Slippery language: “recommended” and “obligatory”

As I continue to sort through the bafflegab that (in my experience) surrounded the “mainstream” Sunni conservative discourses in North America that I was most often exposed to, one issue that comes up again and again is literature or sermons that imply equality or equivalence where frankly, it doesn’t exist.

Why did women fight for the “right” to vote? Wasn’t the “recommendation” that men take women’s opinions into consideration when making decisions more than enough? How very unreasonable of them….

One of the ways that this is done is to almost-but-not-entirely fudge the difference in Islamic law between something that is “obligatory” and something that is “recommended.” To phrase it in such a way that the average listener or reader—who is not likely to know much about Islamic law—will probably think that there’s little or no difference, but the knowledgeable listener or reader will see that the difference has been implied and so will probably not call the speaker or writer out on it.

This kind of slippery use of language is usually found in discussions of gender issues or family law. Basically, their function is to paper over the fact that classical legal texts aren’t starting with the same assumptions about the nature of humanity and justice that most modern North Americans are.

Most North Americans today believe that human beings are equal, and that treating women and men unequally for no good reason is an injustice. While there are ongoing debates about what exactly “equality” is and how it should be expressed in law and social practice, the abstract notion that gender equality is “good” and “just” is fairly widely accepted. We start out with the view that men and women are citizens, who are therefore equal before the law and should have equal rights. This is true to the extent that even many modern North American patriarchal religious groups make some effort to package their patriarchal and quite inegalitarian teachings as though they are somehow “equitable” or at least “fair.”

But classical legal texts (e.g. Shafi’is Umm, Sahnun’s Mudawwana, Ibn Qudama’s Mughni…) were written way before anyone had even though in terms of citizenship or equal rights. Such ideas didn’t exist at that time. Their authors lived in a world in which it was taken for granted that humans aren’t equal. Rather, there is a god-given social hierarchy, in which men are above women, and free persons are above slaves (and Muslims are above non-Muslims). Therefore, these texts don’t equate social or legal equality among men and women (or free and slave, or Muslim and non-Muslim) with fairness or justice. Rather, they assume that “justice” means giving each his or her due, depending on that person’s place within social and familial hierarchies.

This difference is very difficult for most modern Muslims (in North America, at least) to wrap their heads around, never mind their consciences. Not just in the abstract, but as it applies to people’s lives.

For example: as we’ve discussed in previous posts, a wife is obliged in Islamic law to allow her husband sexual access.  Even at times when vaginal intercourse is prohibited—during her menses, or when she is bleeding after childbirth—she still must allow her husband to engage in other types of sexual intimacy, with the exception of any forbidden sexual act. A woman who does not do this is not only sinning, but her husband is not legally obliged to provide her with support (food, clothing, shelter, etc.).

This not only sounds pretty stark, but some of the legal implications are even worse (to say nothing of some of the results in actual people’s lives). How to make this sound even half-way reasonable to contemporary Muslim North American audiences? Draw attention to the existence of the small number of hadiths in which the Prophet told husbands things such as “…your wife has a right on you” and that they should not “fall on their wives like beasts” without engaging first in foreplay. Or mention that the jurists stated that among the responsibilities of a husband is to keep his wife chaste. Then, you can kind of make it sound as though all these texts are saying is that husbands and wives should try their best to satisfy one another sexually… and who would argue with that?

Thing is, a legal obligation that has serious consequences attached to failure to fulfill it is different from a “recommended” practice such as foreplay. There is no equivalence between a wife’s obligation to allow her husband sexual access, and the recommendation that husbands be considerate in their manner of sexual approach. The husband’s choice to ignore this recommendation, or only follow it sometimes, has no legal penalty attached to it.

And legalities aside: I have certainly met wives (and ex-wives) who deal with a lot of guilt around this issue, to the extent that it is psychologically damaging.
But how many husbands (or ex-husbands) are there out there who are haunted by fears of cursing angels or divine punishment if they don’t (or didn’t) perform sexually to their wife’s satisfaction? Classical texts use very different rhetoric when addressing the sexual responsibilities and prerogatives of wives and husbands.

To take another, related example (raised in the comments on the previous post): consent in marriage. Sure, a father can marry off his never-before-married daughter without her consent, according to classical legal texts, but it is recommended that he consult her. So (the argument goes on) it’s not as if her consent is not taken into consideration.

Again, the father’s legal power to marry off his daughter without her consent exists in the law, whether he consults her or not. If he decides not to consult her, this doesn’t make the marriage invalid. Nor does he face any legal penalty whatsoever. Pointing to the recommendation that he consult her (or for that matter, to highlight the “option of puberty” that some jurists recognize) might make his power to compel her into marriage seem less unjust to modern audiences, but it doesn’t change the law one whit. He can force her.

This is not just ancient history, either. These legal rulings have real consequences for real people’s lives today, even in North America.

In my experience as a Muslim in North America, I have encountered girls whose consent to get married was at best very murky. Their fathers decided that they needed to get married in order to protect them from the temptation to commit fornication, so they were married off. Underage, in some cases. They weren’t really in a position to object—unless they had wanted to run away, or call the authorities on their parents, and most girls don’t want to do that, for understandable reasons.

In some cases, it could be said that what the girls in question really “consented” to was a chance to get out of their father’s house. Not the responsibilities of marriage and child-bearing, and the long-term effects of early marriage. Which they could not have really understood anyway, at their ages.

When I was trying to find ways to leave my abusive marriage, an important consideration was that I needed to find a way to take my daughters with me. Particularly the oldest, the rebellious one. Because her father had in the past supported the actions of men from his ethnic community who had married off their daughters in such murky circumstances. As far as he was concerned, their actions were justified, because they had prevented their daughters from sinning. There was no way that I was going to risk leaving her with him. There is also no way that any of my daughters are going to visit his homeland, for the same reason.

All’s well that ends well, then? Well, not really. I must say, it is very challenging to keep your girls safe under these circumstances, while also enabling them to keep up a relationship with their father, and trying to avoid traumatizing them. I would rather that they remain blissfully unaware of the possibility of forced marriage for a while yet, frankly.

Anyway. Looking back, I can’t believe that I didn’t notice this: If someone has a right to X, it isn’t the same thing as some person being “recommended” to give that person X. Or if someone has an obligation to do Y, it isn’t equivalent to being “strongly encouraged” to do Y. In anything other than gender and family issues, everyone recognizes this quickly enough. That’s why we have contracts and laws on workers’ and tenants’ rights (among other things).

Which job would anyone rather take: the job with the contract stating that you will be paid $X per hour, or the job that comes with the company boss saying that “we recommend that district managers pay employees doing your job $X per hour”? They aren’t the same.

Or how would conservative Muslim orgs here in North America react to the news that the wording of all secular laws banning discrimination on the basis of religion was going to be changed to a “recommendation” that people not discriminate on the basis of religion? Would they be at all reassured even if the new wording stressed that “it is strongly recommended” that people not discriminate??

I don’t have any answers to the question of what Muslims should do with classical texts. But I don’t think that using slippery language is the answer. It can give people, especially girls and women, a false sense of security. It can also blur or partially conceal acts of injustice (as we saw in the previous post).

In the very least, the recovery process begins with honesty.

  1. #1 by Anonymous/ on July 11, 2012 - 10:29 am

    Maybe one of the reasons the distinction is lost on some people is that the presenters are speaking in different registers? There is a big difference between the homiletic and the juridical. That said, there is definitely much deliberate fudging going on.

    One reason why I’d hesitate before making characterisations about classical fiqh *as a whole* is that I simply don’t know enough. Kecia Ali’s excellent work notwithstanding, this can be problematic because jurists at least occasionally attached conditions to the father’s right to compulsion, for example, that the (compelled) daughter be unwilling to marry any other suitor who was her kuf’. I understand however that my caveats sound terribly academic to people who are suffering and I only hope things work out well for them.

    Not that I’m in a position to offer much help, but are you doing ok financially? I mean, you’re coping, right? Sorry to be nosey but I worry about you.

  2. #2 by Anonymous/ on July 11, 2012 - 10:32 am

    Also…the comment about wives dealing with guilt- is that for real? I didn’t think they cared about that stuff.

  3. #3 by Karen on July 12, 2012 - 1:36 am

    Oh, my goodness… I’ve been reading your blog for a few weeks, after Libby-Anne of Love, Joy, Feminism pointed me to you. It seems you’ve suffered a dense collapse of patriarchy on your head, and you’re still digging out. I admire your determination to blog.

    I grew up in a weird household: My mother wanted to live very much in a patriarchal environment, and my father was having none of it. So I learned (and sadly, internalized) all sorts of patriarchal garbage that my father would have been aghast at, had he known it. Even at age 52 I’m still dealing with the last vestiges of it. I hope your daughters have not been unduly contaminated, and that they will emerge as self-respecting adults who will rise to the challenges of female adulthood.

  4. #4 by Chinyere on July 12, 2012 - 5:00 am

    This is slippery language, and I’ve heard women defend it proudly. For example, “a husband is not obligated to ask his wife if he can take a second wife because it would be the wife ‘forbidding what God has made permissible,’ but it is recommended that he discusses it with her before hand,” one woman told me in a forum when I expressed horror that women thought it was unfortunate but ultimately okay for a husband to secretly have sought a second wife.

    I feel like so many of us get to a point where we’re so convinced that this “Islam” is the only right way, that we feel imprisoned in an unfair system that is “just the way it is,” as God intended, and uggggghhhh it’s not!

    Fiqh is very interesting to me. As a Muslimah in isolation of a community, I wonder at its impact and relevance in my life. What is the law if no one in my surroundings are enforcing it? Fiqh is not synonymous with God’s judgment of us and will for us, which is something that was never explained to me as I came into practice (and I recognize some people will probably dispute with this statement, but with what footing?). I took for granted the declarations of what was obligatory and recommended and all else as *the* way to practice Islam as made self-evident in the Qur’an and Sunnah, having no way of knowing (or even knowing to research!) the history and origins of fiqh and without understanding anything about the assumptions and the context.

    • #5 by xcwn on July 15, 2012 - 3:30 pm

      Chinyere: Yes, this sort of slippery language is often used when discussing issues like polygamy. Ugh.

  5. #6 by AnonyMouse on August 10, 2012 - 2:31 pm

    I came across your blog today and have so many thoughts about every single one of your posts!

    I come from a conservative background as well, although not at all the one you’re describing (tho I’ve certainly come across them). From what I have learned, there are certain communities that like to blur these lines (between “obligatory” and “recommended”) and purposely leave out any mention of consequences that men (are supposed to) face.

    E.g. Sexual intimacy. I have learned that according to many (most?) schools of thought, a man who does not provide sexual intimacy (and even emotional intimacy) to his wife can be divorced by a judge/scholar if his wife complains. In the time of Umar ibn al-Khattab, as he was walking through the streets at night, he heard a (married) woman singing about her desire for a well-known handsome young man of Medinah. When he asked about where her husband was, he found out that the husband was overseas in the military for quite some time. He then went to his daughter Hafsa and asked her how long a married woman would be able to live without sexual intimacy before being driven to seek it from someone else. Hafsa gave an answer (I don’t remember exactly how long – three months, I think?), and Umar implemented a new law that no man was allowed to be away from his wife for X number of months, and if the wife complained, they would be automatically divorced as per her request.

    Similarly, under no circumstances is a husband’s obligation to shelter his wife, etc. waived – regardless of any alleged “disobedience” on her behalf.
    If a woman is married off against her consent, she has every right to demand and receive a divorce.

    The problem (one of them), of course, lies when we do not have female scholars and “judges” and the men in those positions can easily write us off because we “do not have correct knowledge.”

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