, Min Mudawwanat al-aḥwāl-al hakhṣī ah liā mudawwa at al-u rah ma ār al-ta‘dīlāt wa maṭālib al-harakah al- i ā’ī ah (Al-Rabāṭ: Dār al-Salām, 2005), 13; Mayer, 439; Harrak, 3; Weingartner, 691. 361 Akhrīsī, 13. 362 According to Child Rights International Network, CRIN, a child is recognized as a person below the age of eighteen. See al-Akhrīsī, 77. For the definition of a child see “crin.org,” accessed April 24, 2013, http://www.crin.org/docs/resources/treaties/uncrc.asp. 241 against Women, CEDAW.363 Due to the above factors, in April 27, 2001, King Muḥammad VI of Morocco agreed to commission a new committee to reform the Mudawwana.364

The debates mentioned above clearly show that the opposition to reforming the

Mudawwana is not as unified as many believe. One expects officials within the Moroccan ministry not to maintain such a strong opposition to women’s rights. However, it seems that loyalty to past Islamic fiqh has overshadowed economic and social changes in the minds of two ministers (Mdāghrī and Ḥaqqāwī) who stood against raising the minimum age of marriage and the elimination of the walī. In the meanwhile, other traditionalists did not possess the same tendencies as those of the two ministers. The former speaker of the traditional religious party, al-

‘Adl wa-al-Iḥsān, Nādīa Yāsīne, wanted to reform the Mudawwana as long as the reforms were based on Islamic foundations and not imposed by the Moroccan king or feminist organizations.

Despite the disagreement between Moroccan intellectuals calling for reforms and traditionalists who oppose them, both sides have at heart the interests of Moroccan society; both sides hoped to preserve the identity of Moroccan society by ensuring the continuity of the

Islamic Moroccan tradition. To support their arguments, both sides drew on past Islamic tradition and the authority of past jurists rather than contemporary jurists and intellectuals. However, both sides recognized the legitimacy of prominent individuals. Al-Khamlīshī was among the individuals recognized by both sides since his evidence has always been grounded within Islamic fiqh, the Sunna of the Prophet, and the Qur’ān.

363 See al-Akhrīsī, 13-14. See also the United Nation’s declaration, CEDAW, “un.org,” accessed April 24, 2013, http://www.un.org/womenwatch/daw/cedaw/cedaw.htm. The government also signed on Articles 15 and 16 of CEDAW which calls for the equality between men and women in political as well public life. See “un.org,” accessed April, 24, 2013, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16. 364 Hanafi and Pratt, 131; Zoglin, 968. 242

Conclusion

Due to social and economic changes, the legal definition of a Muslim family gradually changed and was reduced to the couple, their children and, in some instances, included the dependent parents of the husband. This was an extraordinary change from the time of early jurists until the modern period. In addition, social changes in Morocco and Europe allowed women to compete with men over public space. During the 1980s, Moroccan women began forming NGOs with the help of European states. The presence of NGOs in Morocco presented a challenge to traditionalists who opposed any Western interference in their religious and family affairs, particularly as it concerned the Moroccan Mudawwana, which they considered a sacred document. Most importantly, the open policy championed by the Moroccan monarchy—first by

King Ḥassan II and later by his son, the present king of Morocco, Moḥammed VI—allowed men and women to engage in public debate over the Moroccan Mudawwana. These factors contributed to changes in the attitude toward religious institutions and the male ‘ulamā’ who had previously monopolized Islamic fiqh.

This chapter presented some of the Moroccan thinkers who had a hand in shaping certain family laws regarding the role of women in marriage, the role of the walī, and the minimum age of marriage. The chapter also outlined the opinions of numerous Moroccan scholars and activists, along with their evidence. Among these thinkers, al-Fā ī and al-Khamlīshī occupy a unique place due to their liberal opinions and bold statements among the traditionalist Moroccan society. Like many of the ‘ulamā, al-Fāsī and al-Khamlīshī were the product of a traditionalist upbringing, strong religious, and traditional education; however, both produced work which is anything but traditional. A graduate of the religious traditionalist institution, al-Qarawiyyīn, al-

Fāsī was an early Moroccan jurist and politician but was considered an anomaly among the

243 conservative traditional jurists who were responsible for writing the first Mudawwana. Al-Fāsī challenged the old traditional religious establishment, al-Qarawiyyīn institution and the Mālikī madhhab by calling for the inclusion of other Islamic madhāhib in order to improve Moroccan

Muslim women status in society. He was for the advancement of women’s rights in a traditionalist society and called for establishing a minimum age for marriage. His ideas were met with strong opposition from conservative traditionalist men and women of Morocco. Similarly, al-Khamlīshī’s opinions were met with opposition and at times considered strange and parallel the opinion of feminist groups who were accused of calling for Western laws to replace Islamic

Sharī‘a.

Al-Khamlīshī continues to be a voice of liberation for women and men in Morocco.

Equipped with a strong background in Islamic jurisprudence and aware of Western law, al-

Khamlīshī argues for the rights of women from within the Islamic tradition, fiqh. Unfazed by the strong opposition of traditionalists in Morocco, al-Khamlīshī keeps writing to engage men and women in the legal act of ijtihād so as to reform the outdated fiqh rulings. While many traditionalists opposed him, they are well aware of his prestigious position among the ‘ulamā’ and thinkers of Morocco. His ideas to improve the role of women in Morocco were adopted by women’s organizations and liberal men and women of Morocco. Most importantly, his ideas were also taken up by the king and his advisors and used in the Moroccan Mudawwana. While at the beginning women’s organizations called for a secular agenda to reform the Mudawwana, later they adopted many of al-Khamlīshī’s ideas and methodologies to further their agendas. To rally people around them, feminist organizations had to use al-Khamlīshī language—the language of Islamic fiqh—to persuade people of their objectives. Women’s organizations started producing pamphlets, manuals, and books in Arabic and French—instead of the French language

244 only at the beginning of their campaigns.365 The influence of al-Khamlīshī’s work, his call for a new ijtihād, and the various fiqh evidence he used to buttress his argument for granting women further rights, can be clearly seen among women’s organization’s literature.

However, despite the work of individuals like al-Fāsī and al-Khamlīshī, the role of the walī still remained an integral part of marriage. While the Mudawwana showed certain reforms with respect to the walī‘ position, it still provided the walī with the right to contract his daughter/ward into marriage against her will, except in the case of a fatherless woman. In addition, the walī or the judge had the option to coerce his ward into marriage for moral reasons.

It is important to note that, while the Mudawwana established the minimum age of marriage for women to be fifteen, the walī still had the right to coerce his female ward into marriage until she reached the age of twenty. Further, Islamists were rallying against the minimum age for marriage set by the Mudawwana.

Most importantly, the Mālikī madhhab and religious institutions which taught the madhhab and its doctrines remained strong in Morocco. Mālikī fuqahā’ and ‘ulamā’ remained loyal to the madhhab, unfazed by the calls to include the opinions of other madhāhib’s in order to improve the status of women in Morocco. Claiming to be the keepers of old Islamic tradition,

Moroccan ‘ulamā’ and Islamist organizations rallied to protect the Mālikī madhhab, the

Moroccan family, and to preserve the identity of Moroccan society.

The chapter demonstrated that early on, the publication of the Mudawwana in 1957 drew strong response from many individuals and groups in Morocco, particularly from women. For the first time, Moroccan women started to voice their objection or approval of public policy in

365 During the summer of 2013, I visited the Association Démocratique des Femmes du Maroc (ADFM), an NGO in Rabāṭ. I was given literature and a manual regarding the 2004 Mudawwana and the activities of the organization. All of the literature I received was written in Arabic. 245 the public sphere. While some women opposed al-Khamlīshī, others found his writing inspiring and felt that it resonated with their struggle. Through academia, public forums, and women’s organizations, women organized conferences and began to compete with men in a conversational domain that had been traditionally male-centered. The ages-old struggle by Muslim Moroccan women was rewarded in 1992. It was then that, for the first time, King Ḥassan II granted an audience to women in order for them to present their demands. He then commissioned a committee—which included al-Khamlīshī—to meet with the representative women so as to reach a solution on some of the issues in question. This was the first time that women were allowed to publicly participate in what had been the legal domain of men for centuries— Islamic fiqh. Due to the enhanced policy of the Moroccan monarchy and through the writings of al-

Khamlīshī, and to an extent Muḥammad al-Shāfi‘ī’s and al-Fāsī’s opinions, women became instrumental in reforming some of the articles which pertained to family law, such as the restriction of the role of the walī in a marriage, and the limitation of his authority and right to the use of coercion. However, conservative women joined men in opposing the demands by liberal

Muslim women to curb the walī’ role and increase the minimum age of marriage. This brought to light a conflict over some of the fiqh rulings where Muslim women on both sides of the issue began, for the first time, to break down old traditions which had been monopolized by men. Men no longer held the only authority in Islamic law.

Through the efforts of men like al-Khamlīshī, and the new policy of the Moroccan monarchy, women’s voices were considered equal to those of men for the first time in the history of the Moroccan fiqh. While some of the articles of the Mudawwana have been reformed, many articles—such as the law concerning the age of marriage, the right of a judge to coerce a woman into marriage, and the authority of the walī to conduct the marriage of his ward— remain as

246 obstacles for women with regard to gaining equal rights in family law. The men and women who called for the reform of these issues still have work to do. On the other hand, those who stand in opposition to reform saw a rise in the presence of women in politics and began to sense what they considered to be a mounting threat against the Moroccan Islamic tradition and historical fiqh. The struggle on both sides continues today, more than a decade into the twenty-first century. Liberal men like al-Khamlīshī have more work to do to convince the majority of

Moroccan to grant women more rights through the Mudawwana. The next chapter highlights the role of al-Khamlīshī’s writings in a society polarized between reforming the Mudawwana and maintaining women’s status quo.

247

Chapter 4

Who is qualified to be a Mujtahid? The Case of Marriage

“For all issues that are not mentioned in the Mudawwana reference may be made to the Mālikī madhhab and ijtihād which takes into consideration implementing the Islamic values in justice, equality and the virtue of social relations.”1

While reformists and NGOs began calling to reform the 1993 Mudawwana, the opposition (loyalists to the Mālikī madhhab, ‘ulamā’, Islamist organizations, traditional men and women, and most importantly, religious traditional institutions) began mobilizing against any new call to reform the Moroccan Mudawwana. This opposition fought bitterly to maintain the

Mālikī madhhab as the supreme authority in Morocco. Were they to prove successful, this meant that the status of women would also remain as stipulated by the 1993 Moroccan Mudawwana and in accordance with the old Islamic fiqh, thereby keeping women subordinate to men while leaving men to monopolize any new legislation which concerned Moroccan Islamic society. In short, traditional religious institutions along with traditionalist men made sure to keep the gate of ijtihād closed as had been the custom. By adhering to the previously stipulated qualifications of a mujtahid (one who is able to deduce legal rulings from Islamic fiqh), traditionalists made it impossible for men and women to participate in any new type of ijtihād.

The idea of deducing legal rulings in Islamic law, or ijtihād, as well as the qualifications of the person who practices ijtihād, known as the mujtahid, has been a complex issue among

Muslim ‘ulamā’ for centuries. Many Muslim ‘ulamā’ and Western intellectuals have maintained

1 This is Article 400 of the 2004 Moroccan Mudawwana. Manshūrāt Dār al-Jīl, Mudawwanat al-usra ([Morocco]: Manshūrāt Dār al-Jīl, 2011), 133.See also “Guide Pratique du Code dela Famille” accessed September 20, 2013, http://www.tv5.org/cms/userdata/c_bloc_file/0/183/183_fichier_Guide_pratique_du_code_de_la_famille.pdf. The udawwa a’ Articles are also accessible through www.globalrights.org. 248 that the gate of ijtihād was closed after the formation of the Islamic schools of law (madhāhib).2

The title of mujtahid was therefore impossible to attain. Moroccan intellectual Al-Khamlīshī maintains that the strenuous conditions put forth by some of the Sunni jurists to qualify an individual to become a mujtahid actually contributed to the demise of ijtihād. He singles out the famous Sunni jurist Muhammad b. Idrīs al-Shāfi‘ī for his work al-Ri āla, in which he outlines several conditions that must be met for an individual to qualify as a mujtahid.3 These qualifications, according to al-Khamlīshī, were proven to be unachievable and stood as myriad obstacles in creating new generations to reform the old Islamic fiqh.4 This chapter will demonstrate that, despite the extremely strenuous set of qualifications set in place for an individual to become a mujtahid, through the writings of al-Khamlīshī, women penetrated men’s domain in Islamic family law, breaking the long-standing monopoly men held therein. Most importantly, for the first time women were publicly practicing ijtihād—a legal process that was once not only considered the realm of men exclusively, but was also seen by many as impossible to attain by anyone after the establishment of the Sunni Islamic schools of law in the tenth century. 5

2 See Al-Khamlīshī, 1983, 32-33. Hallaq argues against the closure of ijtihād and against the claims of some of the Western scholars who assumed the gate of ijtihād was closed. Among those scholars Hallaq names, Joseph Schacht, J. N. Anderson, and H. A. R. Gibb. See Wael Hallaq, “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies, 16, no. 1 (Mar, 1984): 3-41. John Esposito is also of the same opinion that the gate of ijtihād was closed by the formation of the Sunni madhāhib, the end of the tenth century. See John L. Esposito, Women in Muslim Family Law (Syracuse, N.Y: Syracuse University Press, 1982), 128. See also Joseph Schacht, An Introduction to Islamic Law (Oxford [Oxfordshire]; New York: Clarendon Press, 1982), 69-71. George Makdisi also argued against the closing of the gate of ijtihād. See George Makdisi, The Rise of the Colleges: Institutions of learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981), 285, 290-291. 3 Aḥmad al-Khamlīshī, Jumūd al-dirā āt al-fiqhī a (The Stagnation of Fiqh Studies) (Al-Rabāṭ, 2010), 6: 3-53. 4 Al-Khamlīshī in an interview I conducted in summer 2013. Al-Khamlīshī discusses some of the qualifications of the mujtahid further in his 2010 work. See al-Khamlīshī, Jumūd, 6: 3-53; al-Khamlīshī, al-Ijtihād taṣawwuran wa- umāra a (Ijtihād Imagi ati a d ra ti ) (al-Rabāṭ: Dār al-Nsashr al-Ma‘rifa, 2010). See also Weal Hallaq, 2001, 1-86. 5 This project is only concerned with Sunni fiqh. Therefore, Shī‘ī fiqh is not mentioned here although, like Sunni fiqh, it was limited to male jurists only. According to Hallaq, Sunni schools of law were formulated by the end of the tenth century; Hallaq, 2001, 56-67. 249

King Muhammad VI who was inaugurated in 1999, instituted a policy of inclusion with regard to women and opposition. Restrictions were gradually lifted in Morocco. The policy was adopted so as to include non-jurists in an effort to reform Moroccan Islamic family law, or

Mudawwana.6 For his efforts and numerous works on the advancement of women in Islamic family law, al-Khamlīshī was honored by many of the intellectuals of Morocco.7 Al-Khamlīshī was an instrumental jurist in advocating for a new type of ijtihād to reform many of the old and outdated fiqh rulings. Instead of individual ijtihād, al-Khamlīshī advocated collective ijtihād.8

The idea of collective ijtihād was not a new idea. The Egyptian scholar al-Qaraḍāwī first introduced idea and suggested that collective ijtihād be practiced by a committee of highly qualified jurists who have passed the strenuous qualifications put forth by past jurists.9 Al-

Qaraḍāwī also recommended that the committee be independent of any Islamic government and that members of the committee be elected from jurists that represent all Muslim regions worldwide.10 These jurists, according to al-Qaraḍāwī, would have the authority to deduce new rulings for all Muslims globally. In addition, al-Qaraḍāwī proposed to preserve the individual ijtihād along with the collective ijtihād in order to prevent a monopoly of one type of ijtihād over the other.11 However, al-Khamlīshī’s collective ijtihād on the other hand, rises from within the community, where various experts are consulted on certain issues.12 For al-Khamlīshī, collective

6 Weingartner, 713. 7 This was conducted through a day of honor celebrating the influence of al-Khamlīshī on the Moroccan Mudawwana. See Idrīs al-Fākhūrī, ed., um dirā ī takrīma li-fa īlat al-u tāth ḥmad al- hamlī hī u u tajdīd al- fiqh al-I lāmī mi khilāl fikr al-ustath Aḥmad al- hamlī hī al-usra namuthajan (Al-Dār al-Bayḍā’: Dār Abī Raqāriq, 2011). 8 Aḥmad al-Khamlīshī, al-Ijtihād, 7: 16-35. 9 Yūsuf, al-Qaraḍāwī, al-Ijtihād fī al-sharī‘a al-I lamī a ma‘a a arāt taḥlīli fī al-ijtihād al-mu‘āṣir (Kuwait: Dār al-Qalam, 1996), 182-83. 10 Al-Qaraḍāwī, 1996, 182-86. 11 Ibid., 183-84. 12 Al-Khamlīshī, al-Ijtihād, 7: 17-18. 12 These experts according to al-Khamlīshī are not limited to religious jurists but include experts in different types of professions and legal and social issues. This was stated to me in an interview with al-Khamlīshī in the summer of 2013. 250 ijtihād is practiced by men and women, jurists, professionals, experts in law, science, and intellectuals representing civil society.13 Reforming the Mudawwana, according to al-Khamlīshī, should not be limited to jurists, but should also include other experts in law and social issues.

These suggestions materialized during the reform of the Mudawwana in 2004. They were the fruits of the hard work of men, women, and women’s organizations that engaged in public debates with Islamist groups and fundamentally conservative individuals who insisted on keeping role of women as it was stipulated in the 1993 Mudawwana.

In 1999, the king’s inaugural speech paved the way for women to enter into the realm of previously all-male jurists, and the opportunity to be among the few individuals appointed to reform the Mudawwana.14 The first Mudawwana was considered part of the Islamic Sharī‘a and therefore a sacred document. So, Islamist organizations and other conservative intellectuals opposed any attempt to reform it unless reforms were based on strong Islamic foundations which came from within Islamic fiqh.15 However, many other individuals and Moroccan organizations did not share these beliefs and instead demanded that women play a larger role in the reform of the Mudawwana.

Islamists and feminists parties disagreed on certain issues within the Mudawwana.

Tension and conflict between the two groups grew, opposing viewpoints were pitted against each other, and threats began to circulate among the public.16 Again, the King of Morocco had to intervene. King Muḥammad VI realized that there was a need to bring both parties together in order to defuse the mounting tension, and so he permitted women to be part of a committee to

13 Al-Khamlīshī interview, summer 2013. 14 Harrak; Maddy-Weitzman, 396. 15 Al-Ṭāhir, 14. 16 Fatima Harrak, “The History and Significance of the New Moroccan Family Code,” accessed September 16, 2013. http://www.cics.northwestern.edu/documents/workingpapers/ISITA_09-002_Harrak.pdf. 251 reform the Mudawwana.17 For the second time al-Khamlīshī was appointed a member of the committee, with Idrīs al-Ḍaḥāq serving briefly as head of the committee.18

This chapter discusses the opinions of Moroccan intellectuals and activists, men and women concerning the role of women in marriage with respect to the 1993 and 2004 reforms of the Moroccan Mudawwana. Part I introduces the opinions of the two sides regarding reforms, then presents certain reformed articles according to the 2004 Mudawwana. Part II provides a brief insight to some of the debates that occurred during the meetings of the committee responsible for producing the 2004 Mudawwana, and some of its reformed articles. Part III demonstrates the contributions of al-Khamlīshī to the advancement of women in Islamic family law, outlines the qualifications of the mujtahid, and presents al-Khamlīshī’s views regarding jurists’ consensus (ijmā‘). Part IV illustrates the opinions of certain individuals and groups that have been expressed through their writings and various other media outlets. In Part V, the opinions of a handful of Moroccan intellectuals are outlined through interviews the author conducted in the summer of 2013 concerning the role of women in marriage and the reforms in the most recent Mudawwana. Finally, the chapter discusses contemporary issues that remain unresolved since the 2004 Mudawwana, as well as the influence of al-Khamlīshī on the

Moroccan Mudawwana.

17 Al-Akhrīsī, 125; Howe, 166-67. 18 Al-Ḍaḥāq was later removed and Muḥammad Boucetta was appointed in his place. Boucetta headed the committee and saw the birth of the new Mudawwana. 252

Part I Taking the Debates to the Streets

On March 05, 2001, King Muḥammad VI met with forty women representing various women’s organization in Morocco.19 The women presented the king with their suggestions and recommendations regarding the reform of the 1993 Mudawwana. Women’s organizations objected to the inequality between the rights and responsibilities of husbands and wives in marriage. They demanded that the wife in a marriage be afforded the same rights and duties as the husband. They also objected to the definition of marriage according to the 1957 and 1993

Mudawwanas, which placed the family under the sole authority of the husband alone.20

Women’s organizations considered the wife to be an equal partner, sharing responsibility along with her husband since she must also work outside the house in addition to taking care of children.21 Interestingly enough, these demands resonate with al-Khamlīshī’s work and his call for advancing women’s rights in Islamic family law. In addition, women’s organizations raised the issue that Morocco had signed international treaties which called for the elimination of discrimination against women.22 They also objected to the position of the walī and called for

19 Elliot, 217; al-Akhrīsī, 125. It is noteworthy to explain that Islamist women were not part of the forty women present at the meeting with the king of Morocco. This becomes obvious from the demands of Islamists in the following pages. 20 Hursh, 262; al-Akhrīsī, 128. Article 1 of the Mudawwana defines the marriage as a legal covenant (mīthāq) between a man and a woman who may unite with the aim of establishing a permanent and long lasting bond based on common conjugal life, under the authority of the husband and based on strong foundations with the desire to procreate and fulfill their reciprocal duties in security, peace and affection. 21 Collectif 95 Maghreb égalité, Guide to Equality in the Family in the Maghreb, ed. Ahmad Moussavi, Kazemi ([S.l: s.n.], 2005), 71-78; Majmū‘at 95 al-Maghārībīya, min Ajl al-Musāwā, alīl mi ajl-almu āwā fī al-usra al- aghārbī a (Al-Rabāṭ: 2003), 95-116; al-Akhrīsī, 128. Among the articles in question are Articles 35 and 36 of the Mudawwana which spell out the responsibility and obligation of each spouse toward the other. 22 Articles 4 and 16 of CEDAW were mentioned among the women’s demands. However, Morocco signed on Article 16 with reservation concerning marriage and divorce. These reservations were due to the government claim that Article 16 conflicted with the Islamic law and the Moroccan Mudawwana. See Fatima Sadiqi and Moha Ennaji, “The Feminization of Public Space: Women's Activism, the Family Law, and Social Change in Morocco, “Journal of Middle East Women's Studies 2, no. 2 (spring, 2006), 86-114; al-Akhrīsī, 129; Elliott, 217. See also CEDAW website “Convention on the Elimination of All Forms of Discrimination against Women,” accessed on September 25, 2013, http://cedaw.wordpress.com/2007/04/10/morocco/. 253 eliminating the wilā a completely.23 Most importantly, women called for an increase to the minimum age of marriage and the elimination of Article 9 of the Mudawwana which permits the walī to marry off his ward even if the ward is below the age of marriage.24 Both of these issues were raised through al-Khamlīshī’s work on the Moroccan Mudawwana since its publication in

1957.

Opposition to the newly reformed Mudawwana of 1993 came from religious Islamist groups and from the Ministry of Religious Affairs, as well as the institution of the Moroccan

‘ulamā’, mosque preachers, and individuals who felt that they were marginalized and their voice was not heard.25 In 2001, the most vocal conservative Islamist group, the Justice and

Development Party (JDP), responded to the women’s organizations’ demands by publishing a booklet which stated the group’s reasons behind their objection to the NPA plan.26 The JDP also opposed any reforms to the Mudawwana. The party warned against international treaties, particularly the CEDAW and Beijing treaties and conferences, which called for eliminating any type of discrimination against women.27 The JDP considered some of the articles of these treaties to oppose the Islamic Sharī‘a rulings since they called for the equality of men and women and they considered this a threat to the Islamic family.28 The JDP also claimed that such treaties aim

23 Hursh, 262; Buskens, 85; al-Akhrīsī, 129-30; Mayer, 1995, 439. This was also the call of al-Khamlīshī who objected to the role of the walī. See al-Khamlīshī, 1983, 1: 213-14. 24 Article 9 of the 1993 Mudawwana, states that marriage below the legal age of rushd is contingent upon the approval by the walī. If the woman and her walī do not agree, the matter is raised to the judge. Women also objected to polygamy and asked that for consequences to anyone implicated in such marriage. Al-Akhrīsī, 134-35. For more on other demands of the Mudawwana see al-Akhrīsī, 135-56. See also Majmū‘at 95 al-Maghārbīya min Ajl al- Musāwā, 33-158. This is cited as evidence in such publications as Majmū‘at 95 al-Maghārbīya min Ajl al-Musāwā, alīl mi ajl-almu āwā fī al-usra al- aghārbī a (Al-Rabāṭ: 2003); and Manshūrāt al-Majalla al-Maghribīya li-al- Idāra al-Maḥalīya wa-al-Tanmīya, al-Mudawwana al-jadīda il-al-usra al-qā ū raqam 7 .03 (Al-Rabāṭ: 2004). 25 Nuzha Kasūs, hawrah hādi’ah mi mudawwa at al-aḥwāl al-shakhṣī ah ilā mudawwa at al-usrah, ed. Manshūrāt al-Zaman (al-Rabāṭ: Manshūrāt al-Zaman, 2004), 5. 26 The NPA plans were discussed in the previous chapter. 27 Ḥizb al-‘Adāla wa-Al-Tanmīya, Muzakara ḥ wla ta‘dīl mudawwa at al-aḥwāl al-shakhṣī a (al-Rabāṭ, 2001), 15- 17. 28 Ḥizb al-‘Adāla wa-Al-Tanmīya, 17; Zoglin, 967. 254 at controlling and eliminating Islamic Sharī‘a.29 This, according to the JDP, was finally made clear when some of the organizations called to change some of the rulings of the Qur’an and

Sunna through the NPA plan.30

Another Islamist organization, the Association of Renewal of Women's Consciousness

(Muna amat Tajdīd al-Wa‘ī al-Nisā’ī)—hereafter referred to as ARWC—had a viewpoint similar to that of the JDP. To ARWC, any changes in the Mudawwana must be grounded within

Islamic tradition. In addition, and contrary to the JDP, ARWC accepted some of the articles of the international treaties, although they objected to any article that was in opposition to Islamic

Sharī‘a.31 The JDP was also concerned that applying international treaties to Moroccan society would weaken national Islamic ethics as well as Moroccan family ties, thereby and threatening the very existence of Islamic society.32 The JDP and ARWC recommended that reforms be accomplished based on the method of ijtihād and by qualified individuals who are experts in the legal process of ijtihād. ARWC says that a mujtahid should be an expert in the Qur’an and

Sunna, have a complete knowledge of the Arabic language, and knowledge of the occasions of revelation (a bāb al- uzūl) and the objectives of Sharī‘a (maqāṣid al-Sharī‘a).33 ARWC criticizes any individual attempting to reform the Mudawwana who does not possess such qualifications.34 This of course is contrary to what al-Khamlīshī advocated, since he criticized the previous two Mudawwana committees for not having legal experts among the committee

29 Ibid. 30 Ibid. The JDP did not mention which rulings were of concern. Al-Khamlīshī states that some of the Islamists issued fatwas to reject the NPA plan and to consider anyone who supports this plan an apostate from Islam since such a plan was from outside Islam and even involved replacing some of the Islamic rulings. See al-Khamlīshī, 2012, 1: 31. 31 Muna amat Tajdīd al-Wa‘ī al-Nisā’ī (Association of Renewal of Women's Consciousness), Mudawwanat al- aḥwāl al- hakhṣī ah aṭālib wa-iqtirāḥāt (Al-Rabāṭ: al-Dār Al-Baydhā’, 2003), 12-14. The organization can also . منظمة-تجديد-الوعي-النسائي/be reached at https://www.facebook.com/pages/094479999160184 32 Ḥizb al-‘Adāla, 18. 33 Muna amat Tajdīd al-Wa‘ī al-Nisā’ī, 13-14. MTWN cites al-Shāṭibī’s opinion regarding the qualifications of the mujtahid. 34 Ibid. 255 members aside from religious jurists. Further, the JDP recommended that solutions must be based on Islamic foundations rather than imported Western ideas.35 To them, the new legal solutions must be comprehensive and include social as well as economic resolutions.36 Finally, the JDP recommended that legal solutions should not be confined to the Mudawwana alone, but must also include pragmatic approaches to resolve all other legal issues in Moroccan society.37

By signing on these treaties, Morocco had to increase the legal age of marriage, though the real issue—according to the JDP— is not early marriage, but late marriage; that is to say, the refusal of the youth to marry, which they said caused an increase of infidelity among married couples.38

ARWC, on the other hand, criticized the specification of the minimum age of marriage and rejected its codification within the Moroccan Mudawwana. The ARWC considered codifying the age of marriage to be an assault on individual freedom and a threat to personal human rights. 39

In response to the Moroccan feminists’ demands to eliminate the wilā a, the JDP demanded that the wilā a remain an integral part of the marriage contract, for several reasons.

First, the JDP claimed that there is clear evidence for the necessity of the wilā a and that any marriage without a walī is considered invalid.40 Second, the JDP said that the responsibility of the wilā a is one of choice and not coercion, since the 1993 Mudawwana states that the wilā a is the right of the woman, and that the walī may not contract her in marriage without her delegating the responsibility to him. In addition, the JDP considered the wilā a a supporting factor to women. To the JDP, the wilā a acts as a guide to protect the woman’s interest since it is made up

35 Muna amat Tajdīd al-Wa‘ī al-Nisā’ī, 13-14; Ḥizb al-‘Adāla wa-Al-Tanmīya, 17; Zoglin, 967. 36 Ḥizb al-‘Adāla, 18. 37 Ibid., 20-21. 38 Ḥizb al-‘Adāla wa-Al-Tanmīya, 15-17. 39 Muna amat Tajdīd al-Wa‘ī al-Nisā’ī, 15. 40 The JDP provide the ḥadīth, “No marriage without the permission of the walī ”, and also the ḥadīth attributed to ‘Ᾱ’isha, “any woman married without a walī her marriage is invalid, repeated three times.” Muna amat Tajdīd al- Wa‘ī al-Nisā’ī, 23. 256 of experts from her close family, such as her father or brother.41 This wilā a, according to the

JDP, is by no means a wilā a of coercion.42 More importantly, the JDP argues that the wilā a is essential for the woman’s interest, particularly after divorce. The JDP maintained that, after divorce, a woman normally returns to her father’s home.43 He then becomes the sole financial supporter of her and any children she may have had.44 Therefore, the JDP said, the demand to eliminate the walī will reflect negatively on any woman who marries without a walī.45 The JDP also demanded that the walī’s presence be mandatory for all women who wish to marry, including adult ra hīda and orphaned adult women.46 The ARWC and the JDP agree that the walī’s role must remain intact as part of a valid Moroccan marriage.47 As stated earlier, the tension between the two opposing parties grew, and in the year 2000, two demonstrations were held in Morocco: one in the capital Rabāṭ demanded changes to the Mudawwana and the other, held in Casablanca, opposed any changes.48

On April 27, 2001, in order to avoid clashes between various groups over some of the articles in the Mudawwana, King Muḥammad VI— as commander of the faithful (amir al- mu’mi ī ), entrusted with protecting Islam and the women and children of Morocco, as well as employing Islamic Sharī‘a—announced the formation of a new committee to reform the 1993

Mudawwana.49 The king chose a committee of fifteen individuals, ‘ulamā’ as well as intellectuals and experts, each of which was appointed in response to the demands of Moroccans

41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. 45 Ibid. 46 Although the 1993 Mudawwana stipulated that only the fatherless adult woman may choose her walī. See Article 12 of the 1993 Mudawwana. 47 Muna amat Tajdīd al-Wa‘ī al-Nisā’ī, 30. 48 Manshūrāt al-Zaman, 6; Hursh, 271; Robin Wright, Dreams and Shadows: The future of the Middle East (New York: Penguin Press, 2008), 365-366. 49 Al-Khamlīshī, 198, 3 1: 33. See also “Al-Saiyyd Muḥammad Boucitta Ra’īs al-Lajjna al-Malakīya al-Istishārīya Li Murāja‘at Mudawwanat al-Usra,” Maghress.com, August 03, 2008, accessed July 10, 2013, http://www.maghress.com/attajdid/9302. 257 concerning the role of women as defined in the 1993 Mudawwana.50 The atmosphere in Morocco seemed to favor the Islamists that is until the 2003 terrorist bombing in Casablanca. On May 16,

2003, a series of violent explosions rocked the city of Casablanca and scores of civilians were injured.51 The perpetrators were believed to be Muslim men with ties to two local Islamist organizations—al-Tawḥīd and al-Muwaḥidūn.52 The attack left the people of Morocco in fear of other Islamist organizations and their particular political and religious motifs, particularly since the perpetrators lived in a conservative traditionalist region of Morocco. The Moroccans’ image of Islamist parties was changed forever when it was revealed that most of the local suicide bombers hailed from religious communities within Morocco. The bombing at Casablanca tipped the scales in favor of liberals and women’s organizations seeking reforms to the Mudawwana with respect to the role of women.53 For the first time in the history of Morocco, the king appointed three women to the legal committee to reform the Moroccan Mudawwana: Zuhūr al-

Ḥur, Raḥma Bourqīya, and Nuzha Kasūs.54 This move to include women as part of a committee to practice ijtihād alongside male jurists was an unprecedented one amongst Muslim societies.

50 Al-Khamlīshī, 2012, 1: 33; Moha Ennaji, “A Comparison between Moroccan and Yemeni Family Law,” (paper presented at the Academic Seminar in Sana‘a, Yemen on December 12-19, 2009); Hursh, 272; Wright, 365. 51 “Morocco Remembers the 2003 Casablanca Attacks,” Magharebia, accessed May, 21, 2014, http://magharebia.com/en_GB/articles/awi/reportage/2013/05/17/reportage-01. See also “Terror Blasts Rock Casablanca,” British Broadcasting Company, accessed May, 21, 2014, http://news.bbc.co.uk/2/hi/africa/3035803.stm. 52 “Morocco remembers 2003 Casablanca attacks,” Magharebia, May 16, 2013, accessed May 21, 2014, http://magharebia.com/en_GB/articles/awi/reportage/2013/05/17/reportage-01. 53 Sadiqi, 336; Howe, 170; Wright, 366; Hursh, 261, 282. Moha Ennaji, “The New Muslim Personal Status Law in Morocco: Context, Proponents, Adversaries, and Arguments,” accessed September 23, 2013,http://www.yale.edu/macmillan/africadissent/moha.pdf. 54 There were a total of fifteen individuals appointed to the committee. The following men were members of this committee, Ibrāhīm b. Al- adīq, Mu ṭafā bin-Ḥamza, Ashbihīna Mā’ al-‘Ᾱynayn, Aḥmad al-Khamlīshī, Muḥammad al-Azraq, Ḥassan al-‘Ᾱbbādī, Muḥammad al-Tāwīl, Muḥammad b. Ma‘zūz al-Mazgharānī, Muḥammad al-Dardābī, ‘ Ᾱbd al-‘Ᾱlī al-‘Ᾱbūdī, Muḥammad al-Ᾱjrāwī, and Muḥammad al- iqillī. See al-Akhrīsī, 125-126; Muḥammad al- Azhar, Sharḥ mudawwanat al-usra (Al-Dār al-Bayḍā’: Dār al-Nashr al-Maghrībīya, 2013), 9; Manshūrāt al-Zaman, hawrah hādi’ah mi mudawwa at al-aḥwāl al-shakhṣī ag ilā mudawwa at al-usrah (Al-Rabāṭ: Manshūrāt al- Zaman, 2004), 90. 258

The new committee took more than two years to complete the first draft of the new

Mudawwana.55

The King’s revolutionary policy paved the way for women’s organizations and reformists like al-Khamlīshī to work from inside the Moroccan legal system to further women’s rights therein. Individuals like al-Khamlīshī were an invaluable asset to the Moroccan monarchy and to women of the region as they could argue in favor of women’s rights from within the Islamic tradition rather than borrowing from Western traditions and laws. The presence of al-Khamlīshī also fulfilled the demands of Islamist parties like the JDP which stated that any new reforms must be based on Islamic foundations. Since his method of reform was an organic model based on Islamic traditions, al-Khamlīshī became the authority on the side of women’s rights recognized by all parties as one capable of preserving the identity of Moroccan society.

Part II The 2004 Committee and al-Khamlīshī

Al-Khamlīshī describes the committee’s meetings as full of tension and disagreement.56

The tension among the committee was so high, in fact, that the first head of the committee, al-

Ḍaḥāq, was released from duty and replaced by Muḥammad Boucetta since the former had been unable to bring the committee members to agree on a draft.57 Boucetta was an experienced political figure, a student of al-Fāsī and a member of the Independent Political Party (al-

55 Ennaji, 4. 56 Al-Akhrīsī, 126. This was also testified by al-Khamlīshī, and the head of the committee, Muḥammad Boucetta. See Aḥmad al-Khamlīshī, Min mudawwanat al-aḥwāl al- hakhṣī a ilā mudawwa at al-usra (Al-Rabāṭ: Dar Nashr al-Ma‘rīfa, 2012), 1: 31, 33, 35. See aslo Al-Jam‘īya al-Waṭanīya al-Ḥiḍn, Min mudawwanat al-aḥwāl al- hakhṣī ah ilā mudawwa at al-u rah ‘a jadīd (Al-Dār al-Bayḍā’: Maṭbaàt al-Najāḥ al-Jadīda, 2005), 17; see also “Al-Saiyyd Muḥammad Boucitta Ra’īs al-Lajjna al-Malakīya al-Istishārīya Li Murāja‘at Mudawwanat al-Usra,” Maghress.com, August 03, 2008, accessed July 10, 2013, http://www.maghress.com/attajdid/9302. 57 King Muḥammad VI replaced al-Ḍaḥāq since al-Ḍaḥāq was not able to produce a draft in the time provided for the committee. Al-Khamlīshī, 2012, 27, 33, 35; Manshūrāt al-Zaman, 6; Maddy-Weitzman, 404. 259

I tiqlāl).58 During eight months, the committee received over sixty-six recommendations from seventy different organizations.59 On September 12, 2003, after two years and four months of intense negotiations among the committee members, the committee handed the king its final draft of the new Mudawwana.60 On October 10, 2003, the king presented the new reforms to

Parliament,61 who unanimously approved the new Mudawwana on January, 16, 2004,62 renaming the document from Mudawwanat al- ḥwāl al-Shakhṣī a to Mudawwanat al-Usra.63 King

Muḥammad VI delivered a speech where he stated that, as amīr al- u’mi ī , he considers the new Mudawwana not a law for women only but for the entire family (usra).64 The king said that this new Mudawwana came to alleviate the oppression against women, protect the rights of children and maintain the integrity of men and women. 65 The new Mudawwana marked a milestone in the advancement of women’s rights in Morocco.66

For the first time since the first Mudawwana of 1957, a diverse committee formed of men and women who were jurists, sociologists, lawyers and medical experts had convened to reassess the document together.67 The committee first listened to the many individuals’ and organizations’ requests and demands. According to committee member Nuzha Kasūs, the committee received requests from many different organizations, NGOs, political and religious

58 ‘Abd Allah Abū ‘Awaḍ, Athr al-ijtihād al-fiqhī wa-al-qa ā’ī fī ta‘dīl mudawwa at al-usra al-maghrībī a dira a ta’ṣīlī a fī al-māda 4 (Al-Rabāṭ: Dār al-Amān, 2011), 23. 59 Al-Khamlīshī, 2012, 35. Others state there were recommendations from over eighty organizations. See Manshūrāt al-Zaman, 99. 60 Al-Khamlīshī, 2012, 35; Howe, 166-67. 61 Maddy-Weitzman, 404; Hursh, 272, Wright, 176; Sadiqi, 2008, 312. 62 Manshūrāt Dār al-Jīl, Mudawwanat al-usra (Manshūrāt Dār al-Jīl, 2011), 14; al-Khamlīshī, 2012, 36; Hanafi and Pratt, 131. See “Al-Saiyyd Muḥammad Boucitta Ra’īs al-Lajjna al-Malakīya al-Istishārīya Li Murāja‘at Mudawwanat al-Usra,” Maghress.com, August 03, 2008, accessed July 10, 2013, http://www.maghress.com/attajdid/9302; Manshūrāt al-Zaman, 6; Harrak, 6; Elliot, 218; Maddy-Weitzman, 406; Bernard Cubertafond, “Mohamed VI, Commandeur des croyants au secours de la laïcité?,” accessed September 19, 2013, http://www.cairn.info/revue-confluences-mediterranee-2004-4-page-163.htm. 63 Ibid. 64 Al-Ḥiḍn, 30; al-Khamlīshī, 2012, 36-39. 65 Ibid. Harrak, 6. 66 Hursh, 255; Maddy-Weitzman, 406. 67 Manshūrāt al-Zaman, 98. 260 parties, religious and non-religious unions, and graduates of religious institutions such as Dār al-

Ḥadīth al-Ḥassanīa and al-Qarawiyyīn University.68 The organization and discussion of these requests alone took over eight months. Due to the diversity of the individual members on the committee, opinions varied greatly and issues arose several times which caused delays to the final outcome. According to Kasūs, some of the first issues to face the committee included how to reform the 1993 document while at the same time staying true to the purpose of the Islamic

Sharī‘a through the method of ijtihād, and without violating any of the international treaties signed by Morocco.69 According to al-Khamlīshī, tension between the committee members was the cause of delay for the first draft of the 2004 Mudawwana.70

Al-Khamlīshī also reiterates that some of the articles were rewritten four to five times because of the strong hostility and disagreement among committee members. Some of the members suggested that the definition of marriage be changed and the phrase “under the care of the spouses” replace the traditional “under the authority of the husband.”71 A heated discussion ensued. Those opposed to the change suggested that the phrase “obedience of the wife to her husband” be added so as to maintain the condition of the husband’s authority over the entire family.72 One member of the committee also objected to the use of the term zawāj instead of

ikāḥ to denote marriage. The member accused the committee of attempting to change the words of the Qur’an and strip the Mudawwana from any term which has its roots therein.73 Further, some of the members objected to the use of foreign terminologies. The term DNA for example,

68 Ibid., 93. Nuzha Kasūs was one of the three committee members appointed by the king. She holds a medical degree as a pediatrician and is a member of two Moroccan organizations: Woman Organization and Health Organization. She is also the vice president of the International Bioethics Committee (IBC), Comite International De Bioethique De L’UNESCO. 69 Ibid., 99. 70 Manshūrāt al-Zaman, 99; al-Khamlīshī, 2012, 35. 71 Ibid. 72 Ibid. 73 Al-Khamlīshī, 2012, 35. 261 was abandoned since some of the committee members deemed the term foreign to the Arabic language, also pointing out that it was never used in Islamic fiqh.74

According to al-Khamlīshī, the difference in educational background and philosophy among committee members was intense and fierce, particularly concerning certain articles of the

Mudawwana. Al-Khamlīshī and Kasūs state that this was apparent when the following topics were discussed: the lunar calendar to replace the solar calendar, documenting unregistered marriage, the marriage guardianship (wilā a), polygyny, the wife’s obedience to her husband, duties and obligations of the two spouses; the requirement of both spouses’ signatures on the marriage contract; divorce papers; and agreements regarding the custody of children.75 In addition, some of the committee members suggested for the first time that a woman’s mother be allowed to intervene in her marriage. Others suggested the court be permitted to sentence anyone who violates any of the udawwa a’ articles, especially marriage of minors, to criminal punishment.76 The latter was incorporated into the 2004 Mudawwana under Article 66 of the

Moroccan penal code.77 It is noteworthy that al-Khamlīshī was calling for such consequences so as to reduce the abuse of some Moroccan family laws, such as marrying minors and abusing the authority of the walī.78

The following pages discuss the main issues of contention which were reformed in the new Mudawwana. Article 4 of the new Mudawwana came to define marriage as a legal bond

(mīthāq) in which a man and a woman mutually consent to unite in a common and enduring conjugal life. Its purpose, according to the document, is fidelity, virtue, and the creation of a stable independent family under the supervision of both spouses according to the provisions of

74 Ibid. 75 Ibid., 46. 76 Ibid., 47; Manshūrāt al-Zaman, 99. 77 Ibid. 78 Al-khamilsi 1994, 130-131, no. 146. 262 this Mudawwana.79 Article 13 of the Mudawwana outlines the conditions required to contract a marriage as: 1) the legal capacity of both spouses to marry, 2) a lack of intention or agreement to cancel the dowry, 3) a walī, if required, 4) the formula of offer and acceptance (ījāb and qubūl) must be pronounced by the two spouses, and heard and notarized by two male witnesses who are public notaries,80 and 5) the absence of any legal impediments.81

For the first time since the publication of the first Mudawwana in 1957, the qualification of the agent (wakīl) was stipulated, as demanded by al-Khamlīshī.82 Paragraph 3 of Article 17 of the Mudawwana stipulates that the wakīl must be [male], have reached the age of legal rushd, enjoy full civil capacity, and must fulfill the same qualifications as that of the walī if he was designated by the walī.83 Article 19 of the Mudawwana emphasizes the legal age of marriage.

The article states that men and women acquire the capacity to marry when they are of sound mind and have completed full solar years of age, or eighteen for both genders.84

Article 20 of the Mudawwana is one of the most controversial articles since it allows for certain exceptions to the age of marriage. The article states that the family judge may authorize the marriage of a minor boy or girl who has not reached the age of marriage stipulated in Article

19. He may do so according to certain evidence which calls for the benefits and reasons for such marriage after listening to the parents of the minor child or the child’s legal guardian, assisted by the expertise of medical exams or social worker’s reports. The legal decision reached by the

79 Manshūrāt Dār al-Jīl, Mudawwanat al-usra (Manshūrāt Dār al-Jīl, 2011), 15. See also Global Rights: Partners for Justice, at www.globalrights.org. 80 The two male witnesses are employed by the court. 81 Manshūrāt, 17. See also www.globalrights.org. 82 See the previous chapter for al-Khamlīshī’s opinion. The wakīl is a representative. In this case a representative of the walī to executes the walī’s wishes. 83 Ibid., 19; See also, www.globalrights.org. 84 Hursh juxtaposes some of the marriage articles of the 2004 Mudawwana with that of the 1993 Mudawwana. See Hursh, 262-263. 263 judge is final and is not open to an appeal.85 Article 21 states that the marriage of a minor is contingent upon the consent of the child’s legal guardian. The legal guardian’s consent is expressed by signing the marriage authorization petition along with the minor, presuming the minor is present at the time of the marriage contract. If the minor’s legal guardian refuses to consent, the family judge rules on the matter.86 Articles 20 and 21 provide the family court judge with a broad authority over the marriage of minors.87 These two articles along with Article 19 have been a source of contention and debate since the publication of the Mudawwanat al-Usra in

2004. (See table (4-1) below for the summary of reformed articles).

Table (4-1) Articles concerning the new reformed Mudawwanat al-Usra, 2004 Articles of 1993 Mudawwana Articles of 2004 Mudawwana Definition of marriage: Article 1 defines marriage Definition of marriage: Article 4 defines marriage as a legal covenant (mīthāq) between a man and as a legal bond (mīthāq) by which a man and a a woman who may unite with the aim of woman mutually consent to unite in a common establishing a permanent and long lasting bond and enduring conjugal life. Its purpose is fidelity, based on common conjugal life, under the virtue and the creation of a stable independent authority of the husband88 and based on strong family, under the supervision of both spouses89 foundations with the desire to procreate and according to the provisions of this Mudawwana. fulfill their reciprocal duties in security, peace and affection. Article 5. Paragraph 1. A marriage may not be Article 13 of the Mudawwana outlines the concluded without the consent of the wife, and conditions required to contract a marriage as: 1) after obtaining her verbal and written approval, the legal capacity of both spouses to marry, 2) a and her signature on the summary of the lack of intention or agreement to cancel the contract in the presence of two court witnesses. dowry, 3) a walī, if required, 4) the formula of In all cases, the walī does not possess the right offer and acceptance (ījāb and qubūl) must be to coerce his ward (wīlāyat al-ijbār) while taking pronounced by the two spouses, and heard and into consideration Article 12 and 13. notarized by two male witnesses who are public The rest of the Article remained the same. notaries, and 5) the absence of any legal impediments.90 Article 17, paragraph 3 of the Mudawwana states that the wakīl must be [male], have

85 Ibid. See also www.globalrights.org; Manshūrāt, 17-19. 86 Manshūrāt Dār al-Jīl, 21-22. See also www.globalrights.org. 87 Elliot, 218. 88 My emphasis. 89 My emphasis. 90 Manshūrāt Dār al-Jīl, 17. See also www.globalrights.org. 264

Articles of 1993 Mudawwana Articles of 2004 Mudawwana reached the age of legal rushd, enjoy full civil capacity, and must fulfill the same qualifications as that of the walī if he was designated by the walī. Age of marriage: Article 8 states that the Article 19 of the Mudawwana states that men minimum age of marriage is eighteen for men and women acquire the capacity to marry when and fifteen for women. If there is fear of they are of sound mind and have completed full immorality (‘int), from either boys or girls, the solar years of age (eighteen). matter may be referred to the judge. Judge’s authority: the judge’s authority was Judge’s authority: stated above in Article 8 of the Mudawwana, Article 20 states that a family judge may whereby the judge may coerce a minor into authorize the marriage of a minor boy or girl marriage if he fears that the minor(s) (boys or who has not reached the age of marriage girls) might fall into immorality. stipulated previously in Article 19 as the completion of eighteen solar years. He may do so according to certain evidence which calls for the benefits and reasons for such marriage, and after listening to the parents of the minor child or the legal guardian, assisted with the expertise of medical exams or social worker’s reports. The legal decision, reached by the judge is final and is not open to an appeal. The judge’s authority: Article 21 states that: The marriage of a minor child is contingent upon the approval of his/her legal guardian. The consent of the legal guardian is expressed by signing the marriage petition along with the minor and by the minor being present at the time of the marriage contract. If the legal guardian abstains from signing the marriage contract, the family judge may make his decision on the matter (without the approval of the legal guardian).

Article 5 mentioned above. Article 67, the marriage contract shall contain the following:91 1) The permission of the judge, its file number and its date, and the location of the court where it was filed. 2) The name of the two spouses. 3) The name of the walī if required. …. 9) The signature of the two spouses and the

91 I chose only the paragraphs which pertain to our topic. For the details of the article see, Manshūrāt Dār al-Jīl, 37- 38. See also www.globalrights.org. 265

Articles of 1993 Mudawwana Articles of 2004 Mudawwana walī, if required. 10) The name of the two legal witnesses, their names, and the date of witnessing the contract. 11- The judge’s signature affixed by his seal.92 This Article was never present in the previous Article 61, states that the deficient marriage two Mudawwanas. contract is annulled in the following case: … and (if the marriage was conducted without the required walī).93 The age of rushd, Article 137 states that an Article 209, states that the legal age of rushd is individual is considered legally incompetent the completion of eighteen solar years. (maḥjūr) if [he/she] did not complete twenty solar years.94 Penal Consequences of a minor’s marriage: Article 66 states that employing fraud to obtain There were no consequences in the previous authorization or a certificate of capacity two Mudawwanas. mentioned in Clauses 5 and 6 of the preceding article or to evade them, the provisions of Article 366 of the Penal Code will be applied to the author and his accomplices upon the request by the injured party. The injured party has the right to ask for the annulment of the marriage along with any compensation.95 This Article was never present in the previous Article 400 states that for all issues that are not two Mudawwanas. mentioned in the Mudawwana reference may be made to the Mālikī madhhab and ijtihād which takes into consideration Islamic values in justice, equality and the virtue of social relations.96 Table (4-1)

Despite the tension between the members of the committee, the articles above reflect substantial improvements to the state of women’s rights in Morocco. The invitation for women to participate in reforming the Islamic legal system marked a milestone for women in their struggle for representation in the arena of Islamic law. According to committee member Kasūs,

92 Manshūrāt Dār al-Jīl, 38. See also www.globalrights.org. 93 Ibid. The rest of the Article is beyond the scope of this dissertation. 94 Silsilat al-nu ū al-qānūnīyah, 8-14, 74. 95 Manshūrāt Dār al-Jīl, 378. Article 366 of the Penal Code states that the penalty for such crimes is imprisonment from six months to two years and/or a fine of two hundred to one thousand dirham. To access this penal code and others, see The Ministry of Justice and Liberties of Morocco website at “‘Adāla: al-Bawāba al-Qānūnīya wa-al- Qaḍā’īya,” accessed July 14, 2013, http://adala.justice.gov.ma. See also www.globalrights.org. 96 For all articles of the 2004 Mudawwana see Manshūrāt Dār al-Jīl. The English translation can be accessed through www.globalrights.org. 266 reforming the Mudawwana opened the gate of ijtihād (a collective ijtihād as called for by al-

Khamlīshī) to women’s organizations, professional men and women, and experts who participated in the udawwa a’ reform for the first time in the history of Morocco.97 Among the Moroccan intellectuals who participated and debated the reform of the Mudawwana was

Aḥmad al-Khamlīshī.98 A proponent of women’s rights, al-Khamlīshī was appointed twice to reform the Moroccan Mudawwana.99

Part III

Al-Khamlīshī’s Collective Ijtihād (Al-Ijtihād al-Jamā‘ī)

Al-Khamlīshī wrote many books on the Mudawwana, Islamic fiqh, the relationship between the two, and the role of women in Islamic family law. In an interview I conducted with him during the summer of 2013, I asked him his opinion on the state of fiqh, ijtihād and the role of women in the Moroccan Mudawwana. Al-Khamlīshī attributed the lack of women’s freedom in marriage, divorce, and other legal issues to Islamic fiqh and ‘ulamā’. Al-Khamlīshī started by praising many of the past and present jurists for their roles in Islamic fiqh. However, he stated that today, ijtihād among Muslims is in a debilitated state.100 He stressed that for centuries ijtihād has always been an individual endeavor. This individual endeavor according to al-Khamlīshī, cannot deduce general rulings to govern hundreds of millions of people throughout the world in general matters, nor in matters of Islamic law. This individual ijtihād produced many negative rulings which became obstacles in the lives of people in general and in the lives of women in particular. Al-Khamlīshī attributes these obstacles to many elements. He felt that a number of

97 Manshūrāt al-Zaman, 102. 98 Ibid, 101. 99 Al-Khamlīshī was appointed first by king Ḥassan in 1993 and then by king Moḥammed VI in 2004. 100 From summer 2013 interview. See also al-Khamlīshī, Jumūd al-dirā āt al-fiqhī a (The Stagnation of Fiqh Studies) (Al-Rabāṭ: Dār Nashr al-Ma‘rifa, 2010), 6: 3-21. 267 obstacles were placed deliberately by experts in Islamic legal theory (u ūl al-fiqh) who put forth impossible terms under which an individual could qualify as a mujtahid.101 Al-Khamlīshī maintains that these experts believe that the mujtahid is one who interprets the eternal divine law to the masses.102 According to al-Khamlīshī, other experts maintain that the mujtahid reports on

God’s will and intentions; therefore, he interprets what God intended.103 This belief, according to al-Khamlīshī, has inflicted a great deal of harm on Islamic law. “It is almost impossible for any individual to claim the knowledge of every legal and social issue no matter how much knowledge this individual possesses from the Qur’ān, the Sunna or other fields,” he says.104

Al-Khamlīshī states that social issues differ from one century to another and from one region to another, even between Muslim states. To say that one individual is able to even be aware of all of these customs, let alone understand them all with respect to divine law (Sharī‘a) is a dangerous conclusion. Secondly, as a result of the reason described above, al-Khamlīshī believes that by stating that the mujtahid interprets the divine law, the mujtahid’ opinion thus becomes absolute and unable to be challenged.105 This leaves opinions deduced in the early

Islamic centuries (between the seventh and tenth centuries) to become primary sources for debates in the twenty-first century. Thirdly, due to the definition of a mujtahid as the only one who may interprets the divine law, the mujtahid is therefore able to deduce a ruling on any specific or general legal issue.106 More importantly, al-Khamlīshī argues that a ruling deduced by a mujtahid, whether the ruling concerns permitting or forbidding an action, is considered divine ruling (ḥukm ilāhī), and not merely a singular interpretation of the divine message, for

101 Ibid, 5-7. 102 See also al-Khamlīshī, Al-Ijtihād taṣawwuran wa-mumāra a (Ijtihād Imagi ati a d ra ti ) (Al-Rabāṭ: Dār al-Nashr al-Ma‘rifa, 2010), 7: 11-16 103 Al-Khamlīshī, Jumūd, 6: 6-7; al-Khamlīshī, al-Ijtihād, 7: 16. 104 An interview in the summer of 2013. 105 Al-Khamlīshī, Jumūd, 2010, 6: 62-64. 106 An interview during the summer of 2013. See also al-Khamlīshī, Jumūd, 6: 6-7. 268 instance.107 As a result, the followers of the mujtahid held on to these opinions, considering them part of the Divine law (Sharī‘a).108 With time, and after the formation of the madhāhib, by the end of the tenth century, people started to consider these madhāhib to be part of the divine law, according to al-Khamlīshī.109

Al-Khamlīshī says that this blind belief in the madhāhib resulted in freezing the process of ijtihād and closing the gate of ijtihād.110 He says that despite the change in customs and traditions over the past ten centuries, fiqh has not changed.111 Instead people held on tightly to the old personal opinions of jurists and considered them among the eternal part of Sharī‘a.112

“That is why we see many Muslims today claiming that Muslim states are not applying Sharī‘a and instead use new laws that are foreign to Islam and are imported from the West,” says al-

Khamlīshī.113 These laws are considered by many to be a threat to Islam and Sharī‘a.114

Al-Khamlīshī’s response to these complicated issues is to move away from the old ijtihād and the stagnation of fiqh. He also suggests a new type of ijtihād, which he calls “collective ijtihād” (al-ijtihād al-jamā‘ī).115 Al-Khamlīshī maintains that “the local society has the exclusive right to decide on which of the past rulings may be considered law. This may be done through institutions appointed by the local society or elected committee members.”116 He strongly recommends that the old restrictions on the qualifications of the mujtahid be eliminated.117 The mujtahid, according to al-Khamlīshī, must be an expert in certain fields or an intellectual from

107 See al-Khamlīshī, Jumūd, 2010, 6: 59.l 108 Al-Khamlīshī, Jumūd, 6: 1-90. 109 Ibid., 7. 110 An interview in May 2013. 111 Ibid. 112 See also al-Khamlīshī, al-Ijtihād, 7: 12-18. 113 An interview in May 2013. 114 An interview with al-Khamlīshī. 115 An interview in May 2013. 116 Ibid. 117 Al-Khamlīshī specifies the qualifications mentioned by al-Shāfi‘ī and al-Shāṭibī. Al-Khamlīshī, al-Ijtihād, 7: 149-153; al-Khamlīshī, Jumūd, 6: 158-159. 269 within the local Islamic civil society.118 In this collective ijtihād, says al-Khamlīshī, experts in

Islamic legal theory (uṣūl al-fiqh), as well as experts in law, science and other fields such as physicians, chemists, physicists, engineers, and others are to be included.119 Al-Khamlīshī’s suggestion to include experts on social and legal issues from outside the ‘ulamā’ was made in an effort to hear from Muslim’s from all aspects of society rather than keeping legal matters solely in the hands of so-called religious experts (‘ulamā’). Thus al-Khamlīshī’s ultimate aim was to break the monopoly of religious jurists over Islamic family law.

Al-Khamlīshī criticizes the ‘ulamā’ for holding on to the old fiqh while customs have changed dramatically from one place to another through more than ten centuries. He argues that loyalty to the old madhāhib and the stagnation of fiqh caused people to hold on to old rulings and call for the application of the old fiqh in today’s world. He also blames the stringent and strict qualifications of the mujtahid on the eponym of the Shāfi‘ī madhhab, Muḥammad b. Idrīs al-

Shāfi‘ī.120 According to al-Khamlīshī, al-Shāfi‘ī stipulated that a mujtahid must possess the following qualifications,

… t he knowledge of the Qur’ān and Sunna of the Prophet. The mujtahid must know which legal issues Muslims reached consensus (ijmā‘) over and which issues they disagreed over (ikhtilāf). The mujtahid must be aware of the opinions of previous predecessors (salaf). He must be wise able to practice legal analogical deduction based on the reveled texts. He must also possess knowledge of the commands of the Qur’ān, its prescribed duties and ethical discipline, its abrogating and abrogated, its general and its particular rulings, and must be able to interpret the ambiguous verses. He must possess full knowledge of the Arabic language.121

118 Al-Fākhūrī, 2011, 104-106. 119 Ibid. 120 Muḥammad b. Idrīs, Al-Shāfi‘ī, al-Ri āla, ed. Aḥmad Muḥammad Shākir (Cairo: Maktabat Dār al-Turāth, 1979), 510. 121 Al-Shāfi’ī, al-Risāla, 509-510. Muḥammad b. Idrīs al-Shāfi’ī , Al-Imām uḥammad ib Idri al-Shāf ī al-Ri āla fī uṣūl al-fiqh: treatise on the foundations of Islamic jurisprudence, trans. Majid Khadduri (Cambridge, UK: Islamic Texts Society, 1987), 306. 270

Al-Khamlīshī emphasized that, due to the strenuous conditions made by al-Shāfi‘ī, it was almost impossible for anyone to become a mujtahid and, instead, these conditions were responsible for producing imitators (muqallidū ) instead of genuine mujtahids.122

Al-Khamlīshī asserts that, due to the changes that occurred in every society throughout the centuries, there must be renewal and reform to the old rulings. To him, this must be conducted according to the universal Qur’anic law which states, “who (conducts) their affairs by mutual Consultation.”123 Al-Khamlīshī interprets this verse to mean that any ijtihād must be a collective type of ijtihād. In addition, according to al-Khamlīshī this type of ijtihād must be conducted continuously throughout the ages and in every region using the consensus of the

Muslim community as a guide only and not a source of law.124 He is of the opinion that there must be consultation with experts as well as common people so as to deduce new rulings that are both pragmatic and, at the same time, able to resolve the issues of the day.125 He also maintains that, while rulings in rituals (‘ibādāt) may differ from one jurist to another and from one madhhab to another, transactions (mu‘āmalāt) may not be based on different opinions.126 To him, there must be one law within the state that everyone can respect and obey.127 Contrary to the opinions of other Arab Muslim intellectuals like al-Qaraḍāwī, who calls on Muslims to practice ijtihād only on issues without clear evidence, and only if Muslim jurists did not reach consensus (ijmā‘) on these issues, al-Khamlīshī is of the opinion that ijtihād may be practiced for all issues of transaction, regardless of rulings previously reached by a consensus of jurists.128

122 Interview in summer of 2013. 123 Qur’ān 42: 38. 124 Interview with al-Khamlīshī in summer of 2013. See also al-Khamlīshī, al-Ijtihād, 13-36. 125 An interview in summer of 2013. 126 Ibid. 127 Ibid. 128 Al-Khamlīshī, Ijtihād, 2010, 12-63. The opinion of al-Qaraḍāwī can be found in al-Qaraḍāwī, Al-Ijtihād, 1996, 178-179. 271

With regard to the minimum age of marriage, al-Khamlīshī states that due to changes in social issues, economy, customs, and traditions, Morocco followed many states in implementing a new law to mark the minimum age for marriage as eighteen for both men and women. “This law must be followed and obeyed by every Moroccan citizen,” says al-Khamlīshī.129 Al-

Khamlīshī objects to applying the ruling of the old fiqh, which does not dictate a specific age to mark the minimum age of marriage. Aware that past jurists had different customs and traditions and lived in different social environments, al-Khamlīshī understands that their calls for early marriage may have been based on the fact that the opportunities to educate women and for women to work outside home were rare or nonexistent.130 Therefore, he calls for new type of ijtihād so as to eliminate the ‘ulamā’ monopoly over fiqh and many transactions which harm the individual Muslim. He states that,

Today, men and women do not mature at the early age of fifteen or sixteen. What qualifies the faqīh to make a ruling regarding the age of marriage? Marriage laws require experts: lawyers, sociologists, and medical experts who need to be involved in making such decisions. A faqih’ opinion is only his opinion and must not be considered a law. The faqīh is nothing but a spiritual advisor (wā‘i ) and not a lawmaker. His opinion is one among many individual opinions, but never a law.131

Therefore, al-Khamlīshī limits the role of jurists and considers their role to be that of a spiritual advisor rather than a peer of the legal legislators. He also restricts the legal rulings of the past jurists and considers these rulings to be mere opinions only and not part of the state’s law. This opinion of al-Khamlīshī is similar to the Western scholar Scott Lucas’s findings, where he suggests that jurists’ interpretations of the sacred Islamic texts were responsible for certain discriminating rules against women.132

129 Ibid. 130 Ibid. 131 From an interview with al-Khamlīshī conducted during the summer of 2013. See also al-Khamlīshī, Jumūd, 160. 132 Scott C. Lucas, “Justifying Gender Inequality in the Shāfīʿī Law School: Two Case Studies of Muslim Legal Reasoning,” Journal of the American Oriental Society 129, no.2 (April-June, 2009), 257. 272

Al-Khamlīshī is also critical of the consensus (ijmā‘) of jurists as a source of law. This consensus, according to al-Khamlīshī, which started in the second century A.H/eighth century

A.D., could not be generalized as a source of law to all Muslims living throughout the world in different centuries.133 Rulings which were the outcome of ijmā‘ may not be considered laws for

Muslims living in Spain, Africa and the Middle East, says al-Khamlīshī. He goes on to say that even if some of the ‘ulamā’ have agreed on certain rulings, these rulings are considered their own opinions and are open for reforms and changes.134 The ijmā‘, to al-Khamlīshī, must be restricted by place and time. Therefore, the consensus of people in Algeria, according to al-

Khamlīshī, may be different from that of the Muslims in Morocco. Al-Khamlīshī’s views regarding consensus are not without a foundation. Most jurists’ of the four Sunni schools of law agreed that, once consensus is reached, it may not be challenged by later jurists.135 More importantly, jurists reached consensus that legal rulings in the Qur’ān and Sunna of the Prophet may be abrogated while rulings based on jurists’ consensus may not.136 In so doing, Sunni jurists gave more authority to jurists’ consensus than they allowed the Qur’ān or the Sunna in legal issues.

The general view of al-Khamlīshī regarding ijmā‘ parallels those of a few Muslim scholars worldwide. Pakistani scholar Fazlur Rahman (d.1988) also opposed ijmā‘. Rahman maintained that “ijmā‘ was regarded as absolutely authoritative not only for discerning the right at the present and in the future, but also for establishing the past.”137 Further, Rahman considered

133 From the interview with al-Khamlīshī. See also al-Khamlīshī, Jumūd, 6: 58-62. 134 On the issue of ijmā‘ and the how it contributed to persisting rulings which discriminate against women, see Lucas, “Justifying Gender Inequality,” 2009. 135 Hallaq, 1986, 427; Bernard G. Weiss, The Spirit of Islamic Law (Athens: University of Georgia Press, 1998), 122; Tāj al-Dīn Abd al-Wahhāb b. Alī al-Subkī, Raf al-ḥājib a ukhtaṣar Ib al- ājib (Beirūt: lam al- Kutub, 1999), 4: 99. 136 Weiss, 1992, 531. On the abrogation of legal rulings from the Qur’ān and Sunna of the Prophet see al-Shāṭibī, 3: 335, al- midī, 2: 236-93; Weiss, 1992, 540. 137 Fazlur Rahman, Islam (Chicago: University of Chicago Press, 1979), 74. 273 ijmā‘ to be “the most potent factor in expressing and shaping the complex belief and practice of the Muslims.”138 In addition, Rahman was of the opinion that ijmā‘ became a “theoretically founded mechanism of traditional authoritarianism.”139 Other Muslim scholars also called for reforming the method of ijmā‘. The Pakistani scholar Muhammad Iqbal (d. 1937), the Egyptian scholar Muhammad ‘Abduh, and his disciple, the Syrian intellectual Rashīd Riḍā (d. 1935), called for a different type of ijmā‘ that was similar to that proposed by al-Khamlīshī—collective ijmā‘. Iqbal proposed that, instead of the old ijmā‘, Muslims should form a legislative assembly made up mostly of male experts on Islamic law to resolve contemporary legal issues.140 The

Sudanese jurist Ḥasan al-Turābī had a suggestion similar to that of Iqbal. In lieu of the old ijmā‘, al-Turābī recommended that Muslims elect a parliament of religious leaders who may look into the legal issues facing Muslims of today.141 To ensure that the parliament members followed the path of Qur’ān and Sunna, al-Turābī suggests creating a second body of legal experts to oversee decisions made by parliament members.142 ‘Abduh and his disciple Riḍā, on the other hand, suggested forming a committee of professionals to replace the consensus of old jurists. The new ijmā‘ committee, according to ‘Abduh and Riḍā, must be comprised of rulers, governors, military leaders, ‘ulamā’, notables, politicians, wealthy traders, heads of political parties, and directors and chief editors of reputable newspapers.143

138 Fazlurr Rahman, 74. 139 Fazlur Rahman, 78; Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge: Cambridge University Press, 2012), 46. 140 Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (London: Oxford University Press, 1934), 164-67; Zaman, 2012, 52. 141 Ḥasan al-Turābī, ajdīd al-fikr al-I lāmī (Al-Rabāṭ : Dār al-Qarāfī lil-Nashr wa-al-tawzī , 1993), 14. 142 Al-Turābī, 14. 143 Zaman, 2012, 47-51. See also Rashīd Riḍā, af īr al-Qur’ā al-ḥakīm al- hahīr bi- af īt al- a ār (Beirūt: Dār al-Ma‘rifah, 1970), 5: 181-87, 206-210. 274

Agreeing with the above Muslim intellectuals, al-Khamlīshī affirms that consensus

(ijmā‘), the way it is understood through the fiqh books, is a dangerous method to uphold.144 In fact, al-Khamlīshī asserts that ijmā‘ is an authoritarian method founded in order to monopolize fiqh by male-jurists.145 He is of the opinion that, through the method of ijmā‘, jurists aimed at closing the gate to anyone attempting to challenge their authority. He goes on to state that later jurists became the gate-keepers of Islamic law, unchallenged by any individual. To him, jurists have done so in order to preserve their religious positions through monopolizing the interpretation of the revelation so no one may challenge their opinions, although the Qur’ān states that, “Allah commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion.”146 Al-Khamlīshī blames the ninth century jurist al-Shāfi‘ī for declaring ijmā‘ to be a source of law.147 Al-Khamlīshī goes on to say that, “when it comes to marriage and the appropriate age of marriage, we see this so called consensus by jurists on the coercion of minors into marriage although evidence has shown that such marriages present a great danger to the health of minor females and their children.” He also states that “it is unfortunate that coercion of minors into marriage has been agreed upon by the majority of jurists of the five madhāhib”. He cites an opinion by Mālik, who said that a father may marry off his unborn girl if he so wishes.148 To al-Khamlīshī, Mālikī jurists who approved of this type of marriage followed Mālikī’s opinion out of loyalty only.149

144 Interview with al-Khamlīshī, summer of 2013. 145 Ibid. 146 Qur’ān, 16: 90. 147 Al-Khamlīshī, Jumūd, 6: 58. This can also be found in Al-Shāfi‘ī, al-Ri āla, “Bāb al-Ijmā‘”, 471-472, 534. 148 From the interview conducted summer, 2013. 149 Ibid. 275

I asked al-Khamlīshī about the legality of al-fātiḥa marriages, which are mostly practiced in remote areas in Morocco, where minor girls are usually married without a legal contract.150 He responded by stating that “such marriages should be considered zi ā, if both parties are in agreement since marriage must be registered in Moroccan family courts.”151 He asserted that

“people need to respect and obey the Moroccan law as stated in the new Mudawwana so women may obtain their rights.”152 More importantly, al-Khamlīshī argues that educating young girls is much more urgent than marrying them off at a young age. He blames jurists and the rest of the

‘ulamā’ who decreed that education is not an obligatory skill (far kifā a), but an unnecessary one. Al-Khamlīshī challenges the ‘ulamā’ opinion regarding prioritizing marriage over education and maintains that education is an obligatory act for every Muslim (far ‘ai ), and must take precedence over marriage, which is not an obligatory act and may be postponed until a girl finishes her education.

When asked about the role of jurists, the issue of wilā a, and the role of women in their marriage, al-Khamlīshī explained that,

[J]urists defined marriage ( ikāḥ) as the exchange of assets (māl) for the price of the woman’s vulva (bi ‘uhā), or as the Mālikī jurist Ibn ‘Urf maintained, it is a contract whereby a man may enjoy (yataladhdhadhu) a woman. This makes marriage similar to that of zi ā since there is an exchange of goods—a dower for the woman’s vulva. Jurists decided that a man—a father or a relative of the woman—may do the bargaining on behalf of a woman for the sale of her vulva so as to save her from embarrassment and to

150 These types of marriages are orally conducted among families living in remote areas. Al-fātiḥa marriage is a known marriage among the Moroccan Bedouins who, for a lack of documentations and deeply-rooted customs, still practice early marriage using only verbal contracts. These verbal contracts are witnessed by twelve witnesses ( hahādat al-lafīf) instead of the written documents and two standard witnesses required by Islamic law. The first chapter of the Qur’ān, the Opening (al-fātīḥa), is normally read during the sermon of acceptance of the marriage, thus the term al-fātīḥa marriage. For more on the marriage of minors see the special program aired through the television program M2 “Al-Zawāj bi-al-Fātiḥa,” M2, accessed August 09, 2013, http://www.youtube.com/watch?v=9IJ9TDg9cvs; “‘An Zawāj al-Fātiḥā bil-lMaghrib,” accessed August 09, 2013, http://www.youtube.com/watch?v=qUhN23zvpHs#at=333; “Mawqi‘ al-‘Aulūm al-Qānūnīya,” accessed October 25, 2013; http://www.marocdroit.com; see also al-Ḥusayn Mighrāwī, “Al-Majlis al-Jahawī li-‘Udīl Dā’īrat Maḥkimat al-Isti’nāf bi-‘Aghādīr,” accessed October 25, 2013, https://fr- fr.facebook.com/adoulagadir/posts/481875755207375. 151 Interview with al-Khamlīshī in summer 2013. 152 Ibid. 276

protect her from falling into immorality in the presence of men. The walī in this case is there to ensure that the marriage is licit (ḥalāl) and to preserve the woman’s dignity and reputation.153

The walī’s role in marriage according to al-Khamlīshī is an ancient custom which predated Islam and is therefore difficult to eliminate. However, there is no clear evidence in the Qur’ān or Sunna for the qualifications of a walī. Al-Khamlīshī asserts that the walī is a mere custom and it is up to Moroccan society to require or eliminate it.154 Fortunately, al-Khamlīshī says, the 2004

Mudawwana eliminated the requirement of the walī.155

Al-Khamlīshī’s influence reached not only his students, but also various women’s organizations. This was most obvious in the 2004 reformed Mudawwana where, for the first time since the publication of the first Mudawwana in 1957, women were granted more rights. While feminist organizations previously employed secular language to respond to Islamist organizations, feminists later adopted a religious language and borrowed from the writings and the methodology of al-Khamlīshī to justify their positions regarding the rights of women in the

Moroccan Mudawwana. To respond to Islamists and to reach wider audience, feminist organizations started writing in Arabic in addition to French. To understand the influence al-

Khamlīshī’s writings had on such organizations one needs to look no further than the publications of the organizations themselves. In their various writings, brochures, and speaking engagements, representatives of these organizations use aḥādīth, Qur’anic evidence and the opinions of jurists to justify their positions. To reach out to Moroccan society, feminist organizations started placing more emphasis on religious arguments from within the Islamic traditions in addition to legal, sociological, and human rights arguments. For example, when

153 Ibid. 154 Ibid. 155 Article 13 of the Mudawwana. 277 addressing the definition of marriage, the necessity of a walī, polygyny, divorce, and other issues, they first provide fiqh arguments to support their position, and then enumerate sociological, human rights, and local law arguments as further evidence.156 The similarities between the methodology in some of the NGOs’ writings and those of al-Khamlīshī’s at times are striking.157 Like al-Khamlīshī, NGOs called for women to participate in the process of ijtihād in a committee where men and women work collectively to enhance the role of women in the

Moroccan Mudawwana.158 Al-Khamlīshī’s work also influenced religious intellectuals in

Morocco.

There is no doubt that al-Khamlīshī’s legal work has played an instrumental role in reforming Islamic law in general and Islamic family law and the Moroccan Mudawwana in particular. In an age where Islamic tradition is considered part of the Divine law, al-Khamlīshī succeeded in challenging one of the most strenuous methodologies in Islamic law: that of past jurists’ consensus. Influenced by the work of past scholars like ‘Abduh and Riḍā, al-Khamlīshī achieved enormous success in reforming the method of consensus and introducing women as players in the legal system. This was unprecedented in a traditionalist Muslim society which always looked to preserve their Islamic identity by turning to past jurists’ consensus as the primary legal authority. In an age where Islamist organizations and conservative traditionalists considered Western traditions and Western laws a threat to the identity of Moroccan Islamic society, al-Khamlīshī became the authority respected by all parties to guide and preserve

156 Most striking is the publication of Majmū‘at 95 al-Maghārbīya, which represents nearly 100 NGOs in North Africa. Majmū‘at 95 al-Maghārbīya titles their evidence, fiqh evidence (ḥujaj fiqhī a). See Majmū‘at 95 al- Maghārbīya, 49-52, 61-63, 71-73, 85-86, etc…. 157 This is also clear in another publication, the 95 NGO organizations published in English. See Collectif 95 Maghreb égalité, Guide to Equality in the Family in the Maghreb. 158 Interview with Lamrābeṭ, summer of 2013. 278

Moroccan identity while at the same time advancing Muslim women’s rights in a traditionalist

Islamic Morocco.

Part IV

Debates over the Role of Women in the 2004 Mudawwana

The following pages will illustrate the opinions of several Moroccan individuals regarding the role of women in the Moroccan Mudawwana, as well as their opinions regarding the position of the walī, the legal age of marriage, and the authority of the judge. While some of the individuals have been mentioned in the previous chapter, others have yet to be introduced.

The backgrounds of those experts will be discussed briefly below. ‘Abd Allāh b. al-Ṭāhir, a

Moroccan intellectual and jurist, was among the first individuals to write about the new

Mudawwana. He was also the author of numerous books on Islam and Islamic law, the most noteworthy of which is the Mālikī madhhab.159

‘Abd al-Hādī Bouṭālib (4998-2009)160 is a Moroccan intellectual and a political figure of high status who also wrote on the reformed Mudawwana. Bouṭālib was a graduate of Qarawiyyīn

University and the personal teacher of King Ḥasan II.161 He held several governmental positions during the reign of King Ḥassan II, was the Moroccan ambassador for several countries including the United States, and held several ministerial positions, including those as ministers of information, youth, sports, justice, education, and foreign affairs.162 In 1993 King Ḥassan II appointed Bouṭālib as head of the committee to reform the Mudawwana of 1957. He was the

159 For more on Ibn al-Ṭāhir, see ‘Abd Allāh al-Ṭāhir, Mudawwanat al-u ra fī iṭār al-madhhab al- ālikī wa- adillatih (Al-Dār al-Bayḍā’: Maṭba‘at al-Najāḥ, 2005). 160 See al-Jazeera interview with Àbd al-Hādī Bouṭālib, Aḥmad Mansūr, “Shāhid ‘Alā al-‘A r, ‘Abd al-Hādī Bouṭālib,” al-Jazeera, July 14, 2008, accessed October 25, 2013, http://www.youtube.com/watch?v=- TwbJBWTDro. See also the Moroccan electronic newspaper Hespress, “Al-Ustā ‘Abd al-Hādī Bouṭālib fī Ẓimat Allāh,” December 17 2009, accessed October 25, 2013, http://hespress.com/politique/17381.html. 161 Ibid. 162 Ibid. 279 author of more than sixty books in both Arabic and French.163 ‘Abd al-Qādir Qarmūsh, professor at the College of Law in city of Fez, is another intellectual who wrote on the Mudawwana164 Al-

Ṭāhir Karakī, professor of Law at the University of Sidī Muḥammad b. ‘Abd Allah in Fez, is another intellectual who stated his opinion publically regarding the Mudawwana. The law professor, Muḥammad al-Mahdī from city of Tāzah, wrote on the Moroccan family law, the

Mudawwana.165 One of the most controversial individuals to speak about marriage in Morocco, though, is Muḥammad ben ‘Abd al-Raḥmān al-Mighrāwī. A religious muftī and a jurist, Al-

Mighrāwī166 graduated from the University of Qarawiyyīn in Fez.167 He heads a large organization called Dār al-Qur’ān which acts as an umbrella for many other Islamist organizations. His organization is responsible for numerous religious schools (madāri sing. madrasa) where the Qur’ān and Islam are taught.168 He is the author of numerous books on various Islamic topics. He also studied under the ultra-conservative Saudi Salafi jurist Ibn Bāz.169

Al-Mighrāwī can be described as a radical individual belonging to the Salafi religious organization in Morocco.170

163 See al-Jazeera interview with ‘Àbd al-Hādī Bouṭālib Aḥmad Mansūr, “Shāhid ‘Ala al-‘A r, ‘Abd al-Hādī Bouṭālib,” al-Jazeera, July 14, 2008, accessed October 25, 2013, http://www.youtube.com/watch?v=- TwbJBWTDro; “Al-Ustā ‘Abd al-Hādī Bouṭālib fī Ẓimat Allāh,” December 17 2009, Hespress, accessed October 25, 2013, http://hespress.com/politique/17381.html. 164 ‘Abd al-Qādir Qarmūsh, Al-Dawr al-qa ā’ī al-jadīd fī qā ū al-usra al-maghribī (Al-Rabāṭ: Dār Nashr al- Ma‘rifa, 2013), 19. 165 Muḥammad al-Mahdī, al afat izām al-u ra uqarabāt fī ū’ al-fiqh wa-alqā ū wa-al-‘amal al-qa ā’ī (Al- Rabāṭ: Dār al-Salām lil Ṭibā‘a wa-alNashr, 2011). 166 See “Dār al-Qur’ān al-Karīm,” accessed on October 25, 2013, http://www.maghrawi.net/?taraf=Sheikh. See also al-Jazeera “Al-Shaykh al-Mighrāwī,” accessed on October 25, 2013, http://www.youtube.com/watch?v=mnZ6n_o7LLE; http://www.maghrawi.net/?taraf=Sheikh. 167 Ibid. 168 “Al-Shaykh al-Mighrāwī,” al-Jazeera, accessed on October 25, 2013, http://www.youtube.com/watch?v=mnZ6n_o7LLE; http://www.maghrawi.net/?taraf=Sheikh. 169 Ibid. 170 This can be seen throughout his writings and the many books he authored to assert the Salafi ideas and teachings. Al-Jazeera “Al-Shaykh al-Mighrāwī,” accessed on October 25, 2013, http://www.youtube.com/watch?v=mnZ6n_o7LLE; http://www.maghrawi.net/?taraf=Sheikh. See also ‘Abd al-Ḥakīm Abū al-Lūz, “al-Sulūk al-Intikhābī,” accessed on October 25, 2013, http://www.alittihad.press.ma/def.asp?codelangue=29&id_info=121759&date_ar=2011-01-01. 280

As mentioned previously, one individual who has been heavily involved in reforming the

Moroccan Mudawwana is Aḥmad al-Khamlīshī. He is of the opinion that the wilā a over an adult bikr or minor child had been eliminated as of the publication of the 2004 Mudawwana.171

While this may appear to contradict some of the udawwa a’ articles (articles 13 and 61), al-

Khamlīshī is adamant that the publication of the 2004 Mudawwana announced the death of the wilā a in marriage.172 According to al-Khamlīshī, reaching this decision was one of the most difficult the committee had to contend with due to the old Moroccan Islamic custom of wilā a and its presence in the 1957 and 1993 Mudawwanas.173 In addition, the main madhhab in

Morocco, the Mālikī madhhab, calls for the requirement of the wilā a in marriage.174 Al-

Khamlīshī maintains that to those who support the requirement of the walī, the wilā a is based on legal Islamic evidence and therefore does not undermine the independence of an adult woman.175 Proponents of the wilā a claim that if the wilā a is already required in all of the Arab states, Morocco could not be the exception by not requiring it when jurists have reached consensus (ijmā‘) on the fact that the walī is the only one who may conduct a marriage contract.176 However, al-Khamlīshī maintains that due to the efforts of some of the committee members, himself included, the minority opinions of the committee prevailed and the wilā a was eliminated.177 Al-Khamlīshī illustrates this elimination by stating that since a walī is not required any more and since an adult woman has the right to delegate the wilā a to any of her relatives, the walī’s authority is a mere formality.178 A woman may exercise the wilā a if she so wishes and she may also conduct her marriage contract without the walī, according to the new

171 Khamlīshī, 2012, 103. 172 Al-Khamlīshī, 2012, 103. 173 Ibid. 174 Ibid. 175 Ibid. 176 Ibid. Al-Khamlīshī mentions that this topic took two full days to be solved, April 22-23, 2012. 177 Ibid,.105. 178 Al-Khamlīshī, 2012, 105. 281

Mudawwana.179 In addition, the offer and acceptance (ījāb and qubūl) is required only from the spouses along with their signatures. The new marriage contract no longer requires the consent of the walī according to paragraph 4 of Article 13.180

As for the issue of guardianship over minor children, al-Khamlīshī maintains that since the legal representative of a minor could be the child’s father, mother, caretaker (regardless of gender), or an appointed representative by the court, the father’s wilā a, too, becomes a mere formality.181 Al-Khamlīshī considers the approval and the signature of the father on his minor daughter’s contract as not due to his position as her walī,182 but because the law has assigned him the role of legal representative.183 This role, according to al-Khamlīshī, is subject to the court’s authority just like the court’s notary witnesses and the mother of the child.184 Further, the judge may permit the marriage even without the approval or the signature of the father.185 By permitting the mother to be a legal guardian, the Mudawwana eliminated the requirement that the walī be male only, as stated in Article 11 of the former Mudawwana.186 This was a clear challenge to the majority of jurists who maintained that a marriage contract may not be conducted by a woman. Therefore, the new Mudawwana, according to al-Khamlīshī, does not require the consent or the presence of a walī to contract his minor child since the mother, an

179 Ibid. 180 Al-Khamlīshī states that Article 5 of the 1993 Mudawwana did not ask for the wife to sign the actual contract but a summary of it. However, it was the walī who signed the actual contract. In the 2004 Mudawwana, Article 67 insures that the wife signs the actual contract in front of two court witnesses who are notaries. See al-Khamlīshī, 2012, 43. 181 Ibid,. 106. According to Article 230 of the 2004 Mudawwana the legal representative could be one of the followings: 1) The walī, the father, the mother, and the judge, 2) The testator, designated by the father or mother. 3) A court-appointed guardian. Manshūrāt Dār al-Jīl, 85, 86; See also Global Rights: Partners for Justice, at www.globalrights.org. 182 According to al-Khamlīshī, there is no single opinion in fiqh which limits the father’s wilā a over his minor child to a mere signature. See al-Khamlīshī, 2012, 107. 183 Ibid., 106. 184 Ibid. 185 Ibid,. 106. This is according to Article 20-21 of the Mudawwana. 186 Ibid. 282 appointed legal representative, or the judge himself may conclude the contract.187 Al-Khamlīshī maintains that this decision was reached by the minority of the committee and was recommended nevertheless to the king, where the Parliament then agreed to it against the wishes of the committee majority.188 In addition, al-Khamlīshī states that the committee members agreed to eliminate the wilā a so as to avoid world criticism of Morocco and the Islamic world, which has been accused of suppressing women’s rights throughout history.189 It is noteworthy as well that, for the first time, the Mudawwana stipulated legal consequences to anyone who participates in the marriage of a minor (boy or a girl) according to Article 366 of the penal Code of the new

Mudawwana.190 This was the direct result of al-Khamlīshī’s persistence to provide harsh consequences for anyone who violates certain articles of the Mudawwana. 191

Regarding the marriage of minors, al-Khamlīshī says that, while the new Mudawwana set the same age for marriage and the age of rushd, it permitted the marriage of minors and did not set a minimum age for marriage.192 The reason according to al-Khamlīshī is the strong disagreement among committee members. Some of the members suggested the minimum age for marrying a minor to be sixteen while others objected to that, stating that some of the youth who reach the age of bulūgh earlier have the right to marry.193 Because of this objection, it was left to the family judge to make the final decision regarding the marriage of minors. Therefore, the committee included Articles 19-21 to provide the judge with this authority and with the assistance he may need to execute said authority. Members also claimed that marrying minors

187 Ibid. 188 Al-Khamlīshī states that during the sessions, the minority decisions would be written on the margins of the majority decisions. This was the case in the wilā a. Al-Khamlīshī, 2012, 1: 106. 189 Ibid. 190 See the Ministry of Justice and Liberties of Morocco, “‘Adāla: al-Bawāba al-Qānūnīya wa-al-Qaḍā’īya,” accessed July 14, 2013, http://adala.justice.gov.ma. 191 See Al-Khamlīshī, 1994, 130-31, no. 146. 192 Al-Khamlīshī, 2012, 1: 182. 193 Ibid. 283 below the age of fifteen rarely occurs. 194 Al-Khamlīshī opposed this stance since urban

Moroccan customs allow minors to marry even if they were below the age of fifteen. In his 2012 work, Min Mudawwanat al-aḥwāl al- hakhṣī a ilā udawwa at al-usra, al-Khamlīshī provides some statistics on the marriage of minors in 2009.195 According to these statistics, there were a total of 47,089 applications to marry minors with 66.38% applicants from the Bedouin regions.196 The total applications to marry minor girls constituted 46,915 or 99.63% of the total.197 Most importantly, statistics show that while the majority of minor girls’ applications were for girls between the ages of 16-17, a total of 129 girls were fourteen years of age or younger.198 These statistics question the wisdom of the family judges in question, as well as that of the Mudawwana for placing an appropriate age for marriage, but at the same time allowing so many minors to marry so young, says al-Khamlīshī. While not all of the applications were accepted, 42,741 applicants were accepted or 90.77%.199 This shows that family judges were willing to accept these petitions with little scrutiny. The issue of minor marriages remained an obstacle even after the publication of the 2004 Mudawwana, and debates over the family judge’s authority and the marriage of minors continued between parties who wanted to limit the judge’s authority in permitting minors to marry, and those calling for a reduction in the appropriate age of marriage below the current legal age of eighteen.

‘Abd al-Hādī Bouṭālib is of the opinion that the 2004 Mudawwana was the result of ijtihād from all four madhāhib after careful deduction of some laws according to the purpose of

194Al-Khamlīshī, 2012, 182. See Article 20-21 of the Mudawwana. The two Articles provided the judge with greater authority to marry minors who were below the age of marriage. 195 Al-Khamlīshī, 2012, 182-83. 196 Ibid., 183. 197 Ibid.,183. 198 Ibid. 199 Ibid. 284 the Sharī‘a. 200 While praising Moroccan jurists for their efforts to come up with Islamic rulings for the Moroccan people, Bouṭālib censures the committee for not eliminating the first name of the Mudawwana (Mudawwanat al-aḥwāl al- hakhṣī a) sooner since this name was a literal translation to the Western phrase, “Statut r l”. This name was foreign to Islam and

Muslims, he says, and is only concerned with individuals.201 Like al-Khamlīshī, Bouṭālib advocates the use of ijtihād in Islamic family transactions. However, Bouṭālib is of the opinion that a mujtahid must be qualified in various Islamic fields and an expert in Islamic fiqh to be able to deduce any new rulings.202 Surprisingly, Bouṭālib considers women and men to be equal in terms of responsibility and duties. In fact, Bouṭālib is of the opinion that the Qur’an has always addressed men and women equally. Therefore, he does not see any objection to a woman contracting her own marriage without the authority or consent of a walī.203 Bouṭālib argues that once a woman reaches the age of majority she may contract her marriage without a walī. To buttress his argument, Bouṭālib cites the Qur’anic verse 9: 71, which states, “The Believers, men and women, are protectors one of another.”204

Professor Raḥma Bourqīya holds a PhD from Manchester University. She was appointed the dean of the Schools of Literature and Social Sciences at Ḥasan II University from 1998. She was also appointed the president of the university from 2002 until 2010.205 Bourqīya was also selected as a member of the committee in 2004.206 She also echoes the sentiment of Bouṭālib and

200 Al-Jam‘īya al-Waṭanīya al-Ḥiḍn, Min mudawwanat al-aḥwāl al- hakhṣī ah ilā mudawwa at al-u rah ‘a jadīd? (Al-Dār al-Bayḍā’: Maṭbaàt al-Najāḥ al-Jadīda, 2005), 31. 201 Al-Ḥiḍn, 27. 202 Bouṭālib asserts that a mujtahid must be well aware of Islamic legal theory (uṣūl al-fiqh) aside from being aware of the opinions of his predecessors and must be open to new ideas and able to deduce new rulings based on Islamic law. Al-Ḥiḍn, 32-33. 203 Ibid., 35. 204 Ibid,. 35. 205 For more on Raḥma Bourqīya see http://unu.edu/about/unu-council/rahma-bourqia, accessed March 17, 2014. 206 Ibid. 285 considers the Mudawwana a reaction to rapid changes within Moroccan society. To her, this proves that the law is responding to the needs of society which, according to a 1994 statistic, has seen the population of Moroccan cities outnumber that of the villages for the first time in history.207

‘Abd al-Qādir Qarmūsh is of the opinion that the new Mudawwana provided the family judge with broader authority than before.208According to him, the family judge is now trusted with protecting and maintaining the unity of the Moroccan family and not its individual members, even if this meant that the judge needed to intervene in the private affairs of the family.209 The judge now is entrusted with protecting the weak members of the family, particularly children.210 Therefore, the authority of the judge includes marrying minors below the legal age of marriage.211 In addition, the judge is now also entrusted with mending any legal disagreements between spouses before making his final decision on whether or not to dissolve a marriage.212 According to Qarmūsh, the judge is there to uphold the law and insure the interest of the spouses. The judge must also ensure that the couples are able to carry on the financial and mental responsibilities in addition to the duties of marriage.213 The new Mudawwana made an exception by leaving the judge in charge of deciding the age of marriage according to what he sees fit. Like al-Khamlīshī, Qarmūsh is critical of the Mudawwana for not placing a minimum on the age of marriage for minors. Qarmūsh also criticizes the majority of the Mālikī jurists who approved of the marriage of minors but never set a minimum age for marriage.214 Qarmūsh

207 Al-Ḥiḍn, 61. 208 Qarmūsh, 19. This is also the opinion of other jurists like ‘Abd al-Qādir, Shahbūn. See ‘Abd al-Karīm Shahbūn, al-Shāfī fī harḥ Mudawwanat al-usrah ([Morocco]: Maktabat al-Rāshid, 2006). 209 Ibid., 23. 210 Ibid., 19-23. 211 Ibid., 144. 212 Ibid. 213 Ibid., 143-44. 214 Ibid., 144. 286 asserts that the Mudawwana should have placed a minimum age for the marriage of minors so that the judge may not marry off anyone below the age of eighteen.215

As for the wilā a, Qarmūsh sides with al-Khamlīshī in saying that, according to the new

Mudawwana, the wilā a is no longer an integral part of marriage. Qarmūsh praises the

Mudawwana for eliminating the wilā a and for granting adult women the right to appoint a walī or contract their marriages without his consent, according to Articles 24 and 25.216 Qarmūsh also commends the Mudawwana for allowing spouses, even minors, to choose their partners since they must sign on the actual marriage contract.217 The presence of the walī at the time of the contract, though, does not allow him to coerce the minor in marriage, says Qarmūsh. According to the new Mudawwana, the walī may not coerce his ward into marriage, nor can he prevent the ward from marrying.218

Karakī is of the opinion that the new Mudawwana accomplished a great deal of work when it allowed the family court to oversee the process of marriage and divorce. In so doing, family courts are able to protect families from the abuses, assaults, and transgressions of husbands.219 Moreover, Karakī praises the Mudawwana for granting adult women the right to contract their own marriages without a walī if they so desire.220 In regard to the age of rushd,

Karakī cites the opinion of the contemporary Iraqi jurist ‘Abdal-Karīm Zidān (b. 1917) that the

215 Ibid., 144. Qarmūsh also mentions that the judge is permitted to marry a spouse who is mentally ill according to Article 21. The author provided this article to the judge without stipulating the degree of the illness, leaving the decision to the judge. See Qarmūsh, 145. 216 Ibid., 145. 217 Ibid. 218 Ibid., 146-47. Qarmūsh also admires the Mudawwana for providing the woman a larger role in divorce since the Mudawwana stipulates that spouses must petition the court for divorce, eliminating the man’s unilateral right for divorce. Qarmūsh goes on to say that according to the Mudawwana, women possess more rights than men since she has the same rights and duties as that of the man in marriage and divorce. However, the man is the one who pays the woman maintenance for marriage and not the woman. 219 Karakī however, is skeptical that the family court system in Morocco is able to deter some of the husbands who are usually the bread winners in their families. Al-Ṭāhir Karakī, al-‘ dāla al-u arī ah dirā a fī aw’ mudawwa at al-u ra itāb al-zawāj (Fez: Maṭba‘at Anfū, 2009), 40. 220 Karakī, 68-69. 287 age of rushd is the period when the individuals, male or female, are able to manage and invest their assets, though there is no specific quantifiable age thereof. Further, the age of rushd may occur at the time of bulūgh, after, or in a few instances, it might occur prior to bulūgh. In this case rushd is not considered.221

Karakī maintains that the new Mudawwana treated women and men equally when it stipulated the age of marriage as the same for both, and also since it gave women the right to contract their marriages without the requirement of a walī. Karakī is of the opinion that Muslim jurists also treated women and men equally when it came to the age of rushd and the authority to manage their financial affairs. The Mudawwana however, provided the adult woman the right to contract her marriage or appoint a walī of her choosing according to Article 25.222 Al-Karakī considers the phrase “delegate a walī” to mean that the adult woman may inform her father, for example, or ask him to escort her to court so as to attend and sign the marriage contract.223 The father or walī has no right to prevent her from marriage, although most Mālikī jurists granted the father the right to prevent the marriage.224 While some may think that the Mudawwana granted adult women rights equivalent to those of men, Karakī thinks otherwise.225 To him, the

Mudawwana left the door open for the walī to exercise his authority if he was delegated to the wilā a according to Article 25.226 Karakī maintains that while linguistically, the meaning of the walī is a protector, a helper, and an ally, the conventional meaning according to jurists, however, states that a walī has legitimate authority over the ward’s assets and affairs, including the right of

221 Ibid., 66. For the opinion of Abd al-Karīm Zīdān, al-Madkhal li-dirā at al- harī‘a al-I lāmī a ([Al-Alexandria]: Dār ‘Umar b. Al-Khaṭāb: 1969), 316. 222 Ibid., 68. 223 Ibid. 224 Ibid. 225 Ibid., 72. 226 Ibid. 288 coercion.227 Karakī argues that the new Mudawwana chose a middle ground between granting adult women total freedom in their contracts and the hopes of Mālikī jurists to restrict the freedom of women.228 The judge according to Karakī has the ultimate authority in the woman’s marriage contract. More significantly, Karakī questions whether the Mudawwana even mentions that the mother may be considered a walī to her adult female or minor children.229 To him, the only mention of another walī is to the father and relatives without mentioning the mother.230

Karakī states that according to Article 400, issues that are not mentioned in the

Mudawwana must refer to the Mālikī madhhab or ijtihād. According to the majority of the

Mālikī madhhab, a woman may not act as a walī for her minor children or her adult daughter since the majority of the jurists agreed that the walī must be a man.231 As for the marriage of minors, Karakī objects to the broad authority of the family judge and the vagueness of Articles

20 and 21, where the judge is granted broad authority to decide whether a minor is fit to marry at such a young age.232

‘Abd Allāh b. al-Ṭāhir opposes many of the reforms demanded by women’s organizations in Morocco. In fact, he opposes participation by women in the commissioned committee as well as the position held by al-Khamlīshī.233 In fact, Ibn al-Ṭāhir considers al-

Khamlīshī’s opinions to be unorthodox deviation ( hādhdh).234 The disagreement within the committee of the Mudawwana according to Ibn al-Ṭāhir was between two groups, the ‘ulamā’ and the women’s group headed by al-Khamlīshī. The ‘ulamā’, according to Ibn al-Ṭāhir, call for

227 Ibid., 69. 228 Ibid., 72. 229 Ibid., 72-73. 230 Ibid. 231 Ibid. 232 Ibid., 79. 233 ‘Abd Allāh b. al-Ṭāhir, Mudawwanat al-u ra fī iṭār al-madhhab al- ālikī wa-adillatih (Al-Dār al-Bayḍā’: Maṭba‘at al-Najāḥ, 2005), 14. 234 Ibn al-Ṭāhir, 14. 289 a Mudawwana based on Islamic law in general, and on the Mālikī madhhab in particular, since this is what Moroccans have shown they want. Al-Khamlīshī and the three women members of the committee use secular law and their own opinions to reform the Mudawwana, according to

Ibn al-Ṭāhir.235

Ibn al-Ṭāhir was happy that the name of the Mudawwana changed from al- ḥwāl al-

hakhṣī a to Mudawwanat al-Usra, since the former name was a Western name and focused on men and women separately rather than as a family. The name, according to Ibn al-Ṭāhir, was also opposed by the ‘ulamā’.236 In addition, he considers the government’s plan, the NPA, to be a battle between two groups: Moroccan feminists who want the NPA to be an issue concerning single women on the one hand, and Islamist groups who consider it an issue that concerns the entire family on the other.237 To him, the Islamist groups won the battle since the 2004

Mudawwana addressed issues concerning the Islamic family and not single women’s issues alone.238

Ibn al-Ṭāhir addresses the definition of marriage emphasizing that the new definition is from within Islamic Sharī‘a since the Mudawwana considered marriage a covenant (mīthāq), the term for which is borrowed from the Qur’anic verse 4: 21.239 Therefore, he considers marriage a sacred contract not parallel to any other transaction or commercial contract.240 Ibn al-Ṭāhir maintains that since this is a special contract, the parties involved must possess certain qualifications to be able to enter into such a sacred and important agreement.241 To him, being of

235 Ibid., 14. 236 Ibid., 19. 237 Ibid. 238 Ibid, 18-20. Ibn al-Ṭāhir’s opinion does not reflect the opinions of other Islamists, who want to keep the role of the walī, lower the age of marriage and also provide men with more rights in marriage and in polygamy. 239 Ibid., 26. The Qur’anic verse states, “And how could ye take it when ye have gone in unto each other, and they have Taken from you a solemn covenant?” 240 Ibid. 241 Ibid., 82. 290 sound mind and reaching the age of bulūgh are two important signs of qualifications for marriage. To Ibn al-Ṭāhir, anyone that is of sound mind who has experienced any of the signs of bulūgh is to be considered of legal marriage age.242 However, Ibn al-Ṭāhir considers fifteen to be the appropriate age of marriage rather than eighteen.243 He supports his position by citing the

Qur’anic verses 24: 58-59 and a ḥadīth which states that three individuals are not to be punished for neglecting their religious duties and obligations: the one who is sleeping until [he/she] wakes up, the minor until [he/she] reaches bulūgh and the insane until he/she becomes sane.”244

According to Ibn al-Ṭāhir, the Mudawwana adopted the opinion of some of the Mālikī jurists who considered the age of marriage for men and women to be eighteen in the absence of signs of bulūgh.245 While he considers the first sign of bulūgh to be an indicator of the appropriate age of marriage, similar to the Mālikī jurists he is pleased that the Mudawwana chose the age of eighteen since waiting until eighteen to marry prevents health risks for women and protects minors who are not able to take on the responsibilities of a marriage.246 Ibn al-Ṭāhir recognizes that the Mudawwana allows the judge to marry minors that are below the age of marriage. To Ibn al-Ṭāhir, this permission is parallel to the jurists’ opinion that the appearance of signs of bulūgh

242. Ibid., 83, 86. 243 Ibid., 86. He supports his position by the ḥadīth attributed to Ibn ‘Umar who narrated that “The Prophet saw me in the Battle of Uḥud when I was fourteen years of age and did not permit me to join the battle. And when I was fifteen, he saw me in the Battle of the Ditch and approved me to join the battle.” This ḥadīth could be found in al- Bukhārī, 5: 377, no. 2399; Muslim, 6: 29-30. 244 Ibn al-Ṭāhir, 83. The ḥadīth states that “The pen is lifted from three individuals : the one who is sleeping until [he/she]wakes up, the minor until [he/she] reaches bulūgh and the insane until becomes sane.” The Qur’anic verses state, “O ye who believe! let those whom your right hands possess, and the (children) among you who have not come of age ask your permission (before they come to your presence), on three occasions: before morning prayer; the while ye doff your clothes for the noonday heat; and after the late-night prayer: these are your three times of undress: outside those times it is not wrong for you or for them to move about attending to each other: Thus does Allah make clear the Signs to you: for Allah is full of knowledge and wisdom. But when the children among you come of age, let them (also) ask for permission, as do those senior to them (in age): Thus does Allah make clear His Signs to you: for Allah is full of knowledge and wisdom. The ḥadīth could be found in al-Nasā’ī, Sunana al-Na ā’ī, 3: 494, no. 3432; Ibn Mājah, 322. 245 Ibn al-Ṭāhir, 87. 246 Ibid. 291 may indicate reaching the legal age of marriage since it almost always occurs before the legally designated age of marriage.247

However, regarding the articles of the Mudawwana which pertain to the age of marriage

(Articles 19, 20 and 21), Ibn al-Ṭāhir is of the opinion that, while Article 20 permits the judge to marry a minor, this is only applicable in very few cases and serves as an exception to the law since the judge must employ the expertise of medical and social experts.248 He does not see anything wrong if a judge marries off a minor even below the age of fourteen as long as the minor has reached the age of bulūgh.249 To him, poor families in which the father may not be able to feed or support his daughters should have the right to marry the daughters at a younger age since it may rescue the girl from falling into vice and immorality.250 This type of marriage, according to Ibn al-Ṭāhir, prevents the girl from falling into immorality, mixing with boys, and committing zi ā, particularly since sexual temptations are present everywhere—in the streets, schools, media, and throughout the internet.251 Ibn al-Ṭāhir commends the Mudawwana for the exception it made in Articles 19 and 20, since marrying at the age of eighteen, while it might have its benefits, also has a negative impact on the youth of Morocco.252 By delaying marriage until the age of eighteen, youth might find themselves committing zi ā, which may expose the youth to sexually transmitted diseases and psychological disorders.253 Ibn al-Ṭāhir is of the opinion that today even men with four wives are afraid of falling into zi ā due to life’s temptations.254 Ibn al-Ṭāhir claims that the increase in the number of illegitimate children is due

247 Ibid. 248Ibid. 249Ibn al-Ṭāhir, 87. 250 Ibid. 251 Ibid., 87-88. 252 Ibid., 88. 253 This message of al-Ṭāhir is similar to those of conservative Islamists’ who opposed raising the legal age of marriage in 1993. See Ibn al-Ṭāhir, 88. 254 Ibid., 88. 292 to increased mixing of men and women, and to the temptation of sexual desires.255 To avoid these issues, Ibn al-Ṭāhir recommends early marriage, praises family judges, and calls on every judge concerned for his daughter, religion, society, and the nation of Morocco, to consider the risks facing minors, and thus to approve all cases of minor marriages if the minor possesses the capacity to marry.256

Ibn al-Ṭāhir sees that the legality of the marriage of minors is grounded within Islamic fiqh. According to him, it was the consensus (ijmā‘) of almost all jurists except for Ibn Shubruma that the marriage of minors be permitted as per Qur’anic verse 65: 4, which states, “Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three month, and for those who have no courses (it is the same).”257 Like many other jurists, Ibn al-Ṭāhir considers this verse to permit the marriage of minors. He also brings forth the marriage of the Prophet Muḥammad to ‘Ᾱ’isha, where he cites al-Bukhārī and Ibn Ḥazm, who reported that the Prophet contracted the marriage of ‘Ᾱ’isha when she was six and consummated the marriage when she was at the age of nine.258

As for the presence of a walī, Ibn al-Ṭāhir claims that evidence from the Qur’ān, prophetic aḥādīth, and opinions of the majority of jurists testify to its requirement.259 The

Qur’anic directives which attached the term marriage ( ikāḥ) to women, he says, were interpreted by many jurists to have provided women with the right to contract their marriage,

255 Ibid., 88. 256 Ibid. 257 Ibid., 89. For the opinion of Ibn Shubruma see Ibn Hazm, al-Muḥallā, 11: 38. 258 Ibid., 89. The ḥadīth is found in al-Bukhārī, “Bāb Inkāḥ al-Rajul waladahū al- īghār,” in Ibn Ḥajar al-‘Asqalānī, 9: 238, no. 5133; Muslim, “Bāb Tazwīj al-Ab al-Bikr al- aghīra,” 4: 141-142. See also Ibn Ḥazm where he states that the Prophet contracted ‘ ’isha at the age of six. Ibn Ḥazm reports that Ibn Shubruma claimed that the marriage of the Prophet to ‘Ᾱ’isha is specific to the Prophet, similar to his marriage to more than four wives and his marrying without a dower. However, Ibn al-Ṭāhir instead takes the opinion of Ibn Ḥazm and states that this is only the claim of Ibn Shubruma alone. Ibn Ḥazm, al-Muḥallā, 11: 38. 259 Ibn al-Ṭāhir acknowledges that while the Ḥanafī madhhab does not require a walī for marriage it still recommends one to preserve the dignity of women and to prevent her from bringing shame and dishonor to her and her family. See al-Ṭāhir, 100-103. 293 such as Qur’ān 2:230, 2: 232, 2: 234.260 Ibn al-Ṭāhir maintains that in these verses attaching the term ikāḥ to women does not mean that they are able to conduct a marriage without a walī.261

He also disagrees with the opinion of the Mālikī jurist Ibn al-Qāsim, who said that the wilā a is not obligatory but recommended for the completion of a marriage, since Mālik had stated that a poor, immodest, minor girl may marry without a walī.262 According to Ibn al-Ṭāhir, all women require a walī, including previously married (thayyib) women.263 He is of the opinion that while

Article 20 of the Mudawwana follows the Mālikī opinion, Article 19 does not. Ibn al-Ṭāhir argues that the Mudawwana should have followed the Mālikī madhhab and required a walī for all women. According to Ibn al-Ṭāhir, a walī should be required for many reasons. Socially, the wilā a is part of the tradition and custom of Morocco. Preserving it, according to Ibn al-Ṭāhir, is preserving the Moroccan family and therefore the entirety of Moroccan society. Second,

Moroccan marriage is not only a concern of women, but it is the concern of the entire family.264

Third, Moroccan society is a society which follows one madhhab—the Mālikī—whereby

Moroccans and the king himself grew up with the same Mālikī madhhab, and have lived under its rulings and opinions for centuries.265 Finally, Ibn al-Ṭāhir argues that, from a moral point of view, marriage without a walī is morally suspicious and offensive since it brings a woman and her family shame and dishonor. He goes on to say that this type of marriage is dangerous and abhorred since it is comparable to being an illegitimate child (laqīṭ).266

Ibn al-Ṭāhir questions the wisdom of abandoning the rich and wealthy tradition of having a walī when it has helped to unite Moroccans for centuries. To him, logic stipulates the

260 Ibid. 261 Ibid., 103. 262Ibn al-Ṭāhir, 103-105. For the opinion of Mālik see Ibn Rushd, 1970-1974, 2: 09. 263 Ibid., 105. Ibn al-Ṭāhir states that there is no shame of poverty and immodesty is only in disobedience of God. The opinion of Ibn al-Qāsim could be found in Ibn Rushd, 1970-1974, 2: 09. 264 Ibid., 106. 265 Ibid., 107. 266 Ibid. 294 requirement of the walī since marriage with a walī is valid by evidence and consensus of all jurists, while a marriage without a walī, on the other hand, is only valid among a minority of jurists. Ibn al-Ṭāhir wonders what a woman would lose if she were forced to add her father’s opinion as well as his consensus in marriage to hers.267 However, and after bringing the above evidence to support the requirement of the walī, Ibn al-Ṭāhir maintains that although the

Mudawwana took the minority opinion in marriage, it is still a legal Islamic document since it remained within the Islamic Sharī‘a in that it follows the opinion of Abū Ḥanīfa, and the marriage it supported is a valid marriage.268

Khadīja Mufīd is another Moroccan intellectual who opposes reforming the Mudawwana.

Mufīd considers the Moroccan family a part of Islamic Sharī‘a, starting with the engagement and ending with the dissolution of marriage. Like Ibn al-Ṭāhir, Mufīd considers the family a sacred institution.269 While she admits that the term family (usra) is not mentioned in the Qur’an she provides several verses which allude to the understanding of the family as a sacred relationship built on Islamic foundations.270 To her, the threat to the Moroccan Islamic family is coming from the United Nations and the various conferences which aim at eliminating the religious and national legitimacy of the Moroccan family. 271 Most importantly, al-Mufīd considers the debates over the new Mudawwana to have violated the relationship between worldly thoughts and the sacred (waḥ ).272 On the other hand, she is of the opinion that the Mudawwana was a provocative move to the various schools of thought which led to the opening of the gate of ijtihād and the

267 Ibid. 268 Ibid., 108. 269 She cites Qur’anic verse 30: 21, which states, “And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts),: and 2: 187 which states, “They are your garments and ye are their garments,: and “ 25: 74 which states, “ See the opinion of al-Mufīd at http://center-family.com/index.php/2013-01-14-11-08-02/101-2013-05-13-14-26-55, accessed October 20, 2013. 270 Ibid. 271Al-Ḥiḍn, 61. 272Ibid., 15. 295 establishment of collective ijtihād.273 However, she criticizes certain issues within the

Mudawwana, particularly the restriction of polygyny and the issue of wilā a.274 To her, while jurists of all the madhāhib, except for Abū Ḥanīfa, have reached consensus ‘ijmā‘) that a woman may not contract her marriage, the Mudawwana instead took the opinion of one jurist,

Abū Ḥanīfa, who ignored all valid evidence and relied solely on his own opinion.275 Instead of relying on the wilā a as a condition for a valid marriage, the Mudawwana considered it a woman’s right to use whenever she wishes.276 This move, according to Mufīd, neglected the wishes and demands of all fathers and the wishes of their daughters to keep the wilā a a part of the principles of marriage.277

Mufīd juxtaposes the wilā a of marriage to that of the authority (wilā a) of the state. She wonders about the authority of the state, which is absent in most cases, particularly in its implementation of justice among its citizens. Mufīd wonders whether the state would protect a woman who married herself without a walī if marital issues were to arise, considering that the authority of the state is almost completely absent in public.278 Mufīd questions the Mudawwana which strips the wilā a from the parents, according to Articles 24 and 25, while at the same time requiring that parents care for their daughter until the age of twenty-five, according to Article

198.279 According to Mufīd, this is negligent on the part of the state which, instead of taking care of its citizens, leaves the care to poor parents and at the same time strips them of their authority.280 The state instead makes the crucial decision for their daughters while limiting the

273 Ibid., 16-17. It is interesting to know that Mufīd calls for the same type of ijtihād al-Khamlīshī advocated for earlier “collective ijtihād.” 274 Ibid., 17. 275 Ibid, 19. 276 Ibid. 277 Ibid. 278 Ibid., 19-20. 279 Ibid., 20. For Article 198 see Silsilat al-Nu ū al-Tashrī‘īya, 27-28 and 77. 280 Al-Ḥiḍn, 20. 296 role of the state to collecting revenues and taxes.281 Mufīd considers the elimination of the role of the walī from the Moroccan Mudawwana a clear act of injustice.282

Mufīd is also concerned about the family court system, which she says is incapable of dealing with the number of family cases that might arise as a result of the Mudawwana‘s reforms. To her, the new Mudawwana opened the gate for the family court to interfere in every little issue within the family, making it difficult for the limited number of family courts to deal with new issues.283 However, Mufīd stresses that the new Mudawwana is just a new experiment in Islamic law which remains under the microscope of ijtihād and public debates to see whether it will survive in light of the issues facing Moroccan society.284

Muḥammad al-Mahdī is of the opinion that Morocco should follow the Mālikī madhhab.

Among the evidence he presents are examples of the speeches of the last Moroccan kings, which all emphasized the necessity of following the Mālikī madhhab.285 Al-Mahdī claims that the wilā a according to jurists provides the walī with the authority to control and manage the affairs of others unchallenged, including coercion in marriage.286 He states that the majority of jurists maintain that a woman has no right to contract her marriage or the marriage of others. Therefore, he says, a male walī is required whether the woman is an adult bikr or thayyib.287 While al-

Mahdī acknowledges and cites numerous examples of jurists’ evidence for and against the necessity of the walī in marriage, he is of the opinion that there is no clear evidence that marriage

281 Al-Ḥiḍn, 20. 282 Ibid., 20. 283 Ibid., 20-23. 284 Ibid., 23. 285 Al-Mahdī brings quotes from the speeches of the three Moroccan kings since the publication of the first Mudawwana in 1957. This includes the speech of the last Moroccan king, Moḥammed VI, in which he also emphasized the use of the Mālikī madhhab as well as ijtihād. Muḥammad al-Mahdī, al afat i ām al-usra: Muqarabāt fī ū’ al-fiqh wa-alqā ū wa-al-‘amal al-qa ā’ī (Al-Rabāṭ: Dār al-Salām lil Ṭibā‘a wa-alNashr, 2011), 11-16. 286 Al-Mahdī, 30-31. 287 Ibid., 32. Al-Mahdī cites the Mālikī jurist Muḥammad b. Al-Juzayy who states that a marriage may not be contracted by a woman and if she does so the marriage is dissolved (maf ūkh), even if she has born children through this marriage. Muḥammad b. Juzayy, al-Qawā ī al-fiqhī ah (Beirut: al-Maktaba al-‘A rīya, 2000), 125. 297 could not be contracted by a woman.288 However, al-Mahdi asserts that the wilā a is necessary to complete the marriage contract.289 He considers the fact that the establishment of wilā a has been approved by past jurists and also was approved by the committee of the past Mudawwana in 1957, and again in 1993.290 To him, the 2004 Mudawwana was the exception. While many

Moroccans may think that the 2004 Mudawwana has canceled the wilā a altogether, al-Mahdī argues the opposite. To him, the new Mudawwana preserved the wilā a according to Articles 24 and 25 where a woman has the choice to appoint or delegate a walī if she so wishes.291 To him, the Mudawwana eliminated only the wilā a of coercion and granted the woman the choice of using it while on the other hand it permitted and preserved the coercion of minors into marriage.292

Like other Moroccan intellectuals, al-Mahdī does not believe that the system of wilā a undermines the value of the woman. On the contrary, al-Mahdī considers the wilā a to be an institution to preserve and protect women from deceptive men who might otherwise take advantage of women.293 The wilā a, he says, saves the woman the hardship and the risk of losing her honor and respect while looking for a good husband.294 Al-Mahdī cites the example of

Khadīja, the first wife of the prophet, who according to al-Mahdī, while being independent and owning her own trading business, asked her cousin to contract her into marriage with the

Prophet. If the wilā a demeans or is insulting to women, Khadīja would not have asked a man to contract her marriage.295

288 Ibid., 37. 289 Ibid., 38. 290 Ibid. 291 Ibid., 40. 292 Ibid. 293 Ibid., 42. 294 Ibid. 295 Ibid. 298

Al-Mahdī joins others in saying that the presence of the wilā a does not mean the threat of coercion and authoritarianism, but rather helps and aids the woman while easing the process of marriage.296 In addition, the presence of the walī among men keeps a woman from mixing with other men and falling into immorality and sin.297 Furthermore, al-Mahdī maintains that the wilā a not only preserves a woman’s dignity, but also that of her family since it is considered shameful for a woman with a family to be married without the permission of her father or a walī to speak on her behalf.298 In fact, the walī helps a woman search for a suitable husband (kufu’).

Citing the twentieth century Egyptian intellectual Abū Zahra, al-Mahdī states that men are a mystery to women, and that the marriage contract is unlike any other contract since it is permanent.299 This is aside from the fact that women are emotional beings unable to make crucial decisions.300 Therefore, al-Mahdī is of the opinion that it is important for the walī to partner with his ward in making such a decision because, as a man, the walī is neutral and not swayed by emotions. The marriage contract is a serious contract according to al-Mahdī, and is unlike any commercial contract. It might bring disgrace and dishonor to a woman and her family unless a walī was involved, while a sales transaction will not.301 To al-Mahdī, the Prophet granted women choice through his aḥādīth. Thus the wilā a may not be used as a method of coercion and men would not abuse their position against the wishes of their female wards.302 These aḥādīth according to al-Mahdī offer testimony that marriages are to be conducted by a walī.303

296 Ibid., 42. 297 Ibid., 42. 298 Ibid., 43. 299 Ibid., 43. For the opinion of Abū Zahra see Muḥammad Abū Zahra, al-Wilā a ‘alā al-nafs (Beirut: Dār al-Rāʼid al- Arabī, [1970] ), 125. 300 Ibid., 43. This is also the opinion of Abū Zahra, 1970, 125. 301 Ibid., 43. 302 Ibid., 42-43. 303 Ibid., 43. 299

In 2008, the Salafi jurist and intellectual Muḥammad ben ‘Abd al-Raḥmān al-Mighrāwī issued a fatwā where he authorized the marriage of a nine year old girl.304 In this fatwā al-

Mighrāwī claimed that the nine-year-old girl was as able as a twenty-year-old woman in terms of her capability to withstand sexual relations.305 The fatwā prompted the government to close thirty of the religious schools associated with The Organization for Preaching Qur’an and Sunna

(Jam‘iyat Al-Da‘wa ilā al-Qur’ān wa al-Sunna), run by al-Mighrāwī. The government also blocked al-Mighrāwī’s website as a reaction to the fatwā.306 Moroccan citizens who used the internet and various media outlets voiced their anger and opposition to such fatwās that undermine the will of the Moroccan people and Moroccan family law, which had named the minimum age for marriage at eighteen for both men and women.307 In addition, many Moroccan intellectuals rejected this fatwā, including the Moroccan High Council of ‘ lamā, who accused al-Mighrāwī of misusing Islam so as to permit the marriage of a nine-year-old child.308 The High

Council stressed that in Morocco only the High Council may issue fatwās not individuals.309 Due

304 See Sarah Touahri,“Underage marriage fatwa prompts official inquiry in Morocco,” Magharebia, September 25, 2008, accessed August, 12, 2012, http://magharebia.com/en_GB/articles/awi/features/2008/09/25/feature-01. The fatwā was posted on al-Mighrāwī’s website with fatwā number 371. See ‘Abd al-‘Azīz al-‘Abdī, “Difā‘an ‘an al- Mighrāwī,” September 08, 2008, accessed on August 13, 2013, http://www.maghress.com/assif/4949. 305 Ibid. 306 The Website of the religious organization is http://www.darcoran.net/modules.php?taraf=idha3a. For the reaction of the Moroccan government see al-Arabia, “Ighlāq 12 Dāran lil-Qur’ān bil-Maghrib ‘alā Khalfīyat Fatwā ‘Zawāj bint al-Tis‘a’,” September 27, 2008, accessed August 09, 2013, http://www.alarabiya.net/articles/2008/09/27/57312.html; see also, al-Jazeera, “Al-Shaykh al-Mighrāwī,” accessed on October 25, 2013, http://www.youtube.com/watch?v=mnZ6n_o7LLE; http://www.maghrawi.net/?taraf=Sheikh; and also Sarah Touahri, “Underage marriage fatwa prompts official inquiry in Morocco,” Magharebia, September 25, 2008, accessed August, 12, 2012, http://magharebia.com/en_GB/articles/awi/features/2008/09/25/feature-01; See the online magazine al-Marrākishia, “Wazir al-Dākhilīya al-Maghribī: Aghlaqnā 33 Dār Qur’ān bi-Sabab Fatwā al- Mighrāwī,” accessed August 12, 2012, http://marrakch.info/fiche-3061.html. The closure of these schools drove many of the Salafis to ask the king to reopen them and prosecute al-Mighrāwī alone in lieu of the collective punishment. See ‘Amār al-Khalafī, “An ār Dūr al-Qur’ān Yatanjīdūn bi-al-Malik Muḥammad al-Sādis,” October 18, 2018, http://hespress.com/politique/9221.html. 307 Sarah Touahri, “Underage marriage fatwa prompts official inquiry in Morocco,” Magharebia, September 25, 2008, accessed August, 12, 2012, http://magharebia.com/en_GB/articles/awi/features/2008/09/25/feature-01. 308 Magharebia, “Moroccan ulemas denounce fatwa authorising underage marriage,” accessed August 12, 2013, http://magharebia.com/en_GB/articles/awi/newsbriefs/general/2008/09/22/newsbrief-03. 309 Sarah Touahri, “Underage marriage fatwa prompts official inquiry in Morocco,” Magharebia, September 25, 2008, accessed August, 12, 2012, http://magharebia.com/en_GB/articles/awi/features/2008/09/25/feature-01. 300 to the public outcry and the government’s closure of the Qur’anic schools run by al-Mighrāwī, including his headquarter in Marrakesh, al-Mighrāwī left to Saudi Arabia claiming that he was going for the minor pilgrimage (‘umra). However, instead of staying in Saudi Arabia for a few days—about the amount of time it takes to complete the ‘umra—he remained there for two years.310

Upon his return to Morocco in 2011, al-Mighrāwī retracted his fatwā, stating that it was only an opinion, and that he had been merely answering a question on his website regarding the interpretation of the Qur’anic verse 65: 04, which according to al-Mighrāwī, allows for minor girls to marry even before experiencing menstruation.311 Al-Mighrāwī, though, never really retracted his opinion and rather claimed that it was based on Qur’anic evidence, citing the marriage of ‘Ᾱ’isha to Prophet Muḥammad at the age of nine.312 In addition, he brought to evidence the response of the great Moroccan intellectual Aḥmad al-Khamlīshī who according to al-Mighrāwī’ considered the fatwā an opinion similar to that of some previous jurists. Al-

Mighrāwī also stated that al-Khamlīshī called him a jurist (faqīh) and not a jurist consultant

(mufti).313 Al-Khamlīshī’s response however, included criticism of al-Mighrāwī and other jurists who shared in his approval of the marriage of minors and rejected the opinion of others who did

310 “Al-Mighrāwī fī Barnāmag Bidūn Ḥaraj: Raddan ‘alā fatwā Zawāj al- aghīra,” Bidūn Ḥaraj, accessed August 12, 2012, http://www.youtub.com/watch?v=DgjxNQt9Rbw; see also al-Arabia, “Ighlāq 12 Dāran lil-Qur’ān bil- Maghrib ‘alā Khalfīyat Fatwā ‘Zawāj bint al-Tis‘a’,” September 27, 2008, accessed August 09, 2013, http://www.alarabiya.net/articles/2008/09/27/57312.html. 311 “Al-Mighrāwī fī Barnāmag Bidūn Ḥaraj: Radan ‘alā fatwā Zawāj al- aghīra,” Bidūn Ḥaraj, accessed August 12, 2012, http://www.youtub.com/watch?v=DgjxNQt9Rbw. The verse states, “Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses [did not experience it], it is the same: for those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy.” 312 For al-Mighrāwī’s response see the online magazine al-Marrākishia, “Wazīr al-Dākhilīya al-Maghribī: Aghlaqnā 33 Dār Qur’ān bi-Sabab Fatwā al-Mighrāwī,” accessed August 12, 2012, http://marrakch.info/fiche-3061.html. 313 See al-Marrākishia, “Wazīr al-Dākhilīya al-Maghribī: Aghlaqnā 33 Dār Qur’ān bi-Sabab Fatwā al-Mighrāwī,” accessed August 12, 2012, http://marrakch.info/fiche-3061.html. 301 not permit such marriage.314 Al-Khamlīshī also criticized al-Mighrāwī for undermining the authority of the 2004 Mudawwana, which as previously stated, had placed the minimum age of marriage for both men and women at eighteen.315 In the end, however, neither al-Khamlīshī’s criticism, nor the governmental reaction, nor the public anger did anything to deter al-Mighrāwī or others from believing in the old custom of early marriage.

It is noteworthy to mention that while al-Mighrāwī permitted early marriage, he has a different take on undocumented marriages (zawāj al-fātīḥa)—where minor girls were primarily contracted into marriage without documentation. In September 2011, al-Mighrāwī issued a fatwā to forbid al-fātīḥa marriage, calling it a type of fornication (zi ā).316 In this fatwā al-Mighrāwī’s opinion parallels that of al-Khamlīshī‘s, who also considered such marriages an act of fornication. While al-Mighrāwī disagrees strongly with al-Khamlīshī on the requirement of the walī for a valid Islamic marriage, he agrees that al-fātiḥa marriage is invalid and shameful.317

Both intellectuals are of the opinion that this type of marriage deprives women of their due rights when the marriage is dissolved due to the death of the husband or divorce.318 In addition, both agree that for the marriage to be legal it must be documented through the Moroccan family courts—a step unprecedented by a Salafi muftī.319

314 For the opinion of al-Khamlīshī see “Mudīr Dār al-Ḥadīth al-Ḥassanīa Ynāqish Fatwā al-Mightrāwī Ḥawla Zawāj Bint al-Tāsi‘a,” accessed August 09, 2013, http://www.dafatiri.com/vb/dafatir31985. 315 For the opinion of al-Khamlīshī see http://www/alittihad.press.ma/def.asp?codelangue=6&po=2 (accessed on August 2012). The text can also be accessed from http://www.dafatiri.com/vb/dafatir31985, accessed August 09, 2013). 316 This fatwā can be seen through Dār al-Qur’ān’s channel, Darcoran Channel, “al-Zawāj bi al-Fātiḥa faqaṭ wa bidūn Tawthīq,” accessed October 24, 2013, http://www.youtube.com/watch?v=GV_XLlEdLSI. 317 Ibid. 318 From An interview with al-Khamlīshī, conducted in the summer of 2013. For al-Mighrāwī’s opinion see “al- Zawāj bi al-Fātiḥa faqaṭ wa bidūn Tawthīq,” Darcoran Channel, accessed October 24, 2013, http://www.youtube.com/watch?v=GV_XLlEdLSI. 319 Ibid. 302

Despite the substantial advancement of women’s rights in the 2004 Moroccan

Mudawwana, debates on the issue continued on during the twenty-first century. Traditionalists,

Salafi muftis, and religious intellectuals objected to the rights granted to women in the 2004

Mudawwana. Salafis continued to call for early marriage by citing the marriage of ‘ ’isha as the primary example, effectively ignoring the new legal minimum age of marriage which was set at eighteen years of age. Salafis and traditionalists claimed that their goal was the preservation of the identity of Moroccan Islamic society through the continuation of customs and traditions unique to that society. Appealing to the authority of the Sunna of the Prophet and the jurists’ rulings, Salafis and traditionalists wanted to legitimize their reasoning by grounding their evidence within the Islamic tradition. More importantly, by ignoring the newly codified legal minimum age of marriage, the opposition appears to neglect the authority of the state and the current opinion of reformists in favor of past jurists’ authority. On the other hand, reformists like al-Khamlīshī also aimed at preserving the identity of Moroccan Muslim society by appealing to past authority in order to support the new legal minimum age of marriage. Though both reformists and their opposition have the same objective in mind, each interprets the past authority to support their particular position. While al-Khamlīshī attempts to break away from jurists’ consensus in order to advance women’s rights, the opposition prefers to maintain loyalty to the party and to the madhhab as a priority over the advancement of women’s rights. This remains a huge obstacle in advancing women’s rights today, not only in Morocco, but also in many of the Arab-Muslim states.

303

Public Engagement and Debates

In March 2012, Amīna al-Filālī—a minor married girl—committed suicide by swallowing rat poison.320 The incident sparked demonstrations and protests throughout Morocco.

Angry demonstrators demanded that the government limit the broad authority given to the family judge, who is permitted to marry off minors according to Articles 20 and 21. In addition, they demanded that the government eliminate Article 475 from the penal code, which allows for the rapist of a woman to marry her without any charges being filed against him.321 The incident also prompted women’s organizations to take on the cause to amend the Mudawwana again to reflect the demands of the public.322

According to reports, in 2008 31,000 minors were granted a license to marry in comparison to

29,000 in 2007.323 Articles 20 and 21 of the Mudawwana provided family judges with the right to marry minors according to his discretion, but only after examining their physical and mental

320 For the story of the victim see al-Jazeera, “In Morocco, legal loophole questioned after girl's death,” http://stream.aljazeera.com/story/morocco-legal-loophole-questioned-after-girls-death-0022130; al-Jazeera, “Qaḍīyat Amina Filāllī,” accessed October 25, 2013, http://www.youtube.com/watch?v=If7-O8frrbA; see also “Iḥtijājāt bi al-Maghrib Ba‘da intiḥār ‘Mughta abat al-‘Ara’ish,” accessed August 09, 2013, http://arabic.cnn.com/2012/middle_east/3/18/morocco.childRape/; see also accessed August 09, 2013, and also see Aniss Maghri, “In Morocco, the rape and death of an adolescent girl prompts calls for changes to the penal code,” accessed August 09, 2013, http://www.unicef.org/policyanalysis/morocco_62113.html. 321 Article 475 of the penal code states that anyone who kidnapped or endangers the life of a child below the age of eighteen without using violence, threat, deception, or an attempt to act in such a manner would be sentenced to five years in prison and a fine of 200 to 500 dirham. However, if the female minor victim was an adult and married the perpetrator, the court may not persecute the perpetrator unless the petitioner was someone who has the right to annul the marriage. Prosecution of the perpetrator is not permitted until the annulment verdict has been granted. For this article see adala.justice.gov.ma. See also “Iḥtijājāt bi al-Maghrib Ba‘da intiḥār ‘Mughta abat al-‘Ara’ish,” accessed on August 09, 2013, http://arabic.cnn.com/2012/middle_east/3/18/morocco.childRape/. CNN also reported that, after the rape, the victim and her father had four meetings with the judge which concluded with their consent to marry the perpetrator. 322It is noteworthy to mention that al-Khamlīshī stood against Article 475 stating that this Article was a ruling supported by the ancient custom of “protecting one’s honor,” despite the Article’s violation of the minor victim’s rights. According to al-Khamlīshī, it was the opinion of the majority of the committee—who believed that the father has the right to marry off his minor daughter regardless of how young she was—which opposed the prevention of applying Article 20 in case of raping the victim. See al-Khamlīshī, 2012, 1: 182. 323 For more on minor marriages in Morocco see Sarah Touahri, “Child Marriage in Morocco Criticized,” May 05, 2009, accessed October 25, 2013, http://magharebia.com/en_GB/articles/awi/features/2009/05/05/feature-01. 304 ability to carry on with the responsibilities of marriage. This, according to many, has opened the gates to the exploitation minors.324 The marriage of minors is still an issue of debate today.

Building on this event and on the demands of Moroccan women’s organizations calling for reform to penal code 475 of the 2004 Mudawwana, the Islamist organization Justice and

Development Party (JDP), took the opportunity to call for a reduction in the minimum age of marriage. In a televised interview with the Moroccan channel 2M, JDP representative al-Sa‘dīya

Zakī related the new demands of the party, including proposing stiffer sentences for rapists, eliminating Article 475 which allows for rapists to escape such stiff penalties, and most importantly, a reduction in the age of marriage from eighteen to sixteen.325 Zakī states that, since

Article 20 of the Mudawwana permits the marriage of girls as young as sixteen, although it is the exception, it would be more appropriate to lower the age to sixteen. Zakī also provides statistics to support her argument. According to her, statistics show that in the last five years 55,967 applications for marriage of minors were submitted to family judges throughout Morocco.326

Zakī claims that the numbers of minor applicants are not decreasing, but rather are on the rise.327

Due to this increase in the number of marriages to minors, Zakī asserts that her party is strongly in favor of reforming Articles 19 and 20 in the Mudawwana to reduce the minimum age of marriage, and also to restrict the authority of the judge by stripping his authority to marry minors below the minimum age of marriage.328 Zakī also cited similar reasons for a reduction to the age of marriage as those of her peers in the JDP, primarily the argument that lower income areas, including Bedouin populations and remote villages, enjoy little governmental service, schools

324 See the interview with attorney abrī al-Ḥur on al-Jazeera channel, “Qaḍīyat Amina Filāllī,” accessed October 25, 2013, http://www.youtube.com/watch?v=If7-O8frrbA. 325 See the Television interview on channel 2M on Canal Maroc, “Qānūn Taḥdīd Sin al-Zawāj,” accessed August 10, 2013, http://www.youtube.com/watch?feature=player_embedded&v=8zH2WRBq6io. 326 Ibid. 327 Ibid. 328 Ibid. 305 are rare, and the rate of illiteracy reaches 60% in such areas.329 Such areas, according to Zakī, are marginalized and neglected by the government; therefore, early marriage within them is common. Salīma Frājī, a representative of the Authenticity and Modernity Party (parti- authenticite-et-modernite or PAM) on the other hand, rejects the JDP proposal stating that the party will not stand for lowering the age of marriage. However, PAM agrees to eliminate Article

20 and 475. To them, this would restrict the authority of the judge and close the loopholes for rapists.330

The aftermath of al-Filālī’s suicide and the debates over the minimum age of marriage shows clearly that women, Islamists and feminists alike, are engaged in public debates and, thus, the process of ijtihād. While the JDP calls for strict qualifications for the mujtihad, it is engaged, on the other hand, in the legal process of ijtihād in calling for a minimum age for marriage instead of relying on the first signs of bulūgh, as called for by previous jurists. Al-Khamlīshī called on all Moroccan institutions to engage in collective ijtihād so as to produce laws that may resolve the issues which inevitably arise within Islamic Moroccan society. The engagement of the JDP in reforming the minimum age of marriage is unprecedented since previously the JDP and other Islamist organizations opposed the udawwa a’ minimum age of marriage outright and accused the proponents of the reforms of attacking and assaulting Islamic Sharī‘a. In the following pages I further reflect on the extent of al-Khamlīshī’s influence and the extent of public debates over Islamic Moroccan family law and the Mudawwana.

329 Ibid. See also, Fatima Sadiqi, “The Feminization of Public Space: Women’s Activism, the Family Law, and Social Changes in Morocco,” Journal of Middle East Women’s Studies 2, no. 2 (spring, 2006), 95. According to Sadiqi, the majority of women who are illiterate range between the ages of 12 and 40. See Fatima Sadiqi, Women, Gender and Language in Morocco (Leiden; Boston: Brill, 2003), 89. Maddy-Weitzman reports that 61% of women were literate between the years 2000-2004. See Maddy-Weitzman, 398. 330 Ibid. 306

Part V

Interviews with Moroccan Intellectuals

In the summer of 2013, I interviewed nine professional Moroccan intellectuals—six women and three men— including al-Khamlīshī. The following pages reflect some of these interviews. One of the intellectuals I interviewed was professor ‘Abd al-Salām Fīghū. Fīghū is a prominent professor at the University of Muḥammad VI’s Agdāl College of Law, and has published numerous books on the role of women in the Moroccan Mudawwana and Islamic jurisprudence. When asked about the role of the walī in marriage and whether it is a necessity in marriage, Fīghū stated that the presence of the walī in marriage is one of the most important aspects of the marriage contract.331 He stressed that almost all Muslim jurists agree that it is an integral part of the marriage contract despite some disagreement. Fīghū provides the prophetic

ḥadīth attributed to ‘ ’isha where the Prophet said, “Any woman that married without a walī, her marriage is invalid, repeated three times.”332 Fīghū goes on to say that even the Ḥanafī madhhab did not allow a marriage to occur without a walī and without certain conditions being met. If the marriage was to be contracted without a walī, for instance, the husband needs to be of the same social status (kufu’) and the amount of the dower must be equal to that of woman’s peers. If either of these two conditions was not met, then the walī may intervene and ask for the marriage to be annulled. 333

Fīghū illustrates that God has given the wilā a to men, not to be misused against women, but to protect and support them. He considers a woman who marries herself off without a walī an anomaly who has rejected the protection and guidance of a person who is there to help her in making such a crucial decision. To him, this woman who ignores the opinion of a walī will have

331 From an interview with Fīghū, summer 2013. 332 Ibid. 333 An interview, 2013. 307 no protection and would be forever stigmatized by society. “The woman who marries through a walī preserves her dignity and also feels that there is someone who can protect her so she may remain a respected member within the Moroccan community.” The walī also prevents the husband from putting the woman down and forces him to respect her more, he said. Otherwise he will denigrate her and disrespect her as if she has no social support from men. Therefore, Fīghū concludes that the wilā a is a means of protection to women, both physically and socially. Fīghū is careful to say that the wilā a is not there because women are irrational and inferior to men, but because it is an Islamic law which no one may resend.

Fīghū maintains that the immediate issue in Morocco is the misuse and the abuse of the walī’s authority. He admits that some of the walīs do misuse their authority. This issue is not the fault of Islam or fiqh, Fīghū explains, but is an issue which has its roots in the upbringing of men.

In addition, Fīghū faults Muslims and not Islamic jurisprudence because, to him, “Muslims do not apply the Islamic Sharī‘a.”334 He states that, the Prophet himself always obtained the consent of his daughters in marriage; therefore, Muslims should follow him in his example. To Fīghū, the walī is a form of respect to women and their rights particularly since the marriage contract is unlike any other contract, in that it is permanent and sacred covenant.

Fīghū criticized the position of the women’s organizations who are, according to him, trying to eliminate the requirement of the walī. Like Mufīd, Fīghū accuses feminist organizations of being influenced by the West, saying that they are trying to emulate the West in an Islamic society which differs in its customs, traditions, and religion. Like the JDP, Fīghū states that the change in the 2004 Mudawwana was due to the influence of the West and the international conferences addressing women’s rights, to which he is vehemently opposed. Through women’s

334 This is a common phrase I encountered in my interviews. This is also common among many ordinary Arab Muslims. 308 conferences and women’s NGOs, Fīghū strongly believes that the West is trying to eliminate

Islamic law, including the position of the walī; a position similar to that of the JDP and other

Islamic organizations. He asserts that in their attempt to eliminate the wilā a, women’s organizations claim that the Islamic Sharī‘a stands as an obstacle to women’s advancement. He also accuses women’s organizations of ignoring several aḥādīth which call for the requirement of a walī in marriage, claiming that the aḥādīth are fabricated or of solitary (aḥādī a) aḥādīth.

Fīghū maintains that these aḥādīth are a crucial part of Islamic fiqh, and that eliminating them would invalidate most of Islamic law. While many of the Arab Muslim societies were influenced by the West, Morocco, according to Fīghū, followed Islamic law—not western laws. Fīghū is of the opinion that the 2004 Moroccan Mudawwana did not eliminate the walī’s position, as requested by many women’s organizations, but considered it the choice of an adult woman.

Fīghū cites statistics which he says show that only a few women contract their own marriage without a walī.335

Like the early demands by the Islamist organizations JDP and ARWC, Fīghū objects to the minimum age of marriage stipulated by the Mudawwana. Fīghū brings to evidence the

Qur’anic verse 4: 6, which state “Make trial of orphans until they reach the age of marriage.” He goes on to suggest that “jurists determined the appropriate age of marriage according to certain bulūgh signs, e.g., the appearance of pubic hair and menstruation for women. Therefore, the age of marriage should not be determined by a specific age as the Mudawwana stipulates.”

Moreover, Fīghū states that men and women may experience signs of bulūgh as early as twelve years of age while others may experience them at a later age. In Islamic society, according to

Fīghū, a woman’s age of marriage is not related to age but to bulūgh signs. While Fīghū agrees that modern Moroccan society has changed—women are working outside of their homes and

335 This was the opinion of many I interviewed. 309 attending college—he, on the other hand, argues that the women of today are different from women of yesterday. “Today’s problems were never present at the time of our ancestors. Back then, there was no moral corruption, and women never went out to mix with men.” Fīghū claims that more than 40% of women who reach the age of marriage today are still single. Even women who choose to continue their higher education rarely marry, making them spinsters (awā i sing.‘ā i ).336 In addition, Fīghū is of the opinion that delaying marriage causes many social and moral problems. Staying single, according to Fīghū, is one of the main reasons why men and women are falling in vice and committing adultery (zina), since it is easier to commit such immoral crimes than carry on the responsibility of marriage. He goes on to say that:

While women’s organizations call for raising the minimum age of marriage, claiming that early marriage harms women, my own illiterate mother married young and gave birth to several children. Through her sacrifice and hard work all of her children were educated. My mother represents most of the Moroccan women who were married young. What type of harm did early marriage bring to those women like my own mother? The illiterate woman who married young and produced several children who went on to become medical doctors and successful individuals has suffered no harm. My Mother suffered nothing due to early marriage. However, women’s organizations have always exaggerated their claims, fearing that a young woman may be harmed and may not be able to raise one or two children. Increasing the minimum age of marriage is not the right answer to solve many of our Moroccan society’s issues. In many cases, early marriage is the right solution for a Muslim country like ours, where people marry at a young age to avoid vice and immoral issues.337

When Fīghū was asked about the broad authority family judges were allowed through the new Mudawwana, and the claims that some of the judges are receiving bribes to contract minor children, he rejected the accusations, asserting that judges are neutral individuals that are employed by the government to ensure the interest of the minor girls. Therefore, to provide a judge with such authority is a positive step toward accommodating minor girls who seek early

336 The term ā i is used as a derogatory term for women who do not marry, considering them less than married women. Fīghū also called a woman who passed the age of marriage (bā ra), a term used to describe a rotten spoiled fruit. 337 In an interview conducted in May, 2013. 310 marriage. Fīghū’s opinion is similar to that of al-Khamlīshī’s, who called for a broader authority for the judge assisted by experts so they may issue the right judgment according to the legal process of ijtihād.338

Fāṭima Bouslāma, a professor at the Institute of Dar Al-Hadith al-Ḥassanīa, is another intellectual who agrees with most of Fīghū’s ideas.339 She agrees with Fīghū that the judge is a neutral individual. When asked about the rumors that some family judges accept financial gifts— bribes—to contract minors into marriage, Bouslāma did not deny the rumors. In fact, she admitted that some of the naïve fathers offer judges monetary gifts to conduct minors into marriage.340 To her, this is considered a gift since the judge would permit the marriage without the gift. Bouslāma also agrees with Fīghū on the necessity of the walī in marriage. To her, the role of the walī is the result of a Moroccan custom—part of the ceremony of marriage proposal—to respect the father. She argues that this custom is also part of the Moroccan Islamic custom which calls for the presence of a father or male walī to receive the groom and his male relatives who come to ask for the hand of the groom to be. Bouslāma also agrees with Fīghū that such a custom does not place women in an inferior position nor suggest she is incapable of representing herself. She also rejects the call of women’s organizations who maintain that the role of the walī restricts women from choosing their husbands, and this often results in forcing of minors into marriage. She reiterates that, “as a Moroccan and Islamic custom, the groom is required to ask for the hand of a woman through her father. This was and still is the custom in

Morocco,” says Bouslāma. Second, Bouslāma states that from her experience working in family courts, the walī never presented an obstacle in marriage.

338 Al-Khamlīshī is one of the many who called for widening the authority of the judge. In addition, Article 400 of the Mudawwana allows judges to use ijtihād in issues not present in the Mudawwana. 339 Fāṭima Bouslāma is a professor at the Institution of Dar al- Hadith al-Ḥassanīa. Currently, she teaches Qur’anic Studies and Islamic family law. Bouslāma is a member of the High Council of ‘Ulamā’ in Rabat. 340 In aa interview May 2013. 311

To Bouslāma, the idea that the walī became an obstacle in marriage and that some walīs forced their daughters/wards into marriage is fabricated by women’s organizations. Like Fīghū,

Bouslāma states that the walī is there to protect the interests of the woman since he is the one who investigates the prospective husband. Bouslāma states that since the walī, often times the father, will be related by marriage to this prospective husband, the walī therefor has the right to investigate him, and to be part of the decision making process as concerns the marriage of his daughter/ward. Like Fīghū, Bouslāma argues that, due to the lack of women’s experience in men, women may fall prey to deceptive men since women are more emotional than men, whereas the male walī is usually a neutral individual, there to protect his ward from the vice of men. She then goes on to challenge all women’s organizations who claim that a wilā a is a coerced one (wlā at ijbār), maintaining that during her years of work in family courts between the years 2001 and

2004, she found only a few cases of marriages in which fathers had prevented their daughters from marriage—she claims to only be able to recall three to four cases a year. However, says

Bouslāma, the family judge was always there to correct the situation and overrule the father’s objections.

Like Fīghū, Bouslāma asserts that the wilā a brings the woman honor and respect as the groom and his family will recognize in him that the woman has someone to protect and look after her. Bouslāma stresses that any new marriage brings with it a new relationship between two families. The objective of the walī’s investigation of the potential groom is to ensure that the two families are suitable for this new relationship. Bouslāma argues that, according to Moroccan

Islamic customs, the father has always been the financial supporter for a wife after her divorce.341 Bouslāma states that “it is inconceivable for a woman who was raised and cared for by her father to marry without his permission. The father who raised his daughter and supported

341 This is similar to the opinion of the Islamist organization, the JDP. 312 her financially must be part of the decision at her marriage and must be given the appropriate respect he deserves in front of society.”

Sharing similar views as that of Fīghū, Bouslāma goes on to say that the wilā a is not forced. Despite the propaganda of women’s organization, Bouslāma states that the woman often chooses her husband while her father waits until after the marriage proposal to investigate the groom. To her, the father/walī has the right to represent his daughter since he is more experienced in men than his daughter, due to the fact that he is a man who is able to mix with men easily, and also because he is older and therefore wiser than she. Bouslāma stresses that women’s organizations seem to criticize the Moroccan custom of having a walī in marriage while ignoring other customs throughout the world, particularly the Japanese custom where the wife is to wash the feet of her husband—a form of degradation to women in the Arab Islamic world. These organizations according to her, aim at eliminating the Moroccan custom and identity. Bouslāma stated that,

Recently, Moroccans have noticed that some of the naïve girls in Morocco have fallen prey to men they met through the internet. Some of these girls married non-Muslims without the knowledge of their fathers or any of their relatives. These women have committed a grave sin by marrying a non-Muslim man. A shame they brought on to their families. These types of marriages were done without the knowledge of a father. This father now has to live in shame trying to explain his daughter’s un-Islamic behavior.342

Bouslāma stressed that in Morocco, the core of the issues surrounding marriage is not with the authority of the walī, but rather with documenting and registering the marriages of minors from far away villages and marginalized regions. In such regions, according to Bouslāma,

Minor girls are often forced into marriage according to an old Moroccan custom known as al-fātiḥa marriage. In the majority of these cases marriages usually fail shortly after. The girl is returned to her father who then must support her again along with any children she has from the marriage. The girl in this case receives no maintenance from her former husband and instead, she becomes a liability to her father, along with their children.

342 From an interview with Bouslāma in May 2013. 313

Bouslāma disagrees with Fīghū regarding early marriage and agrees with al-Khamlīshī and the

udawwa a’ minimum age of marriage. However, Bouslāma is concerned about young girls living in marginalized regions who reach the age of bulūgh at an early age, between nine and eleven years of age. She wonders about the government’s plans for these girls between the age of bulūgh and the legal age of marriage according to the Mudawwana, which can present a gap of as much as nine years. She calls for a complete plan to expand government services to include building more schools, paving roads, and creating employment so that parents do not have to force their young girls to marry due to poverty and a lack of employment. This is similar to a call made by the JDP, who also asked for a more complete plan to combat poverty and unemployment in marginalized regions. Bouslāma stresses that a young girl should not have to travel a few kilometers, for instance, to attend school, causing her to be exposed to sexual harassment, rape, or even death on the way because the government has neglected these remote areas.

She argues that “a father with five or six daughters has very little chance of sending his daughters to school due to poverty and extensive unemployment. When a father brings his minor daughter to a family judge to marry her off, he does so for fear that his daughter might bring him immoral scandal if she was to date or see other men before marriage.”343 In early marriage, according to Bouslāma, girls have little to say. She states that it is the father and the judge who decide the young girl’s future. Citing poverty and a lack of employment as well as the custom that a woman carries the burden of her family’s honor, men often coerce their young daughters to marry early to avoid the bad reputation that might follow the family should their daughter be seen mixing with other men, says Bouslāma. She asserts that “this is one of the main reasons we see women being married at such a young age.”

343 Such behaviors are frowned upon by a traditionalist society like Moroccan Islamic society. 314

Bouslāma is weary of NGOs and their agendas in Morocco. Saddened by the suicide of the Moroccan rape victim, Amīna Filālī, and in an emotional voice, Bouslāma wonders about the intentions of women’s organizations who did nothing when a fifteen-year-old Moroccan student was washed away and drowned while returning home from her school, which were five kilometers apart. “Where were the NGOs when the fifteen year old was washed away? How come they did not demonstrate then? A minor woman drowned and no one even knew her name.”344 She argues that the agendas of NGOs do not represent the needs of the Moroccan people, but the hidden project of the country that funds them. She goes on to say that women’s organizations have always had their special agendas, whether they were political or economic.

To her, these organizations only care for their funding. Further, Bouslāma asserts that the state was the actual perpetrator of the real crime. “It is the state who raped and killed this child when it left her to drown,” says Bouslāma.

When asked about some of the Moroccan Salafis who call for the marriage of girls as young as nine years old, Bouslāma stated that she is vehemently against such calls, saying:

When early jurists authorized early marriage they did this according to customs and traditions of the time. Today, we are in need of rulings which can reflect customs of practices of Moroccan Muslims. In the twenty-first century, we need new ijtihād to help produce appropriate laws which are different from laws that were carved centuries ago. We are in need of jurists who are in touch with our society’s needs since Qur’ān and Sunna did not elaborate on every single issue in society.

This is also the call of al-Khamlīshī who has always advocated for new ijtihād so as to resolve modern Muslim issues.

Bouslāma is not alone in her views regarding the role of the walī. Aḥmad b. al-Amīn al-

‘Imrānī, a professor of fiqh at the Institution of Dār al-Ḥadīth al-Ḥassanīa, agrees with her in many respects. Al-‘Imrānī shares a view with both Bouslāma and Fīghū when it comes to the

344 An interview with Bouslāma in May 2013. 315 necessity of the walī in marriage. He reiterates that the walī is there due to the Moroccan custom to preserve and protect a woman’s dignity. To him, while some fathers may misuse their authority in coercing their daughters into marriage, the majority do not. The wilā a, according to him, is the choice of the woman and is reflected by the last Moroccan Mudawwana—a point which echoes al-Khamlīshī. In addition, al-‘Imrānī agrees with Bouslāma and the JDP that, because the father is inevitably the supporter of his divorced daughter, he is entitled to a primary role in the marriage of his daughter, and his opinion is therefore crucial with respect to his daughter’s marriage.

With regard to the age of marriage, al-‘Imrānī disagrees with Fīghū and agrees with al-

Khamlīshī and Bouslāma. He believes that increasing the minimum age of marriage to eighteen is in the interest of all women in Morocco. Al-‘Imrānī rejects early marriage for many reasons.

First, he argues that marriage is a huge responsibility and, therefore, the spouses must be responsible enough to establish a family. While it is permitted in Islam to marry at the first signs of (bulūgh), children who reach the age of bulūgh are not qualified to take on the responsibilities and duties of marriage. “Children are there to play and not to start families,” he says. Therefore, he agrees that the age stipulated by the Mudawwana is the correct age of marriage—not the first sign of bulūgh, as many jurists have stated. Second, al-‘Imrānī argues that marriage requires the ability to support a family financially. This could not be accomplished by children. The spouse who supports the family must therefore be an adult who is able to work so as to be capable of establishing and supporting a family. Third, early marriage brings with it health risks which might endanger the mother and her newborn. Finally, marrying at an earlier age has many social, economic and educational disadvantages. Women who marry early do not continue their education and cannot enter the work force. Therefore, early marriage becomes an obstacle in

316 climbing the social and economic ladder.345 Al-‘Imrānī therefore disagrees with many religious intellectuals and ‘ulamā’ who cite ‘ ’isha’s marriage to the Prophet, or the customs of Muslims and Arabs in Morocco, in support of early marriage.

Al-‘Imrānī also agrees with the broad authority the Mudawwana granted family court judges in contracting minor children into marriage. Although he acknowledges hearing that a few family judges have received bribes, he maintains that “marrying minors is the exception to the rule, just like with any Western law which has exception to it. The judge has to investigate each case assisted by medical physicians and social workers.”346 This permission to contract minors, according to al-‘Imrānī, makes it possible to register the marriage where children are able to obtain legal birth certificates so that they may benefit from public services such as education and government health care.

Another Moroccan intellectual who agrees with the role of the walī in marriage is Rajā’

Mekkāouī.347 Professor Mekkāouī teaches family law at the University of Muḥammad VI’s

School of Law in Rabāṭ. Mekkāouī is one of the well-known Moroccan women who has represented Morocco in various conferences regarding women. She is also the author of many books on Moroccan family law and other aspects of Islamic law.348 Like the JDP, Mekkāouī calls

345 This was stated in the summer 2013 interview. Al-‘Imrānī published his finding in an article he sent me via email bearing the title, al-Ijtihād al-fiqhī al- ālikī fī-Mudawwanat al-Usra. 346 This is similar to al-Khamlīshī’s opinion in which he maintains that the judges are to be assisted by experts before deciding whether to grant a minor a certificate to contract her marriage. 347 Rajā’ Mekkāouī is the first woman to teach at the Moroccan religious institution, Dār al-Ḥadīth al-Ḥassanīa. She is known as “The woman where the king seated her on his throne while he sat on the floor.” She was the first woman to be invited to present a religious lecture in Ramadan in front of some of the most important ‘ulamā and politicians in Morocco. For more on this event and Nājī see http://www.osramaghribia.com/osramaghribia/web/index.php/articles/452. She is also known for her courage to publish a book on the permissibility of donating one’s organs to science. She is the first Moroccan woman to donate her entire body, after death, to science. For more on Nājī’s life see her interview on al-Jazeera, “al-Duktūr Rajā’ Najī al-Mikāouī,” accessed on August 09, 2013, at http://www.youtube.com/watch?v=cOqVn5pLqAA; see also “al- duktūra Rajā’ Nājī Mikāouī,” Nauyar 01, 2004, accessed August 09, 2013, http://www.maghress.com/attajdid/2293. Nājī publishes in French and Arabic. 348 See her interview on al-Jazeera “al-Duktūr Rajā’ Najī al-Mikāouī,” accessed on August 09, 2013, at http://www.youtube.com/watch?v=cOqVn5pLqAA. 317 for reform of the Moroccan Mudawwana based on several elements. Reforms, to Mekkāouī, must be built on a new ijtihād based on Islamic Sharī‘a and in accordance with the objective of

Sharī‘a (maqāṣid al-Sharī‘a), as per the Qur’anic directive “Allah doth command you to render back your Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice.”349 Second, this new ijtihād must take into consideration the new

Moroccan society and its contemporary social issues. Finally, this new ijtihād must address the realistic issues of Morocco and not issues raised by foreign Western organizations or international treaties.350 This reform must also take into consideration the new social and economic developments within Moroccan society. More importantly, and unlike many other

Islamist intellectuals, Mekkāouī calls on women to join jurists in participating in the new ijtihād, a call similar to that of al-Khamlīshī and contrary to the JDP and other Islamist parties.351

With regard to the walī’s role in marriage, like Fīghū and other Islamist parties such as the JDP and ARWC, Mekkāouī considers the consent of the walī an essential part of the Islamic marriage contract. Legally, Mekkāouī maintains that there are aḥādīth which call for the presence of the walī and invalidate any marriage without it.352 In addition, Mekkāouī refers to the

Mudawwana maintaining that “the wilā a is the right of the woman and she has the choice to exercise it if she may wish. The role of the walī is an old Moroccan custom imbedded in our

Moroccans identity and there is no need for Morocco to eliminate the role of the walī in marriage.”353 Similar to the opinion of the others interviewed, Mekkāouī considers the consent of

349 An interview with Mekkāouī in May 2013. See also Rajā’ Mekkāouī, Qa ā ā al-u rah ba a adālat al-ta hrī , wafrat al-taʼwīl, quṣūr al-ma āṭir wa-tabā i al-taṭbīq (al-Rabāṭ: Dār al-Salām lil-Ṭibā ah wa-al-Nashr wa-al- Tawzī , 2002), 19-20. 350 An interview in May 2013. See also Mekkāouī, 20. 351 From an interview with Mekkāouī, May 2013. 352 The two aḥādīth are, “No marriage without the permission of a walī,” and the ḥadīth attributed to ‘ ’isha where the prophet stated that a woman who contracted her marriage, her marriage is invalid, repeated three times.” An interview in May 2013. See also Nājī, 23. 353 Ibid. 318 the walī (the father) to be a sign of respect since he is the one who raised and supported his daughter throughout her younger years—an opinion similar to that of Fighū, Bouslāma, and

‘Imrānī.

Moreover, Mekkāouī argues that Islamic law has provided women with complete rights to conduct their own commercial and marriage contracts. However, while admitting that today women are found in almost every aspect of the Moroccan public sphere, she does not think that women have been given their fair share in public when compared to men. “Women need to rely on men’s experience when they contract their marriages since they lack the necessary experience to conduct a full investigation of the groom’s background.”354 Mekkāouī reiterates other intellectuals’ opinion that the walī is there to protect and stand along the woman’s side in order to preserve her dignity and reputation in marriage. More significantly, Mekkāouī maintains that statistics have shown that very few women have contracted their own marriage without a walī.

These, to her, were likely women who have no father or adult male relatives.

Like others, Mekkāouī maintains that marriage is a huge social responsibility, a sacred tradition, and that it must be respected as such. She asserts that “this is a contract that is to be conducted once in one’s lifetime. Therefore, it is imperative that one not be swayed by emotions and, instead must be aided by others who are more experienced in such matters,” an opinion similar to that of Islamists.355 Like the JDP and Bouslāma, Mekkāouī maintains that women are the first to benefit from the wilā a since it safeguards the union of the family and acts as a safety net for them and their children should the marriage ever be dissolved.356

Unlike Fīghū, but following in the steps of al-Khamlīshī, Bouslāma, and al-‘Imrānī,

Mekkāouī praises the Mudawwana for increasing the minimum age of marriage from fifteen to

354 Mekkāouī’s opinion also echoes the Islamist organization the JDP. 355 From the interview, May 2013. 356 An interview in May 2013. See also Mekkāouī, 23. 319 eighteen. In doing so, she believes that Morocco followed the rest of the nations of the world in considering anyone below the age of eighteen to be a child. Mekkāouī considers this a step in the right direction since young girls are not in a position to be responsible parents. She therefore disagrees with her peers and other Muslim jurists who consider reaching bulūgh to be the appropriate age of marriage. She rejects such opinions and maintains that bulūgh and reaching the age of rushd must go hand in hand for a woman to be considered ready to marry. She supports her argument by citing the Qur’anic directive, 4: 6, which states, “Make trial of orphans until they reach the age of marriage; if then ye find sound judgment in them, release their property to them.”357 To her, this directive is clear evidence that the appropriate age of marriage is not only bulūgh but also the ability to manage one’s financial affairs after reaching the age of rushd. Mekkāouī asserts that the marriage age stipulated by the Mudawwana—eighteen for both men and women —fulfills the requirement of the Qur’anic directive by combining rushd and bulūgh together as a requirement for marriage.

When asked about the family judge’s authority to marry off minors, she provided similar answers as her peer intellectuals. She reiterated that most of these marriages occur in marginalized regions, in the Bedouin regions for instance, where government services and schools are rare if present at all. In these remote regions, minor girls either do not attend schools or usually end up dropping out of school due to poverty and a lack of employment available to their parents. For these reasons and others, Mekkāouī confirms that the family judge was provided with the authority to contract minor girls from such regions so as to accommodate the old tradition pervasive in the region. Similar to the opinion of Bouslāma, Mekkāouī states that,

Most minor girls’ marriages occur due to severe poverty since young girls are considered financial liability in poor and marginalized regions. Young girls sometimes perceive marriage as a way out of the mistreatment and misery they face living within an

357 Emphasis added. 320

impoverished family. Due to the harsh life of many marginalized families, minor girls are contracted into marriage so as to lessen the burden of financing on the family. Unfortunately, most of these marriages fail and the girl and her family are usually left with supporting the children of this failed marriage.358

Mekkāouī stressed more than once that she is vehemently against the marriage of minors since they are mostly contracted out of poverty and not due to the minor’s wishes.

Mekkāouī is of the opinion that the law should be the mirror of society; therefore, the development of the law must be followed with similar development in Moroccan society.

However, at times it is difficult for the law to lead society or even surpass it. According to

Mekkāouī, Moroccan society has several old traditions which make it difficult for the new law to have a hand in developing its society, which widens the gap between the law and society’s customs. This is most evident when one observes the Moroccan family court system. The

Moroccan court system, according to Mekkāouī, is inundated with family cases in which family judges do not have the legal resources or the manpower to thoroughly investigate a minor’s physical and mental capabilities to properly determine whether or not they are able to carry out the responsibilities of marriage. According to Mekkāouī, family judges often try to convince fathers not to marry off their minor daughters. Due to traditional customs involving early marriage and the insistence of fathers to see their minor girls married, judges often cave in and permit such marriages. However, she maintains that a family judge does not rule on these cases alone. As advised by al-Khamlīshī and stated in the 2004 Mudawwana, Mekkāouī states that the judge must enlist the help of social workers and medical experts to see if the minor is able to handle the huge responsibility of marriage.

358 This was reiterated by many individuals interviewed and by TV documentaries. See “Fatayāt Qā irāt,” accessed October 10, 2003, http://www.youtube.com/watch?v=UbAGTt-dt3s. 321

While Mekkāouī and other Moroccan intellectuals maintain that the role of the walī is required, that the family judge’s broad authority is legal, and that it is there in the interest of minor children, many other intellectuals and activists do not agree. Laṭīfa al-Mihdātī, assistant dean at the College of Law and Social Science at the University of Muḥammad V in Rabāṭ, is one of the intellectuals who objects to the role of the walī and also rejects the marriage of minors, even if they were granted legal permission by a family judge. Al-Mihdātī states that while the Mudawwana before 2004 was considered a sacred document, the 2004 Mudawwana is no longer a sacred book which only male-jurists may debate and reform. Today, she adds, “times have changed and women work outside the house in addition to managing their households.

Women must have a greater role in deciding their future husbands and a wider role in matters of social and legal affairs that pertain to them.”

In addition, al-Mihdātī rejects the broader authority of the judge in contracting minors into marriage. “The legal age of marriage must be honored since men and women do not reach the age of rushd prior to their early twenties.” In regards to some of the Salafis’ call to reduce the age of marriage to the first sign of bulūgh—even if those signs occur as early as the age of nine—al-Mihdātī maintains that “while we respect the Islamic law and the Qur’ān, we on the other hand are in different times and must follow the progress of society.” Al-Mihdātī calls on women to participate in all aspects of life, particularly the legal process of ijtihād.

Najate Bouzrī, an executive director at the NGO, Association Démocratique des Femmes du Maroc (ADFM), like al-Mihdātī maintains that due to social and economic factors, Moroccan society has changed and women are now mixing with men at work. “The Morocco of today is not that of a few centuries ago since daily lives are changing and people’s demands are

322 different.” Bouzrī advocates that Moroccan law reflect those changes.359 To her, women must have full freedom in contracting their marriage without the objection of the walī. However,

Bouzrī agrees with the previous intellectuals that due to Moroccan social traditions, women should not be able to contract their marriage without the presence of a walī with few exceptions, such as when the father of the woman is deceased and there is no other male around that may serve as her walī.

When Bouzrī was asked about the recent demands by some of the Islamist organizations

(JDP) to lower the age of marriage, she stated that “I and the ADFM are vehemently against this step and consider it a step backward (takhalluf) in the history of women’s struggles.” While many minor girls are coerced into marriage in the marginalized regions, Bouzrī maintains that medical and psychological evidence show that early marriage endangers the health of the mothers along with their unborn children. Bouzrī argues that “young girls who marry young are unable to defend themselves against the physical and mental abuse of their husbands.” Most significantly, Bouzrī asserts that “a study done by ADFM shows that there is a strong correlation between poverty and early marriage.” This confirms the statements made by previous Moroccan intellectuals who agreed that early marriage is common mostly among the marginalized and poor.

When asked about the authority entrusted by the state in family judges with regard to their ability to marry minors, Bouzrī responded that many of the family judges are under pressure to conduct these marriages. To her, judges must follow the letter of the law and not permit these minors to marry. However, she admits that in the Bedouin regions of Morocco many fathers marry their girls at a young age using the popular old custom of al-fātiḥa marriage. To her, the only solution for this type of marriage is for the state to intervene and find broad solutions for

359 From an interview with Bouzrī, May 2013. 323 serving these remote areas.360 Bouzrī’s opinion is parallel to some of the conservative intellectuals I interviewed like Bouslāma, al-‘Imrānī, and Mekkāouī. They all agreed that many family judges are pressured by various factors to contract minors into marriage. Bouzrī goes on to state that,

The occurrence of minor marriages is currently on the rise due to the interference of Islamist organizations. The speeches and propaganda of Islamist organizations are serving to exacerbate the problem as they continue to claim that marriage to minors is a part of Islamic Sharī‘a. Many young girls become victims of such speeches as they are often forced to become mothers at a young age, thus being robbed of their childhood.361

Another Moroccan women’s activist who objects to the role of the walī and also objects to any reduction in the age of marriage is Asma Lamrābeṭ.362 Lamrābeṭ is a medical physician, pediatrician, and the director of the Islamist NGO, Moḥammadia League of ‘Ulamā’, also known as al-Rābiṭa al-Muḥammadīya.363 While Lamrābeṭ is the head of a conservative Islamist organization, her views parallel those of Muslim liberals. In her interview Lamrābeṭ stressed that women and men must participate in the legal process of ijtihād so as to come up with new laws to resolve contemporary Moroccan issues according to Islamic law.364 Like al-Khamlīshī, and in opposition to other conservative intellectuals, Lamrābeṭ does not consider the marriage contract a sacred document but rather a civil contract drawn between a man and a woman. She adds that

“the marriage contract is not to be conducted in a mosque, although some Muslims started doing so, it is a civil contract held at home or at an office.” As for the role of the walī in marriage,

360 From an interview with Bouzrī, summer 2013. 361 From the summer 2013 interview. 362 Asmā’ Lamrābeṭ is well-known in Morocco and Europe. She is the spokeswoman to the Islamist party Moḥammadia League of ‘Ulamā’. She often provides interviews to various media outlets, especially Television, and speaks at various local and world conferences on women’s issues. For more on Lamrābeṭ, see her website at http://www.asma-lamrabet.com/. 363 She serves as the director of the Women’s Center of Feminine Studies for the Islamist organization Moḥammadia League of ‘Ulamā’. For more information on Lamrābeṭ see, “Asma Lamrabet,” accessed October 25, 2013, http://karamah.org/authors/asma-lamrabet. See also Lamrābeṭ’s website at, http://www.asma-lamrabet.com/. The Islamist organization’s website can be accessed through http://www.arrabita.ma/. 364 A view which parallels that of al-Khamlīshī’s. 324

Lamrābeṭ joins al-Khamlīshī and others in maintaining that there is no conclusive evidence

( aṣṣ) in the Qur’ān or the Sunna of the Prophet supporting the requirement of a walī or his consent.365 In addition, she considers the walī an outdated Moroccan custom. Similar to

Mekkāouī, Lamrābeṭ is of the opinion that Islamic Sharī‘a granted women complete freedom in her marriage and financial contracts. However, it was jurists who restricted the role of women in marriage and divorce. Like al-Khamlīshī, she considers this freedom as part of the purpose of

Islamic Sharī‘a.366 Lamrābeṭ agrees with al-Khamlīshī and some of the feminist organizations that the freedom to choose a husband is a woman’s legitimate right. Similar to al-Khamlīshī’s and the majority of intellectuals interviewed, Lamrābeṭ maintains that the wilā a is there to protect and preserve the dignity of women— not to act as an authoritarian institution, as many feminists believe. However, Like Mekkāouī, she says that women of today insist on the presence of the walī as part of their Moroccan Islamic identity.367 Therefore, the walī remains a symbolic customary position, but not a necessary element of a marriage.

Concerning the age of marriage, Lamrābeṭ agrees with al-Khamlīshī and the majority of the individuals interviewed that the state’s new law designating a legal minimum age is the most appropriate solution. To her, minors must not be married except in extreme cases.368 She agrees with many other Moroccan intellectuals that

Contracting minors into marriage has been the custom of many villages and Bedouin regions. In these villages, minor girls carry the burden of the entire family and tribe just for being born female children. Therefore, and as a method to avoid the social embarrassments of having unwed young girls, the families often marry these girls off at a young age to get rid of the financial and social burden.369

365From an interview with Lamrābeṭ, summer 2013. See, Asma Lamrabet, “La notion de Wali ou tuteur dans la jurisprudence islamique,” accessed October 25, 2013, http://gierfi.org/documents/articles/La_notion_de_wali.pdf. 366 Ibid. 367 From an interview with Lamrābeṭ, May 2013. 368 Ibid. 369 An interview in May 2013. 325

Lamrābeṭ blames the state for not addressing this issue more seriously, and blames the religious institutions for not respecting the law of the state.370 She particularly blames Salafi preachers and

‘ulamā’, stressing that “many of the ‘ulamā’ still call for emulation the marriage of ‘Ᾱ’isha to the Prophet as a young age girl of nine. These individuals make this call publicly, without any respect to the current Moroccan law.” Following al-Khamlīshī, Lamrābeṭ calls for stiff consequences for anyone who calls for or participates in such marriages.

The opinions of Lamrābeṭ regarding the age of marriage and the walī’s role in marriage represent the opinions of the Islamist NGO, Moḥammadia League of ‘Ulamā’ (MLU). The differences among the Islamist organizations— the MLU, the JDP, and ARWC—are interesting to observe. Both the JDP and ARWC call for the preservation of the position of the walī and a reduction in the age of marriage, while the MLU approves the new Moroccan law stipulated by the Mudawwana, with regard to both the elimination of the role of the walī and the stipulation of a minimum age of marriage. This stark difference among Islamist organizations calls into question the views of intellectuals who treats them all as if they shared one common voice and conservative agenda. However, most Islamist organizations agree that reform to the Moroccan

Mudawwana must be based on strong foundations from within Islamic Sharī‘a, a process al-

Khamlīshī has been practicing since the reform of the first Mudawwana.

Though he often found himself on the other side of the table when discussing women’s rights in Islam, on May 10, 2008, a group of intellectuals and intellectuals at the University of

Moḥammed I honored al-Khamlīshī for his contributions to the advancement of women’s rights

370 Al-Khamlīshī has spoken about this phenomena where religious groups and individuals consider any state law to be a man-made law, not to be respected in comparison with Sharī‘a law, where they include the opinions of past jurists to be part of the Sharī‘a. An interview with al-Khamlīshī. 326 in Islamic family law. 371 The idea of honoring al-Khamlīshī came from the prominent intellectual Idrīs al-Fākhūrī, who organized the event with the help of the president of the

University, Muḥammad al-Fārisī.372 At the celebration, thirty-three Moroccan intellectuals gathered to speak about al-Khamlīshī’s contributions to Islamic family law and his influence in advancing the role of women in the Moroccan Mudawwana.373 Among the people present to honor al-Khamlīshī were al-Fākhūrī, the famous Moroccan intellectual Mowlāī Irchīd, the judge and professor Zuhūr al-Ḥur,374 Muḥammad al-Khashbūr,375 and other intellectuals, judges, and lawyers from all over Morocco.

As part of the proceedings, al-Fākhūrī listed al-Khamlīshī’s contributions to the

Moroccan Mudawwana and Islamic fiqh. Al-Khamlīshī’s work, said al-Fākhūrī, is considered a primary source to many Moroccan students of law and Islamic fiqh.376 He praised al-Khamlīshī for his new analysis of the Islamic fiqh and his unique system of deduction in law.377 Among the many contributions for which al-Khamlīshī was honored was his take on the marriage contract.

Al-Fākhūrī and other intellectuals credited al-Khamlīshī as the reformer who insisted that a woman must pronounce the acceptance in front of witnesses instead of having the walī do so on her behalf—a position that was incorporated in Article 10 of the 2004 Mudawwana.378

Al-Khamlīshī’s fight for the elimination of the walī and his strong suggestion that the

Mudawwana provides clear description of the qualifications of the walī’s agent (wakīl) was also

371 For more on honoring al-Khamlīshī see http://www.startimes.com/?t=10123056, (accessed on October 26, 2013). This was the testimony of the Moroccan intellectual Rashīd Mushqāqa. Al-Fākhūrī, 2011, 103-107. 372 Al-Fākhūrī was mentioned in the previous chapter. Aside from his legal and jurisprudence expertise, al-Fākhūrī was member of the royal committee for reforming the Moroccan Constitution in 2011. 373 See http://www.startimes.com/?t=10123056, accessed on October 26, 2013. 374 Al-Ḥur was a member of the committee commissioned to reform the Mudawwana in 2004. She is also a member of the Moroccan High Council of ‘Ulamā’. 375 Al-Kashbūr teaches at the College of law in the city of Casablanca. 376 http://www.startimes.com/?t=10123056, accessed on October 26, 2013. 377 Idrīs al-Fākhūrī, 2011, 5-17; http://www.startimes.com/?t=10123056. 378 Al-Fākhūrī, 2011, 7. 327 incorporated into the Mudawwana in Articles 24, 25, and 17, as praised by al-Fākhūrī.379 Other intellectuals also praised al-Khamlīshī for restricting polygyny to extreme cases, as it stipulated in Article 46.380 Al-Khamlīshī was also credited for his call to increase the minimum age of marriage to eighteen for both men and women. “It is al-Khamlīshī who vehemently criticized

Article 8 and instead placed Article 19 of the 2004 Mudawwana to increase the minimum age of marriage to eighteen—as stated in Article 19.”381 Other intellectuals also applauded al-Khamlīshī for eliminating the unilateral rights of men to divorce their women and suggesting the matter be decided by the family court instead, as stipulated in Articles 73, 78, 79, 81, 82 and 96.382 Al-

Khamlīshī also had a hand in protecting the custody rights of mothers, as mentioned in Article

171.383 Other contributions Al-Khamlīshī was honored for that day include his role in calling for the family court to have a broader role in cases of alimony, his fight to admit DNA evidence in cases of questioned paternity (Articles 153, 156, and 158),384 his call to allow undocumented marriages a period of time to register, his call to implement harsh consequences for anyone who violates any of the udawwa a’ articles, particularly with respect to the marriage of minors, his call for the broad authority of the family court regarding divorce and custody of children, his call to open the gate of ijtihād, and his fight to implement collective ijtihād to allow jurists, experts and intellectuals, men and women, to practice ijtihād. 385

The sample of Moroccan intellectuals discussed here paints a clear picture that proves traditionalists do not hold a unified opinion regarding the age of marriage or the role of the walī

379 Ibid. 380 http://www.startimes.com/?t=10123056. See also, al-Fākhūrī, 8. 381 Al-Fākhūrī, 2011, 09. 382 Ibid., 12-14, 123. 383 Ibid., 15, 121-122. See also http://www.startimes.com/?t=10123056. 384 Al-Fākhūrī, 2011, 124. Articles, 153, 156, and 158 of the 2004 Mudawwana. 385 These contributions by al-Khamlīshī and others were all incorporated into the new Moroccan Mudawwana, which marked a milestone in the rights of Moroccan women in Islamic family law. See al-Fākhūrī, 116-131. See also http://www.startimes.com/?t=10123056. 328 in marriage, though most of them belong to the Mālikī madhhab or were taught by traditional religious institutions which specialized in the Mālikī madhhab. In fact, none of the intellectuals interviewed called for allowing the coercion of women into marriage. Most importantly, this section illustrates the type of reform to Islamic law in general called for by al-Khamlīshī. Unlike many of his contemporaries, al-Khamlīshī wanted to completely eliminate the old tradition of ijmā‘ due to its abusive and outdated methodology in restricting women’s rights in Islamic family law. Al-Khamlīshī’s contribution to Islamic law could easily be seen as favoring women’s rights by reforming the legal methodology of the old (ijmā‘) by calling for a new type of ijtihād which allows women to take part in the lawmaking process in order to advance women’s rights in Morocco and the rest of the Muslim world.

Conclusion

Throughout the centuries, male jurists have jealously guarded Islamic fiqh against any outside interference. During the twentieth century, several variables contributed to the acceptance of women as participants in the realm of fiqh despite the massive opposition from

Islamic institutions and individual ‘ulamā’. The change in economy allowed women to compete with men in the public sphere. In addition, the state’s role in permitting women to compete in public space by increasing women’s access to education and employment, the states played a pivotal role in advancing women’s rights in society and allowing them to participate in the legal system. Women became lawyers and judges and participated in legislations. In the last decade of the twentieth century, the Moroccan monarchy paved the way for various organizations to express themselves publically, including feminists and Islamist NGO’s. The latest Moroccan kings—King Ḥasan II and his son and current king, Muḥammad VI— allowed for religious and

329 political parties and individuals to express their opinions publicly and to participate in the public discourse over current issues. In addition, some Moroccan intellectuals began calling for an increase in Moroccan women’s rights. Two Muslim intellectuals— ‘Allāl al-Fāsī and Aḥmad al-

Khamlīshī— championed this call. Aware of the strenuous conditions put forth by past jurists on the qualifications of a mujtahid, al-Khamlīshī ignored such restrictions, calling them outdated and unfit to produce a progressive law for today’s Islamic society. Al-Khamlīshī began calling for a collective ijtihād where male and female experts in Islamic fiqh, Western law, social science and other fields would be permitted to practice ijtihād together in order to deduce new

Islamic laws. In addition, al-Khamlīshī began to challenge past jurists’ consensus and the traditional religious institutions that remained loyal to certain madhāhib, specifically the Mālikī madhhab in Morocco. These traditional institutions, along with consensus of the single madhhab, were some of the obstacles in the way of advancing women’s rights according to

Islamic law.

Al-Khamlīshī’s writings influenced many individuals and organizations. Feminist NGOs were the first to benefit from al-Khamlīshī’s work and methodologies, and started using al-

Khamlīshī’s methodology to respond to Islamist organizations. Unlike many intellectuals, al-

Khamlīshī—a traditional individual with a traditional religious education from Morocco’s religious institutions— was paramount in advancing women’s rights in Islamic family law.

Islamist parties objected to reforming the Moroccan Mudawwana, accusing feminists of siding with the West to replace Islamic Sharī‘a with Western secular law. In addition, Islamists demanded that any reforms to the Mudawwana must be built on principles of Islamic Sharī‘a. Al-

Khamlīshī’s approach, and thus his reforms, did not clash with the demands of most Islamists but often he disagreed with them. In fact, al-Khamlīshī’s work fits the framework of the Islamist

330 parties, since it originates from within the Islamic traditions that are deeply rooted in Islamic

Sharī‘a. Islamists never objected to the opinions of al-Khamlīshī’s fiqh, although some accused him of siding with feminists to undermine his public work.

The perception that all traditionalists hold the same opinions has been shattered in this chapter. While many outside perceive Islamist organizations as having the same agenda, this chapter showed that Islamists are not unified in all aspects of Islamic family law, including the role of the walī, the appropriate age of marriage, and the legality of early marriage. While most

Islamist parties and conservative individuals agree to preserve the role of the walī for its traditional value among Moroccans, many joined al-Khamlīshī in calling for the elimination of the walī’s role altogether. The MLU representative Lamrābeṭ for example, considers the

udawwa a’ latest law as a positive step toward advancing women’s rights in Morocco. By taking such a position, the MLU disagreed with other Islamist organizations while siding with feminists who called for women’s rights to contract their own marriage without a male’s authority.

Islamists are also split on the subject of the minimum age of marriage. While some call for the return to the fiqh method relying on the first signs of bulūgh as the demarcation for marriage suitability, many accept the new legal age of marriage as stipulated by the Moroccan

Mudawwana at eighteen years. Other Islamist parties like the JDP accept the codification of the minimum age of marriage but argue for a reduction to the age of marriage from eighteen to sixteen. Professor Fīghū, for example, calls for Muslim men and women to marry young following the first signs of bulūgh rather than the Mudawwa a’ new law. This is echoed by another Islamist party—the ARWC— who also rejects the udawwa a’ codification of the minimum age of marriage and calls for a return to the reliance on the first signs of bulūgh. The

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Islamist party MLU, on the other hand, sides with feminists and al-Khamlīshī in their approval of the new minimum age of marriage. However, the majority of intellectuals, while approving of the udawwa a’ new minimum age of marriage, call for the state to take on more responsibilities to try to resolve issues of poverty and unemployment, which go hand in hand with its new law.

The majority of intellectuals agree with al-Khamlīshī and the Mudawwana in granting the judge a broader authority in marrying minors as an exception to the law. Significant to this topic is the unique position of a few Salafi intellectuals and muftis: while adhering to the Islamic

Sharī‘a of early marriage,386 they object to the marriage of minors through the custom of al- fātiḥa marriage as it does not follow the Mudawwa a’ law of new marriage registration. These

Salafi muftis join al-Khamlīshī in calling unregistered marriages a form of zi ā, and not valid

Islamic marriages.387 Al-Khamlīshī’s objection to reducing the age of marriage runs parallel to that of the feminist party, ADFM, who calls the Islamists’ campaign to lower the age of marriage an unacceptable act and a step backward to all Moroccan women.

Al-Khamlīshī’s influence reached the whole of Moroccan society. By arguing for reforms from within the Islamic tradition (the authority of the Qur’ān, the Sunna of the Prophet, and past jurists’ opinions) al-Khamlīshī helped to preserve the identity of the Islamic Moroccan society.

In calling for a collective ijtihād from within the local Muslim community, al-Khamlīshī was aware that only the local Moroccan legislators would be able to preserve and maintain the identity of the Moroccan Islamic society. In doing so, Islamist parties and their opposition were left with very little ammunition to use against al-Khamlīshī, whose’ legal work and efforts were

386 Salafis cite the marriage of ‘ ’isha to the Prophet Muḥammad at the age of nine. 387 Although these marriages are conducted by the bride’s walī and at least two male witnesses.

332 aimed at preserving the same institution traditionalists were trying to safeguard—the Moroccan

Muslim society and its core value, the Moroccan family (usra).

The contributions of al-Khamlīshī to Moroccan family law have been remarkable. His work on advancing women’s rights in Morocco can be seen through the many articles adopted by the 2004 Moroccan Mudawwana. His contributions to Islamic fiqh have been recognized by other Muslim intellectuals, who have honored him in various ways. His rejection of the role of past jurists as lawmakers as well as his call for a collective ijtihād helped pave the way for women, who now practice ijtihād in an equal capacity alongside men.

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Conclusion

This dissertation began with the posing of several questions: which authorities and religious institutions are qualified to reform Islamic jurisprudence? Which authorities or tradition(s) should be considered when reforming Islamic family law? And which rulings and legal transactions must be reformed to accommodate ongoing changes? The project first explored the old Islamic jurisprudence (fiqh) and the influence it had over the Personal Status Laws (PSL) of various Arab-Islamic states. This was crucial in establishing the roots for the PSLs of various

Arab-Muslim states. How did the old Islamic fiqh define the role of women in marriage, and how did Arab-Muslim intellectuals (reformists, traditionalists, and Salafis) respond to women’s demands for wider agency in their marriage contracts while at the same time holding to the authority of fiqh and past jurists’ opinions? Put differently, how can Arab-Muslims individually respond to contemporary women’s issues while preserving the identity of Muslim society without relying solely on past traditions? In holding to Islamic tradition (Islamic fiqh, the method of ijmā‘, and the teachings of the Qur’ān and Sunna of the Prophet,) Arab-Muslim intellectuals of today aimed to preserve the identity of Muslim society in general as well as protect the identity of the Muslim family in particular. To do so, reformists had to challenge the authority of traditional religious institutions along with consensus of the madhāhib. This challenge came from both within the madhāhib and outside of it. To permit women to take part in the reform of legislation, reformists also had to challenge the old methodology of ijmā‘ relying on jurist consensus in favor of a more comprehensive type of ijtihād, “collective ijtihād”. This type of ijtihād allowed for professional women that were non-jurists to participate alongside men in reforming Islamic family law.

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In order for Arab-Muslim intellectuals—men and women—to engage in public debates over women’s rights, they had to draw on the authority of past jurists as evidence to argue their positions on the subject, perhaps most importantly on the necessity of a marriage guardian (walī) in contracting women into marriage. The majority of conservative traditionalists relied on past jurists’ evidence and reasoning to preserve the traditional male dominion over women’s rights in marriage. Modern and contemporary intellectuals therefore looked to Islamic fiqh textbooks as well as to the opinions of past jurists to support their contemporary arguments both for and against the woman’s right to contract her own marriage. Fortunately, past jurists from the classical and post-classical periods had preserved the opinions of minority jurists alongside the majority records. Through the method of ijtihād, these textbooks remained open throughout

Islamic legal history and a few contemporary Arab-Muslim intellectuals and muftīs were able to select from among the opinions of the past minority jurists in order to support their proposed reforms to the newly codified Islamic law, thereby preserving some of the rights of women in marriage even in states where Islamic fiqh had yet to be codified.1

This study introduced the roots of many Arab-Muslim states’ personal laws (al-aḥwāl al- shakhṣiyya) as well as the opinions of many Arab-Muslim intellectuals who had been publicly debating over the rights of Muslim women, particularly with regard to marriage. The study also examined the method of ijmā‘ and demonstrated how past jurists tended to favor loyalty to their madhhab over progressive thought in addressing the ages of bulūgh and rushd for women, the role of the walī in marriage, and the role of adult women in conducting their own marriages. In addition, jurists’ opinions regarding a woman’s readiness for marriage and the age at which she may legally marry were also explored. Jurists did not stipulate a certain age for bulūgh; instead,

1 In an interview with the author in May 2013, Moroccan intellectual Aḥmad al-Khamlīshī stated that the gate of ijtihād was never closed. “This was the opinion of fundamentalist and extremist Muslims,” says al-Khamlīshī. 335 they provided different ages for bulūgh when biological signs were absent. Most importantly, this look into past opinions illustrated jurists’ continuing loyalty to the opinions of their eponyms regarding the age of rushd for women, which restricted women from managing their own financial assets before and, at times, even after marriage.

Most Muslim jurists—Sunni and Twelver Shī‘ī alike— favored a test by which men and women could be distinguished as major or minor. The most notable opinions on this topic belonged to Mālikī and al-Shāfi‘ī. Unlike all other jurists, Shāfi‘īs did not consider a woman major unless witnesses testified that she was a pious individual. Mālikīs, on the other hand, had the most strenuous set of qualifications by which a woman could be considered a major: the majority of Mālikī jurists did not consider a woman major until she had been married (and stayed with her husband) for a period that might extend up to seven years—this of course only holding true after the woman passed a test of financial management and had witnesses testify for her rushd. This ruling by the Mālikī jurists stands out as the most strenuous among all of the madhāhib, and as the most restrictive in terms of women’s independence. In fact, a married woman, according to this ruling, still remains a minor and under the interdiction (ḥajr) of her father for several years after her marriage. By maintaining this standard, most Mālikī jurists placed a married woman under the authority of not one, but two male authorities: both her husband and her father.

The legal age of marriage was another major concern to Muslim jurists. While jurists spent a great deal of time on the legal age of bulūgh, signs of bulūgh, and the period of bulūgh for women, jurists—Sunni and Twelver Shī‘ī alike— considered nine lunar years to be the legal age of marriage. The example of the Prophet’s marriage to ‘ ’isha when she was just nine years old trumped all other pieces of evidence addressing a woman’s readiness to marry among

336 the five Islamic schools of law. While Sunni jurists used ‘ ’isha’s age as the sole example for this reasoning, Twelver Shī‘ī jurists also used a ḥadīth traced back to the sixth Imām, Ja‘far al-

ādīq, in which he was heard stating that a girl is ready for marriage once she reaches nine lunar years. While attempting to avoid the example of ‘ ’isha’s age as a standard for the legal age of marriage, Twelver Shī‘ī jurists reached the same conclusion as that of past Sunni jurists and also independently set the age of marriage at nine lunar years. Sunni and Shī‘ī jurists considered certain acts and modes of conduct by the Prophet to be specific to him and believed that these behaviors should not be repeated by anyone in the Muslim community. Jurists of both sects agreed that the Prophet’s marriage to ‘ ’isha be a primary example for all Muslims.2 In maintaining this belief, the majority of jurists of both sects complicated the determination of the legal age of marriage and made it to be one of the most debated obstacles in obtaining women’s rights in marriage to this day.

The study also demonstrated that the power of consensus exercised through the loyalty of jurists to their madhhab throughout the history of Islamic fiqh grew into a formidable force counter to the advancement of women. Jurists’ consensus became a force of authority wielded in order to lord the opinions of certain jurists over those of others, thereby dismissing the opinions of minorities and all opposition in the process. This was made clear amid the discussion surrounding the issues of coercion and the marriages of minor girls, and also in discussions centered around the marriages of adult major women. Throughout the history of Islamic fiqh, jurists remained loyal to the opinions of their eponym and madhhab regarding the coercion of

2 Some of the marital acts that were specific to the Prophet only include marrying while conducting a pilgrimage (iḥrām), marrying more than four wives, marrying using the term gift (hiba), and exemption from paying the dower. From the Twelver Shī‘ī jurists see al-Muḥaqqiq al-Ḥillī, 2: 271-272. From the Sunni list of marital acts that are specific to Prophet Muḥammad, see the work of the Shāfi‘ī jurist al-An ārī, 1993, 6: 178. See also Kecia Ali’s article, "A Beautiful Example,” 2004, 273-291.

337 minors into marriage. This loyalty became an obstacle in reforming Islamic family law, particularly in raising the legal minimum age of marriage. With respect to the marriages of adult women who had reached the age of bulūgh, only the Ḥanafī jurists were in favor of permitting her to conduct her own marriage and act as a walī for other woman. They asserted this opinion with obstacle caveat: the majority of Ḥanafī jurists throughout the history of the madhhab concluded that a woman who conducts her own marriage must marry a man of her equivalent social status (kufu’), otherwise the walī may petition the court to dissolve the marriage.

Through the codification of Islamic family law, a variety of opinions from numerous

Arab-Muslim intellectual opinions came to surface regarding the legal age of marriage, the role of the walī in marriage, and the issue of codifying Islamic fiqh. Following the opinions of past jurists, modern and contemporary ultra-conservative traditionalists and muftīs insisted on the method of ijmā‘ and, in following the majority of jurists, called for the preservation of the custom of early marriage as a method of preserving the identity of Muslim society. Their primary evidence in this case was the marriage of ‘ ’isha to the Prophet. The Egyptian intellectual al-

Bultājī, for example, criticized those who called for an increase to the minimum age of marriage; al-Bultājī also objected to the marriages of women that were conducted without a walī, citing past jurists who also called for a walī’ consent in marriage. Al-Bultājī was not alone in calling for the requirement of a walī and lowering the age of marriage; the Syrian intellectual, al-Sibā‘ī, did not even see the purpose of having a judge presiding over cases of early marriage since the custom would be so difficult to eliminate or even restrict in Syria. The consensus of past jurists in approving the marriages of nine year old girls also influenced the current Iraqi parliament which drafted a new Iraqi PSL approving the marriage of Shī‘ī women as soon as they reach the

338 age of nine. Jurists’ past opinions and consensus found their way in to many states’ PSLs, adding to the many obstacles faced by Muslims in Islamic societies.

Despite the authority of ijmā‘, the opinions of past minority jurists and Arab-Muslim intellectuals resurfaced when the Arab-Muslim states began codifying their personal laws. A handful of Arab-Muslim intellectuals invoked the opinions of past independent minority jurists in an effort to provide women with a wider role in marriage. Through the consideration of past minority opinions, the marriages of minor women were successfully restricted and, in some instances, banned by the state. The majority of Arab intellectuals, however, remained faithful to the method of ijmā’ and rejected any kind of reform. Remaining loyal to the method of ijmā‘, traditionalists argued that the new reforms were not from within the Islamic tradition and were rather Western traditions introduced with the sole aim of corrupting Islamic society as a whole.

Both reformists and traditionalists had the same goal: to preserve the identity of Islamic society by drawing on past authority. However, each side used different evidence put forth by past authorities in an effort to legitimize their position on reforms.

In response to widespread calls for reform of Islamic laws, vibrant debates took place during the twentieth and twenty-first centuries as intellectuals from different Arab states exchanged ideas and publicly posted writings and criticisms of other intellectuals or nations.

During this time Arab-Muslim intellectuals were aware of other debates in their states as well as in other Arab-Muslim states. All media outlets including radios, newspapers, TVs, and social media carried these debates to almost all parts of the Arab world. In addition, intellectuals often traveled to neighboring states to receive their education where they were exposed to other Arab intellectuals. The Syrian intellectual Mu ṭafā al-Sibā‘ī, for example, received his education from al-Azhar in Cairo, where he met the founder of the Muslim Brotherhood Ḥasan al-Banna. The

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Moroccan intellectual ‘Allāl al-Fāsī spent some time in Egypt where he wrote his famous book

Self Criticism (al-naqd al-dhātī). The Saudi muftī Ibn Bāz was aware of other states’ PSLs when he criticized the UAE’s newly codified PSL. After Egypt codified its PSL, other Arab-States followed suit by copying many of the Articles of the original Egyptian document. Jordan, Syria,

Lebanon, Iraq, Tunisia, and Morocco (to name a few) were among the states which borrowed from the Articles and language of the Egyptian PSL. Egyptian intellectual Abū Zahrah travelled the entire Arab-Muslim region lecturing specifically on Islamic family law and the new Egyptian

PSL. It is worth mentioning that Islamic law books by Egyptian intellectuals Badrān and Abū

Zahrah are widely taught in various institutions throughout the Arab-Muslim states.

The stereotype that all Arab-Muslim traditionalists support only policy that is restrictive to women is unfounded.3 The works of Egyptian intellectuals al-Dijwī and al-Shādhilī illustrate the ways in which both men were instrumental in promoting the new minimum age of marriage, expanding the role for women in conducting their marriages (in line with the opinion of Abū

Ḥanīfa), and calling for the participation of women in the reform of Articles which concerned women. This misconception regarding the work of traditionalist Muslim ‘ulamā’ further begins to crumble when the work of Salafi ‘ulamā’ are considered. The Saudi muftī Ibn Bāz, for example, called for the continuation of girls’ early marriage and criticized the newly codified personal laws in some of the Arab-Muslim states as un-Islamic and from outside Islamic Sharī‘a.

But Saudi muftī Ibn al-‘Uthaymīn (another conservative traditionalist Muslim) did not support the coercion of women—minor or major—into marriage. His opinion became prevalent in preventing the Saudi religious institution of Iftā’ (C.R.L.O) from permitting the coercion of minor women into marriage. By refusing to allow the coercion of minor women into marriage,

3 See appendix A for the diversity in opinions among Arab-Muslim intellectuals regarding the marriage of minors, adult women, and the role of the walī in the marriage of the adult woman. 340

Ibn al-‘Uthaymīn dismissed the majority of Sunni madhāhib who said they were following the example of ‘ ’isha, whose father, Abū Bakr, contracted her into marriage with the Prophet without her consent. Instead, Ibn al-‘Uthaymīn relied on the minority opinions of Ibn Shubruma, al-A amm, and al-Battī. Ibn al-Uthaymīn was not the only Saudi conservative traditionalist muftī to take this stance, the conservative traditionalist Saudi muftī al-‘Awnī sided with Ibn al-

‘Uthaymīn against the coercion of minors into marriage, despite claims by al-Fawzān that past jurists had already reached consensus on the subject of minor girls in marriage. In their disagreement with this traditionalist principle, al-‘Awnī and Ibn al-‘Uthaymīn joined other men and women in the fight to prevent the early marriages of women at a time when the custom of early marriage was on the rise in Saudi Arabia and adjacent Arab-Muslim states. Unlike other conservative traditionalist Muslim muftīs, al-‘Awnī also called on the Saudi government to codify fiqh, and to place and enforce a new minimum age of marriage for women.

Intellectual Muslim women joined the legal debate during the early twentieth century and continued to voice their opinions both for and against reforming the Islamic family fiqh. While some like Zaynab Raḍwān joined the minority voices in attempting to earn women wider rights in the PSL, others like the Syrian intellectual Nashwa al-‘Ilwānī objected to the new codification of Islamic fiqh and joined in condemning any effort to recodify Islamic fiqh as an un-Islamic step that was against Islamic Sharī‘a.

Twelver Shī‘ī’ intellectuals were also visible in the conversation, participating regularly in public debates over women’s rights in Arab-Muslim society. While the eminent Twelver Shī‘ī jurist, Ḥūsayn Faḍl Allāh, encouraged following the bulūgh demarcation as a sign of readiness for marriage, the Shī‘ī intellectual and judge, Muḥammad Maghnīyah, sided with past jurists in maintaining that the age of nine lunar years indicated readiness for marriage. The Iraqi Shī‘ī

341 marjī‘, al-Sistānī, also followed the past majority opinions of Shī‘ī jurists in considering the legal age of marriage to be nine lunar years and not the first signs of bulūgh. Most Twelver Shī‘ī jurists—despite having a current marjī‘ and mujtahid—preferred to follow the old and outdated

Islamic Shī‘ī fiqh instead of allowing for reforms. The consequences of this decision were felt most when the new Iraqi Ministry of Justices proposed to lower the minimum age of marriage for women from eighteen to nine Gregorian years, following al-Sistānī and other Shī‘ī jurists from the city of Najaf.

Chapters three and four of this dissertation directly addressed the public debates in

Morocco. Chapter three was concerned with the first publication of the Moroccan Mudawwana and the debates which ensued immediately thereafter. The chapter showed the vibrant public debate between parties and individuals who wanted to reform the Mudawwana, and those who considered it an extension of Islamic Sharī‘a—a sacred document. Despite the mounting opposition, a few Moroccan intellectuals stood up for the rights of women and for reforming the

Mudawwana in order to grant women wider rights. Al-Fāsī, al-Fākhūrī, and al-Khamlīshī were prominent Moroccan intellectuals all of whom called for restricting the role of the walī and granting women wider rights in the Moroccan Mudawwana. Despite their traditional upbringings and religious traditional educations, the works of these three intellectuals were instrumental in helping feminists and women to debate Islamist and traditional parties and individuals successfully, and to advocate for women from within the Islamic tradition. Al-Khamlīshī’s work more so than the others has been a guiding force for men and women since its initial publication and was considered by the Moroccan monarchy and other intellectuals during reform of the

Mudawwana.

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The Islamist parties in Morocco used similar reasoning as other parties and individuals that opposed reform to the PSL in other Arab-Muslim states. Moroccan men and women who opposed the liberal voices accused them of siding with the West and threatening Moroccan

Islamic identity and Islamic Sharī‘a in general. Feminists and many Western-supported NGOs found themselves at odds with Islamists, who wanted to preserve the Islamic fiqh and considered any new reforms which came from feminist organizations and NGOs to be an assault on Islamic

Sharī‘a in general, and on the Moroccan Islamic family in particular. This was obvious when feminists tried to reform some of the udawwa a’ Articles without using Islamic and fiqh sources. But once the Moroccan intellectual Aḥmad al-Khamlīshī began arguing for women’s rights, everything changed. Al-Khamlīshī, although he was brought up in a traditionalist

Moroccan household and educated in conservative traditionalist religious institutions, sided with men and women who are calling for wider rights for Muslim women. And unlike many other

Moroccan and Arab-Muslim intellectuals, al-Khamlīshī argued for women’s rights from within the Islamic tradition.

The struggle to reform the Mudawwana was not without a few major obstacles. Across various media outlets, heated public debates broke out, resulting in two huge demonstrations for and against reforming the Mudawwana. The debates culminated in a decision by the king of

Morocco to reform the Moroccan Mudawwana and the selection of al-Khamlīshī as one of the members of a committee charged to make the reforms. With that declaration, the Mudawwana ceased to be a sacred document and its reforms were then generally accepted by the Moroccan public. This was also how al-Khamlīshī’s work began to influence the language of feminists and

NGOs, as well as that of the Moroccan monarchy. It was because of al-Khamlīshī’s work that the

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King of Morocco agreed to reform the Mudawwana, and to include many of the demands and suggestions made by al-Khamlīshī and feminist organizations.

Chapter four focused on the debates in Morocco that took place from the end of the twentieth-century up through the present day, with particular attention paid to the work of al-

Khamlīshī and its influence on the Moroccan Mudawwana. The chapter examined the opinions of some of the Moroccan intellectuals interviewed by the author in May of 2013, including al-

Khamlīshī. The opinions of some conservative traditionalist muftīs in Morocco were examined and it was found that not all Moroccan traditionalists hold similar opinions as other traditionalists in or outside of Morocco. This was clear in examining the opinion of the controversial and ultraconservative traditionalist Salafi muftī, al-Mighrāwī, who censured anyone engaged in an

Islamically valid, though undocumented, marriage. Al-Mighrāwī maintained that undocumented marriages deprive women of their marriage rights granted by the state. The study also demonstrated that even Islamist parties did not always hold the same views: while some called for the preservation of the walī’ position as a custom that was crucial to the identity of

Moroccans, they also called for an increase to the minimum age of marriage. Meanwhile, the

Moroccan Islamist JDP has worked diligently to pressure the government to reduce the age of marriage for men and women both from eighteen to sixteen. This shows that it is impossible to create a strict political dichotomy with respect to the issue of Islamic family law, which further complicates the debates between jurists and Arab-Muslim intellectuals.

The work of al-Khamlīshī was considered a radical diversion from many of the other traditionalist ‘ulamā’ in the Arab-Muslim world. Unfazed by the mounting opposition, al-

Khamlīshī challenged the outdated fiqh along with the work of many past jurists (fuqahā’) when he said that he considered all legal transactions to be open for ijtihād. This was not only a

344 challenge for Islamists and the traditionalist ‘ulamā’ in Morocco, but also to the work of almost all Muslim jurists throughout the Islamic world. Unlike many of the Muslim jurists who called for opening the gate of ijtihād on certain issues on which past jurists had not yet deduced rulings, al-Khamlīshī called for revisiting and challenging all of the old rulings, including those concerning issues about which jurists claimed that they had already reached a consensus.

Further, al-Khamlīshī broke away from other ‘ulamā’ and intellectuals in calling for a new form of ijtihād—a collective ijtihād (al-ijtihād al-jamā‘ī). This type of ijtihād includes men and women who are professionals and experts from fields related to the topic of any law that is to be reformed—scientists, lawyers, social servants—as well as religious scholars. Thus, al-Khamlīshī may be considered the first Muslim intellectual to allow women to participate in the process of legal ijtihād alongside men.

For the first time, the gate of ijtihād was open for women, and men’s long-standing monopoly over Islamic fiqh was broken. Unlike other collective ijtihād called for by other

Muslim jurists like al-Qaraḍāwī, for example, al-Khamlīshī’s ijtihād is regional and confined to the demands of local issues within each individual state. By allowing expert men and women to take part in the process of ijtihād, al-Khamlīshī undermined the entire establishment of ‘ulamā’.

Furthermore, and contrary to the opinions of many fuqahā, al-Khamlīshī considered the faqih a religious, spiritual advisor and not just a law maker. This radical statement by al-Khamlīshī was instrumental in granting intellectual men and women from various fields permission to act as part of the process of lawmaking in Morocco.

Al-Khamlīshī’s influence on women’s rights did not stop at marriage issues; in fact, al-

Khamlīshī’s work influenced many aspects of Islamic family law which had to do with women’s rights. His opinions were incorporated in the most-recently reformed Mudawwana in 2004. Al-

345

Khamlīshī called for restricting and even eliminating the role of the walī, increasing the minimum age of marriage, and also for allowing the Moroccan family court to make decisions involving divorce rather than leaving the right of divorce strictly to men, as per tradition. Al-

Khamlīshī was also the first Moroccan intellectual to call on the government to criminally punish anyone who participates in the marriage of a minor. Al-Khamlīshī, al-Fāsī, al-Dijwī, al-Shādhilī, and a few others represent the voice of a minority of Arab-Muslim intellectuals who deviated from the course of the majority and abandoned the method of ijmā‘ altogether in order to provide women with wider rights than they had been granted historically. This serves as clear evidence that positive reforms in the Arab-Islamic states in general and fiqh in particular can come from a minority of jurists and not just from the majority, as many would have us believe.

Reforming Islamic family law in an effort to grant women wider legal rights in Islamic society proved to be an extremely contentious issue. However, the ongoing debates among Arab-

Muslim intellectuals prove that the issue is much more complex than outsiders might suspect.

The issue of the walī, which may be seen by outsiders as a minor issue that could be eliminated with little opposition, proved to be an issue of core national identity as well as one of ancient custom that could be difficult to completely eliminate. However, the silver lining can be found in the opinions of a few jurists and intellectuals that are willing to accept the responsibility of voicing an unpopular opinion among the masses of conservative traditionalist men and women who will oppose any new idea on the basis that it might alter the status quo.

The issue of the rights of Muslim women in marriage is one of many topics of debate concerning Muslim women’s rights in some of the Arab-Muslim states. This study aimed to outline the various opinions held by Arab-Muslim intellectuals regarding the role of women as well as the role of the walī in Islamic marriages. While the study covered a vast array of opinions

346 from numerous Arab-Muslim intellectuals and the impact these intellectuals had on women’s rights in some of the Arab states, further studies are needed to examine the ongoing changes to women’s rights according to states’ personal laws in the region. Research is also needed to examine whether the new reforms are being respected by the legal establishment (e.g., lawyers, judges and law enforcement offices). Further field and theoretical work is needed as well to juxtapose some of Arab-Islamic states and to demonstrate the impact of specific reforms on women’s lives. The work that was started by Mir-Hosseini decades ago must be revived since many personal laws have changed in Morocco and other Arab-Muslim states since her book was first published.4 While Welchman has done exceptional work on the Personal Status Law in some of the Arab states—Jordan and the West Bank in particular—further research is needed to explore the new reforms in Tunisia, Iraq and other Arab States to reflect changes that took place as a result of the Arab Spring uprising.

4 Mir-Hosseini published her field work, titled Marriage on Trial: A study of Islamic Family Law, juxtaposing some of the aspects of the Moroccan family law with that of Iran in 1993. 347

Appendix A

A list of the opinions of Arab-Muslim intellectual regarding marriage of minor and adult (bikr) women Arab-Muslim Early marriage by The legal age of marriage Does an adult woman Intellectuals attainment of bulūgh is upon reaching the state’s require a walī’ consent? minimum age for marriage Egypt Abū al-Nūr Yes (by nine) No Yes Abū Zahrah No Yes No Al-Dasūqī No Yes No Al-Dijwī No Yes No Al-Qaraḍāwī No ? No Al-Shādhilī No Yes No Bultājī Yes No Yes Burhāmī Yes ( by nine) No ? Ibrāhīm Bayk Yes No Yes Jum‘a ‘Alī No Yes No Makhyūn Yes (by nine) No ? Raḍwān No Yes No Shaltūt No Yes No

Lebanon: Ja‘farī Shī‘ī Faḍl Allāh Yes (bulūgh) ? No Maghnīyah Yes (by nine) Yes (prefers bulūgh) Yes

Iraq: Ja‘farī Shī‘ī Al-Sistānī Yes (by nine) ? Yes

Morocco Al-‘Alawī ? ? Yes Al-Fākhūrī No Yes No Al-Fāsī No Yes Yes al-Ḥayzūnī No yes No Al-‘Imrānī No Yes Yes Al-Khamlīshī No Yes No Al-Mahdī ? ? Yes Al-Mufīd Yes No Yes Al-Mighrāwī Yes No Yes Al-Shāfi‘ī No Yes No Al-Ṭayyib ? ? Yes Ben Wakrīm No Yes No Banānī No Yes No

348

Arab-Muslim Early marriage by The legal age of marriage Does an adult woman Intellectuals attainment of bulūgh is upon reaching the state’s require a walī’ consent? minimum age for marriage Bourqīya No Yes No Bouslāma No Yes Yes Bouṭālib No Yes No Bouzrī No Yes No Fīghū Yes (by twelve) No Yes Ḥaqqāwī Yes Yes (prefers age of bulūgh) Yes Ibn al-Ṭāhir Yes Yes 15 but not 18 Yes Ibn Ma‘jūz Yes No Yes Lamrābeṭ No yes No Mdāghrī Yes Yes (prefers age of bulūgh) Yes Mihdātī No Yes No Nājī No Yes No Qarmūsh No Yes No Sadūra ? ? Yes

Saudi Arabia Al-‘Arīfī Yes (by thirteen) No Yes Al-‘Awnī No Yes Yes Al-Fawzān Yes (With coercion No Yes by nine) Al-Nijaymī Yes (by fifteen) Yes No Al-Turayfī Yes (by nine) No Yes Ibn al-‘Uthaymīn Yes (no coercion) ? Yes Ibn Bāz Yes(with coercion) No Yes

Syria Al-‘Ilwānī Yes (by nine) No Yes Al-Sibā‘ī Yes No Yes Al-Zuḥaylī No Yes No

349

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