To calm the scandalized clamour of the Prophet’s contemporaries, the Muslim God made a lasting change in the institution of adoption. Verse four of the thirty-third sura denied that adoption creates legal and relational ties between individuals. Article 83 of the Moroccan Code reenacted the Koran’s decision: ‘Adoption confers neither legal status nor the rights of parenthood.’
It should be noted here that the Muslim Prophet’s heroism does not lie in any relation of aggression, conquest, or exercise of brute force against women, but on the contrary in his vulnerability. It is because he is vulnerable, and therefore human, that his example has exerted such power over generations of believers. The Prophet was anything but macho in today’s sense of behaving as a conqueror of women in the way described by Abbas Mahmud al-Aqqad, the sole respectable masculine role in the Muslim Mediterranean today. The Prophet’s behaviour leads us to recognize the complexity of masculine reality. He achieved his colossal task on earth not because he was outstandingly aggressive and rigid, but because he was vulnerable and able to recognize his vulnerability, to acknowledge it and take it into account. The most striking example of this is his admission of his overwhelming love for Aisha, who was not yet eighteen years old when he died in his sixties.
The Prophet was striving to achieve justice between his wives in whatever he gave them and he dutifully respected the rotation system [one night each], but he used to say, ‘God, this is as far as I can go in controlling my inclinations. I have no power over what you own and I don’t [meaning his heart].’ Aisha was the one he loved the most and all his other wives knew that.32
The power of women over men has dictated many of the Muslim laws concerning marriage. Men have a right to sexual satisfaction from their wives so that they will be less vulnerable to the attraction of other women. And women must be sexually satisfied so that they do not try to tempt other men to fornication.
The Need to Ensure Sexual Satisfaction
Sexual satisfaction for both partners is seen as necessary to prevent adultery. For example muhsan, which means ‘to protect’, legally means both ‘marriage’ and ‘chastity’, because a married person should be ‘protected’ from adultery ‘by satisfying his desires within the marriage. Under penal law, the muhsan receives a harsher punishment than an unmarried person who commits illicit sexual intercourse.33
The word zina means illicit intercourse – ‘any sexual intercourse between two persons who are not in a state of legal matrimony or concubinage.’34 Zina covers both fornication (involving unmarried people) and adultery (involving at least one married individual, a muhsan). Before Islam, zina was not considered a sin, a crime against religion. With Islam, it became a crime against God, His laws, and the established order.
Zina was one of the practices the Muslim recruits were required to renounce. The ritual by which new female converts were admitted into the Muslim community included a pledge to respect the six demands known as the woman’s oath of allegiance.
O Prophet! If believing women come unto thee, taking oath of allegiance unto thee that they (1) will ascribe nothing as partner unto Allah, and will (2) neither steal, (3) nor commit zina, (4) nor kill their children, (5) nor produce any lie that they have devised between their hands and feet, (6) nor disobey thee in what is right, then accept their allegiance and ask Allah to forgive them35 [numbers mine].
As a protective device against zina, marriage is highly recommended to believers of both sexes. A sexually frustrated member of the community is considered dangerous. This is the main reason why Islam is opposed to asceticism and requires believers with pious and saintly vocations to acquire pious wives. Abstinence and celibacy are vehemently discouraged.36 Atika Bint Zaid, a woman who decided to live as a celibate after her husband’s death, was discouraged from doing so by the Caliph Umar, who went so far as to propose marriage to her.37
Islam socializes sexual intercourse through the institution of marriage within the framework of the family. The only legitimate sexual intercourse is between married people. Marriage should guarantee sexual satisfaction for husband and wife and protect both partners against seeking satisfaction outside it. The institution of marriage penalizes the husband or the wife who fails to provide sexual services for his or her spouse.
If the wife refuses to have intercourse with her husband she is penalized both on earth and in heaven. The Prophet, according to Imam Bukhari, said a woman ‘who is asked by her husband to join him in bed and refuses to do so is condemned by the angels who hurl anathema on her until the daybreak.38 Although having savage swarms of angels set against one is a rather unsettling thought, the most effective device for bringing the woman to respond sexually to her husband is material. Muslim law grants the husband whose wife refuses his advances the right to withhold maintenance (food, clothing and lodging), which it is normally his duty to provide. The 1958 Moroccan Code safeguards this right for male citizens.
Article 123: The non-pregnant woman who abandons the conjugal community or refuses to have sexual intercourse with her husband may retain her right to maintenance but the judge has the right to suspend her right to maintenance if he commands the woman to return to the conjugal abode or to regain the conjugal bed and she refuses to obey. She has no right of appeal against the judge’s decision as long as she does not execute his order.
The availability of sexual intercourse is vital to the man’s protection against zina because, as we have seen from the Prophet’s example, the only way to resist another woman’s illicit attraction is to rush to your wife.
This need to protect the man is probably the reason why, even though menstruation is defined as polluting,39 a husband is allowed to approach his menstruating wife so long as he avoids penetration. Imam Ghazali explains that the husband can ask his wife to cover her body between the navel and the knee with a cloth and to masturbate him with her hands.40
Parallel to the protection of the man against the wife’s whimsical or biological obstacles, there are many legal devices to ensure the woman’s sexual satisfaction by her husband. Although the right of the woman to ask the judge to pronounce a divorce is limited to a very few grounds, sex is one of them. The woman has the right to ask the judge to initiate divorce if she can testify that her husband is impotent. While Malik decided that the woman should wait one year before asking for a divorce on these grounds,41 the modern Moroccan legislators thought it an urgent matter and urged the judge to respond immediately by releasing the woman if she files for divorce on grounds of her husband’s impotence.42
Another form of divorce justified by lack of sexual satisfaction is ila. If the husband makes an oath to abstain from having sexual intercourse with his wife for four months and if he keeps his oath, she can demand a divorce from the judge.43 The Moroccan Code reenacted ila in Article 58, which identifies it as a legitimate basis upon which a woman can initiate divorce proceedings (al-tatliq).
The compelling duty to provide sexual satisfaction is intelligible only if one is reminded of the fear of unrestrained female sexuality. Curbing active female sexuality, preventing female sexual self-determination, is the basis of many of Islam’s family institutions.
Remnants of Pre-Muslim Sexual Practices
Two techniques of divorce that have survived in Muslim marriages are reminiscent of female self-determination under jahiliya, although the woman’s power to dissolve her marriage is now subordinated to the judge’s decision and approval. The two techniques are tamlik and khul’, both of which can be considered as survivals of, or transitional compromises with, women’s former freedom in marriage contracts.
The techniques of tamlik confer upon the wife the power to divorce her husband if he delegates such power to her. The repudiation formula, ‘I divorce thee’, becomes ‘I divorce thee whenever thou decides it’.
Imam Malik explains the logic of this technique: ‘If a man gives his wife the right to self-determination (mallakaha amraha), whatever she decides becomes legally binding.’44 If she decides to leave
him, there is nothing he can do about it. He recounts the dialogue between a Muslim judge and a Muslim husband painfully surprised to see his wife use the power he had delegated to her.
The man:
I gave my wife the right to self-determination and she divorced me. What do you think?
The judge:
I think that what she did is perfectly legal.
The man:
Please do not do that [i.e., agree with her against me].
The judge:
I did not do that, you did it.45
The tamlik procedure was not reenacted in the 1958 Moroccan Code, which specifies that ‘repudiation subordinated to a condition is valueless’.46 The tamlik had subordinated repudiation to the wife’s approval. The technique of tamlik is interesting because of the mechanisms and concepts involved in it, especially the concept of self-determination as something that can be transferred from the man to the woman. It expressed the idea that the woman’s freedom of decision is not an inseparable privilege of the husband, but can be the object of bargaining between the spouses.
Khul’ literally means ‘to cast off’. Legally it refers to the husband’s renouncing his rights over the woman as a wife after she has agreed to pay him a certain sum of money to buy her freedom. Imam Malik mentions that it was practised in the Prophet’s time.47 The buying of a woman’s freedom is often used in cases in which it is evidently the woman’s fault that the marriage is not working. A price is negotiated between the husband and the woman’s family and is paid to the unlucky husband.
Schacht sees khul’ as ‘an exchange of assets’.48 It seems to be a fair practice by which everybody gets something: the woman her .freedom and the man compensation for his loss. But it is easy to imagine the corruption of such a practice into a weapon to oppress women. If a wife has a fortune of her own or comes from a wealthy family, the man may make life so miserable for her that she will have to ‘buy herself’ back from him.
Such cases must have been quite frequent, because Malik warns that if it is established that the woman was coerced by her husband, the judge should free her and the husband should not be granted indemnity.49 The Moroccan Code institutionalizes the kuhl’ technique in Articles 58 and 61. Article 63 warns, ‘The husband shall acquire compensation only if the wife has consented to obtain her divorce without coercion or constraint.’
Tamlik and khul’ are remnants of women’s sexual self-determination before Islam. But most other features of pre-Muslim sexual practices were stamped out by the rules regulating Muslim marriages. Before Islam, for example, women frequently remarried as soon as they were divorced. If pregnant by their first husband, the child was considered to belong to the second husband.50 Physical paternity was regarded as unimportant. Under Islam physical paternity was essential, so women were forbidden to remarry until several months had passed and it became evident that they were not pregnant by their previous husband.
Idda: The Muslim Guarantee of Paternity
One of the first definitions of paternity in Arabia was the proverb, ‘the child belongs to the bed’, a succinct statement of the Muslim belief. The child born in wedlock belongs to the husband, even if he is not the biological father. A pregnant married woman is assumed to have been impregnated by her husband, and the child belongs to him.
The idea that a woman impregnated by a believer would engage in intercourse with another believer, even in the framework of marriage, became sacrilege: ‘Whoever believes in Allah and in the other world would not allow his sperm to water another man’s child.’51
A woman who is pregnant is therefore forbidden to enter into a new marriage until she gives birth to the child: ‘For those [women] with child, the waiting period shall be till they bring forth their burden.’52
Islam ensured physical paternity by instituting the idda period, which obliges a widowed or divorced woman to wait several menstrual cycles before getting married again.53 Widows are required to wait four months and ten days, divorcees four months.54
The Moroccan Code reenacts the idda just as it was established in the Koran and adopted by Malik. Article 72 forbids a pregnant woman to marry before her child’s birth. Article 73 obliges the repudiated wife to wait three consecutive menstrual flows before engaging in a new marital union. But further measures are taken, in specific cases, to plug any loopholes in the system of paternity.
Even menopausal women do not go unchecked. On the off chance that they can still conceive, they have to wait three months before seeking a new husband (Article 73). Given the volatile tendencies of marriage markets in Muslim society and their competitiveness (due precisely to repudiation, which makes available a greater number of marriageable women than demography alone would), the idda constitutes a rather harsh penalty for all newly divorced women and in particular for menopausal women who have the further disadvantage of being middle-aged in a society in which youth is avidly prized.
The penalizing aspect of the idda appears even more clearly in the case of women whose menstrual flow is irregular or who have no flow at all. On this point there is a significant difference between the Koran and the leader of the Malekite school. The Moroccan Code emulates the latter. While the Koran requires only a three-month waiting period for those ‘who despair of menstruation’55 or have doubts about its regularity, Imam Malik penalizes those two groups with a waiting period of twelve months.56 Article 73 of the Moroccan Code also stipulates that ‘women whose menstrual flow is late or irregular, or who cannot distinguish between one menstrual flow and the following, should wait an idda period of twelve months.’
The new social structure of Islam, which constituted a revolution in the mores of pre-Islamic Arabia, was based on male dominance. Polygamy, repudiation, the prohibition of zina, and the guarantees of paternity were all designed to foster the transition from a family based on some degree of female self-determination to a family based on male control. The Prophet saw the establishment of the male-dominated Muslim family as crucial to the establishment of Islam. He bitterly fought existing sexual practices where marital unions for men and women alike were unstable and lax.
3
Sex and Marriage Before Islam
Marriage on the Eve of Islam
The marriage practices of the first Muslim communities, richly documented by Arab sources, provide much information about the sexual practices that prevailed in pre-Islamic Arabia. But the wealth of information contained in Arab documentation highlights the paucity of analysis of the data.
Ideological biases have often inhibited more audacious analytical efforts. Historians dealing with these problems are often so deeply imbued with centuries of monotheistic patriarchy that they find it impossible even to imagine that the situation on the eve of Islam was far more complex than the system later consolidated by Islam. The important thing is not whether a patriarchal or matriarchal system held sway in pre-Islamic Arabia; the real question is rather to discover which sexual practices Islam forbade and which it encouraged. It is by retracing Islam’s selective attitude toward jahiliya sexual practices that we may grasp the new religion’s stance toward relations between the sexes. That is my object here.
The point, then, is not patriarchy or matriarchy, but to what extent the Muslim family represented a continuation of the pre-Islamic family. Was there a radical break with the practices and principles of the old family or not?
It is interesting to note the sharp differences of opinion on this matter among various historians depending on the era in which they wrote. Historians of the first few centuries of Islam generally exhibited a far more open and flexible attitude than their modern colleagues. Early Islamic historians like Bukhari (author of the Sahih), Ibn Habib al-Baghdadi (Kitab al-Muhabbar), and Ibn Saad (Kitab at-Tabakat) held that the Muslim family marked a break with earlier practices. They acknowledged that the patriarchal marriage endorsed by Islam had been paralleled by many other forms of union that were clearly anti-patriarchal: there were unions in which the child did not belong to the
biological father (and even polyandrous marriages in which the woman had more than one regular sexual partner), and there were unions in which the woman had an absolute right to send her husband away if she so desired, severing the marital bond with a ritual gesture as simple as lowering a veil across the mouth of her tent when she no longer wished her husband to enter. But all these practices, though amply documented, were subsequently prohibited by Islam.
The rigidity with which modern Arab historians refuse to admit, even at the level of pure analysis, that customs expressing female sexual self-determination could have existed is truly fascinating. The most extreme case is perhaps Salah Ahmad al-’Ali. Although he has collected abundant evidence about pre-Islamic sexual customs (and his knowledge of both Arab documents, and documents and studies unearthed by orientalists is erudite) that proves the existence of unions in which the woman’s sexual self-determination was absolute and unchallengeable, he asserts that ‘bedouin society was organized according to the patrimonial system in which the man had power and authority over the woman, the children before puberty, and the household.’1 He claims that mut’a and mubada’a marriages were considered deviant practices (shaddah) during the pre-Islamic period (see Bukhari’s comments on pre-Islamic marriages later in this chapter).2
I have read the same Arab sources as he has, and nowhere have I found clear information on the statistical frequency of these pre-Islamic marital practices or on the moral attitude of pre-Islamic society to them. Earlier historians simply noted that Islam condemned all marriage customs that contradicted the religion’s principles, namely the principles of patriarchy. It is therefore of some interest to look briefly at what these customs and practices were. Exactly what was it that Islam forbade? According to my reading of the historical evidence, Islam banished all practices in which the sexual self-determination of women was asserted.
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