Judaism and Islam in Practice

A Sourcebook

Jonathan E. Brockopp, Jacob Neusner, Tamara Sonn

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781134605538
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire antique

Judaism and Islam compare because they concur that God cares deeply not only about attitudes but actions, not only about what one says to God but how one conducts affairs at home and in the village.
In this sourcebook, the authors have selected key passages from the laws of Judaism and Islam which allow a close examination of their mode of expression and medium of thought as well as the substance of the laws themselves. The selected passages concentrate on areas critical to the life of piety and faith as actually practised within the two faith-communities - the relationship between the believer and God, between and among believers, at home in marriage, outside the home in the community and between the faithful and the infidels (for Islam) or idolaters (for Judaism).
Judaism and Islam in Practice presents an invaluable collection of sources of Jewish and Islamic law and provides a unique analysis of the similarities and contrasts between the two faiths.

2
AMONG THE FAITHFUL [I]

BETROTHAL, MARRIAGE,
INHERITANCE, DIVORCE:
HOW THE FAMILY IS REGULATED

1 INTRODUCTION

Both the Islamic and Judaic systems of law take for granted that the family forms a critical focus of Godly concern. That is because the family is one focus of sanctification, the woman to the man in particular, and sexuality is a principal medium for the sanctification of life. Arrangements made by man accord with God's wishes or violate them. God confirms and sustains the right ones, condemns the wrong. Central to these systems is the status of a woman, who ordinarily is not left out of relationship with a man but is assigned to the protection of her father (and brothers) before marriage, her husband afterward. Provision of valid rites of betrothal, marriage, and divorce, as the case requires, validate in the eyes of God arrangements that, lacking such provision, would otherwise constitute sin. Specifically, when a woman passes from the domain of her father (or, lacking a father, her widowed mother and brothers) to the domain of her husband, particular rites, (for example, documents) must mark the change in her status, through its stages. In the absence of such rites or documents, the woman's actions constitute license. The same actions, properly validated, accord with God's will and plan. So rites of betrothal and marriage, on the one hand, and divorce, on the other, classify a given action involving a woman's status; properly done these are an occasion for celebration, improperly done, for sanction. That other dimension of the family – the preservation and transmission of property from generation to generation —enters into this same framework. In the case of both Judaism and Islam, law frames a theology of family life that fits well into the larger religious system set forth by the respective revelations.

2 BETROTHAL IN JUDAISM

The transformation of the status of a woman from daughter to wife takes place in two stages: betrothal, at which point the woman is designated, or sanctified, to a particular man, and marriage, at which point the relationship is sexually consummated under the marriage canopy, or huppah (which lends its name to the entire transaction). In the law of Judaism a father may betroth and marry off his daughter if she is a minor, but when she reaches maturity, at the age of twelve, she may without penalty reject the arrangement and leave the arranged marriage. From maturity, moreover, a young woman may enter into a betrothal on her own account. Betrothal has the legal force of marriage, in that should the arrangement fall apart, a proper rite of divorce is required.

The change in the woman's status, from free agent to designated for a particular man, takes place through a rite that transfers her – by which is meant, responsibility for the woman – from her father to her prospective husband. This may be done through the prospective husband giving her — and the woman willingly accepting – a token money-payment; through the provision of a writ of betrothal, properly witnessed and delivered; or through a sexual act. The law of Judaism takes for granted that a man does not wantonly commit such an action, to which the woman acquiesces (otherwise a charge of rape would be entered), but only with the intent of acquiring the woman for himself, and therefore assumes that the intent of both parties is to effect a betrothal. These three media for the transfer of title hardly compare; the woman's (or her father's in the case of a minor) acceptance of a token being different from the provision of a legal document, and a legal document hardly comparing to a change in the physical relationship of the couple. All, however, produce the same effect. The same passage covers the dissolution of the relationship. ‘The woman acquires herself,’ meaning, regains the status of free agent, no longer sanctified to a given man, by receiving a writ of divorce – matching the document that inaugurates the relationship – or by reason of the husband's death. The other two means of effecting the relationship, her acceptance of a token or the act of sexual relations, produce no counterpart, for example, returning the token or severing the sexual bond. The paragraphing delineates secondary amplification of the main point:

A. A woman is acquired [as a betrothed wife] in three ways, and acquires [freedom for] herself [to be a free agent] in two ways.

B. She is acquired through money, a writ, and sexual intercourse.

C. Through money:

D. The House of Shammai say, ‘For a denar or what is worth a denar’

E. And the House of Hillel say, ‘For a perutah or what is worth a perutah.’

F. And how much is a perutah?

G. One eighth of an Italian issar

H. And she acquires herself through a writ of divorce and through the husband's death.

(Mishnah-tractate Qiddushin, 1:1)

The Houses are law-schools assumed to have flourished in the first century BCE and CE, Shammai and Hillel being listed in the chain of tradition from Sinai forward. That the betrothal takes effect only when the woman agrees to accept the token of betrothal or its counterparts accords the woman equality in the transaction. That means, just as a man may send an agent, so a woman may participate through her designated representative.

A. A man effects betrothal on his own or through his agent.

B. A woman becomes betrothed on her own or through her agent.

C. A man betroths his daughter when she is a girl on his own or through his agent.

(Ibid., 2:1)

The law, further, takes account of the implications of language that is used, deeming the language, like a document, the effective instrument of transformation of the woman's status. In the continuation of the rule at hand, we note the difference between language that is partitive, that is, that distinguishes one thing from another, and language that is inclusive, that is, that joins one thing to another. At D—E, the language refers to one thing or to another, at F—G, the language implies that the several things that are handed over are treated as a single entity, and the rest follows.

D. He who says to a woman, ‘Be betrothed to me for this date, be betrothed to me with this,’

E. if [either] one of them is of the value of a perutah, she is betrothed, and if not, she is not betrothed.

F. ‘By this, and by this, and by this’ —

G. if all of them together are worth a perutah, she is betrothed, and if not, she is not betrothed.

H. [If] she was eating them one by one, she is not betrothed,

I. unless one of them is worth a perutah.’

(Ibid., 2:1)

Finally, we deal with conditional betrothals. If the man specifies the thing that he intends to serve as the token of betrothal, what he says is interpreted as a condition that, in the woman's mind, is operative; if that condition is not met, the betrothal is null.

A. ‘Be betrothed to me for this cup of wine,’ and it turns out to be honey —

B. ‘... of honey,’ and it turns out to be of wine,

C. ‘... with this silver denar,’ and it turns out to be gold,

D. ‘... with this gold one,’ and it turns out to be silver —

E. ‘... on condition that I am rich,’ and he turns out to be poor,

F. ‘... on condition that I am poor,’ and he turns out to be rich —

G. she is not betrothed.

H. R. Simeon says, ‘If he deceived her to [her] advantage, she is betrothed.’

2:3 A. ‘... on condition that I am a priest,’ and he turns out to be a Levite,

B. ‘... on condition that I am a Levite,’ and he turns out to be a priest,

C. ‘... a netin,’ and he turns out to be a mamzer,

D. ‘... a mamzer,’ and he turns out to be a netin,

E. ‘... a town dweller,’ and he turns out to be a villager,

F. ‘... a villager,’ and he turns out to be a town dweller,

G. ‘... on condition that my house is near the bath,’ and it turns out to be far away,

H. ‘... far,’ and it turns out to be near:

I. ‘... on condition that I have a daughter or a servant girl who is a hairdresser’ and he has none,

J. ‘...on condition that I have none,’ and he has one;

K. ‘... on condition that I have no children,’ and he has;

L. ‘... on condition that he has,’ and he has none —

M. in the case of all of them, even though she says, ‘In my heart I wanted to become betrothed to him despite that fact,’ she is not betrothed.

N. And so is the rule if she deceived him.

(Ibid., 2:2)

What we see in this elaborate passage is how the legal system transforms a given topic into an exercise in a broader principle of the law. In this case, the law in general takes account of deceit in contracts and wishes to say that if one party has deceived the other, the agreement is null. That principle is then translated into the case at hand, and in an elaborate way at that. That is a fine example of what happens when a religious conviction, resting on a theological principle, is set forth in law rather than in a religious rite or even a theological statement. The law now makes the principle concrete and shows how the principle may apply to a broad variety of cases.

3 BETROTHAL IN ISLAM

Islamic law distinguishes between three acts within the process of getting married: betrothal, the marriage contract, and consummation of the marriage. However, the legal effects of betrothal are disputed, and it may be done away with entirely. Moreover, betrothal is not a legal obligation, and so it does not receive a separate chapter in the legal handbooks. At the beginning of his chapter on marriage, al-Qayrawani simply states: ‘There is no marriage without: an agent, marriage present, and two trustworthy witnesses.’ His concern is with issues central to the contract, and betrothal is hardly addressed. Nor is betrothal the subject of extensive discussion in the Qur'an. In fact, when it comes to matters of preparation for marriage, the Qur'an's primary concern is with those men who may not have sufficient funds to pay the marriage present, suggesting either that they remain abstinent (4:25 and 24:30) or that they should marry slaves (2:221, 4:24, and 24:32), for whom no particular gift is required.

Although betrothal is not a legal act, it may have legal effects, including permitting the prospective groom to see his fiancee and giving the prospective groom priority over other suitors. Either party may break off the engagement, but any presents given to the bride are considered gifts and not returned. No statement of divorce is, however, required. A number of hadith demonstrate both the process and principals of betrothal:

Yahya told me on Malik's authority from Nafi from Abdullah ibn Umar that the Messenger of God, may God bless him and grant him peace, said, ‘One of you should not make an engagement upon the engagement of his brother.’

Malik said: The explanation of the statement of the Messenger of God, may God bless him and grant him peace, according to what we think – but God knows best – is that ‘One of you should not make an engagement upon the engagement of his brother.’ This means that when a man is engaged to a woman, and she trusts him, and they have agreed on an honorable marriage present, with which they are satisfied, and she has made this a condition for herself, that this is that which is forbidden: that another man makes an engagement upon this engagement of his brother.

It does not mean that when a man has made an engagement with a woman, and his suit does not agree with her and she does not trust him, that no one else may seek an engagement with her. That would be a door to immorality for the people.

Yahya told me on Malik's authority from Abd al-Rahman ibn al-Qasim that his father said about God's word, he is blessed and most high: ‘There is no harm in the betrothal you offer to women, or hide in yourselves. God knows that you will remember them; but do not make secret promises to them without honorable words’ (Qur'an, 2:235). This is when a man says to a woman, while she was still in her waiting period after the death of her husband, ‘You are precious to me, and I am desirous of you. May God cause goodness and wealth to flow to you!’ and words such as these.¹⁸

The first two hadith nicely demonstrate the careful reasoning of Islamic jurists. Taken literally, the words of the Prophet could be interpreted to forbid both concurrent suits and consecutive ones! The second hadith forms a commentary on one of the few Qur'anic verses on the subject of proposals. In the classical handbooks of Islamic law, this story is simply summed up as follows: ‘A woman may not be betrothed during her waiting period, but there is no fault in honorable expressions of intent.’¹⁹ This, in fact, is the only statement on betrothal in all of al-Qayrawani's handbook.

One important aspect of the law of betrothal, however, is that an engagement may only be arranged between two people who would normally be allowed to marry. Following the Qur'an, the Muslim jurists legislate extensively on whom a man may marry in the first place, forbidding marriage to close family. Interestingly, both blood and milk form the ties that bind the Muslim family together. That is to say, if a boy and a girl are suckled by the same woman – even if they are not related by blood – they may not marry one another. The Qur'an begins with this list.

Do not marry women such as those your fathers married, unless it was a marriage from before; such a marriage is an abomination and abhorrent, an evil path.

Forbidden for you to marry are your mothers and daughters, sisters, aunts on both sides, the daughters of your brothers and sisters, milk-mothers, milk-sisters, mothers-in-law, stepdaughters who are in your care – that is, born of wives with whom you have had sexual intercourse, but if you have not yet consummated the marriage, then there is no harm — or women belonging to your actual sons; it is also forbidden to have intercourse with two sisters together, unless this was from before.

(The Qur'an, 4:22-23)

In his handbook, al-Qayrawani quotes this passage and then extends the same pattern of reasoning, referring to a hadith from the Prophet. Here the law makes explicit what the Qur'an implies, that all marital relations forbidden because of blood ties are also forbidden if connected by milk.

The Prophet – may God bless him and grant him peace – forbade relations by milk all who were forbidden by blood. He also refused to marry a woman due to her relationship as an aunt [of the groom]. As for someone who marries a woman, his father, grandfather and sons are forbidden from marrying her by the contract itself, even before she is touched [by sexual intercourse]; and her mother and grandmother are forbidden to the groom. However, her daughters [from previous marriages] are not forbidden to him until he has sexual intercourse with their mother, or enjoys sexual pleasure whether by right of marriage, ownership [in the case of concubines], or something similar. The woman normally permitted to a man is not rendered impermissible by adultery [with, for instance, her sister] .²⁰

That milk should form a family bond in Islamic law suggests that mother's milk is categorized with blood as a life-giving substance, but also that Muslim family boundaries are not established by blood alone. In fact, slaves are also considered a part of the family, so while a man may have sexual intercourse with the female slave that he personally owns, he may not have intercourse with his wife's female slave. Nor may he take as concubines his female slave and her daughter, even though he owns them both. In this manner, al-Qayrawani extends the logic of his discussion to include forbidden relationships with female slaves, unbelievers, and Jews and Christians, known collectively as ‘People of the Book.’

God – may he be praised – forbade sexual intercourse, whether by right of marriage or ownership, with unbelievers who are not of the People of the Book. But he did allow sexual intercourse with females of the People of the Book by right of ownership, and he did allow marrying free women of the People of the Book. However, he did not allow right of sexual intercourse with their female servants, nor did he allow marriage to them, whether free or slave.

A free woman may not marry her slave, or the slave of her child. Nor may a man marry his female slave, nor the female slave of his child. He may, however, marry the female slave of his father or the female slave of his mot...

Table of contents

• Front Cover
• Judaism and Islam in Practice
• Title Page
• Copyright
• Contents
• Preface
• I Between the Faithful and God: Prayer, Fasting, Ablutions
• II Among the Faithful [I]: Betrothal, Marriage, Inheritance, Divorce: How the Family is Regulated
• III Among the Faithful [II]: Almsgiving and Charity
• IV Between the Faithful and the Outsider: Defining the Community and the Other
• Notes
• Index