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An Ascetic Vow and an Unseemly Oath?: īlā՚ and ẓihār in Muslim law

Published online by Cambridge University Press:  05 February 2009

Gerald Hawting
Gerald Hawting
Affiliation:
School of Oriental and African Studies, London
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Extract

In societies where oaths and vows are taken seriously the problem inevitably arises of how to escape from them when necessary. The story of Jephthah and his daughter in Judges 11.3Off. illustrates what might happen if no escape mechanism is sought. In both the Bible (Num. 30:3) and the Qur՚ān (5:89) we are told that we must fulfil our oaths and vows, but both scriptures also set out acceptable ways of atonement for certain occasions when fulfilment proves impossible (cf. Lev. 5:1 ff. and Qur՚ān loc. cit.). The atonement might then serve as an escape route for someone who is bound by an oath or vow which he can no longer keep. Other ways out were also provided by the law and its interpreters (sometimes known in Islam as the ahl al-ḥall wa՚l-՚aqd, ‘those who loose and bind’): the words used might be held to be invalid; recourse might be had to the principle that we cannot be held to vows which are beyond our capacity or are contrary to God's law; our state of mind at the time we made the vow (whether in anger, jest, or mental distraction) might be taken into consideration, etc. The tension thus generated between the desire to stress the seriousness of oaths and vows on the one hand, and the need to be realistic in recognizing human weakness on the other, could be considerable.

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Articles
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Bulletin of the School of Oriental and African Studies , Volume 57 , Issue 1 , February 1994 , pp. 113 - 125
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Copyright © School of Oriental and African Studies, University of London 1994

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References

1 Pedersen, J., Der Eid bei den Semilen in seinem Verhältnis zu verwandten Erscheinungen sowie die Stellung des Eides im Islam (Strassburg, 1914)Google Scholar. For the discussion of the loosing of oaths, see pp. 174–8. See too Gottschalk, W., Das Gelübde nach älterer arabischer Auffassung (Berlin, 1919)Google Scholar and the articles of Pedersen s.vv. ‘ẓasam’ and ‘nadhr’ in El (1st ed.), and the articles ‘Oath’ and ‘Vow’ in Encyclopaedia Judaica.

2 For opportunities to discuss the material in the paper I am grateful to Daan van Reenen and Wim Raven, who organized the Ḥadīth Colloquium in Amsterdam in August 1991, and to Philip Alexander, Norman Calder and Colin Imber, organizers of a symposium ‘Law and its interpretation in Judaism and Islam’ at the University of Manchester in September 1991. I also thank the organizers of the sixth ‘From Jāhiliyya to Islam’ colloquium at the Hebrew University of Jerusalem in 1993 for allowing me to use this paper as the starting point for a different discussion.

3 That it was possible to make both īlāZ and ẓihār from more than one woman with a single declaration is evident, e.g., from the ḥadīth referred to at n.29 below, and from Mālik's Muwaṭṭaՙ, Bāb ẓihār al-ḥurr (al-Zurqāanī, , Sharḥ ՙalā ՚l-Muwaṭṭa’, Cairo, 1936, III, no. 1219Google Scholar: fላ rajul taẓāhara min arbaՙati niswa lahu bi-kalima wāḥida).

4 The sources are inconsistent in their use of terms, using ḥilf, yamīn, nadhr, and other expressions apparently interchangeably and sometimes in the same sentence. On this particular topic it seems difficult to distinguish between an oath and vow, but I have tended to refer to īlāZ as a vow, regarding it as a promise made to God without reference to any other party, and to ẓihār as an oath since it would always be made in the presence of, and addressed to, another person—the woman who was its object. This is the sort of distinction made by Rosenblatt, S., ‘The relations between Jewish and Muslim law concerning oaths and vows’, Proceedings of the American Academy for Jewish Research, VII (1935–1936), 229–43Google Scholar, esp. 230–2; see too Mottahedeh, Roy, Loyalty and leadership in an early Islamic society (Princeton, 1980)Google Scholar, 42ff., especially p. 62 (drawn to my attention by Michael Brett), and Brunschvig, R., ‘Voeu ou serment? Droit comparé du Judaīsme et de 1'Islam’, in Nahon, G. and Touati, C. (ed.), Hommage à Georges Vajda: Ètudes d'histoire et de pensée juives (Louvain, 1980; reference owed to David Eisenberg)Google Scholar.

5 The discussions in the law books cover virtually all the possibilities (one would imagine that any are purely academic) and report many differences of opinion among the jurists. For instance, the effects are considered of a declaration of īlāZ or ẓihār against a woman who is not sexually available to the man who makes it at the time when it is made, but who may become so at a future time. This paper does not intend to cover all such possibilities but concentrates on what seem to be the normal circumstances. Note that Bousquet, G.-H., La morale de 1'Islam el son éthique sexuelle (Paris, 1953), 88Google Scholar, says that īlāZ and ẓihār (together with the practice of li՚ān) are ‘sans aucun intérêt pratique’.

6 Al-Shaybānī does discuss some problems concerning īlāZ and ẓihār in the Kitāb al-Aymān wa'l-nudhūr of his al-Jāmi՚ al-Kabīr.

7 The references to these two oaths by modern scholars tend to be confusing and of questionable validity. Th. Juynboll, W., Handbuch des islamischen Gesetzes (Leiden and Leipzig, 1910), 224–6Google Scholar, says that the lawbooks ‘expressly forbid’ a husband from taking an oath of abstention from his wife. He further says that the law classifies īlā՚ as one of the ‘kleine Sünde’ and ẓihār as one of the ‘grosse Sünde’ (this is repeated by Gottschalk, , Gelübde, 69Google Scholar, and Pedersen, , Eid, p. 199, n.2Google Scholar), adding that these ancient Arab oaths soon fell out of use in Islam. Pedersen, ibid., also says that ẓihār is ‘gänzlich verboten’, although it is not clear whether he means in the Qur՚ān or by Islamic law in general. Hughes, T. P., Dictionary of IslamGoogle Scholar, s.v. ‘Divorce’ refers to ẓihār as ‘a possibly valid form of divorce’ while Bell, R., ‘Muhammad and divorce in the Qur՚ān’, MW, 29, 1939, 55–62Google Scholar, argues that it is a formula of divorce which the Qur՚ān declared invalid. He suggests that the provision for atonement which the Qur՚ān provides for someone who has made an oath of ẓihār is a later interpolation into the text.

Schacht provides rather more careful definitions. He sees īlāZ as an oath of sexual abstention which, if not withdrawn, had the effect of ending the marriage (Origins of Muhammadan jurisprudence, Oxford, 1950, 215Google Scholar; Introduction to Islamic law, Oxford, 1964, 164–5Google Scholar). Ẓihār he calls ‘a magical formula…of pre-Islamic and magical origin’. He presumes that it was an old form of repudiation which was rejected as such by Islam: ‘it does not dissolve the marriage but is regarded as an impious declaration which requires a particularly heavy kaffāra’ (Introduction, 164–5, 203Google Scholar).

All of these scholars, like Muslim tradition itself, see the two oaths as a part of the pre-Islamic Arabian background to Islam, the Jāhiliyya. The comparative approach of Rosenblatt offers a better understanding of īlāZ and ẓihār in spite of its relatively limited documentation and dated mode of expression.

8 e.g., al-ShāfiYī, , Kitāb al-Umm, V (Bulaq, 1322), 248–9Google Scholar. Among the examples of binding and not binding vows given there is: ‘If I approach you, I will walk to the mosque of Mecca.’ This is said to be binding (the man is mu՚lī) ‘because he must either walk to it or make an act of atonement for (the breaking of) an oath (yamīn).’

9 There are several diverting explanations of why the word ‘back’ (ẓahr) is used in this context. See, e.g., Lisān al-‘arab (Beirut, 1955), IV, 528Google Scholar. One version associates it with an exegesis of Qur՚ān 2:223 (‘Your women are a tillage (ḥarth) for you; so come upon your tillage as you wish…’). The verse is said to have been revealed to solve a difficulty which had arisen as a result of different customs in Mecca and Medina concerning coital positions (al-Zurqānī, , Sharḥ ՙala ՚l- Muwaṭṭa՚, III, 176–7Google Scholar).

10 e.g., Yal-Razzāq, Abd, Muṣannaf (Beirut, 1971—), VI, 422Google Scholar: Bāb al-taẓāhur bi-dhāt maḥram.

11 For a detailed summary (and polemic), see Ibn Ḥazm, , Muḥallā, ed. Shākir, (Beirut 1969), X, 49ffGoogle Scholar.

12 Shayba, Ibn Abī, Muṣannaf, 15 vols. (Karachi, 1986), V, 136–7Google Scholar.

13 A complication which might occur if the man abstained from the woman for longer than four months following a vow of īlā՚ is addressed in a report about a man who made such a vow, stayed away from the woman for longer than four months, and then resumed sexual relations with her. When others realized what he had done (they inferred the fact from seeing his head dripping with water after the ritual ablution, ghusl), they sought a ruling and it was decided that the couple had been divorced at the expiry of the four months. The man then had to pay a ṣadaqa to the woman to compensate her for having had intercourse with her outside of marriage. (Yūsuf, Abū, Kitāb al-Āthār, ed. ՚l-WafāZ, Abūal-Afghānī, 1355, no. 674Google Scholar; Shayba, Ibn Abī, Muṣannaf, V, 130Google Scholar.)

14 For a summary, see Ibn Ḥazm, , Muḥallā, X, 42Google Scholar.

15 e.g., Shayba, Ibn Abī, Muṣannaf, V, 94Google Scholar, has various formulae of the type lā yadkhulu ՚l-īlā՚ fi՚l-ẓihār wa-lā ՚l-ẓihār fi՚l-īlā՚.

16 See, e.g., Sulaymān, Muqātil b., Tafsīr al-khams mi'at āya, ed. Goldfeld, I. (Shfaram, 1980), 204Google Scholar: ‘ẓihār and īlā՚ were among the forms of divorce in the Jāhiliyya; God set a time limit (waqqata ՚llāh) of four months for īlāZ and provided an act of atonement for ẓihār.’

17 Al-Sarakhsī, , Mabsūt (Cairo, 1324–31), VII, 21Google Scholar.

18 See, e.g., El (1st ed.) s.v. nikāḥ.

19 Exegesis of this verse tends to split it into three and finds a different occasion of revelation for each part—the two hearts, the ẓihār, and the adopted sons. See, e.g., Tabarī, , Tafsīr, 30 vols. (Bulaq, 1323–28), XXI, 74ffGoogle Scholar.

20 For the breaking of an oath the act of atonement specified at Qur՚ān 5:89 is ‘to feed ten poor persons … or to clothe them … or to set free a slave … or to fast for three days’; Qur՚ān 58:4 sets out the atonement for ẓihār as ‘to set free a slave … or to fast for two consecutive months … or to give food to sixty poor people’.

21 Goldziher, I., Die Ẓāhiriten, ihr Lehrsystem und ihre Geschichte (Leipzig, 1884), 52–4;Google ScholarEng. tr. The Ẓāhirīs, their doctrine and their history (Leiden, 1971), 50–2Google Scholar.

22 Ḥazm, Ibn, Muḥallā, X, 52, 1. 17ffGoogle Scholar. Note the use of the exegetical ḥadīth to support the Ẓāhirī interpretation.

23 ibid., x, 51, 1. 18.

24 Sulaymān, Muqātil b., Khams mi՚at āya, 204Google Scholar.

25 Ḥazm, Ibn, Muḥallā, X, 51, 1. 7Google Scholar.

26 e.g., Nasā՚ī, , Kitāb al-Ṭalāq, Bāb al-Ẓihār; Tirmidhī, Kitāb al-Ṭalāq, Bāb mājā՚a fi՚l-muẓāhir yuwāqīՙu qabla an yukaffira. Tirmidhī classifies the ḥadīth as ḥasan gharīb ṣaḥīḥ. He reports that ‘Abd al-Rahmān b. Mahdī held the view that a man who, having made the oath of ẓihār, had intercourse with the woman before making an act of atonement, was liable for two such acts, but that most of the authorities (he specifies Sufyan, Malik, Shafiī, Aḥmad and Isḥāq) said that such a man was only liable for oneGoogle Scholar.

27 Ḥazm, Ibn, Muhallā, X, 51, 1. 19. In the Muwaṭṭa՚ Mālik offers an exegesis which he ‘has heard’ of the Qur՚ānic ‘then they return to what they have said’: ‘The man makes ẓihār against his woman and then decides to retain her and have relations with her (imsākahā wa-iṣābatahā). In that case the kaffāra would be obligatory for him. But if he decided to divorce her (and not resume relations with her), then no kaffāra would be due from him. If he then subsequently took her back (tazawwajahā), as he would be allowed to so long as her ՙidda period still persisted, he might not have relations with her until he had performed the kaffāra of the mutaẓāhir’ (Zurqānī, Sharh ՙala ՚l-Muwaṭṭa՚, III, 178–9)Google Scholar.

28 e.g., Tabarī, , Tafsīr (new ed., Cairo, 1954– ), IV, 456 ffGoogle Scholar.

29 e.g., Nasā՚ī, , Kitāb al-Ẓalāq, Bāb al-īIā՚. See t o o Rosenblatt, ‘Jewish and Muslim law’, 240–1, where a similarity is suggested between the vow of īiā’ and the Nazirite vow in JudaismGoogle Scholar.

30 ՙal-Razzāq, Abd, Muṣannaf, VI, no. 11528. The man asked the Prophet's advice about what kaffāra he should perform, and the Prophet went through with him the various alternatives for the kaffāra in a case of ẓihār. But, each time, the man told the Prophet that he did not have the means to perform it. Finally the Prophet gave him bones with some meat upon them (?ՙarq) sufficient to feed sixty poor people. The man's response was that in the whole of Medina (bayna lābatayhā) there was no family poorer than his own, whereupon the Prophet laughed and told him to take it to his own familyGoogle Scholar.

31 Yūsuf, Abū, Āthār, nos. 673–83Google Scholar; idem., Ikhtilaf Abī Hanīfa wa'bni AbīLaylā, 196, no. 1Google Scholar; Shayba, Ibn Abī, Muṣannaf, V, 128–31Google Scholar; Sarakhsī, , Mabsūṭ, VII, 20Google Scholar; Ḥazm, Ibn, Muḥallā, X, 45–6Google Scholar.

32 Yūsuf, Abū, Āthār, nos. 676, 677Google Scholar; ՙAlī, Zayd b. (attributed), Majmūՙa al-fiqhGoogle Scholar, ed. Griffini, E. as Corpus Iuris di Zayd Ibn ՙAlī (Milan 1919), no. 861;Google ScholarShayba, Ibn Abī, Muṣannaf, V, 131–3Google Scholar; Shāfiՙī, , Umm, V, 262Google Scholar; Ḥazm, Ibn, Muḥallā, X, 46fGoogle Scholar. For Schacht's interpretation of the evidence regarding the Kufans and the rest, see Origins, 215.

33 Shayba, Ibn Abī, Muṣannaf, V, 133–34Google Scholar.

34 See above, p. 119, n. 29.

35 Sulaymān, Muqātil b., Khams mi՚at āya, 203–4; Nasā’ī, Kilāb al-Ṭalāq, Bāb ta՚wīl qawtihi ՙazza wa-jalla: yā-ayyuhā ՚1-nabī limā tuḥarrimu…Google Scholar

36 Tabarī, , Tafsīr, Cairo ed., IV, 427ff.; Pedersen, Eid, 212Google Scholar.

37 e.g., Kathīr, Ibn, Tafsīr (Beirut, 1980), VI, 577Google Scholar(from Jubayr, Sa’īd b.): ‘Īlā’ and ẓihār were among the forms of talāq in the Jahiliyya, and God imposed a time limit of four months for īlā՚ and He made a kaffāra for ẓihār.’ Note, however, Ibn Ḥazm's argument against Abū Ḥanīfa's view that the Qur’ānic ‘and then return to what they have said’ referred to the practice of the people of the Jāhiliyya. They had used ẓihār as a means of divorce and God forbade it and imposed the kaffāra for those who ‘returned’ to it. Ibn Ḥazm says that this is nonsense since, in the Qur’ān, God is addressing the people of Islam, not those of the JāhiliyyaGoogle Scholar.

38 It is not always easy to see to see the implications of the phrases used in the traditions. Cf. ‘Abbās, Ibn at Ḥazm, Ibn, Muḥallā, X, 45–6Google Scholar: idhā āiā fa-lam yafī’ ḥattā tamḍiya al-arba'at alashhur fa-hiya taṭlīiqa bā‘ina; with Ibn Mas’ūd in the same passage: idhā āiā minhā fa-maḍat arba'at ashhur fa-hiya taṭlīqa bā‘ina wa-yakhṭubuhā fī‘iddatihā wa-lā yakhṭubuhā ghayruhu. Apparently on the basis of this Ibn Ḥazm says that Ibn ՙAbbās thought that the ՙidda had passed with the passage of four months whereas Ibn Mas’ūd thought that the ՙidda began after four months had passed. Taṭlīqa bā՚ina seems not necessarily to mean an irrevocable divorce.

39 Shāfi’ī, Umm, V, 256–7.

40 Ḥazm, Ibn, Muḥallā, X, 47Google Scholar.

41 Mishna, , Ketuboth, V, 6 (tr. J. Neusner, New Haven and London, 1988)Google Scholar.

42 ibid., ch. vii.

43 ed. S. Liebermann, 101–2, 17–25.

44 Neusner, J., A history of the Mishnaic law of women, part 3: Nedarim, Nazir (Leiden, 1980), 8, 21–3Google Scholar.