Identity and Authority: Changes in the Process of Debates over the Islamic Marriage Contract among Contemporary Muslim Arab Intellectuals Item Type text; Electronic Dissertation Authors Badareen, Nayel A. Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 05/10/2021 18:25:52 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 by Nayel A. Badareen __________________________ Copyright © Nayel Badareen 2014 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 1 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 2 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 3 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 4 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. 5 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. 6 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 7 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 8 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 9 ABSTRACT Throughout Islamic history, Islamic schools of law (madhāhib) enjoyed tremendous authority.