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.
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.