Bi-smi llāhi r-raḥmāni r-raḥīm.
Hello, salaam, and welcome to #whatthepatriarchy?! where we are working to completely uproot the patriarchy from Islam. #inshaAllah #onebookatatime. One feminist book at a time.
Today, we’re continuing our discussion of Kecia Ali’s classic Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence. This is the 2016 edition. Originally published in 2006. I recommend the 2016 edition because it’s more updated and revised. You’ll recall, of course, that I promised to do a few episodes on this book instead of just one like we’ve been doing with the last few books that we’ve done so far. So in the last episode, we talked about the main points of the book, the Introduction, and Chapter 1, which was on all things marriage. In this episode, we’re going to cover chapter 2 on divorce and chapter 3, which is on slavery and slave concubinage or sexual slavery or just the idea of a man being allowed to sleep with a woman that he is enslaving, formerly known as “his female slave” but we don’t use that language anymore.
Now for chapter 2, again on divorce. In this chapter, the author highlights the inequities of divorce laws in the fiqh and the ways that these inequities are part and parcel of the whole system of marriage that the classical and historical jurists, Muslim jurists, the fuqaha’, designed. We read about the many kinds of divorce that the fiqh allows Muslims. There’s talaq, which is a unilateral type of divorce conveniently available to men only for whatever reasons whenever he feels like it; khul’ which is available to women only; faskh or judicial divorce, which also available to women only; and a divorce a woman can initiate based on the conditions of her marriage contract.
Now, let’s begin with one of the most ridiculous types of divorces – triple talaq, when a husband says I divorce you THREE whole times and voila the wife is divorced just like that (oh, beeteedubz, you know how they say women are emotional and men are so logical, which apparently is the opposite of “emotional”? Yeah, that’s said by the same folks who invented the idea of triple talaq, which allows a man to divorce a woman for whatever reason he wants in a whim just like that. And triple talaq is absolute, meaning the husband can’t take it back during the waiting period or the iddah that some other types of divorces can be taken back in. It’s considered makruh but not haram, so it’s disliked or reprehensible or something that you shouldn’t do but its not haram. This is only the Sunni view. For Shia jurists, all divorces require witnesses, so no divorce is valid without a witness, AND only one pronouncement of divorce is valid at a time, so therefore triple talaaq is completely unacceptable and haram.
Oh and did you know that Muslims are also starting to ask questions like, Muslim men are starting to ask questions like, hey can I divorce my wife over text msg? Or is my divorce valid if I do it via text? Lemme answer that question for you: if it’s unethical, it’s objectively un-Islamic so no, not Islamically valid. I don’t care what the patriarchy tells you, whatever is unethical cannot possibly be Islamic, it cannot possibly ever be okay with God. Folks, we have got to revise our understanding of Islam if we can say with a straight face that something is unethical and STILL view it as Islamically acceptable. That’s not Islam. That’s patriarchy – that’s you.
Okay, so, of course, Islam does recognize divorce as a necessary thing that exists. Not as a necessary evil, by the way. That’s really really important – divorce is not an evil thing in islam. The Qur’an explicitly permits it. all Islamic sources recommend reconciliation whenever possible and more appropriate, but divorce is an option that’s available to everybody, all Muslims. And do not trust people who say it’s not encouraged or that it’s, again, a necessary evil – as Asifa Quraishi-Landes shared in a FB post a couple of years ago, it’s not khul’ or a woman’s divorce that’s discouraged but talaq that’s discouraged, and that’s because of the very unethical nature of talaq. [Not in the video but an imp side note: all of this is assuming that that hadith saying the most hated thing allowed by God is talaaq is even authentic or legitimate to begin with! We’re saying here that IF that hadith is valid, then let’s be clear about the language it uses. It’s not talking about divorce of just any kind but talaq.]
Because you see, the English word divorce isn’t a good equivalent of the Arabic Talaq because in the fiqh (not in the Qur’an), talaq is very specifically the husband’s choice to end the marriage. And the husband can do it whenever he wants to regardless of his reasons, again, because the patriarchy allows men to act on their emotions, and the wife gets absolutely NO say in it.
When a man talaqs his wife, she gets to keep her mahr, the dower that the wife is entitled to at the time of her marriage. Theoretically she gets this; she doesn’t always get this (in practice). We talked about this in the last episode, the connection between mahr and marriage and divorce. Hopefully you remember, but the patriarchal logic is that mahr is the price that a man pays his wife for sexual access to her, and so when he chooses to let go of that access, then she has to keep the mahr; if she chooses to deny him sexual access by wanting a divorce, by wanting to leave him, then she has to return the mahr. That’s the important connection.
BUT! She doesn’t always have to give back the mahr in every divorce. Another type of divorce is a judicial divorce, which is more preferable than khul‘ because the wife gets to keep her mahr this way. The wife can dissolve the marriage through the court so she has to involve a judge in this, if she has what are considered legit reasons – again, legit according to the patriarchy. Whereas the fiqh, again conveniently, allows men to divorce for whatever reasons at any time, the woman can divorce under certain “reasonable conditions.” Reasonable according to whom? You guess it – according to the patriarchy. So something like not liking your husband doesn’t count – according to fiqh, not according to Islam, which explicitly contradicts a hadith on divorce, one of the many hadiths we have on divorce, in which the prophet Muhammad s. does allow a woman to divorce her husband, whom she recognizes is a good person, a person of good character and everything but she JUST isn’t attracted to him! And so he tells her okay, you’re divorced, just give him back what he gave you for mahr. The fiqh, however, says, no, no, no, you can’t just divorce someone just because you don’t like him.
These reasons vary from school to school, so for some schools, for some madhahib, something like husband not providing for his wife or family is legit grounds, abuse is legit grounds, sexual impotence is another ground, the husband’s imprisonment or disappearance is another grounds… but the Hanafi school is interestingly the most restrictive: if the marriage has been consummated, according to the Hanafi fiqh, then the wife has almost no “legitimate” reasons to get a divorce. Not abuse, not life imprisonment, not lack of maintenance, the husband not taking care of her, not providing for her, nothing that the other – even the sometimes seemingly strictest schools like Hanbali – considered legit reasons. It’s so ridiculous, folks, that if her husband goes missing or goes to jail, according to the Hanafi fiqh, she’d have to wait until he’d either die naturally or until he’d be 104 years old before she can be considered divorced. Patriarchy is unreasonable like that. The author finds that Maliki law offers the most generous grounds for divorce for women, including non-support, so the husband not taking care of his wife, abandonment, and injury – not abuse, but injury! Physical or otherwise.
Khul‘, again, is a type of divorce initiated by the wife, requires the husband’s permission/consent, she has to return the mahr in this case, it’s considered absolute by almost all the jurists, meaning that the husband cannot take her back during the waiting period.
In another type of divorce, a wife can divorce her husband because she’d stipulated in the marriage contract that if X happens, whatever X is that they agreed upon in their marriage contract, then they’ll be divorced automatically. In this case, you don’t have to involve the judge or the court.
The author notes that while there are benefits to these kinds of stipulations, these conditions we can put in our marriage contracts, they’re not the solution to the inequities in divorce laws in fiqh, and they certainly don’t restrict the husband’s right to a unilateral divorce. The assumption, the default remains that the husband can do any of this stuff any time he wants. So he can still get a divorce whenever he wants. But for the wife to do it, she has to put it in her marriage contract. That’s not a privilege. Why do I have to say it in my marriage contract? Why can’t it be assumed that I have a right to something that my husband also has a right to? And it should not be unilateral for anyone. Unilateral anything should be prohibited because it’s an exploitation of someone’s vulnerabilities in most cases.
BUT the author is careful to note here, as she always is, that while these theoretical ideas, these rulings and all, can sound very bleak for Muslim wives, they’re not necessarily reflective of the reality of divorce in practice. We have plenty of evidence for example that these rules are flexible in practice – and some research even suggests that they were perhaps more flexible in the past. Judges and courts were more flexible when it came to women’s divorce in the past, than they are today. But, of course, that varies from place to place and situation to situation and context to context.
Oh and fun fact: did you know that Abu Hanifa said that a woman should and may, Islamically speaking, kill husband if the husband continues to seek sexual access to the woman once she has divorced him? She shouldn’t kill him aggressively or using a murder weapon – because hello, that’s not feminine – but she can use poison or drugs or something more feminine, less aggressive.
Now, you’ll recall from our previous episode on this book that one of the main points of the book is that so many of the rulings on marriage, sex, divorce, family IN FIQH, not necessarily in Islam, do not apply to contemporary Muslims. You normally expect religion to provide you with ideals that you can work toward, but if these, if the stuff that’s in fiqh, are our ideals, then God help us all. Many Muslim countries have sort of acknowledged this, the fact that the fiqh is problematic when it comes to gender and marriage and divorce and so on, and they’ve responded to it in different ways using the language of “reform.” In this chapter, the author discusses current prospects for reform, the ways that Muslim-majority countries have attempted to modify these ideas. So for example, some have tried to totally illegalize triple talaq, or require that the court intervene in divorce cases; or there are financial penalties for divorce on husbands who have no legit reason to divorce the wife, or not requiring the husband’s consent for khul‘ if the wife returns her mahr. But the author notes that these are all methods that only attempt to curb men’s impulsive and extra-judicial use, or abuse, of talaq – they don’t address the root cause of the problem. So for example, these reform efforts still treat these privileges, like male-initiated talaq, as Islamically legitimate; they think that it’s valid that the man has this right to begin with, and they’re not working to get rid of the connection between marriage and ownership. And the fact that, with some exceptions, the wife has to return the mahr in order to initiate a divorce is also an obstacle for women.
All right, so that’s chapter 2, and now we’re gonna talk about chapter 3, which is on slavery and concubinage. So in this chapter, we learn a lot of disturbing stuff that makes us wanna break a lot of other stuff. Like the rules of concubinage – oh, a concubine is a woman that a man gets to sleep with, or rape because enslaved people were not allowed to consent in sexual relations, without marrying her. A concubine’s primary role is sexual, but the man, according to fiqh, is also entitled to sexual access to any woman that he “owns” or has purchased or enslaves. Enslaved women generally weren’t the same as concubines; not every enslaved woman was a concubine; and concubines were given extra special privileges that other enslaved people weren’t given – like better food, better clothing, and sometimes not having to do household labor at all. Yeah, so much for the whole “no sex before marriage” or “no sex with anybody you’re not married to” crap that’s shoved down women’s throats all the time!
In the fiqh, a man is allowed to have as many concubines as well as to have sex with as many women as he wants to that he has enslaved in addition to four whole wives. And, folks, the scholars’ evidence for allowing men to have as MANY concubines as he wanted? That the Qur’an doesn’t limit this number. Yeah! That’s their evidence! And side note: When Muslim feminists today use a lack of quranic prohibition on something or a lack of a specific claim in the Qur’an for something, and then we argue that it should be allowed because the Qur’an doesn’t prohibit it, we are laughed at because apparently that means we don’t know Islam. Do you see how patriarchy gaslights and manipulates women? On the one hand, the Qur’an’s supposed silence on the number of concubines a man is entitled to means that a man can have as many as he wants; but on the other hand, when Muslim women or egalitarian Muslims say oh the Qur’an is silent on this issue so maybe that’s silence is permission, the patriarchy says no, no, no, silence in THAT case means prohibition! What I never understood here is why there’s a limit on polygyny at all, then. Because, really, ethically speaking, there’s absolutely no point to limiting polygyny if the man can then turn around and be like ok since I want more than 4 wives and can’t have them, I’mma go have 86 concubines instead. And I get that a part of the answer here is that the status of the wife and the concubine isn’t the same, I get that. But my question is not simply about permission but about ethics here. How ethical and unethical is any of this? If limiting polygamy was supposedly a question of ethics, what’s happening with concubinage then? I mean, there were dudes among these misogynist who legit claimed that it was DISBELIEF – it was kufr – if a dude wanted to marry 4 women AND have a thousand and one concubines and someone dared to criticize him for doing so. The critic, according to these dudes, is the one committing kufr, not the dude having these concubines, just for pointing out to the sexual exploiter that you can’t be doing unethical shit like this man, man.
The Qur’anic verses granting a person sexual access to the person they have enslaved are not gendered. But given that men like to pretend they are the ultimate audience of the Qur’an, they did decide that God is talking only to them. Oh but actually, there’s a very powerful anecdote that Kecia Ali talks about in her other book on marriage, called Marriage and Slavery in Early Islam, where a woman does argue and she insists that she qur’anically is allowed to sleep with the men she is enslaving and ‘Umar, the khalifah Umar, is like yeah something must be wrong with you mentally if you think this is allowed to you.
Now the ways that Muslim jurists in the past or historical Muslims talked about slavery or sexual relations with enslaved people isn’t something too unusual, since slavery was historically common and officially illegalized only very recently. Viewing women and girls as sexual commodities wasn’t treated as a condemnable thing in the past – by enslavers, though, becasue the enslaved people did find it condemnable. But also the fiqhi idea of milk al-yamin, or ownership by the right hand, comes from the qur’anic maa malakat aimanukum (“those whom your right hand possesses”). Some contemporary Muslim scholars like to pretend this never happened and that a man could only sleep with his slave women IF he married them first, but this isn’t the case according to the men of fiqh AND I’ve even heard some contemporary dude-scholars explaining it as: “Well, why would he marry her since he purchased her and that serves as the mahr essentially!” In other words, through mahr a man buys his wife just like a man buys a woman he will enslave and has sexual access to by paying another person. The link between mahr/dower and the purchase price isn’t unusual for pre-modern Islam, and we talked about this in the previous episode, but when contemporary Muslims, or contemporary Muslims preachers, use this argument, it’s especially disturbing.
The prophet s. had at least two concubines, Mariyya Qibtiyyah or Mariyya the Copt being the more famous one, although some Muslims today think that’s not the case. Humans of the weird human species like to re-write history like that.
Oh, also, did you know that some Muslims were legit not cool with abolishing slavery – which is why it took a really long time in certain Muslim-majority countries – because how dare we forbid something that God didn’t explicitly forbid? And the arguments in support of slavery in Muslim contexts, btw, are SO similar to those in Christian contexts that I t’s almost as if it’s got nothing to do with God or religion or scripture but … with … people’s egos and privileges.
Muslims in fiqh are prohibited from enslaving other Muslims, but what’s interesting here is that conversion to Islam did not grant one freedom. I can’t imagine what kind of a world we’d be living in now if we HAD freed people through conversion, if conversion to Islam meant freedom from slavery. You see, the scholars had this option – they could make this a ruling, they had the option to make this possible! I mean, it would’ve been so easy! And greedy people who want more converts to their religion would’ve gotten what they wanted, a higher number of followers of their religion, and slavery would eventually have ended much faster than it did in reality. But then again, if that were the case, if we didn’t have slavery anymore, who would feed the greed of the dudes who benefited from slavery?!
The author here points out that the Qur’an does acknowledge slavery as a reality and also offers several ways for freeing enslaved people. For example, freeing a slave is required as expiation for certain sins. Which suggests that the Qur’an does not expect a person’s status as enslaved to remain permanent & it expects it to change. And also that the Qur’an doesn’t seem to think that slavery is just.
Now, theoretically, there were certain rules in place for how one was supposed to treat the enslaved. E.g, the fiqh tells us that if you mistreat the person you’re enslaving, they would be freed with no compensation to you as the enslaver. Slaves were entitled to marriage; they could be married off by their enslavers, and an enslaver could not simultaneously enslave a woman who was his wife. If an enslaver slept with his female slaves, any children born from that were to be free and were considered legitimate children of the mother’s enslaver, of the “master”; these children, theoretically, had the same status as any “free” children born to the man’s wives. The woman could no longer be sold to anyone else, and upon the death of her enslaver, she was automatically freed. She and her kids were both automatically freed.
You should know that too many people like to use examples like this to say, See, Islamic slavery was better than, say, American slavery and that’s why it’s not haram, if done right it’s not haram, it’s not immoral. But this kind of apologetic isn’t ok because it totally misses the point.
The author, in this chapter, talks about some of the different ways Muslims today deal with this problematic part of our past. So, for example, some Muslims totally deny that slavery ever happened or that it was ever allowed in Islam, or that the fuqaha’ ever allowed it. Others talk about slavery as if it’s not abolished, as if it’s still happening and it’s still acceptable morally. And then there are those that explain it and justify it defensively and apologetically. E.g., when God gives permission for sleeping with enslaved people, it’s just to make sure that slaves are integrated into society. Or that the man is only allowed to enslave people so that he can be responsible for them financially and otherwise. The author points out that these apologetics aren’t sufficient for internal Muslim reflection, and in my opinion, not in the author’s opinion necessarily, it’s total crap. Because why do you have to enslave someone to ensure that they’re integrated into society? Why do you have to sleep with them to ensure that? The author does an excellent job showing how these contemporary/modern views, or these modern rationales that we provide for slavery, are in clash with historical Islamic ideas. Do we accept these past ideals and ideas as Islamically acceptable just because they happened? Just because that was the norm for a certain class of people in the past, from the enslaver’s perspective? What are the implications of the Prophet Muhammad s.’s and his companion’s practice of capturing people and enslaving the women and giving permission to men, to the capturers, to essentially rape the captured women? What are the implications of all of this for contemporary Muslims? Is it binding because the Prophet permitted it or did it himself, like say having a concubine, or can we reject it today? If it’s not binding today for today’s Muslims because times and contexts are different, what does that mean about what ELSE we’re allowed to disagree with the past Muslim scholars on just because today our standards, our ideals are different than theirs? Because you see, it affects the way they define the word sunnah or think of the Prophet Muhammad as a model for Muslims everywhere at all times but clearly with exceptions? And that, it turns out, sometimes means revising his life to fit our own contemporary ideals so that we end up projecting onto Islam, onto the Qur’an, onto the Prophet Muhammad s. things that are important to us.
So the chapter, like all the others, also points out that the like the other topics discussed in the book – marriage, divorce, same-sex relations, and so on – in the discussion on slavery, the main problem at hand seldom gets serious critical consideration. People talk around it, and very few actually confront the problem – that of the Qur’an’s, sunnah’s, and fiqh’s acceptance of slavery as a legitimate thing, the fact that none of these sources ever really explicitly condemns slavery, including concubinage. And the remnants of the legal practices of slavery universally continue to haunt us especially in the context of gender relations. And this scriptural acceptance poses problems for us, even as most of us today condemn slavery. But, as usual, the author offers productive ways for us to think about these issues. And for Muslims who want to use Islamic arguments against slavery, here are two: the Qur’an implicitly does seek to abolish slavery, and the men of fiqh didn’t interpret these verses as calling for abolition because of their implicit biases (we all have them) – and I would also argue explicit biases of theirs. There are reasons to believe that the Qur’an itself does not permit sexual contact between the enslaver and the enslaved if we look at certain verses carefully. And I discuss some of these in my dissertation, in the chapter on slavery. Slavery was never intended or designed as a permanent reality, and this is clear from the way the Qur’an talks about slavery. It’s possible that the Prophet Muhammad s. did not directly explicitly abolish it, even though he had the choice to, yes, because of the limitations that were posed on him as a prophet. He wasn’t all-powerful, and he had a mission to spread Islam. Fatima Mernissi, in the episode that you recall we did on her book The Veil and the Male Elite,discusses the restrictions that Muhammad s. faced as a prophet when it came to dealing with women and marriage. Really, for the most part, the obstacles he had to overcame were mostly powerful, elite, insecure men, some of whom unfortunately are given the title of sahaaba (“companions”). These arguments do have valid points, the author acknowledges, but they’re not sufficient and certainly don’t answer the question: where is God’s justice in permitting an injustice like slavery IF slavery was indeed an injustice? And the Qur’an talks about it like it is an injustice.
The author’s very clear about the purpose of raising these questions and having this whole discussion: they’re relevant to larger issues of ethics. Again, the title of the whole book is Sexual Ethics & Islam. She asks, “How can one reconcile God’s justice and goodness with the injustice of slavery, or does viewing God as just and good necessitate acceptance of slavery as part of the divine plan for humanity?” I don’t have the page number for this. Opps. [Checked: p. 66 in the 2016 ed.]
All right! I’m all fired up, and I have to go to my Tae Kwon-Do class so I’ll have more for you next time. Probably in a few months, inshaAllah.
Stay feminist and stay kind!