Muslim Marriage in Western Courts

Lost in Transplantation

Pascale Fournier

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317091110
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book describes and analyses the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. Although the outcomes of the cases provide an illustrative framework for the book, the focus is broader than simply the adjudicative endeavours. The work explores the concept of liberalism, which purportedly champions individuals and individual choice concurrently with freedom and equality. Tensions between and among these concepts, however, inevitably arise. The acknowledgment and exploration of these intertwined tensions forms an important underpinning for the book. Through the analysis of case law from these four countries, this study suggests that transplanting Mahr from Islamic law into a Western courtroom cannot be undone: it immediately becomes rooted in the countries' legal, historical, political, and social backgrounds and flourishes (or fails) in diverse and unexpected ways. Rather than being the concept described by classical Islamic jurists, Mahr is interpreted according to wildly varied legal constructs and concepts such as multiculturalism, fairness, public policy, and gender equality. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity (a fragmented and disjointed Mahr) which will be mediated through Western law. Returning to the overarching concept of liberalism, the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.

Chapter 1
The Roots of Mahr and the Hybrid Transplant: Introducing Mahr as an Islamic Legal Conception and a Fragmented Legal Concept

One of the underlying endeavours of this study is to review English and French scholarship on Islamic family law. The current state of legal (and social and religious) thought seems to describe mahr as a single, separate, autonomous and historically static institution. This unitary description of mahr is paradoxically sustained through great polarities from within Islamic family law. For instance, while mahr is seen by Islamic scholars as a religious symbol of dignity, respect and love for all Muslim women, its fluctuating amount is understood as a reflection of the socio-economic status of this particular Muslim woman. In addition, while mahr is conceptualized from within the feminist camp as the ultimate (positive) symbol of women’s empowerment through the right to property, it is simultaneously described as the (negative) patriarchal sign of the sale of her vagina.

The first part of this chapter provides methodological propositions in relation to the formalist/functionalist approaches to Islamic family law. My purpose is to contextualize the scholarship of classical Islamic law, on the one hand, and that of Ziba Mir-Hosseini (2000), on the other, as two distinct ways of understanding Islamic family law. Mir-Hosseini’s work is especially valuable to my analysis as she integrates into her work a distributional analysis of Islamic legal rules. The second part of this chapter introduces the legal institution of mahr as it is presented in Islamic family law, and reviews the contradictory dichotomies that animate its symbolic meaning, assuming along with many others that mahr is monolithic, unitary, distinct and separate from everything else. In the third part of Chapter 1, I suggest an alternative critical way of understanding mahr as a bargaining endowment for husband and wife before, during and after the dissolution of marriage. Using Mir-Hosseini (2000), Mnookin and Kornhauser (1979), and Robert Hale (1923), I argue that in the social life of Islamic marriages, mahr is not unitary and autonomous, but rather a functional institution that produces a series of inconsistent characteristics which we can study.

This functionalist reading of mahr is intended to offer a distributional narrative concerned primarily with the social effects created by the husband and wife as they use mahr as a tool of relative bargaining power. By playing with the amount of mahr along with other factors that colour the marital relationship, I will tell the story of Samir and Leila, a fictional couple. The goal is to provide a glimpse of the contradictory, and often unexpected, effects and uses of mahr by both parties. In subsequent chapters, I will show that although Western courts treat mahr as a unitary institution of their own apparatus, a fragmented, functional mahr is what actually travels to Western countries.

Mahr as a Static, Autonomous Legal Institution

I begin by outlining the formal characteristics of Islamic family law in which each element of the institution stands on its own, and is presented as having its own rationale. For this formalistic reading of Islamic family law, I will offer the scholarship of Ziba Mir-Hosseini as a critical alternative which represents in many ways the rise of a sociological impulse reaching out for a more anti-formal reading of Islamic legal rules. Although Mir-Hosseini does not explicitly refer to or borrow from the work of either Mnookin and Kornhauser or Robert Hale, the theory she proposes and the methodology she uses to analyze the social effects of legal rules emerge from the same legal realist mode. First, she applies a sociological approach using bargaining theory to observe and predict how specific rules of family law might affect the contractual conduct of Muslim men and women in Iran and Morocco. Second, she suggests a methodology to analyze the costs and benefits of abstract legal rules as they are actually used by each party in the shadow of the law to get something from the other, make concessions or simply put an end to the relationship.

I then adopt the sociological approach of Mir-Hosseini and Mnookin and Kornhauser/Robert Hale to highlight the internal and external dynamics of mahr when it is used as a tool of relative bargaining power by parties involved in a marital relationship. In breaking away from the dogmatic rules of mahr, my hope is to make apparent the personal and political stakes involved in opting for a fragmented, functional mahr, as well as the limitations and contradictions of the formalist interpretation of Islamic family law.

Classical Islamic law presents the institution of mahr as a system which has its own distinct institutional structure sharply separated from other components of Islamic family law. Doctor Afzal Wani, well-known Islamic scholar and specialist on the legal institution of mahr, presents mahr as if it were a European code: “The law of mahr as it exists today is well developed like the law relating to other Muslim law institutions. It covers all the relevant matters like: subject matter of mahr, amount of mahr, mode of its payment, when it becomes due, widowed and divorced women’s claims to mahr and so on” (Wani 1996: 27). Doctor Wani’s treatise also explores the most important legal aspects of mahr, as drawn from the four sources of Sunni Islamic law (the Qur’an, the Sunnah, Qiyās and Ijmā), which I present as a foundation in which to root classical interpretations of mahr. These sources, however, no longer present the whole story: the four Islamic schools of law offer differing interpretations, and the internal feminist debate over mahr’s symbolic and actual meaning for Muslim women add layers of meaning and complexity.

Mahr and the Four Sources of Islamic Law

Mahr, meaning “reward” (ajr) or “nuptial gift” (also designated as sadaqa or faridah), is the expression used in Islamic family law to describe the “payment that the wife is entitled to receive from the husband in consideration of the marriage” (Esposito and DeLong-Bas 2001: 23). A key element is the fact that mahr must be paid to the wife herself and not to her guardian (Bosworth 1991: 78).

In conducting his research and developing his analysis of mahr, Doctor Wani respects the corpus of Islamic dogma, norms and prescriptions: the content of mahr is thus revealed first by the text of the Qur’an and secondly by the auxiliary sources of the Sunnah, Qiyās and Ijmā. Following Islamic orthodoxy, I present these in order.

Qur’an

The Qur’an, considered as “the central fact of the Islamic religious experience” (Esposito and DeLong-Bas 2001: 3), represents Allah’s revelation through the Prophet Muhammed from approximately AD 610 to AD 632. It is comprised of chapters, known as surahs, which are further subdivided into verses. As the very words of God for Muslims, the Qur’an forms the primary source of Islamic law, although other sources also influence Muslims’ beliefs and actions. As Azizah Al-Hibri acknowledges, “[w]hile the Qur’an remains the supreme source of law for Muslims, there are important secondary and tertiary sources as well” (Al-Hibri 1999: 505). It contains general as well as specific legal principles, but the “Qur’anic legislation on civil, economic, constitutional and international affairs is, on the whole, confined to an exposition of the general principles and objectives of the law” (Kamali 1991: 30). The Qur’anic law of mahr is contained partly in the section of marriage, partly in that of divorce.

While Verse 24:32 encourages men and women to marry, Verses 4:24, 4:25, and 5:5 specify that a Muslim man may marry a woman from among either the believers, slave or not, or People of the book, but only on condition of paying her mahr.1 The only exception to the obligatory nature of mahr is the marriage of a Muslim man to an atheist, a “non-believer” (Verse 60:10). While mahr is viewed as a “right granted to the woman as a result of Quranic prescription” (Esposito and DeLong-Bas 2001: 23), it can be waived by the woman (Verse 4:4) or its amount can be adjusted by both parties (Verse 4:24). However, the husband can never take mahr back unilaterally once it has been given to the wife (Verses 4:19, 4:20, 4:21). In cases where the wife is divorced before the consummation of marriage, the Qur’an provides that she is entitled to one-half of mahr (Verse 2:237); where mahr has been agreed upon, an “equitable compensation” is due to her (Verse 2:236).

Sunnah

The Sunnah refers to the normative model behaviour of the Prophet Muhammed, and it forms the second source of Islamic law. As the Prophet Muhammed is God’s Messenger, his sayings and practices are seen as a further expression of Allah’s will regarding the way Muslims should live their lives. Where the Qur’an is silent, jurists have looked to this source for additional guidance. The Sunnah is expressed through the narrative traditions (hadith) transmitted, collected and recorded by narrators. Hadith literature typically includes the name of the individual who heard or witnessed the Prophet Muhammed’s saying or conduct, as well as the names of the individuals who transmitted this Sunnah before it was recorded in hadith. These records are included so that the credibility and truthfulness of the hadith can be verified.

Reports of the Prophet’s sayings and actions on mahr offer concrete directions on how mahr should be included in marriage arrangements. First and foremost, mahr is obligatory (Powers 1986: 81).2 If the amount of mahr had not been agreed upon, such as when the husband died before the marriage had been consummated, the wife is entitled to a mahr similar to that of women of her same status (Doi 1984: 160; Hadith 31). Guidance is also available on what is an appropriate subject matter of mahr. While the Qur’an is extremely vague as to the content or minimal amount of mahr, the hadith literature gives concrete specifications in this regard. For instance, it is said that in the case of an extremely poor man wanting to get married, the Prophet requested him to teach his wife the Qur’an as her mahr (Doi 1984: 163). Mahr could also be comprised of a pair of shoes, as long as the woman consented (Doi 1984: 163). Hadith literature offers further guidance on mahr and khul divorce (Wani 1996: 45), and mahr and li’an3 (Wani 1996: 45).

Qiyās

Qiyās, the third source of Islamic law, is a “means of applying a known command from the Qur’an or Sunnah to a new circumstance by means of analogical reasoning” (Brown 2004: 124). It is based on the idea that when the rationale behind a command is understood, it can be applied to novel situations not directly enumerated in either the Qur’an or Sunnah. This process of trying to “discover” the law is referred to as ijtihad, meaning “personal reasoning or interpretation.” For instance, by using an analogy between the Qur’anic penalty for theft (amputation of the hand) and the “theft” of the wife’s virginity, Qiyās was used to fix the minimum amount of mahr (Esposito and DeLong-Bas 2001: 7). More specifically, the amount was established according to the minimum value of stolen goods required in Kufa and Medina, two cities central to the development of Islamic civilization, for the amputation punishment to be executed.

Ijmā

Ijmā, the fourth source of Islamic law, refers to the consensus of qualified legal scholars of a given generation on a point of law (Hodkinson 1984: 4). It derives its authority from the famous hadith of the Prophet Mohammed who was deemed to have said: “My community will never agree on an error” (Esposito and DeLong-Bas 2001: 7). While the Qur’an and Sunnah are generally thought to be preeminent over ijmā, many Islamic scholars contend that only those interpretations of the Qur’an and Sunnah that have passed the test of ijmā are authoritative. Thus, they argue that, in practice, ijmā is the most important source of Islamic law because it infuses interpretations of Qur’an and Sunnah with authority (Hodkinson 1984). They further contend that ijmā is a crucial influence on the development of Islamic law because it determines the interpretation and application of the Qur’an and Sunnah (An-Na’im 1990: 23).

Mahr and the Four Islamic Schools of Law

From the tenth to the nineteenth centuries, the era of Taqlid was characterized, according to received wisdom, by the closing of the gates of ijtihad and the simultaneous emergence of the four schools of law as authoritative legal sources:

What distinguishes it as a unique era in its own right is that during this time, Muslim jurists and judges appear to have abandoned, for the most part, the religio/legal project of coming up with new rules of law directly inspired by the sources of the religion, or ijtihad. Rather than pursue the project of legal innovation typical of the preceding era of Usul, these jurists/judges concentrated their legal activity on consolidating the legal doctrine of the school of law they were affiliated with and to which they had deep feelings of loyalty. (Abu-Odeh 2004: 1054)

As described by Jamal J. Nasir (2002: 20):

The era of the great Sunni Imams was followed … by an era of imitation (taqleed) in which later scholars followed the methods laid down by the founding father and built upon them, without any individual jurist even claiming the status of the earlier Imams, the only authorities entitled to interpret the Divine Law, after whom the “gate of interpretation” was declared closed.

In different centres in Mecca, Medina, Kufa and Baghdad, various religious leaders associated themselves with the different schools of Islamic law, which were subsequently named after the Imams who founded them. The four major surviving schools are the Shafi’i, Hanafi, Maliki and Hanbali, named after Muhammad al-Shafi’i, Abu Hanafi, Malik ibn Anas and Ahmad ibn Hanbal. A brief outline of the legal understanding of mahr in the four schools provides background for how it subsequently plays out.

The Hanafi and Maliki schools treat mahr as a debt (Doi 1984: 160). Mahr can be monetary or non-monetary (some other form of property), but it cannot be “a mere promise to do or to abstain from doing something” (Wani 1996: 69). Hence, a man cannot marry with the promise to teach his wife religion or take her on a pilgrimage (Wani 1996: 70). In other words, the Malikis “say that the mahr may be a definite thing like a known animal, by looking at it or by describing it like this horse or a particular kind of horse like the Arabia horse, or it may be a definite amount of money” (Doi 1984: 165).

As specified by the Islamic scholars John L. Esposito and Natana DeLong-Bas (2001: 24), “the practice of dividing the dower into two portions, prompt (muqaddam) and deferred (muakhkhar), is universal in the Hanafi School.” The Maliki school similarly prohibits the postponement of the entire mahr to an unknown date such as death or divorce (Doi 1984: 165). In fact, half of mahr should be paid immediately upon marriage: “The Maliki school insists that half of the mahr should be given on the spot for the consummation of a valid marriage. Mahr can be given promptly on marriage or can be postponed until after marriage” (Doi 1984: 165). In contrast, according to the Shafi’i and Hanbali schools, the payment of mahr can be delayed at the time of marriage, either in part or as a whole, but “it must not be forgotten completely or the proposal for giving the mahr should not be made in an ambiguous way” (Doi 1984: 165). If mahr is not paid when it had been agreed to be paid completely, the Shafi’i school gives the wife the following options: she can refuse consummation, be patient or take action to annul the marriage before the qadi (Islamic court) (Doi 1984: 165). As to the amount, mahr is equivalent to 10 dirhams under Hanafi law, 3 dirhams under Maliki law, and no fixed minimum under both Shafi’i and Hanb...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of contents
• List of Abbreviations
• List of Cases
• Foreword – Janet Halley
• Acknowledgements
• Introduction
• 1 The Roots of Mahr and the Hybrid Transplant: Introducing Mahr as an Islamic Legal Conception and a Fragmented Legal Concept
• 2 When Mahr Travels: Adjudicating Mahr in Canada, the United States, France and Germany
• 3 Nourishing the Transplanted Law: Fertile Soil or Rocky Ground?
• 4 Contradictions in the Reception of Mahr as Ideology and Subjectivity
• 5 Samir and Leila Revisited: The Adjudication and Reception of Mahr and its Subjective Significance for Muslim Women
• 6 Deep Roots and Tall Branches: Conclusions on the Reception of Mahr by Western Courts
• Appendix A: Mahr and the Qur’an
• Appendix B: Mahr and the Hadiths
• Appendix C: Statute Excerpts
• Bibliography
• Index