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Muslim Women's Rights in the Global Village: Challenges and Opportunities

Published online by Cambridge University Press:  24 April 2015

Azizah Yahia al-Hibri
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In this age of information technology that shrank our world into a global village, it is fair to ask how this recent development has impacted Muslim women's rights across the world. Having just traveled through nine Muslim countries, ranging from Pakistan and Bangladesh to the Gulf States, Egypt, Syria, and Lebanon, I would answer that it is leading, slowly but surely, to reassessment and change. Attempts to accelerate the pace of this change, however, without full understanding of its complex topology, and the deep-rooted commitment by most Muslim women to spiritual and cultural authenticity, could halt or even reverse this process at great cost to women particularly and Muslim societies as a whole. Hence the challenges and opportunities.

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Articles
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Journal of Law and Religion , Volume 15 , 2001 , pp. 37 - 66
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Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. The trip was arranged and funded in part by the United States Information Service (USIA) and funded in part by the University of Richmond. The author thanks her student research assistants, Ms. Colleen Gillis and Ms. Ghada Qaisi, for blue-booking this article under immense time pressures. The author also thanks Ms. Linda Woolridge for proofreading it.

2. [Editor's Note: Translation of all Qur’anic cites herein were provided by the author who relied heavily on The Meanings The Holy Qur’an (‘‘Ali, Abdullah Yusef trans., Brentwood 1992)Google Scholar.] See Qur’an 16:90, 49:9; ‘Amara, Muhammad, Al-Islam wa Huquq al-Insan 55–68 (Beirut: Dar al-Shuruq 1939)Google Scholar (arguing that justice leads all other values in Islam); al-Mawsu’a al-Fiqhiyya vol. 30, 5–14 (Kuwait: That al-Salasil, Ministry of Awqaf & Islamic Affairs 1983)Google Scholar (describing the different types of justice required in Islam and that Justice is one of God's names).

3. According to one woman, her divorce action had been pending in the courts for seven years. It had not reached its conclusion when we met. She was concerned about the loss of her reproductive years before the finalization of her divorce, thus dimming her chances for a remarriage and children.

4. Women in many countries complained about the ease with which a husband is allowed to divorce his wife. This trend contravenes a substantial body of traditional Islamic jurisprudence that offers important protections to the wife.

5. Some of these protections include the right of the woman not to be married without her consent, her right to a reasonable sadaq (financial or other gift given by the husband upon marriage), as well as her right to education and work. Other neglected protections include protection against abuse (even verbal abuse) and against interference by the husband in the wife's financial affairs.

6. Among recent jurists who were vocal in their support of women's rights generally, or in certain arenas, is the late Shuqqah, Abdul Halim Abu, who wrote Tahrir al-Mar’ah fi ‘Asr al-Risalah, 5 vols. (Kuwait: Dar al-Qalam 1990)Google Scholar. Earlier this century, Muhammad Rashid Ridha also presented a Qur’anic interpretation which was more equitable towards women. See e.g. Ridha, Muhammad Rashid, Huquq al-Nisa’ fi al-Islam (Beirut: al-Maktab al-Islami repr. 1975)Google Scholar [hereinafter Ridha Huquq] Ridha, Muhammad Rashid, Tafsir al-Qur'an al-Hakim (Beirut: Dar al-Ma’rifah 1947)Google Scholar. See also a work by Sheikh Mahdi Shams al-Din, a contemporary jurist who argued for the woman's right to assume political power entitled Ahliyyat al-Mar’ah li Tawatli al-Sultah (Beirut: al-Mu’assasah al-Duwaliyyah li al-Dirasat wa al-Nashr 1995)Google Scholar.

7. Some of these matters were discussed in al-Hibri, Azizah Y., Islamic Law and Muslim Women in America, in One Nation Under God 128–142 (Routledge 1999)Google Scholar [hereinafter al-Hibri, islamic Law]; al-Hibri, Azizah Y., Legal Reform: Reviving Human Rights in the Muslim World, 20 Harv. Intl. Rev. 50 (1998)Google Scholar [hereinafter al-Hibri, Legal Reform]; al-Hibri, Azizah Y., Islamic and American Constitutional Law: Borrowing Possibilities or A History of Borrowing? 1 U. Pa. J. Const. L., 492–527 (1999)Google Scholar [hereinafter al-Hibri, Constitutional Law].

8. For more on this, see my discussion in al-Hibri, Azizah Y., Islamic Law and Muslim Women in America, in One Nation Under God 128, 134–135 (Garber, M. & Walkowitz, R. eds., Routledge 1999)Google Scholar.

9. Id.

10. Many questions were asked (politely) to test my knowledge of Islam and Arabic, as well as to uncover my intentions. Once this test was passed, communication channels became wide open.

11. Muslims believe that the Qur’an is the Word of God revealed to the illiterate Prophet Muhammad through the Archangel Gabriel. For more on this and a quick description of Islamic law, see al-Hibri, Azizah Y., Islamic Constitutionalism and the Concept of Democracy, 24 Case W. Res. J. Ind. L. 1, 3–10 (1992)Google Scholar [hereinafter al-Hibri, Islamic Constitutionalism].

12. It may be argued that exceptions arise in situations where jurists interpret a verse of the Qur’an as having been superceded by a later verse (or hadith, according to some). The general rule, however, remains. In one famous incident, the Sudanese Mahmoud Taha was executed for arguing that a substantial part of the Qur’an should be abrogated because it had become, in his view, obsolete. While the decision to execute was a political one made by former President al-Numeiri, it was disguised as a religious one. The justification used reflects the universal view held by Muslims, namely that rejecting any part of the Qur’an is tantamount to rejecting Islam.

13. Al-Hibri, Islamic Constitutionalism, supra n. 11; al-Hibri, Azizah Y., Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. J. Intl. L. & Policy (1997)Google Scholar [hereinafter al-Hibri, Islam].

14. See Qur’an 4:1, 6:98, 7:189; Khutbat al-Wadaa’ by the Prophet, in which he stated:

O People, all believers are siblings. Your God is one and your father is one. You are all from Adam and Adam is from dust. The most favored amongst you in the sight of God is the one who is most pious; no Arab is favored over a non-Arab except on the basis of piety.

Hassan, Hassan Ibrahim, Tarikh al-Islam vol. 1, 186 (7th ed., Cairo: Maktabat al-Nahda al-Misriyyah 1964)Google Scholar (also recounting that some Muslims objected to the fact that the Prophet gave his permission for a free woman to marry a slave, and that the Qur’anic verse 49:13 was revealed on this occasion). For a translation of the full text of verse 49:13; see infra n. 94.

15. See Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence 283–296 (1991)Google Scholar; Mahmassani, Subhi, Al-Awda’ al-Tashri’iyyah ft al-Duwal al-‘Arabiyyah 438–442, 479, 481 (3d ed., Beirut: Dar al-‘Ilm li al-Malayin 1965)Google Scholar [hereinafter Mahmassani, Al-Awda’]; al-Hibri, Islam, supra n. 13, at 6-7; Haidar, Ali, Durr al-Hukkam fi Shark Majallat al-Ahkam vol. 1, 40–46 (Beirut: Dar al-Kutub al-‘Ilmiyyah n.d.)Google Scholar (explaining the importance of acknowledging and defining the role of custom in Ottoman law, and quoting the hadith that what Muslims deem to be good, is good in the sight of God); Mahmassani, Subhi, Muqaddimah fi ‘Ihya’ ‘Ulum al-Shari'ah 59–93 (Beirut: Dar al-’Ilm li al-Malayin 1962)Google Scholar [hereinafter Mahmassani, Muqaddimah] (noting, among other things, that the permission to change a law as a result of change in time or place relates only to matters of mu’amalat, that is, dealings among people, and does not apply to Qur’anic text or to ‘ibadat, that is, matters of worship).

16. See Haidar, supra n. 15, at vol. 1, 40; Kamali, supra n. 15, at 284; Mahmassani, al-Awda’, supran. 15, at 438-439; al-Hibri, Islam, supra n. 13, at 61.

17. See Haidar, supra n. 15, at vol. 1, 40; Kamali, supra n. 15, at 284; Mahmassani, al-Awda’, supra n. 15, at 438-440 (but noting that some Muslim countries have given preference in their modern laws to custom over shari'ah); al-Hibri, Islam, supra n. 13, at 6.

18. For an excellent discussion of this point, see Mahmassani, al-Awda’, supra n. 15, at 433-475.

19. A good example of this is Pakistan's zina (adultery) laws. For an excellent discussion of these laws which are claimed to be based on Islam, see Quraishi, Asifa, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective, 18 Mich. J. Intl. L. 287 (1997)Google Scholar.

20. I came face to face with this problem while on a USIA tour. In a closed meeting with some leading Muslim women, it became clear that several of them were chafing under certain patriarchal laws in their country but were unwilling to contest them because they thought these laws were based on the Qur’an.

21. The most obvious instance of this fact is reflected in the Muslim family law of the various countries. For a detailed discussion, see al-Hibri, Islam, supra n. 13, at 10-14; al-Hibri, Azizah Y., Marriage Laws in Muslim Countries, 4 Intl. Rev. Comp. Pub. Policies 227, 229–241passim (1992)Google Scholar.

22. See Mahmassani, Muqaddimah, supra n. 15, at 35-55; al-Hibri, Constitutional Law, supra n. 7, at 506, 509.

23. For a discussion of the various considerations that could lead to differences of opinion and thus different formulations of the law, see Kamali, supra n. 15, at 197-228, 245-309 passim; Mahmassani, al-Awda’, supra n. 15, at 478-482; al-Hibri, Constitutional Law, supra n. 7, at 505-511.

24. Qur’an 2:256.

25. See Mahmassani, Muqaddimah, supra n. 15, at 67. The most salient example of this fact is that of Imam al-Shafi’i, who changed aspects of his jurisprudence after he moved from Iraq to Egypt. See id. at 40; al-‘Alwani, Taha Jabir, Usul al-Fiqh al-Islami (The Foundations of Islamic Jurisprudence) 33–36Google Scholar (Intl. Inst, of Islamic Thought 1990); Zahrah, Muhammad Abu, Al-Shafi ’i 145–146Google Scholar (n.p.: Dar al-Fikr al-‘Arabi 1948); al-Samarqandi, ‘Ala’ Al-Deen, Tariqat al-Khilaf bayn al-Aslaf (The Method of Disagreement Among the Predecessors) 13 (Beirut: Dar al-Kutub al-‘Ilmiyyah, 11th Cent. repr. 1992.)Google Scholar.

26. See supra n. 19.

27. Mahmassani al-Awda', supra n. 15, at 477-478; al-Hibri, Islam, supra n. 13, at 7; al-Hibri, Legal Reform, supra n. 7, at 50-53.

28. Mahmassani, Muqaddimah, supra n. 15, at 20-22, 39; Al-Hibri, Constitutional Law, supra n. 7, at 522-523.

29. Zahrah, Muhammad Abu, Al-Ahwal al-Shakhsiyyah 9 (n.p.: Dar al-Fikr al-‘Arabi 1997)Google Scholar (arguing that Hanafi law is no longer suitable in some respects for modern times). Only recently did Morocco abandon the Maliki rule that a father may force his virgin daughter into marriage against her will. See al-Hibri, Islam, supra n. 13, at 11, 15 (stating that other Muslim jurists disagreed with Malik on this matter). Also, some countries continue to have in effect laws based on a jurisprudence that assumes that women can be easily swept by emotions and hence need the protection of men. See id. at 15.

30. Moroccan Code, infra n. 83, Royal Decree No. 193347, bk. 1, tit. 3, ch. 12 (1993) (deleting old bk. 1, tit. 3, ch. 12(4) & revising old bk. 1, tit. 3, ch. 12(1)-12(3)).

31. Al-Hibri, Islam, supra n. 13, at 14-15.

32. See Muslim, Abu al-Hussein Bin, Sahih Muslim bi Sharh al-Nawawi vol. 9, 202–205Google Scholar (9th Cent., repr., n.p.: Dar Ihya’ at-Turath al-‘Arabi n.d.) [hereinafter Sahih Muslim] (quoting the Prophet as saying that a virgin may not become married without her permission).

33. See al-Hibri, Islamic Law, supra n. 7, at 129; al-Hibri, Constitutional Law, supra n. 7, at 522-523. See also al-Ghazali, Abu Hamid, Ihya’ ‘Ulum al-Din 33–34 (Matba’at Mustafa al-Babi al-Halabi 1939)Google Scholar; ’Khaldoun, Abd al-Rahman Ibn, al-Muqqadimah 209 (14th Cent., repr., al-Qalam, Kitab 1978)Google Scholar; al-Wazir, Ibrahim, ‘Ala Masharif al-Qarn al-Khamis ‘Ashar al-Hijri 42 (Beirut: Dar al-Shuruq 1989)Google Scholar; al-Zein, Hassan, al-Islam wa al-Fikr al-Mu’asser 45–46 (Dar al-Fikr al-Hadith 1997)Google Scholar. Cf. al-Ghazali, supra, at vol. 2, 337-351 (providing instances where people who spoke out to the ruler directly were not punished).

34. See al-Hibri, Islamic Law, supra n. 7, at 134-135.

35. Most significant among the recent attempts are the works of al-Sanhuri, Abd al-Razzaq, Fiqh al-Khilafah Wa Tatawwuruha (Cairo: al-Hay’a al-Masriyyah al-‘Ammah li al-Kitab 1989)Google Scholar (argues that the Islamic system of government is quite similar to the system of government in the United States). See al-Shawi, Tawfic, Fiqh al-Shurah (Dar al-Wafa’ 1992)Google Scholar.

36. Today, Muslim governments often appoint the Grand Mufti (highest ranking Islamic authority in the state), as well as imams of mosques. Some governments even limit or specify the topics imams may address on Fridays, when Muslims congregate to pray.

37. The most famous example is that of the great jurist Imam Malik who was tortured by the ruler for refusing to mislead Muslims about the fact that coerced consent was not binding upon them. See a reference to this incident and others in al-Wazir, supra n. 30, at 42. Another example is discussed in al-Hibri, Constitutional Law, supra n. 7, at 520-522 (recounting the story of Yazid, one of the Khalifahs who attempted to gain legitimacy by the use of force).

38. See supra n. 33.

39. For a comprehensive study of this topic see Kamali, supra n. 15.

40. See al-Hibri, Constitutional Law, supra, n. 11, at 507-511; al-Hibri, supra, n. 9, at 24-25. For this reason, a Mufti, grand or otherwise, may not bind others by his opinion (fatwa).

41. See supra n. 40.

42. See supra n. 29.

43. The most salient example is the situation in Afghanistan. In the name of Islam, professional Muslim women have been prevented from working outside their homes, and their daughters have been denied an education as good as theirs, a very painful situation to the mothers.

44. See Qur’an 4:1, 6:98, 7:189.

45. See Qur’an 7: 20-22 (stating that Satan succeeded in tempting both Adam and Eve to taste the fruit of the tree of eternity and power), 20:120-121 (stating that Satan tempted Adam, so both Adam and Eve ate the fruit of the tree).

46. See supra n. 45.

47. See Qur’an 20:122.

48. See al-Baqi, Zaidan ‘Abd, Al-Mar’ah Bayn al-Din wa al-Mujtama’ 194–199 (Cairo: n.p. 1977)Google Scholar; Ridha, Huquq, supra n. 6, at 5-37; ‘Zaidan, Abd al-Karim, Al-Mufassal fi Ahkam al-Mar’ah wa al-Bayt al-Muslim vol. 4, 173–186, especially 184 (Beirut: Mu’assasat al-Risalah 1994)Google Scholar (arguing that the rule in Islam is the equality of the two genders but listing and explaining exceptions in the area of mu ’amalat, i.e., dealings).

49. See ‘Abd al-Baqi, supra n. 48, at 196-199; Ridha, Huquq, supra n. 6, at 20-22; Zaidan, supra n. 48, at vol. 4, 184-186.

50. This practice remains common is Saudi Arabia and some Gulf countries, but has become less common is other Muslim countries that are subject to Western influences.

51. See Ridha, Huquq, supra n. 6, at 19-20; Zaidan, supra n. 48, at vol. 4, 291-297, & at vol. 7, 334-343 (concluding that while the Muslim woman is free to spend her money as she wishes, it would be desirable for her to seek her husband's permission before she gives away her money in order to preserve good relations with him).

52. See supra n. 51.

53. See Mahmassani, Muqaddimhah, supra n. 15, at 496-497 (stating that a husband is obliged to support his rich wife, but that she may not be forced to spend any of her money on him); al-Jaziri, , Kitab al-Fiqh ‘ala al-Mathahib al-Arba ’a vol. 4, 563, 582, 584 (Beirut: Dar Ihya’ al-Turath al-‘Arabi 1969)Google Scholar (stating inter alia that if a husband is unable to maintain his wife, any amounts she spends from her own money for her maintenance (nafaqah) becomes a debt of the husband, even if she is wealthy); Zaidan, supra n. 48, at vol. 4, 290-291, 297. Additionally, once the husband gives his wife her nafaqah (maintenance payments) for food or clothing, for example, she is free to spend the money as she likes and not necessarily on food or clothing, so long as she does not harm or weaken her health or detract from her appropriate dress, see Zaidan, supra n. 48, at vol. 7, 214-215.

54. See Abu Zahrah, supra n. 29, at 415-416 (explaining the rules for determining which male is required to provide maintenance to a woman); al-Jaziri, supra n. 53, at vol. 4, 553, 581 and n. 1 (stating that when the husband is unable to support his wife, the duty falls upon certain other males in her and his family, in accordance with a specified order).

55. See Abu Zahrah, supra n. 29, at 246 (stating that the well-to-do father of a married woman, who is not receiving maintenance from her spouse, may be obligated to maintain her, but the expense becomes a debt of the husband); Zaidan, supra n. 48, at vol. 4, 151.

56. Abu Zahrah, supra n. 29, at 175; al-Jaziri, supra n. 53, at vol. 4, 96-107; Mahmassani, al-Awda’, supra n. 15, at 467, 494; Zaidan, supra n. 48, at vol. 7, 69.

57. See Hodkinson, Keith, Muslim Family Law: A Source Book 132 (London: Croom Helm 1984)Google Scholar; Mahmassani, al-Awda’, supra n. 15, at 467-468.

58. See Abu Zahrah, supra n. 29, at 174; al-Jaziri, supra n. 53, at vol. 4, 153-156.

59. See Abu Zahrah, supra n. 29, at 174; Zaidan, supra n. 48, at vol. 7, 90.

60. See Ridha, Huquq, supra n. 6, at 19-20; Mahmassani, al-Awda’, supra n. 15, at 476; Zaidan, supra n. 48, at vol. 4, 291-297.

61. Many marriage contracts tend to waive financial and other protections of the wife. These contracts are usually negotiated by the wife's father or other close male relative.

62. I heard about these scenarios during my various trips to Muslim countries. The women who mentioned them had been divorced and left penniless.

63. See Qur’an 4:32.

64. Hisham, Ibn, Al-Sirah al-Nabawiyyah (The Biography of the Prophet) v. 1, 187–188 (Beirut: Al-Maktabah al-‘Ilmiyyah n.d.)Google Scholar; Hassan, supra n. 14, at 76; al-‘Umari, Akram Dia’, Al-Sirah al-Nabawiyyah Al-Sahihah (The Authentic Biography of the Prophet) 112–114 (al-Madinah, Saudi Arabia: Maktabat al-‘Ulum wa al-Hikam 1994)Google Scholar.

65. See al-Hibri, Islamic Constitutionalism supra n. 11, at 12. For a detailed discussion of the right of Muslim women to work, see Bennani, Farida, Taqsim al-‘Amal Bayn al-Zawjain fi Daw’ al-Qanun al-Maghribi wa al-Fiqh al-Islami 77–78, 155–169 (Marrakesh L. Sch. 1993)Google Scholar.

66. See Zahrah, Muhammad Abu, Ahkam al-Tarikat wa al-Mawarith 100–150 (Dar al-Fikr al-‘Arabi 1963)Google Scholar; Ridha, Huquq, supra n. 6, at 20-21; Zaidan, supra n. 48, at vol. 11, 261-311.

67. See Qur’an 4:11.

68. This is a consequence of the rules of maintenance mentioned earlier. Women have no duty to maintain themselves or others, while related males are obligated to support them. See supra n. 53 & accompanying text.

69. Id.

70. See Qur’an 4:1, 6:98, 7:189

71. See Qur’an 7:189, 30:21.

72. See Qur’an 30:21.

73. See Qur’an 2:187.

74. The author has replaced the Arabic word “Allah” in the translation which follows with its English meaning, namely, God. This was done to emphasis the fact that ‘Allah” is the same God as that of Christianity and Judaism.

75. Ali, supra n. 2, v. 4:34.

76. See my discussion of this point in Islam, Law and Custom, 12 American U. J. of Intl Law & Policy 1, 28(1997)Google Scholar.

77. A detailed discussion of this verse, including the conditional and temporal (zarfiyyah) aspects implicit in it, appears in al-Hibri, Islam, supra n. 13, at 25-34.

78. Id. at 28-30.

79. See Abu Zahrah, supra n. 29, at 166 (stating that while some jurists disagreed, the major jurists Abu Hanifah, Malik and al-Shafi’i have all stated that the marriage contract was for marital companionship and not for service benefits); Bennani, supra n. 65, at 143-144 (mentioning this view as one of three differing positions among jurists).

80. See supra n. 79.

81. See Bennani, supra n. 65, at 143-144; Zaidan, supra n. 48, at vol. 7, 302.

82. See supra n. 81.

83. Moroccan Code, Royal Decree No. 343.57.1 (1957), as amended by Royal Decree No. 347.93.1 bk. 1, tit. 6, ch. 36(4) (1993) [hereinafter Moroccan Code].

84. Qur’an 46:15.

85. Zaidan, supra n. 48, at vol. 9, 475-480 (stating that Hanafi's, Shafi’is and Hanbalis, with minor qualifications, do not require the mother to nurse the child. Malikis do, unless the wife is from an upper class!).

86. Qur’an 2:233 (parents consult about weaning their child); Abu Shuqqah, supra n. 6, at vol. 5, 104-109 (providing examples in support of the thesis that spouses consult each other in the Muslim family).

87. al-Bukhari, Abu Abdullah I., Sahih al-Bukhari bi Hashiat al-Sindi vol. 4, 47 (9th Cent, repr., Beirut: Dar al-Ma’rifah n.d.)Google Scholar [hereinafter Sahih al-Bukhari]; Sahih Muslim, supra n. 32, at vol. 16, 102.

88. See supra n. 87.

89. Majah, Ibn, Sunan Ibn Majah vol. 2, 930 (9th Cent, repr., Beirut: Dar al-Kutub al-’Ilmiyyah n.d.)Google Scholar [hereinafter Ibn Majah]; al-Nasa’i, Abu ‘Abd al-Rahman, Sunan al-Nasa ’i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi vol. 6, 11 (Beirut: Dar al-Kutub al-‘Ilmiyyah n.d.)Google Scholar [hereinafter Sunan al-Nasa’i].

90. Ibn Hisham, supra n. 64, at 160-176 (stating also that the Prophet often mentioned this fact as part of his identity); Al-‘Umari, supra n. 64, at 102-103.

91. Ibn Hisham, supra n. 64, at 162-163, n. 9.

92. See supra n. 90. The Prophet was returned to his mother when he was about five years old. Al-‘Umari, supra n. 64, at 105 (noting also that reports varied as to the prophet's age upon his return, ranging between four and six); Hassan, supra n. 14, at 75.

93. See supra n. 90. Islam recognizes children who nurse from the same wet nurse as “milk siblings.” This recognition results in duties and obligations. For example, milk siblings must inquire after each other, and may not marry each other. The Prophet inquired after his wet nurse. Ibn Hisham, supra n. 64, at vol. 1, 161, n. 6 (also listing the names of the Prophet's milk siblings).

94. Qur’an 49:13. The translation of the full text of this verse is as follows:

O people, we have created you from a single (pair) of male and female, and made you into nations and tribes, so that you may know each other (not that you may despise each other). Verily, the most honored of you in the sight of God is the one who is the most pious among you. God has full knowledge and is well-acquainted (with all things).

95. Id.

96. For a discussion of this point, see al-Hibri, Marriage Laws in Muslim Countries, supra n. 21, at 231-232; al-Jaziri, supra n. 53, at vol. 4, 54-60; al-Hibri, Islam, supra n. 13, at 16, n. 74 (recounting the story of Sheikh Yusuf Ali, a distinguished Egyptian journalist of poor origins, whose marriage earlier this century to Safiyya al-Sadat, an aristocratic woman, was annulled for lack of eligibility).

97. Moroccan Code bk. 1, tit. 6, ch. 36, art. 36 (requiring obedience); Tunisian Code, Personal Status Code Decree bk. 1, art. 6 (Aug. 13, 1956 as amend. 1993) bk. 1, old art. 23 (repealed 1993) [hereinafter Tunisian Code] (stating that the husband is the head of the family); Algerian Code, Family Law No. 84-11 (1984) bk. 1, tit. 1, ch. 4, art. 39 [hereinafter Algerian Code] (requiring obedience and stating that the husband is the head of the family). See also infra n. 99. For a discussion of the concept ta ’ah (obedience), see al-Hibri, Islam, supra n. 13, at 18-21.

98. For a discussion of the concept of bayt al-ta’ah (house of obedience) and its legal operation, see Kamal, Ashraf Mustafa, Qawanin al-Ahwal al-Shakhsiyyah passim, especially 148et seq. (Cairo: Naqabat al-Muhamin 1990)Google Scholar; Nawwab, Mu’awwab Abdul, Al-Wasit 175et seq. (Cairo: ‘Alamal-Kitab 1982)Google Scholar.

99. For the existence of the concept of ta ’ah in the personal status codes of various Muslim countries see, e.g. Algerian Code, bk 1, tit. 1, ch. 4, art. 39; Egyptian Code, Act No. 25 (1920) (in respect of Maintenance and Some Questions of Personal Status) & Act No. 25 (1929) (regarding certain Personal Status Provisions) as both are amended by Act No. 100 (1985) [collectively, hereinafter Egyptian Code], Law No. 25, ch. 2, art. 11 Repeated Twice (1929) (amend. 1985); Jordanian Code, Personal Status Code, Provisional L. No. 61, ch. 7, art. 39 (1976) [hereinafter Jordanian Code]; Kuwaiti Code, pt. 1, bk. 1, tit. 5, ch. 3, arts. 84-91 (1984) [hereinafter Kuwaiti Code]; Moroccan Code, bk. 1, tit. 6, ch. 36, art. 2 (1993); Syrian Code, Decree No. 59 (1953) (regarding Personal Status Law) amended by L. No. 34, bk. 1, tit. 4, ch. 3, art. 75 (1975) [hereinafter Syrian Code], by implication and generally as a result of the doctrine of incorporation. The Tunisian Code bk. 1, art. 6 no longer requires obedience by the wife. Some of these provisions only partially address the ta ’ah requirement simply because the Codes make use of the doctrine of incorporation which allows the law to fall back on the officially chosen school of jurisprudence for guidance in instances where the law is silent.

100. Supra n. 99, Egyptian Code L. No. 25 ch. 1 art. 1 (1929) (amend. 1985) (the wife loses her right to maintenance if she refuses to have conjugal relations with her husband or leaves her home without her husband's permission (unless she has a legitimate reason for leaving)).

101. For a discussion of the Qur’anic philosophy of gradualism, see al-Hibri, Islamic Constitutionalism, supra n. 11, at 9-10. See also. Mutawalli, Abd al-Hamid, Al-Islam 71–72 (Alexandria: Mansha’at al-Ma’arif n.d.)Google Scholar.

102. See supra n. 101.

103. Qur’an 5:32 (stating that if a person kills another unjustifiably, then it is as if that person murdered all of humanity); 6:151, 17:33 (“And do not take life, which God has made sacred, except by way of justice and law.”); 17:31 (“Do not kill your children for fear of poverty.”); 81:8 (“God will ask parents in the afterlife: ‘for what sin was the female infant buried alive?’“).

104. Qur’an 2:219, 4:43, 5:90. See short discussion in al-Hibri, Islamic Constitutionalism, supra n. 11, at 10.

105. See supra n. 104.

106. Qur’an 48:18, 48:10, 60:12 (commenting on bay’as). Qur’an 3:159, 42:38 (commenting on shurah). (For more on this, see article referred to in footnote 94.)

107. Qur’an 7:145, 39:18, 39:55, 46:16.

108. Qur’an 5:45.

109. Qur’an 2:178, 4:149, 7:199, 24:22, 42:40. For a discussion of Islamic criminal law and the concept of forgiveness, see al-Hibri, Azizah Y., The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723–1732, especially 1728-1729 (1996)Google Scholar [hereinafter al-Hibri, Muslim Perspective].

110. See e.g. Qur’an 49:13, 24:33, 8:70. See also Ibn Majah, supra n. 89, at vol. 2, 1216-1217 (quoting the Prophet as saying that slaves are “your brothers under your control, feed them of what you eat, dress them of what you wear, and do not charge them with tasks beyond their capabilities. If you do, then help them.”). See infra n. 111 for hadiths relating to women.

111. Sahih al-Bukhari, supra n. 87, at vol. 3, 262 (quoting the Prophet as admonishing his male audience: “Let not one of you whip his wife like a slave, then have sexual intercourse with her at the end of the day.”); Ibn Hisham, supra n. 64, at vol. 4, 604 (quoting the Prophet, in his Khutbat al-Wadaa’ as saying to men: “Be good to women; for they are powerless captives (awan) in your households. You took them in God's trust, and legitimated your sexual relations with the Word of God, so come to your senses people, and hear my words …” also providing the meaning for the word “’awan”); al-Tabari, Abu Ja’far, Jami’ al-Bayan fi Tafsir al-Qur’an vol. 4, 212 (9th Cent, repr., Beirut: Dar al-Ma’rifah 1978)Google Scholar [hereinafter al-Tabari, Jami' al-Bayan] (quoting the same passage quoted by Ibn Hisham). This passage comes from Khutbat al-Wadaa’, and was also mentioned in al-Tabari, Abu Ja’far, Tarikh al-Tabari vol. 2, 206 (9th Cent, repr., Beirut: Dar al-Kutub al-‘Ilmiyyah 1988)Google Scholar [hereinafter al-Tabari, Tarikh al-Tabari]. See supra n. 110, regarding a hadith on slaves; & infra n. 112, for another hadith on slaves. The Prophet recognized that the status of women was often no better than that of slaves, a fact which reflected his deep concern for women. Many authors have paired the two categories in their writings. See e.g. ‘al-Kasani, Ala’ ai-Din, Kitab Bada ’i’ al’ Sana’i’ ‘fi Tartib al-Shara ’i’ vol. 2, 334 (12th Cent, repr., Beirut: Dar al-Kutub al-’Ilmiyyah 1986)Google Scholar [hereinafter al-Kasani] (stating that a husband is entitled to punish his wife as he does his slave). See also Kathir, al-Hafiz ibn, Al-Bidayah wa al-Nihayah vol. 5, 148, 170, 202 (Maktabat al-Ma’arif, 2d printing of a 14th Cent, repr., Beirut: 1977)Google Scholar [hereinafter ibn Kathir, Al-Bidayah wa al-Nihayah].

112. For a discussion of the Qur’anic view of slavery, see Hassan, supra n. 14, at vol. 1, 186-192 (explains that the Qur’an recognized slavery only as a transitional condition and that it provided various methods for its elimination; recounts hadith that all believers, whether free or enslaved, are siblings, and no Arab is better than a non-Arab except to the extent of the former's piety). A variant of this hadith is mentioned in al-Tabari's account of Khutbat al-Wadaa’ (The farewell speech of the Prophet); Tarikh Al-Tabari, supra n. 111, at vol. 2, 206. See also Qur’an 49:13. Despite this Qur’anic position, slavery was not abolished from all Muslim countries until earlier this century, and only after the international community denounced the practice.

113. Qur’an 4:129.

114. See al-Afaghani, Sa’id, Al-Islam wa al-Mar’ah 21–29 (Damascus: Tarraki Press 1945)Google Scholar; al-Hibri, , Islamic History, in Women and Islam 209 (London: Pergamon Press 1982)Google Scholar.

115. Qur’an 4:3 (emphasis added).

116. Id.

117. Qur’an 4:129.

118. Id.

119. I personally know many sheikhs, some of whom are now deceased, who preferred to be monogamous rather than run the risk of being unjust.

120. Qur’an 4:34.

121. Hassan, supra n. 14, at vol. 1, 4-8, 52-61.

122. al-Baydawi, Nasr al-Din, Tafsir al-Baydawi 111Google Scholar (19th Cent, repr., n.p. Dar al-Fikr 1982) (recounting the story of a woman who came to the Prophet to complain about her abusive husband).

123. Id. For more on the concept of qisas, see al-Hibri, Muslim Perspective, supra n. 109, at 1727-1730.

124. Al-Tabari, Jami’ al-Bayan, supra n. 111, at vol. 5, 37; Ibn Majah, supra n. 89, at vol. 1, 637.

125. al-Azdi, Abu Dawud al-Sajistani, Sunan Abi Dawud vol. 2, 252 (9th Cent, repr., Beirut: Dar al-Jil 1988)Google Scholar; Ibn Majah, supra n. 89, at vol. 1, 637.

126. Id.

127. al-Qattan, Manna’, Mabahith fi Vlum al-Qur’an 83–84 (Cairo: Maktabat Wihbah 1981)Google Scholar; al-Zarkashi, Badr ai-Din, Al-Burhan fi ‘Ulum al-Qur’an vol. 1, 35–50 (15th Cent, repr., Beirut: Dar al-Jil 1988)Google Scholar.

128. Al-Tabari, supra n. 111, at vol. 4, 215.

129. Zaidan, supra n. 48, at vol. 7, 234-235.

130. See al-Hibri, Islam, supra n. 13, at 13 (especially footnotes 58, 59 & related text).

131. Id. See also Mansour, Hassan Hassan, Al-Muhit fi Sharh Masa’il al-Ahwal al-Shakhsiyyah 213, 214 (Alexandria: al-Mu’assasah al-Wataniyyah li al-Tiba’ah wa al-Nashr wa al-Tawzi’ 1998)Google Scholar, Ghandour, Ahmad, Al-Ahwal al-Shakhsijyah fi al-Tashri’ al Islami at 234 (Kuwait: Jami’at al-Kuwait Press 1972)Google Scholar.

132. Sahih al-Bukhari, supra n. 87, v. 4 at 57.

133. Ibn Majah, supra n. 89, at vol. 1, 638.

134. Fa’ez, Ahmad, Dustur al-Usra fi Thilal al-Qur’an 161 (Beirut: Mu’assasat al-Risalah 1982)Google Scholar [hereinafter Fa’ez]; Ibn Majah, supra n. 89, at vol. 1, 637.

135. See supra n. 134.

136. Ibn Majah, supra n. 89, at vol. 1, 637.

137. Al-Ghazali, supra n. 33, at vol. 2, 354. See also al-Nadawi, Abu al-Hassan, Al-Sirah al-Nabawiyyah 370 (Jeddah: Dar al-Shuruq 1977)Google Scholar.

138. al-Dusuqi, Muhammad, Al-Usrah fi al-Tashri’ al-Islami 164 (Doha: Dar al-Thaqafah 1995)Google Scholar; Abu Zahrah, al-Ahwal, supra n. 29, at 163; Zaidan, supra n. 48, at vol. 7, 313-314.

139. Qur’an 4:34.

140. Id.

141. See e.g. Fa’ez, supra n. 134, at 157; al-Tabari, Jami’ al-Bayan, supra n. 111, at 40. See also infra n. 142.

142. Ibn Kathir, Al-Bidayah wa al-Nihayah, supra n. 111, at vol. 5, 148; al-Tabari, Tarikh al-Tabari, supra n. 111, at vol. 2, 206. Other reports, even by al-Tabari and Ibn Kathir themselves add the element of “disobedience” to the concept of nushuz, as presented by the Prophet in his last address. See supra n. 111. See also al-Nawawi, Abu Zakaryyah, Rawdat al-Talibin vol. 5, 177 (13th Cent, repr., Beirut: Dar al-Kutub al-‘Ilmiyyah 1992)Google Scholar [hereinafter al-Nawawi] (arguing that nushuz includes leaving the marital home without permission (but not for verbal abuse), abstaining from sexual enjoyment, refusal to cohabit).

143. See e.g. Ibn Kathir, Al-Bidayah wa al-Nihayah, supra n. 111, at vol. 5, 202-203; al-Tabari, Jami’ al-Bayan, supra n. 111, v. 4 at 212. These variations are the result of independent reporting of the address by various parties. The Qur’an does require the husband to stop “hitting the wife when she obeys,” but her obedience is not directed to the husband per se. Rather, it is a response to his admonishment (wa’th) that she shun adulterous behavior, a major sin in Islam. Qur’an 4:34.

144. See e.g. Manthur, Ibn, Lisan al-‘Arab vol. 10, 192 (2d printing of a 13th Cent, repr., Beirut: Dar Ihya’ al-Turath al-‘Arabi 1992)Google Scholar (quoting Ibn al-Athir as defining fahishah mubayyinah, occurring in the Prophet's last address, as adultery; also stating that others define it as extreme sin and as leaving the marital home without permission); al-Zabidi, Muhammad Murtadha, Taj al-‘Arus vol. 4, 331 (18th Cent, repr., Beirut: Manshurat Dar Maktabat al-Hayat n.d.)Google Scholar (quoting al-Jawhari and Ibn al-Athir as defining fahishah mubayyinah as adultery. Also stating that others defined it as extreme sin, and that al-Shafi’i defined it as verbal abuse towards the wife's in-laws).

145. See supra n. 141.

146. Qur’an 2:229.

147. See e.g. al-Kasani, supra n. 111, at 334 (the conjunction “and” in the revelation requires a sequence of actions: first admonishing the wife, then deserting her bed, and finally “hitting” her); al-Zuhayli, Wihbah, Al-Fiqh al-Islami wa Adillatuh vol. 9, 6855–6857 (Damascus: Dar al-Fikr 1997)Google Scholar [hereinafter al-Zuhayli]. Cf. al-Nawawi, supra n. 128, at 177 (quoting al-Hinati who argues that the sequential interpretation is only one of three possible ones).

148. The majority of scholars take the sequential approach. According to them, the husband must first admonish, then desert his wife's bed, and finally resort to hitting, although some argue that it is better not to reach the third stage at all. See text accompanying supra n. 138 about the sequential approach. Al-Zuhayli, supra n. 147, at vol. 9, 6857 argues that it is better to threaten without actually “hitting.” He bases his view on the fact that the Prophet never hit a woman.

149. Major among these is the Qur’anic verse which orders husbands to live with their wives in kindness, or leave them charitably. Qur’an 2:229. For more, see supra nn. 66-68 & related text. For hadith, see also supra nn. 121, 122, 133 & related text.

150. Among these is the sequential interpretation of the Qur’anic verse 4:34. See supra n. 147. Other limitations are mentioned in al-Tabari, Jami’ al-Bayan, supra n. 111, at vol. 5, 43-45 (the man may not hit the woman in the face, or hit hard or leave an (harmful) effect (dharb ghayr mubrah wala mu’ath.thir); al-Nawawi, supra n. 142, at vol. 5, 676-677 (Hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages.); al-Zuhayli, supra n. 147, v. 9 at 6856-6857 (citing medieval jurists as requiring that the “hitting” does not cause fear in the wife, is not directed against the face or abdomen, and other places that could result in serious harm).

151. See supra n. 150.

152. al-Dardir, Abu al-Barakat Ahmad, al-Sharh al-Saghir vol. 2, 512Google Scholar (18th Cent, repr., Dar al-Ma’aref 1972) (noting that the hitting may not affect the wife's bones or flesh. The husband may not resort to hitting his wife if he knows that it would be useless. If the husband hits his wife despite this knowledge, she is entitled to divorce and retribution). See also al-Nawawi, supra n. 142, at vol. 5, 676-677 (hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages); al-Zuhaili, supra n. 147, v. 4 at 6856-6857 (noting that the Hanafi and Shafi’i schools of thought would find the husband liable if he harmed his wife. Hanbalis would not.)

153. Al-Tabari, Jami’ al-Bayan, supra n. 111, at vol. 4, 44; Al-Nawawi, supra n. 142, at vol. 5, 676-677 (hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages); al-Zuhayli, supra n. 147, v. 4 at 6856.

154. This view has been adopted by some personal status codes such as Jordanian Code ch. 12 art. 132, supra n. 89; Kuwaiti Code pt. 1, bk. 1, tit. 3, ch. 1, art. 126, supra n. 89.

155. Qur’an 38:44. I would like to thank Sana’ Afandi, director, Karamah: Muslim Women Lawyers for Human Rights, for pointing out the significance of this story in understanding the Qur’anic verse 4:34. I also thank my spouse Ahmad al-Haidar for shedding valuable light on the significance of the graduated approach in the same verse.

156. Id.

157. Id.

158. The word “dighth” in Qur’anic verse 38:44 means a handful of grass or even basil. See ‘Abdin, Ibn, Radd al-Muhtar vol. 5, 659 (19th Cent., repr., Beirut: Dar al-Kutub al-‘Ilmiyyah 1994)Google Scholar (explaining the meaning of “dighth” as a handful of basil, also noting that others stated that it meant “a handful of grass or thin branches”). Cf. Ibn ‘Abdin argues that the use of basil by Job is a special case, reflecting God's mercy, and cannot be generalized to other women. Yet major medieval scholars appear to implicitly disagree. They limited the husband to the use of a miswak or what is similar to it

159. Seen. 148.

160. Qur’an 4:35.