El-Solh & Judy Mabro
1994 Muslim Women's Choices
Berg Publishers, Providence RI
NOTE: This extract is included as an essential reading for transforming the world. You are requested to purchase the book yourself as it is, without question, essential reading material.
Introduction: Islam and Muslim Women
Camillia Fawzi El-Solh and Judy Mabro
The Muslim women presented in this book live in a variety of societies and communities where legislation, customs and traditions, affected or inspired by interpretations of the Qur'an and the Shari'a,i combine to define concepts of female roles and status. It is clear that, within a specific Muslim society, these concepts may vary from one class or generation to the other as well as over time, just as they may differ from one Muslim country to another. In addition, Muslim women's lives and the choices they face are influenced as much by patriarchal social arrangements as they are by religious ideology. This confirms Shirley Ardener's observation that we 'need to be wary in cross-cultural comparisons of women's status (since) giving a weighting to the value of each variable for each society ... is impossibly complex' (1992a: 6). Moreover, in the same way as women in non-Muslim societies, Muslim women tend to be 'divided over the definition of their gender interests, over the nature of social arrangements which best serve them and over their visions of a better society' (Kandiyoti, 199 la: 18). This divergence of views on women's social position is reflected by the different Muslim discourses depicting modemist, traditionalist and fundamentalist trends. It is also reflected by the reality that not all Muslim women feel compelled to resort to dress or other symbolism to signal their adherence to Islam and to the Muslim component of their identity.
Public opinion in the West generally ignores this diversity and is largely influenced by deep-rooted assumptions that Islam is a monolithic religion controlling all aspects of its adherents' lives. A tendency to explain it solely in terms of the Qur'an and/or other Islamic sources all too often taken out of context, ignores the fact that, like other world religions, Islam has been subject to growth and development, adaptation and change (Stowasser, 1987a: 262; cf. Esposito, 1984). Over the centuries since its revelation, Islam has been permeated by a succession of cultural accretions reflecting the complex ways in which religious belief and social reality accommodate one another. There is of course a unifying framework which is provided by the Qur'an as the quintessential source and language of the faith, as well as through the five pillars of the creed shahada (proclaiming the faith), salat (prayer), zakat (almsgiving), sawm (fast) and hajj (pilgrimage to Mecca). Nevertheless, this unity is accompanied by a multitude of diversities which need to be taken into account in any discussion of Islam and its practice by Muslims. 2 The furors which erupted in Britain over the publication in 1988 of Saiman Rushdie's book The Satanic Verses, which some Muslim groups considered to be blasphemous, also revealed in the West the limited nature of knowledge about Muslims in geographically remote areas as well as the biased perception which mainstream societies hold of Muslim ethnic communities living in their midst (cf. Ruthven, 1991). Similar stereotyping occurred in France in 1989 during the crisis over whether three North African girls should be allowed to wear headscarves (lefoulard islamique) in school .3 In both countries, communities which had previously been identified as Pakistani, Yemeni, Algerian and so on, were suddenly referred to as 'the Muslims' in the popular press. This categofisation ignored the fact that [email protected] is just one part of a composite identity influenced by country of origin, socioeconomic status, sectarian and political affiliations, language and dialect, age group, gender as well as history of settlement in the West. This diversity is, for instance, illustrated by Giles Keppel who interviewed Muslims living in France, among which, there were young Algerians bom in France and knowing no Arabic, Turkish workers speaking no French, Moroccan housewives, Senegalese marabouts, those who were literate and those who were illiterate, those who were fight ing for various causes and those who had retired into themselves, there were French citizens and a variety of nationalities (1991: 27; transl. by editors).
Tensions involving Muslim immigrant communities settled in the West have panly been exacerbated by, for example, the demand in Britain by some Muslim groups for state-funded schools for Muslim girls, the proclamation of the Muslim Parliament of Great Britain, or the questioning of British Muslims' loyalties during the 1991 Gulf War, all of which points to the uncertainties related to the place of Islam in mainstream British society.' In addition, the crisis in France revealed the xenophobia of groups seeking a scapegoat for the economic and social ills of the country indeed, in November 1989, there were demonstrations against 'the Islamisation of France'. 5
Although the reluctance of some Muslim ethnic communities to bridge the cultural divide, and the fact that some Muslims may hold equally bigoted views of Westemers, should not be ignored 6 the problem of integration into mainstream westem societies is further exacerbated by overt and subtle manifestations of racism, as well as by the tendency to view Islam as an intrusion into westem culture. As a recent volume on Islam in North America puts it, Muslims tend to be described and interpreted by the West as 'other', 'non-us', or 'them', with Islam 'held up as an alien religion against an idealized, ahistorical JudeoChristian mirror' (Waugh et. al., 1991: xi; cf. Hourani, 1991). In addition, in the current political climate, fundamentalist Islam tends to be represented as 'universal, irrational, terrifying and mad', with a central political role in Muslim cultures and societies. By contrast, fundamentalist Christian sects are generally depicted as 'minor abberations' of 'restricted political significance' (Marcus, 1992: 92). This view of Islam has been inadvertently caused by the widespread religious revival sweeping much of the Muslim world over recent decades, a resurgence generally associated with the 1979 Iranian Revolution with its images of turbaned, bearded clergymen and women covered in black from head to foot (cf. Azari, 1983). From North Africa to Pakistan and down the geographical map to Indonesia, Islam has become a political and social force increasingly impinging upon the consciousness of westem societies (cf. Roff, 1987). All too often, the West gives little thought to the economic, social and cultural context in which the Islamic movement operates, or the reasons why Islam is held up as an altemative political model to the one enforced by the ruling elite (cf. El-Guindi, 1981; Eickelman, 1987). Moreover, as participants in the Intemational Workshop of Women from Muslim Countries (held in 1986 in Lahore, Pakistan) concluded:
Islam and Islamic culture are a complex reality. This complexity is distorted by the West in terms of the way the West views Islam. But the West also has a contradictory position on Islam. On the one hand, it operates an active anti Islamic campaign, and on the other, it supports fundamentalism. In both cases, however, it does this for its own political purposes (Matsui, 1991: 97).
More recently, post-independence developments in Muslim Central Asia have been raising questions about the role of Islam in filling the political vacuum left by the demise of communism in these newly independent states. Here again the westem preoccupation with Islam lurks between the lines, seen, for example, in the questioning of the effects of closer political and social ties between these newly independent states and Muslim countries south of their borders. To which one may add the civil war in the formner socialist republic of Yugoslavia, which has served to remind Westerners of the existence of Muslims on Europe's eastern periphery.'
A Quintessential Muslim Woman?
At the forefront of concems over Islamic revivalism in different parts of the world is an abiding westem interest in Muslim women. In the westem mind, Muslim women all too often te,nd to conjure up 'a vision of heavily veiled, secluded wives, whose lives consist of little more than their homes, their children, and the other women in the harem or immediate kinship circle' (Gemer-Adams, 1979: 324). While this description may have been true in the past or, more accurately, it may have been true for certain groups in certain Muslim societies, and though it may continue to be partly true for some present-day Muslim communities, it is of limited relevance to understanding the lives of the majority of contemporary Muslim women. In effect, the prejudices generally associated with earlier westem travellers to the Muslim world who imagined native women as either ignorant heathens, or exotic beings whose allures were tantalisingly hidden by layers of clothing largely continue to colour contemporary westem perceptions of Muslim women (cf. Mabro, 1991). Indeed, such perceptions prevail despite the fact that in many westem as well as non-westem societies Muslim women are to be found engaging in a wide variety of economic activities. Thus, the word Muslim tends to be used as a label which ignores a multitude of factors contributing to the definition of women's status in Muslim societies, both past and present. Partly this is due to the deduction that since gender relations are rather strictly formalized in the Quran, in the hadiths, and in sharia; and since these religious and legal doctrines are seen by many Muslims as etemal and universal; and since women are unequal under these theological and legal doctrines, women are seen as enduring a universal and uniform state of subjugation (Hale, 1989: 247).
But as Fatima Memissi points out, Islam is, in itself, 'no more repressive than Judaism or Christianity' with regard to the position of women (1991: vi, vii).' Neither of these three world religions can be adequately understood without taking the patriarchal social systems which spawned them into account. In fact, the widespread patriarchy beneath the veneer of westem secular societies is well captured in a recent book on the role of Christian women in contemporary British society (Lees, 1991). Thus one contributor to the volume incidentally a woman extols the Christian wife as 'a helper to her husband physically, emotionally, mentally and spiritually', perceiving her as 'someone who runs her family and household so efficiently that her husband is free to take his place as a leader in the outside world' (Catherwood, 1991: 24). With respect to Islam, though Shari'a-based personal status law obviously has an important impact,'o the combined weight of pre-capitalist ideologies and patriarchal kinship arrangements has also had, and continues to have, implications for Muslim women's status in countries of the Muslim world (cf. Moghadam, 1990). However, one needs to keep in mind that just as there is no universal interpretation of Islam, there is no universal system of patriarchy. Hence, different systems of male dominance, and their intemal variations according to class and ethnicity, exercise an influence that inflects and modifies the actual practice of Islam as well as the ideological constructions of what may be regarded as properly Islamic (Kandiyoti, 1991 b: 24).
A clearer understanding of these systems of male dominance may be gained by considering the measures women adopt in different situations. For example, in the West African Sahel, Muslim women challenge male dominance through 'a kidd of obstinate, refractory struggle for a continuation of certain pre-Muslim and non-Muslim elements' which they believe gives them greater autonomy in their lives (Bovin, 1983: 90). As Jean O'Barr also argues, women in many African societies use paths to political participation which will not be understood without moving beyond westem ideas of parliamentary democracy. It is imponmt to recognise the arnalgarnation of politics and other aspects of social life when analysing the role and status of women in, their societies (1984: 140). By contrast, in 'classic patriarchy', as Deniz Kandiyoti calls it, that is in the Middle East, South and Southeast Asia, 'the cyclical fluctuations of [women's] power position, combined with status considerations, result in their active collusion in the reproduction of their own subordination' (I 99 1 b: 34). However, this generalisation should not overlook the reality that class and educational level, for example, may undermine the impact of 'classic patriarchy'. Thus women in those cultural areas are becoming increasingly vocal against a number of oppressive aspects of the system within which they live, even though there may not necessarily be a consensus over the means to achieve change. This is well expressed, for example, in interviews with Egyptian, Moroccan and Tunisian women discussing their attempts to place the 'woman's question' on the national agenda in their respective countries (Dwyer, 1991: 182-207). Hence, as pointed out at the beginning of this chapter, to characterise all women subject to Islamic law as ipsofacto subservient beings is to disregard the fact that religious sources have been subject to changing interpretations (cf. Esposito, 1982). Accordingly, there will be discemible differences in the ways in which, for example, traditionalist, modemist or fundamentalist Muslims perceive these sources. Traditionalists believe that the injunctions laid down in the Qur'an and in the different schools of Islamic jurisdiction should be followed unquestioningly, and are not subject to any new interpretation. To the modemists, Islam is a religion consistent with common sense, and its 'regulations and commandments are to be the objects of interpretation (ijtihad) which brings out the values and principles of which they are expressions'. Finally, fundamentalists 'understand Islam as a social order', and as the 'natural religion' laid down by God and therefore unchangeable. But whereas the traditionalist tends to ignore the blurring of boundaries between custom and religion, the fundamentalist resorts to rational arguments to demonstrate how the divine law of Islam has been tainted by alien customs (Hjarpe, 1983: 12-15). Clearly, these varied interpretations will have important implications for women's legal status with respect to inheritance, marriage, divorce and custody of children, to the relationship between men and women, as well as to the scope of women's activities outside the home (cf. Kusha, 1990). At the same time, the way in which the legal status of women in a given Muslim society is actually defined, and perhaps more importantly, the de facto application of their legal rights, cannot be isolated from a host of other variables, such as cultural specificity, social and political structures as well as the level of economic development. Egypt presents an interesting example in this respect. Though family law remains subject to Shari'a injunctions, it is not the legal system alone which defines women's social status. Earl Sullivan's discussion of urban Egyptian women in public life (1986), and Soheir Morsy's analysis of rural Egyptian women (1990) demonstrate the many factors, such as education, class and employment, which, in conjunction with the patriarchal social system, affect women's status in Egyptian society. These accounts also highlight the truism that this status may vary from one situation to the next, and be subject to subtle or more far-reaching change over time. I I Moreover, when the govemment repealed the 1979 refonTi law (no. 44) which had given Egyptian Muslim women certain benefits with respect to divorce, alimony and custody of children feminists were roused to take collective political action and succeeded in forcing the govemment in 1985 to restore some of the benefits (cf. Badran, 1991). In Pakistan also, women's groups organized demonstrations in protest against the govemment's Islamisation policies for example, the 1979 Hudood Ordinance which abolished the differentiation between rape and adultery, as well as the chadur aur chardiwari (the veil and four walls) campaign to enforce female seclusion (Ahmad, 1991: 10-17). The issue becomes even more complex when we include the status of women within Muslim minority groups, or within states where Shari'a law is superseded by secular law. In the case of the fanner, women's status may not only be affected as a result of being part of a minority in a non-Muslim society, but also by 'the application to them of the secondary characteristics of a minority', i.e. less economic control and political power (Wadud-Muhsin, 1989: 161). Barbara Pillsbury's description of Muslim women in China illustrates the effect which minority status, in conjunction with the accommodation between Islamic injunctions and cultural/social customs, may have on the social position of women (1978). The example of these Muslim Chinese is also a reminder that, whatever the commonality between women as members of a minority group, their social status will not be uniform. In countries with secular legislation, its application may often be circumvented by Shari'a as well as customary law. Together with cultural, social, economic and political factors, this can perpetuate a patriarchal system in which, defacto, women hold disadvantaged legal and social status relative to men. Turkey is an interesting example of a secular state where the majority of the population is Muslim, and where definitions of women's status continue to be subject to patriarchal social structures inherent in Islam (cf. Kandiyoti, 1988). None the less, any generalisation about the social position of women needs to be guarded, particularly given that Turkish women may be active in defining their own status. For example, some women are involved with secular feminist groups in the conflict with the Islamic fundamentalist movement regarding definitions of female gender roles in society (Berik, 1990: 81), while others signal their social respectability by a stricter adherence to the Islamic female role model propagated by traditionalist elements in Turkish society (Moghadam, 1991: 271).
The Ubiquitous Veil
In the general perception of the West, there is an association between the subordination of Muslim women and the physical as well as the symbolic segregation of the sexes. The former is reflected in separate space for men and women, which, at its most extreme, limits women's physical mobility to the home. For its part, symbolic segregation is reflected in a dress code commonly referred to as 'the veil' which shields the physical attributes or the identity of its female wearer from the eyes of non-kin males with whom social intercourse is limited or prohibited (cf. Papanek and Minault, 1982). Thus, this dress code functions as one of a number of possible forms of control of contacts between men and women in shared space (cf. Ardener, 198 la). Both fon-ns of segregation are inherent in a social system where concepts of honour and shame are central to an understanding of relations between men and women, and thus of the moral code operating in society. However, as Santi Rozario points out:
While in theory codes of honour and shame refer to the behaviour of both men and women, honour is seen more as men's responsibility and shame as women's. This division of honour and shame is related to the fact that honour is seen as actively achieved while shame is seen as passively defended, result ing in different expectations of behaviour from men and women (1992: 86).
In effect, inherent in the notion of female shame is the concept of female sexuality which requires social control, a point which will be elaborated in a later context. What is of interest at this point is that the westem eye tends particularly to focus on veiling, perhaps because it is a more visible manifestation of the separation between the sexes. Westemers generally tend to regard this dress code for women as part of Islam, and as more or less irrefutable evidence of the subordinate role of women in Muslim communities and societies. Countering the notion of the veil as the sine qua non of Islam is particularly difficult given the fact that the historical origin of this dress code remains the subject of much controversy. Thus, while both Muslim traditionalists and fundamentalists will point to the Qur'anic verse which enjoins women 'to cover their omaments', and 'draw their veils over their persons' as God's unequivocal command to conceal their physical attributes, modemists will tend to invoke the Qur'anic verse which specifically refers to veiling in relation only to the Prophet's wives, as an argument against the rigid adoption of this dress code in contemporary Muslim societies (Sherif, 1985: 130; cf. Kusha, 1990). Modemist Muslim feminists such as Frieda Hussein (1984a) and Azizah Al-Hibri (1982a) view the veil as one of a number of manifestations of the way in which patriarchy has circumvented the essential message of Islam regarding equality between the sexes. By contrast, a secular feminist such as Nawal El Saadawi relates the veil to pre-Islamic cultures (1982: 202), while Fatima Memissi, another secular feminist, sees the veil as a means of male social control, with its roots in the patriarchal system, in order to make women disappear, to eliminate them from communal life, to relegate them to an easily controllable terrain, the home, to prevent them from moving about, and to highlight their illegal position on male territory by means of a mask (1982: 189).
Moreover, the term veil tends to be erroneously used in reference to a range of female attire from the headscarf to the floor length garment covering the head, face and body. Equally erroneous is the tendency to associate the veiling of women with traditionalism, a practice presumed to be abandoned once Muslim societies signal their social progress by becoming 'modernised'. This assumption ignores the fact that modernisation does not necessarily equal westernisation, i.e. that development in terms of accepting new ideas and of learning new skills regarded as being of 'western' origin, does not inevitably imply the homogenisation of cultures. It also overlooks the reality that the practice of veiling a term used here in the complex sense described above may reflect different cultural and social contexts. For example, the typc of female attire generally referred to as the veil, and which is compulsory for women of all social classes in Saudi Arabia, will differ markedly in fabric and design from that wom in various Muslim areas in Africa, Indonesia, Malaysia or Senegal where it is not mandatory (cf. von der Mehden, 1980; Bahry, 1982; Cederroth, 1983; Strobel, 1984; Creevy, 1991). Also, as with any other clothing, subtle differences will signal the socioeconomic status of the wearer, and there will be variations from one generation to the next, as well as differences between regions. Thus, despite the uniformity of dress encouraged by the Islamic fundamentalist movement with the aim of diminishing the importance of cultural and class cleavages perceived to be antithetical to the concept of the umma (community of Muslims) veiling in the contemporary Muslim world may exhibit quite a variety of styles. 12 In Egypt, up to the early decades of the twentieth century, veiling was mainly an urban custom practised particularly by middle class and elite women, who were also more likely to be secluded. This is believed to have been related to the fact that women of these social strata were more likely to receive their inheritance, which implied the necessity to control their social contacts with male non-kin in order to safeguard the patrimony (Keddie, 1991: 6). By the 1920s, elite women had begun to publicly discard the veil in protest against their social and political marginalisation, though their demands were not set within a context which would bridge the class barriers between them and women from the poor sections in society (Badran, 1991: 207-15). In any event, this paved the way for women from the urban middle class and, in time, from the lower middle class, to abandon this practice, and to adopt a westeminspired style of dress. By contrast, women from the low income and from the traditional strata in urban Egyptian society continued up to the early 1970s to observe a dress code which the westemised classes undifferentiatedly categorised as veiling. However, the type of modest female attire meant by veiling among these traditional social strata generally referred to as milaya laff (literally enveloping sheet), which I reveals the graceful bodily curves yet will "cover" what should not be revealed or what is shameful' (EI-Messiri, 1978: 89) differed markedly from the veil formerly wom by the more affluent urban Egyptian women in that it did not entail the covering of the face. By contrast, in Afghanistan, for example, the type of veil wom by women from the traditional social stratum reflects a more rigid modesty code which demands the covering of the face and the concealment of any curves of the female body (cf. Majrooh, 1989). The Islamic revivalism which began to make its mark at the beginning of the 1970s, and which has continued its spread up to the present decade, brought with it the bewildering phenomenon of urban educated women of mainly middle and upper middle-class origin in various Muslim countries of the Middle East who were donning variations of the veil discarded by the generations of their mothers and grandmothers. In Egypt, for example, this conservative dress code had by the early 1980s begun to be adopted also by lower middle and working-class women whose elders had been abandoning the milaya laff (Early, 1993: 118-22). 'ne phenomenon of what may be termed the 'Islamic' veil denoting its association with the Islamic revival sweeping through much of the Muslim world began to particularly impinge on the consciousness of the West with the appearance of chador-clad women (Iranian terin for black cape-like garment covering the head and body to the ankles) immortalised by the 1979 Iranian Revolution. These women's choice of donning the veil as a symbol of protest against the Shah's regime and, by implication, against I westem cultural imperialism' expressed a political activism which belied the widespread westem image of the subservient Muslim female confined to the social margins of her society (Ramazani, 1983: 20). However, this activism was soon undermined by the Islamic govemment's usurpation of this symbol as part of its ideology set on perpetuating asymmetrical gender roles. Not surprisingly, the reassertion of an ultra-conservative patriarchal system ended up by reconfinning the westem view of the veil as a symbol of Muslim women's oppression. Contemporary manifestations of veiling have led to a proliferation of debates on concepts of women's role and status within the Islamic movement in particular, and Muslim societies in general (cf Ahmed, 1992). Westemers, puzzled over what they perceive to be the contradiction of young Muslim women pursuing their education and being economically active in the modem sectors in their societies while at the same time signalling their adherence to traditional concepts of gender roles by donning the veil, are often at a loss to explain this phenomenon, as may be secular oriented Muslims: 'Is it identity crisis, misguided leisure, a fad, youth protest, ideological vacuum, individual psychic disturbance, life-crisis, social dislocation?' (El-Guindi, 1981: 465). Can it be explained by piety or by protest? (cf. Ramazani, 1983). Most, or some, or different combinations, of these factors may be applicable, thereby signalling the commmonality and diversity of Muslim communities and societies, as well as the fact that the donning of the veil is motivated by a number of complex factors. For some women, the veil may be a 'response to their vulnerability', encouraging them to 'retreat into the protective certainties of religious conservatism' (Kandiyoti, 199 la: 18). For others, veiling may be a collective means of asserting cultural authenticity in the face of a dominant cultural model seeking to extinguish Islamically inspired social mores, such as, for example, in the Muslim republics of the former Soviet Union (cf. Bennigsen, 1985). For others again, the veil may function as a symbol of national liberation, such as formerly in Algeria, where one of the aims of the French colonialist govemment was to 'civilise' Muslim society by bringing an end to veiling and thus to the oppression of women (cf. Shaaban, 1988). More recently, Muslim Palestinian women are being encouraged and often coerced into donning the veil as part of the intifada (uprising) against Israeli occupation (cf. Hammami, 1990). In effect, there remains the contradiction that the practice of veiling may be as much due to 'community norms and family pressures [which] continue to serve as a strong barrier to women's mobility, visibility and autonomy' (Afshar and Agarwal, 1989a: 5), as it may be a means of enabling women to assert their presence in male space by setting unavoidable contacts with non-kin males within a desexualised context. The veil may also be an expression of a feminist position 'supportive of female autonomy and equality articulated in terms totally different from the language of the West' (Ahmed, 1992: 226). Indeed, Farzaneh Milani argues that in recent years, veiled women in Iran are taking advantage of their access to the public arena to speak out and to reappraise the traditional spaces and boundaries, and to redefine their status (1992: 9). The discourse on the veil is rendered more complex when one takes into consideration that it is largely if not exclusively an urban phenomenon in the Muslim countries in which it has been manifesting itself.
Thus rarely do conservative or fundamentalist Islamist writers make appeals to rural women to adopt the contemporary Islamic veil. Nor do they appear to address the reality that rural women's rights as prescribed by the Shari'a are more often than not neglected (Stowasser, 1987b: 279). Women's active (though largely unacknowledged) role in the rural economy in many parts of the Muslim world undermines the fundamentalist female role model demanding veiling or seclusion as a means of ensuring social morality. This ideology largely overlooks the economic reality that female dependence, perceived to be a comerstone of patriarchy, is in many Muslim (as well as non-Muslim) communities in the Third World a luxury that can no longer be afforded. The reality, of course, is that the majority of Muslim women have never been entirely dependent beings, although the pretence that this was the case has often been maintained. As many authors have discovered in many circumstances, what people say they do is not always what they actually do. While all these factors throw light on the complex phenomenon of the veil in contemporary Muslim societies, there is in addition a political factor to be taken into account. This is manifested in the financial aid which oil-rich Middle East countries offer to less affluent Muslim states. This support not only has an Islamisation string attached, i.e. it is used as an inducement to govemments to repeal secular laws deemed inimical to Shari'a law, or as a means to subvert govemments by financing Islamist opposition groups (Ahmed, 1992: 218). In addition, this aid flow reflects the rivalry between donors, most notably Iran and Saudi Arabia, both of whom are intent on exporting their own particular brand of Islam. Either way, the primary target of this political weapon are Muslim women, who may even be offered money to don the veil as a signal of appropriate Muslim behaviour (ibid). In some cases the financial inducements may be offered to Muslim men to pressure their female kin to conform.
Female Excision and Islam: A Mismatched Pair
A further misconception which the stereotypical image of Muslim women may conjure up is the association of the practice of female excision with Islam, thereby overlooking the diverse cultural contexts within which it is practised. In fact, nowhere in the Qur'an does this ritual find mention either for men or for women. Only one Hadith" refers to it: 'Circumcision is my way for men, but is merely ennobling for women' (quoted in Ammar, 1954: 120). Neither is female excision particular to all Muslim countries: for example, it is unknown in Algeria, Tunisia and Iran, but practised to various extents in Egypt, Oman, Yemen, Somalia, Indonesia and Malaysia. Nor is it confined to Muslim societies, but encountered in such predominantly Christian African countries as Ethiopia as well as in many parts of sub-Saharan Africa, both animist and Christian (Passmore-Anderson, 1981: 28). Moreover, the severity of the practice may differ from one cultural area to another, as well as by social class. For example, the majority of nonhem Sudanese Muslim women of all social classes are excised, though the more educated strata will tend to opt for the milder form, i.e. circumcision rather than infibulation. 11 However, some Sudanese Muslim tribes have never practised this ritual, while in the southem part of the country some non-Muslim tribes have recently begun to adopt it (El Dareer, 1982: 8-12). By contrast, in Egypt, only the sunna form (circumcision) is practised. It is generally confined to the lower social strata in both urban and rural areas, where it is practised by both Muslims and Christians (Early, 1993: 105). Evidence also suggests that sunna excision is practised by the more traditional Muslim social strata in the Indian subcontinent, Indonesia, Malaysia and the Philippines (cf. UNICEF, 1992). Whatever the form of female excision, the fact remains that in societies where this ritual is the non-n, it is essentially viewed as a form of social control over women. In tum, this reflects the perception of active female sexuality as threatening the social order, and, equally important, the view of women as being inherently incapable of controlling their own sexual impulses (El Saadawi, 1980: 33-43; cf. Oldfield, 1975; Sabbah, 1984). Yet, just as this ritual is not encountered among all Muslim societies, the extent of social control inherent in its practice, as well as the implication for women's right to sexual gratification, may differ from one community/society to the next. For example, in Egypt, the traditional midwife 'who performs the operation is always cautioned against its [clitoris'] complete excision', confirming that 'women's right to sexual gratification within marriage is recognised' (Morsy, 1978: 61 1). This concurs with the view of Islam that sexual intercourse is a legitimate source of pleasure within marriage for both sexes (cf. Bouhdiba, 1975). None the less, it should be kept in mind that 'the sexual dimension of identity has been elaborated in the context of various expressions of Islamic belief and practice and a multiplicity of social structures' (Eickelman, 1981: 157). The practice of infibulation in some Muslim societies, which, through the mutilation of female genitalia, denies women's right to sexual gratification, aptly reflects this (cf. Dorkenoo and Elworthy, 1992).
Gender Relations and Islam
The diversity of contexts within which Muslim women live out their lives thus supports Deniz Kandiyoti's view that women's position in Muslim societies 'can neither be read off solely from Islamic ideology and practice, nor be entirely derived from global processes of socio-economic transformation, nor from universalistic premisses of feminist theory' (1991a: 2). While she rightly goes on to argue the need to focus on the role of the state, and 'the reproduction of gender inequalities through various dimensions of state policy' (ibid: 1), what is of particular interest in the context of our discussion on the diversity of Muslim women is the framework of male-female relations depicted in westeminspired feminist theory. The often unconscious ethnocentric attitudes underlying this universalism which, up to the 1970s, tended more or less to dominate ethnographic descriptions of Third World women in general, and Muslim women in particular, has since become the focus of criticism (cf. Rohrlich-Leavitt, 1975; Leacock, 198 1; Ahmed, 1992; Karim, forthcoming). Particular criticism has been directed at the tendency to depict gender relations in ten-ns of a simplistic dichotomy, associating men with public space and therefore power and authority, and women with the private sphere and therefore relative powerlessness in society, and to assume that it can be applied worldwide (Nelson, 1974: 551, 552; Nelson and Oleson, 1977). By imposing westem social categories onto the social experience of non-westem societies, there has been a failure to recognise that the social construction of gender is subject to a complexity of factors affecting women's status in diverse cultural areas. Specifically with regard to gender relations, it should not be ignored that 'women as well as men [may] make decisions, either individually or in groups, for the activities for which they are responsible [as well as those] affecting the community as a whole' (Rohrlich-Leavitt, 1975: 624). As Soraya Altorki illustrates, even in such a quintessentially sex-segregaled society as Saudi Arabia, men's power may in specific situations be predicated on the support of women, however invisible this female role may be to outsiders (1986). This is reflected, for example, in the involvement of upper-class women as 'chief brokers' in marriage negotiations, which provides them with the opportunity of 'enlarging -the domain of their own autonomy vis-d-vis their men'. In fact, men's attempt 'to convert marriages into political and economic alliances' may be hampered without the information which women provide (ibid: 145). Moreover, the segregation of women in Saudi Arabian society has not impeded their entry into the modem economy, however much this may be restricted to areas where minimal contact with non-kin males is guaranteed (Altorki and Cole, 1989: 188; cf. Bahry, 1982). This is not to minimise the influence of an ideology which propagates the image of the 'ideal Islamic woman', or to overlook the reality that 'women's mobility and independent access to the resources of the state' are very much controlled in Saudi Arabia (Doumato, 1992: 33). Rather, it is to remind us that even in rigidly sex-segregated societies, women's lives demonstrate much more flexibility than is generally assumed (cf. Rogers, 1975). Another pertinent example from a different cultural area is that of Muslim women in Malaysia. While their lives are circumscribed by the interaction between customary law and interpretations of Islamic normative sources, factors such as class, education, age and rural versus urban residence also have an essential influence on gender relations. Though Malayan women have been incorporated into party politics, they have not been able significantly to influence decision-making processes which affect their roles and status within Malaysian society, and may even subscribe to generally held views of 'suitable' activities for women. None the less, they may wield considerable influence within their families and, however indirectly, in their communities (cf. Dancz, 1987). This has important implications for gender relations which are less asymmetrical than generally supposed, and which in rural areas, for example, 'reflect men's and women's different relationships to land and the different decisions that women take in the allocation of household resources' (Heyzer, 1986: 28). The Saudi Arabian and Malaysian examples bring to the fore the inconsistent nature of relations between individual women and men, who may relate to one another 'now in a dependent, now in a dominant mode' (Ardener, 1992a: 3). They also point to variations in the basis upon which gender relations in Muslim communities and societies are predicated. In the contemporary Muslim world, these variations are reflected in a number of discourses. In tum, these may be placed along a continuum, which serves to depict both the distinguishing as well as the overlapping factors between them. At one end are situated the Muslim modemists who, as explained earlier, wish to reinterpret the Qur'an in terms perceived to be more compatible with contemporary times. While modemists exhibit similar attitudes towards women in terms of according them more equality than Shari'a-based legislation and customary law has tended to, they are by no means a homogeneous group. There are those among them, for example, who would not unequivocally advocate equal personal status laws for both men and women, and who continue to see the function of the male role as 'the family's provider and protector' (Stowasser, 1987b: 268). Other modemists may subscribe to more egalitarian gender relations, while at the same time stressing women's important roles as wife and mother, in contradistinction to what is perceived to be a western female stress on individualism at the expense of family and community (cf. Arebi, 1991). Further along this continuum are the Muslim traditionalists who defend the customary social and legal inequality separating men and women by advocating particular interpretations of the Qur'an and the Hadith which assert that women's subordinate status in Muslim society is 'God-willed'. As with the modemists, traditionalists too are a heterogeneous group. They include those who go beyond the normative religious sources, enumerating 'the physiological and psychological factors' pertaining to women's nature as additional proof of the,'God-willed order' which decrees men's superiority in every sphere (Stowasser, 1987b: 269). They also include those who, rather than setting gender relations within a framework of social asymmetry, stress 'the immutable and complete difference in the nature of the sexes, which is part of God's plan for the world', and which thus means that 'the sexes are mutually complementary' (ibid: 271). It is these perceptions of gender relations which underly traditionalists' belief in the moral imperative of confining women's role to the domestic sphere, and of defending male prerogatives such as polygamy as ordained by God. Tlis more or less separates them from the modemists whose interpretation of Islam allows for women's public participation both in the economy and in politics (ibid: 272). The third distinctive discourse is that propagated by the Muslim fundamentalists. Barbara Stowasser aptly refers to them as 'scripturalist activists', who 'translate the sacred texts directly into contemporary thought and action' (I 987b: 275). In their quest for a just Muslim society, they believe that only a retum to the Qur'an and the freeing of society from non-Islamic customs and practices can ensure the path to salvation. Their anti-westemism will tend to be particularly focused on the sphere of gender relations. As the traditionalists, they believe that Muslim women's essential roles are those of wife and mother, and that the 'so-called liberation of women' is a western deviation corrupting these God-given roles (ibid: 276).
Women's Views on their Role in Society
The factors which separate or unite the various contemporary discourses on women's 'proper' role in society, cannot be adequately understood without gauging to what extent Muslim women themselves participate in these discourses, and how they view their status within a Muslim social order. As Saddeka Arebi concludes trhere are three reasons why Muslim women may generally find it difficult to adopt a western model of feminism predicated on premisses deemed universally applicable. Firstly, Muslim women do not necessarily perceive 'family ties and kinship ties [as] a hindrance to women's liberation'; secondly, there is a resentment of 'the West's identification of "the problem" of Muslim women as a religious problem'; and thirdly, wages have not necessarily functioned [email protected] force' in the sense advocated by westem feminists (1991: 104).l The modemist Muslim feminist position is in this respect particularly revealing, since it attempts to reassess notions of male/female relations without subscribing to the female role models advocated by the traditionalists or the fundamentalists, while at the same time avoiding an identification with the western secular feminist framework. Thus, for some modemist Muslim feminists, it is 'feudalistic not Islamic thinking [which places] women under the control of men' (Hussein, 1984a: 2). To others, the fact that 'patriarchy itself was able to justify within its ideological bounds the existence of five different schools of thought' means that 'feminists can surely justify the addition of at least one more' (Al-Hibri, 1982a: iX).15 Because modemist Muslim feminists hear 'the ethical, egalitarian voice of Islam', rather than the 'legalistic establishment version of Islam [which] largely bypasses the ethical elements in the Islamic message', they tend to perceive Islam as 'non-sexist' (Ahmed, 1992: 239). Common to all modemist Muslim feminists is the fact that they essentially refuse to see the status and roles of Muslim women judged solely in westem cultural terms. While they are aware of the need to reject 'the androcentrism of whatever culture or tradition in which they find themselves', they do not see this in terms of adopting westem aims and life-styles (ibid: 245). It is worth digressing at this point and tuming our attention to the volume mentioned earlier on the role of Christian women (Lees, 1991). While the Christian discourse on this topic not surprisingly exhibits varied interpretations of the Scripture with regard to women, it is interesting to note that rather than countering the notion of female submission, this tenn is reinterpreted in ways which appear to underline the complementarity of gender roles inherent in the patriarchal social system (Lees, 1991a: 203-10). In fact, reading the views of some of the more conservative participants in this discourse (for example, Field and Catherwood), one is struck by a number of parallels with conservative Muslim views of women's subordinate role vis-a-vis men in society. The active participation of modemist Muslim feminists in contemporary Muslim discourses has probably been an important factor behind the secular feminist trend in parts of the Muslim world to analyse these discourses within their own framework. Thus, formerly, the 'women's question' generally tended to pit a secular, mainly westem-inspired discourse against an Islamic one, a process which all too often became a dialogue of the deaf since the two camps based their arguments on different premisses. More recently, secular feminists have come to realise that, given the Islamic resurgence which has found fertile ground in economically depressed and politically disenfranchised Muslim communities and societies, they need to reinvestigate the normative religious texts. This attempt to consider Islam from the perspective of a westem ethos, while at the same time reinterpreting 'its fundamental teachings in such a way that it provides a sanctioning forum for the introduction of new ideas', aims to establish a framework for more egalitarian gender relations (Haddad, 1982: 8). Fatima Memissi, for example, in launching an historical and theological enquiry into the condition of women at the dawn of Islam, is intent on proving that:
We Muslim women can walk into the modem world with pride, knowing that the quest for dignity, democracy and human rights, for full participation in the political and social affairs of our country, stems from no imported Westem values, but is a true part of the Muslim tradition' (I 99 1: via).
In effect, whereas Memissi's earlier writings tended to focus on 'the Muslim social order [which] views the female as a potent aggressive individual whose power can, if not tamed and curbed, corrode the social order' (1975: 108), she now feels compelled to argue from within the framework in which Muslim discourses are taking place in order to find justification for her feminist beliefs through reinterpreted Islamic principles. Similarly, Leila Ahmed set out to analyse how Muslim women's role and status have been perceived over the ages by investigating discourses on gender in 'the societies in which they are rooted, and in particular the way in which gender is articulated socially, institutionally and verbally' (1992: 2). She argues that although Islam, similar to Christianity and Judaism, was predicated on a hierarchical social structure, it also preached an ethical message regarding the equality of human beings. 'Arguably, therefore, even as it instituted a sexual hierarchy, it laid the ground, in its ethical voice, for the subversion of the hierarchy' (ibid: 238). Another secularist approach, which has recently begun to surface in a number of Muslim countries, aims to set the issue of gender relations and the concomitant rights of women within the realm of human rights. By combining the social and political levels which affect women's status in society, this approach aims to avoid the marginalisation of the I women's question' while at the same time addressing the factors which affect both their and men's rights in society (cf. Dwyer, 199 1). The reaction of conservative Muslims, both traditionalist and fundamentalist, to this trend is revealing. As Ann Elizabeth Mayer points out:
Accommodating the principle of equality in an Islamic human rights scheme involves dealing with two aspects in the Islamic tradition, one egal itarian and the other mandating sexual and religious discrimination, as well as the mixed reactions of contemporary Muslims to these two aspects (1991: 93).
Because the Islamic sources the Qur'an and the different schools of religious jurisprudence differentiate between men and women, and, for that matter, between Muslims and non-Muslims, the concept of human rights as laid down in the 1948 Universal Declaration of Human Rights is not easy to reconcile with interpretations of the Shafi'a which emphasise the hierarchical aspects of the Islamic social order, in which the free male Muslim possesses the most rights (ibid). Indeed, conservatives today have attempted to expand Islamic rules to include aspects of modem life while at the same time restricting women's opportunities outside the home. This has resulted, for example, in "'Islamic" rationales for forbidding women to drive, banning women from participating in sports, and excluding them from working in television and radio programs' (ibid: 113). Given such rulings by male interpreters intent on maintaining the patriarchal system with women in a subordinate role, modemist Muslim feminists and human rights activists are arguing that this is not the real voice of Islam. Thus, the struggle ahead is not whether Islam can survive the onslaught of change, but which voice will be heard the loudest: the ethical which stresses an indivisible equality, or the hierarchical which fits human beings into categories.
Muslim Women's Choices
It is these considerations regarding the complexities of women's way of life in diverse Muslim communities and societies, and the need to avoid the 'overemphasis of Islam as a cultural determinant' (Hale, 1989: 247), which have provided the impetus for putting together this volume. The contributions, based on recent research in cultural and social settings, some of which have been hitherto little explored, focus on the way in which the accommodation between religious belief and social reality affects, and is affected by, the contexts within which women in diverse Muslim communities and societies live out their lives. In dealing with this general theme, each chapter provides us with insights into the complex ways in which Islam interacts with a host of other factors. By according us glimpses of the manner in which Muslim women negotiate their gender role, the contributers to this volume also throw light on the choices open to women in diverse Muslim social settings.
In some contexts, women's choices may be relatively limited, while in others they are more varied. Similarly, in some contexts, women may circumvent the constraints which limit their choices, while in others they appear to accept the limitations. Either way, the question of choice a vein implicitly or explicitly running through this volume, and which contiibuted to its title points to the reality that even in Muslim societies where the boundaries of their lives are rigidly prescribed, women may wield a modicum of power which enables them in various overt and subtle ways to 'influence factors related to their situation in order to serve clearly defined personal (or family, or community) interests' (Hijab, 1988: 140). Thus, the Muslim women discussed in this volume represent different cultural areas each with its own particular historical, political and socioeconomic experience. In some cases, they are members of minority communities existing within a larger majority population from which they may differ in terms of race, ethnicity and/or religion. In others, they are part of the majority in their respective societies, where being Muslim is either almost taken for granted as a part of cultural identity, or where the parameters of this,identity are being subjected to scrutiny. In any case, the impact which majority or minority status may have on religious consciousness, not to mention the political implications of this status, is rendered even more complex by a host of other variables, such as class origin, educational background, employment status, age group and geographical location (to focus on those deemed particularly relevant to the theme of this volume). Though the impact of Shari'a-based legislation and customary law on women's status is by no means minimised, the fact remains that the varied manner in which gender identity articulates with this complexity of variables points to the fallacy of attributing to Islam the sole influence in explaining the ways of life of Muslim women in different cultural settings, including the type of choices at their disposal.
Strategies of Selection: Differing Notions of Marriage in Iran and Morocco
In Muslim countries marriage, though not a 'sacrament', occurs in a religio-legal framework, and is regulated by a code of law rooted in religious precepts. The relations between the precepts and the law are complex, and are further complicated by the distance between each of them and actual practice. This paper explores one aspect of these complex relations, as reflected in tife existence of three different but interrelated notions of marriage validity. The first derives its legitimacy from the Shari'a, a body of sacred law in Muslim belief, the second from the modem legal system and the third from society at large, grounded in popular beliefs and social practices. In other words, there are three distinct constructions of what constitutes a legitimate marital relation. When they concur, the validity of marriage is beyond dispute, which is the case for the majority of marriages. But there are other instances in which the marriage meets the requirements of only one or two of these realms. These cases are the ones that make their way to the courts. Through a detailed analysis of two court cases, I shall demonstrate the ways in which social constructions of marriage are at times at odds with those of the Shari'a and the modem legal system. The material for this analysis comes from fieldwork in the family courts of Iran and Morocco.' My main focus is on a special type of dispute that comes under the general title of 'Proof of Marital Bonds'. Although these disputes compfise a small proportion of all marital disputes (approximately 5 per cent) in both countries, they are significant as they lay bare some of the main assumptions behind the religioaegal conception of marriage. Their analysis illustrates the contrast between the ideal model of marriage and family embodied in the Shafi'a and actual prevailing pattems of social behaviour. Before discussing these disputes, it is essential to place them in context by presenting an overview of the ways in which religious precepts and positive law interact in modem Muslim countries. 55
The Problem: The Shari'a and Modern Legal Systems
What distinguishes Islamic law (the Shari'a) from modem systems of law is its sacred and transcendental dimension. In Muslim belief its source is divine revelation, from which ensue two assumptions underlying the ideal of the Shari'a: first, that there are divinely revealed norms and rules to which Muslims are under constant duty to conform; secondly, that these are immutable and all-encompassing, regulating every aspect of life. The literature on Islamic law and Muslim societies shows that there has always existed a gap between Shari'a ideals and practice. The Shari'a has not only accommodated prevailing customs, but it has never been applied in its totality (cf. Anderson, 1959; Coulson, 1964; Schacht, 1964). Yet, the ideal of the Shari'a as the perfect law of the 'Golden Age of Islam' has endured, particularly in the area of family law, which has always represented the core of the Shari'a. The provisions of the Qur'an were most abundant and explicit in the area of personal relationships (Anderson, 1959: 15). The tension inherent in the relations between Shari'a and practice has acquired a new dimension with the rise of Muslim nation-states in the present century. The enactment of modemist legislations by the govemments of these states has considerably reduced the legal scope of the Shari'a. In almost every branch of law, westem-inspired legal codes have replaced traditional Islamic law. Its only surviving branches are those of family law, inheritance and endowments. Even here the Shari'a was not retained intact. Rather, it was reformed and grafted onto a modem legal system through a process of codification.' An indirect repercussion of all these changes has been that family law has become the last bastion of the Shari'a. Today, the debate over family law is a sore spot in Muslim consciousness, revealing something of the on-going struggle between the forces of traditionalism and modemism in the Muslim world (cf. Hijab, 1988). For Muslim traditionalists, the Shari'a, now reduced to family law, is a sacred law upon which the most important social institution, the family, is founded. For secular modemists, the Shari'a as it stands is incompatible with modem life. They argue that Islam foresees and allows changes in family structure and relations, and that laws regulating them are not immutable. For feminists, the Shari'a is overtly discriminatory and unjust. It is not my intention here to enter this debate, which I believe overlooks one major issue: family law as applied in today's Muslim countries is not the same as the Shari'a, although it is derived from it. Both codification and the concept of a unified legal system, with the state as an enforcing authority, are alien to the Shari'a.1 The principal question that I am concemed with is the nature of the relations between the con cept of marriage in the Shari'a and its legal and social constructions. In other words, how and to what extent is this last bastion of Islamic ideals of social relations relevant to contemporary Muslim societies? How do men and women relate to it, use it and abuse it for their personal interests in the course of a marital dispute? I believe that it is essential to address these questions, which touch upon a more immediate aspect of the tension between the ideal of the Shari'a and its practice, created by its grafting onto a modem legal system. Through a detailed analysis of two court cases from Iran and Morocco, I shall explore the relationship between the Shari'a and the modem legal system on the one hand, and social practices on the other. In both countries, family law has been codified and is implemented by a modem legal apparatus. Iran, the only Muslim country in which Shi'ism is the state religion, follows the ithna 'ashari (Twelver) rite to which the majority of the Shi'a belong.' Morocco adheres to the Maliki rite, one of the four schools of mainstream Sunni Islam. 5The legal codes in both countries are translations and simplifications of the Shi'ite and Malikite rites respectively. Iranian family law, codified between 1928 and 1935, was substantially refon-ned in the Family Protection Law @f 1967 under the Shah. These reforms were partially abandoned after the creation of the Islamic Republic in 1979 .6 In contrast, Moroccan family law has remained more or less unchanged since its codification in 1957 .7
Shari'a Versus Legal Validity: An Iranian Case
Disputes in which the Shari'a notion of marriage is contested by the legal system arise from the co-existence of two equally valid kinds of marriage contract: a legal contract whose validity is established only through registration; and a Shari'a contract whose validity rests upon conformity with Shari'a provisions. The types of tension and conflict stemming from this duality vary with the legal machinery and the social context. In Iran, tension manifests itself in disputes involving muta (temporary) marriages, which are correct according to the Shari'a, but have been ignored by the modem legal system. In some cases they also lack social validity. The issues and processes involved can best be explored through analysis of an actual case which appeared in a Tehran court in 1986. The dispute is initiated by Pari, an articulate woman who comes from a family of modest means. Pari, bom in 1957, is a high school teacher who is also studying for a Master's degree in management at the Open University in Tehran. She was a divorc6e (non-virgin) at the time she contracted her temporary union. Mehran, her temporary husband, is five years her junior and without any previous marital history. He comes from a prosperous merchant family, left high school at the age of fifteen and has since then worked with his father who is a trader in the bazaar. The petition is written by Pari herself. Her style is emotive and rhetorical, and in the translation, I have attempted to retain her wording if not the style:
Two years ago I contracted a temporary marriage ('aqd monqata') with Mehran for a period of five years with defined conditions. Our agreement was that, in the event that I bore a child, firstly, he would make me his per manent wife, and secondly, he would pay our expenses. He swore several times that he would not break his promise. Now that I have given birth to a child through caesarian, involving great expense, he not only refuses to do the pennanent contract (aqd daem), but also declines to pay the hospital costs. This has brought a great deal of shame and degradation for me among my family, relatives and acquaintances, as what I had told them (that my marriage was a proper one) proved to be untrue. Hence, with a bed-ridden mother and a meagre salary as a teacher, I am now condemned to a life full of hardship, misery and shame.
In support of her claim, she provides the certificates of her daughter's birth and her temporary marriage, hospital bills and a bank statement attesting to her indebtedness. During the first session, held five months after her petition, Pari elaborates on what she declared in her petition and repeats her demand for her union to be changed to a pen-nanent one. Mehran, her temporary husband, states that he is prepared to pay for child support but will not, under any circumstances, agree to a permanent marriage. Their marriage was a temporary one, they never established a conjugal home together and he still lives with his parents. At this point, Pari bursts into tears, saying that the child support is not the main issue, it is because of her aberu (reputation) that she wants him to fulfil his promise and contract a proper marriage. But Mehran remains adamant and she retaliates by demanding 25,000 tomans for the hospital expenses and past maintenance of the child. The session ends with no definite conclusion. Thejudge attempts reconciliation, advises them to think the matter over and reach a mutually accepted position. The court fixes another date to hear the case. To understand this case and the reasons for Pari's petition, we need to examine further the Shari'a notion of temporary marriage and its adaptation by the modem legal system in Iran. Only Shi'a Islam recognises a temporary marriage as valid .8 Although this type of marriage existed at the time of the Prophet, it was banned by the second Caliph, and was later abandoned by other schools of Muslim law apart from the Twelvers. In Islamic jurisprudence (fiqh) this type of marriage is referred to as 'marriage of pleasure': muta in Arabic denotes pleasure; while in Iran it is known as sigheh. It is a marriage contract with a defined duration which can be from some minutes to ninety-nine years. it legitimates the sexual union as well as the children bom into it.9 In discussing its legal structure, Shi'a jurists employ the analogy of rent as opposed to the analogy of sale which they use for permanent marriage. Through this contract a man acquires exclusive access to a woman's sexual faculties for a specified period in exchange for a clear and definite payment of mahr (dower) (Haeri, 1989: 51-4). Although children bom into the marriage are legitimate, procreation is not the aim; it is strongly discouraged, if not explicitly prohibited. A muta contract differs from a regular marriage in two major aspects: the rules related to its validity, and the sphere of rights and duties which it establishes between the couple. For a muta contract to be valid, its duration and the amount of mahr must be specified in definite terms. Any ambiguity in these areas could render the contract void.11 A temporary wife, unlike a permanent one, has no claim to maintenance or sexual intercourse unless these are stipulated at the time of the contract. Even in the event of pregnancy, she is not entitled to nafaqat al-haml (maintenance of pregnancy), to which even a divorced woman is entitled. On the other hand, the husband has narrower control over her and she has wider autonomy: she does not require his permission to leave the house or to take up a job, provided that these actions do not interfere with his right to istimta' (sexual enjoyment). There is no divorce in muta: the contract expires with the lapse of its duration. To continue the relationship, a new contract must be made. The contract can also be ten-ninated by bazl muddat, which can be translated as 'making the gift of the remaining time'. It can be done only by the man. A woman does not have this option, but she can induce his consent through offering him compensations. Consistent with the logic of rent, a man can contract as many muta marriages as he wishes (more precisely, can afford), but a woman only one at a time. At the end of it she is required to keep an 'idda (waiting period) for two months prior to contracting a new one. The Iranian Civil Code recognises muta as a legally valid marriage and has retained its Shi'a conceptions and rules. In total, the Code devotes six articles to muta. Two articles (1075 and 1076) deal with the duration, and the rest with the mahr payment, mirroring the importance which is attached to these two elements of the muta union in the Shi'a rite. Apart from these few articles, the Civil Code remains silent on the fon-nalities and legal aspects of this type of marriage. This silence is echoed in subsequent legislations. There is no reference to muta in the Marriage Law of 1931, which confers legal validity only on registered marriages. Likewise, the Family Protection Act of 1967, by both omission and commission, excludes disputes involving muta from being adjudicated on the basis that they were not registered, and were thus devoid of legal validity, while registration was made impossible by the procedural rules set by the same act. Thus, prior to September 1979, i.e. the Islamic Revolution, although the Shari'a validity of muta marriage was not directly challenged, its legal validity was seriously curtailed. The aim was to discourage and even ban this type of marriage without offending the clergy and challenging the Shari'a directly. The end-result was that muta became a mutilated form of marriage with no legal consequences. This situation changed after the 1979 Revolution when the Family Protection Act was dismantled and its courts were replaced by Special Civil Courts. The new courts, presided over by Islamic judges, see their main function as the administration of Shari'a rules, including conferring legal validity on muta. However, as the procedural rules for registering marriages have remained intact, a muta marriage still cannot be registered. The way out of this impasse is also foreseen: these marriages can acquire legal status and be registered if the new courts issue an order authorising their registration. The procedure is simple if the two parties are already in agreement and willing to make their union legal; otherwise the existence of a permanent maffiage must be proven to the court. Despite this new legal orientation, miita has remained a socially defective union: its transient nature violates the social construction of marriage. It is seen as a temporary union whose objective is gratification of sexual needs, and which rarely results in the establishment of a marital home. A muta wife is referred to as sigheh, a term which has derogatory implications. This is why Pari came to the court: to transform her temporary union to a permanent one which enjoys both social and legal validity. But her partner was unwilling to co-operate and she had no justification for her demand to register her union as a permanent one. However, during the second court session, Pari appears to have found a Shari'a argument for her demand and presents her case in a very different light. These are her words:
The intention (niyyat) in our marriage was for a permanent contract. We made the temporary contract out of necessity (zarul-at). At the time we could not register our marriage due to the fact that Mehran did not have his identi ty card: he was evading military service." Our real marriage was pennanent, and took place eight months prior to arranging for the temporary contract. I myself recited the marriage formula (sigheh 'aqd) from the Imam's book (Ayatollah Khomeini's treatise, 1987), and Mehran accepted it. I can bring witnesses if necessary. It is not a question of money (referring to her demand for childbirth expenses); it is my reputation which is at stake. To be on the safe side I even repeated the marriage formula after we went to a mullah to draw up our temporary contract. This was done only because of necessity, since without it we risked harassment from the komiteh (revolutionary organisation responsible for observance of morals).
At this stage, the judge asks the defendant, Mehran, whether he admits her claim that they had recited the formula. He admits that eight months prior to arranging for the muta contract, she recited a formula from the Imam's treatise, but stresses that it was only to make them mahram (lawful) to one another, and there was no reference to duration." He repeats his position that he is not willing to make the marriage a permanent one, and declares that he has decided to ten-ninate the union. The judge once again attempts reconciliation. But Mehran remains adamant and only agrees to pay for the maintenance of the child according to his means. The judge gives them another chance to settle the matter peacefully, and advises them to put the future of the child ahead of their own individual interests. The court clerk sets another date for them to appear, and under the instruction of the judge summarises the proceedings of this session as follows:
The woman's claim is for a pen-nanent marriage ([email protected] daem). The man's claim is for a temporary marriage (zavtjiyyat muvaqat), but the man appears doubtful about this. Since the presumption (asl) in marriage is for permanency, it is the man who must provide evidence to its contrary.
Mehran's admission of Pari's claim as regards the recitation of a prior marriage formula reversed their roles in the dispute. It freed her from providing any further proof, as his admission proved her claim. He was now required to prove that the formula recited was for a temporary marriage. 13 To understand Pari's new assertion, it is necessary to look at the formalities involved in contracting a marriage in Islam. In Islamic law, marriage is a civil contract and, in principle, it requires no religious ceremony. It is formed through offer and acceptance in the presence of two witnesses. Offer is made by the woman or her legal guardian and acceptance by the man. In Shi'a law the procedure is much simpler, there is no need for witnesses and a woman (provided she is a non-virgin, i.e. has already consummated a union) can contract her own marriage. This is done through the recitation of the marriage formula known as sigheh 'aqd, preferably in Arabic, though it can be done also in Persian. The formula is found in every Shi'a treatise. In Ayatollah Khomeini's (1987: 355-6), the one used by Pari, the whole procedure is explained in a number of legal points." There are two formulae: one for permanent marriage and the other for temporary marriage. The only difference between them is that the phrasefi al-mudat al-ma7um (for a definite period) is added in case of a temporary marriage. The absence of this phrase in the formula results in creating a permanent marriage bond. During the last session, held a week later, Pari shows a greater awareness of these precepts. Her temporary husband's unfamiliarity with the Shari'a subtleties, on the other hand, results in his testifying to his detriment:
It is so obvious that it was not a proper maffiage: there was no wedding, no registration, no trousseau, no marital home, even rny family did not know about it. What other proof do you want? Do you call this a marriage'? It was a sigheh for five years.
The session ends in a bitter quarrel between the couple. The court renders its judgement after a week, accepting Pari's claim and recognising the union as a permanent marriage. The judgement also authorises the registration of t4e union and requires the husband to pay child maintenance and hospital expenses due for the delivery. In reaching the judgement, the judge drew upon three Shari'a principles: the permanency of marriage, the intention (niyyat) and the necessity (zarurat). The first principle holds that a marriage is permanent unless its duration is clearly specified. This principle, peculiar to Shi'a law, applies to cases in which there is doubt over the question of duration in a marriage contract, i.e. the duration is either not specified or not clear. As regards the validity of such marriages, the Shi'a jurists are divided. The dominant opinion, to which Ayatollah Khomeini adheres, considers such a marriage correct but permanent. The other opinion considers such a marriage void, since it is defective in one of its structural elements, namely that of definiteness of duration (Muhaqqeq Damad, 1986: 216). The coun acted in accord with the dominant opinion. The second and the third principles are interrelated. Intent is an important criterion in evaluating the outcome of an act. Sometimes necessity compels an individual to act contrary to the real intent. In this case, the court accepted Pari's assertion that the real intent was for a permanent marriage, but that a temporary contract was the only possibility in the circumstances. This case illustrates the existence of two overlapping areas of ambiguity: between the Shari'a and the modem legal system on the one hand, and between Shari'a and social reality on the other. All these are manifest in the institution of temporary marriage in Iran. In today's Iran, for a marriage to be valid it must meet certain conditions. On the legal level, this means registration. By requiring the registration of all marriages, the 1931 Iranian Marriage Law created the notion of rasmi (legal) marriage. 15 It also conferred the status of shari marriage on unregistered ones: they are correct according to the Shari'a but without any legal consequences. To discourage these unions, the same law prescribed the penalty for the parties involved as one to six months of imprisonment, thus adding social stigma to legal ineffectiveness. 16 In time, at least in urban Iran, legal validity has become an important component of the social construction of marriage. This process has been eased by the way in which mahr is practised in urban Iran. Mahr (or sadaq) is an integral part of every Muslim maff iage contract. It consists of a sum of money or valuables that the husband pays or pledges to pay to the bride upon maffiage.1 7 Marriage in Iran involves a substantial mahr, an amount which is often beyond the immediate financial capacity of the groom. No transaction takes place at the time of marriage, but the amount is written in the marriage contract and the bridegroom pledges to pay it upon the bride's request. The stipulation of mahr in a registered marriage, which becomes a legal document, grants a legal dimension to request. [email protected] plays an important role in the dynamics of marital relations, giving a woman a high degree of security and a say in deter ing or inducing a divorce. At the same time, a substantial amount of mahr, which is legally enforceable, reflects not only the social importance of the union, but also that of the bride and the two families involved (cf. Mir-Hosseini, 1992). Mut'a is resorted to by men and women for a variety of reasons and considerations. If their motives converge in the course of the union, then either the union ends by the lapse of its time or it is transfon-ned into a permanent one by obtaining court permission to register it. A dispute arises when the partners' motives fail to converge. Court cases invoiving this type of dispute suggest that there is a wide disparity between men's and women's perceptions and objectives in entering this type of union. In all cases the men involved did not consider the union worthy of a proper marriage, mainly because of the personal and social attributes of their partners; while the women agreed to a muta union in the hope that in due time they could transfon-n it into a permanent marriage. The right time is usually perceived as coinciding with the birth of a child. This explains why Pari was so shamed by her marriage and why her reputation was tamished. But to achieve her goal, she needed a Shari'a justification. She found this justification in another area of ambiguity, namely that involving Shari'a concepts and their popular construction. Terms such as sigheh and sigheh 'aqd have different connotations in colloquial Persian from their Shari'a legal usage. Sigheh can have several meanings and functions according to the context in which it is employed. It literally means the special formula employed at the time any contract is made. Colloquially, sigheh means temporary marriage or a temporary wife. It is used both as a verb and a noun. In Shari'a legal terminology, sigheh 'aqd denotes the recitation of a certain formula which results in the creation of a contract. Colloquially, sigheh 'aqd is limited to the contract of permanent marriage, which is almost always done by religious functionaries in a marriage registry office. A temporary marriage, which is done by the couple themselves or by a mullah, is known as sigheh. The court's definition of these terms naturally reflects that of the Shari'a which is obscure and unknown to many. It was through manipulation of these ambiguities that Pari was able to win her case. It is evident that when she contracted her marriage by reciting the formula, her understanding was the same as that of her husband-to-be, and that shared by the populace. Otherwise she would have used it in support of her claim in the first court session. All the facts about their union attest to its temporary nature: they all deviated from the norms and [email protected] constituting a permanent marriage. He was a bachelor and she was both older than him and a divorced woman, two major disadvantages which rule out the eligibility of a woman from her social class. In addition, it was never intended to establish a marital home, an important element of a proper marriage. He continued to live with his parents and kept the union secret, whereas marriage involves publicity, celebration and announcement.
Legal versus Social Validity: A Moroccan Case
In Morocco, the tension created by the existence if parallel notions of marriage validity are manifested in a type of dispute involving unregistered marriages known asfatiha, so named because they are solemnised by recitation of the first sura (chapter) of the Qur'an. Theoretically, this marriage meets all the fon-nal requirements of Maliki law. The woman is given away by her father, or in his absence by his nearest male relative, the amount of sadaq and the manner of its payment are defined, and the relevant marriage formula is uttered. Yet afatiha marriage does not enjoy legal recognition, as it does not fulfil the modem criteria of a valid marriage, set by Article 5 of the Moroccan Code of Personal Status (the moudawana). Unlike the Shi'a, Maliki law requires a marriage to take place in the presence of two reliable witnesses, known as 'adul (the just). This requirement, in time, has produced a class of professional witnesses who now function under the supervision of the Ministry of Justice, located in the Court of Notaries.11 They are specialists in the Shari'a, they act as witnesses and also draw up maff iage, divorce and other contracts. A marriage is recognised as valid only when it is conducted by the 'adul, who not only ensure the observance of Shari'a rules, but give it legality by drawing up the contract, referred to as 'aqd. Yet the possibility of rendering afatiha marriage valid is not ruled out, as the Code includes a procedure for its registration. Section 3 of Article 5 empowers the Court of Notaries and its judge to legalise unregistered unions. The procedure is simple if the two parties acknowledge the existence of marital relations; for then they need only produce twelve witnesses to support their claim. This is done in a document (lafif) drawn up by two notaries, which is, in effect, the written testimony of twelve witnesses (all male, or two females in place of any male). This lafif is known as thubut al-zawjiyya (proof of marriage), and is analogous to a maff iage contract. The need to register a fatiha marriage usually coincides with the birth of the first child, who in order to become legitimate must be entered in his/her father's Civil Status Booklet. As already mentioned, when there is agreement between the parties, the procedure is simple, which is the case for a large majority, registered without further ado in the Court of Notaries. The problem arises when one of the partners, always the man, disavows the union, and it thus becomes incumbent upon the other to prove the existence of a marital relationship. These cases appear in the Court of First Instance and all of them are initiated by women, usually after the birth of a child and thus involving claims of patemity. They stand very little chance of success. A large majority of them are dismissed by the court on the grounds of insufficient documentation, as they lack a marriage contract, and the court entertains only legally valid marriages. This creates a vicious circle for women, who need a court order to register theirfatiha union and give a legitimate status to their children. Fatiha marriages, although decreasing, are still practised, especially in rural areas and among the urban poor." They are concluded for many different reasons. Sometimes the girl has not attained the minimum age of 15 required by the law; the marriage payment may not be ready; the man may not be in a position to register the marriage; or he may be avoiding commitment by evading the legal consequences of a registered union. Whatever the motive behind such a marriage, a woman's fate and that of her children depend on the good will of the man. The following case illustrates some of the processes involved in dispute cases of this kind, and why women at times have little choice but to concede to them.
Fatima, now 38 years old, comes from a poor background. She was born in a small village near Sale, where her father, a small peasant, died when she was 13 years old. Shortly afterwards, to reduce the family's burden, she was given as a maid to a family in Sale. When she was 18, she entered her first fatiha marriage. The union had been arranged by her master and the father of the groom. The ceremony took place in her master's house and the 'aqd was deferred until the accumulation of the sadaq .20 Later, the father of herfatiha husband asked for her to move in with them, promising that he would arrange for the 'aqd in a short time. She lived with his family for two years, but the promised 'aqd was gradually forgotten. She became pregnant, but after a series of bitter fights with her mother-in-law, Fatima left her husband and retumed to her mother's house, hoping that her in-laws would soon come after her. But no one came to take her back, and she gave birth to a son in her mother's home in 1972.
Meanwhile the husband contracted a proper marriage with another woman, with an 'aqd and a paid sadaq. He no longer wished to continue his union with Fatima, denied patemity and refused to register the child. Fatima threatened to take him to court, but after the intervention of the family Fatima had lived with and worked for prior to herfatiha union, he gave in and agreed to register the child. The 'proof of marriage document' was made in October 1974, in which it was noted that they had been living as husband and wife for two years and a child was bom into the union. The following day, they registered a khul'a (divorce), ostensibly requested by Fatima, in which she renounced all her rights .21 In this way she realised her goal and gained legitimate status for her son. The divorce was part of their agreement for giving legality to the union. Four years later, she entered anotherfatiha union, again without a contract. At the time she was living with her sister, and her new husband was her sister's husband's brother, who had just finished his baccalaur6at and was joining the army. He promised marriage but said that he could not do the 'aqd, since he was a trainee army officer and was not allowed to marry during the first four years of his service .21 The fatiha was recited in a small ceremony. He rented a room for her in Sale and came to visit her while on leave. After a year she moved with him to his rooms in the military base in another town. The union lasted for four years, and she became pregnant in the final year. He wanted her to abon, but Fatima said 'I fear God and will never commit such a crime'. She gave birth to another son in 1982. In the same year, he contracted a proper marriage with a woman from Marrakech, where he was temporarily stationed, and asked Fatima to leave. At first she refused, but finally she gave in after he promised her that he would rent a room for her in Sale and would register the child. But he has never fulfilled his promises, mainly (according to Fatima) because of his legal wife's objection. In 1989 the boy was seven years old and without a legal identity, which was causing problems in registering him at school. So far all her attempts to resolve the problem, i.e. her brother-in-law's intervention and her threats to go to the court, have failed. She filed a petition in the Court of First Instance in Sale, in which she requested the registration of her child. She was asked to provide a marriage contract to prove that her child was bom into a legal marriage; obviously she failed and then had to abandon the case. Having made more inquiries and having talked to the judge, she realised that she had no case. She needs to prove the prior existence of her marital union in order to demand registration of her son in his father's name. She has no other recourse than registering the child under her patemal name. To do so she first needs to apply for a separate booklet for herself, which is a lengthy process (woman normally do not possess one, being registered in their father's and later in their husband's name). 23
An element in Fatima's case which I came to leam of later, and which might explain her choices, is that she was not a virgin at the time of her first union. She was pregnant when ihe was taken as a maid by the family in Sale, who later became her patrons. They arranged for the adoption of her child by a barren woman, as well as for herfatiha marriage. She has not traced her first child and never refers to the incident while talking of her misfortunes.
Fatima's case shows something of the dynamics of these unions and the reasons behind women's acceptance of them.21 A fatiha wife in Morocco is in the same precarious situation as a temporary wife in Iran, at the mercy of her partner's good will. To gain some degree of security in these precarious unions, a common strategy adopted by women is to get pregnant, a ruse resorted to by almost every woman who came to the court. In their petitions, they justify and argue their case on the basis of the welfare of the child. But it is difficult to avoid the impression that they purposely manipulate this fact to enhance their chances of winning the case. A child gives a woman the status of a mother; therefore, it gives a procreative dimension to the union, bringing her closer to the position of a proper wife. It can be an effective way of manipulating a reluctant man into a more committed union. If this stratagem works and the union is then transformed into a legal one, the case never reaches the courts. But if the man is not persuaded, the legal recourse otherwise available to women in these unions is very limited, as illustrated by the above case.
Both fatiha and muta marriages, although theoretically correct from the Shari'a perspective, are defective. They satisfy only one of the two major criteria for a socially proper marriage. In social practice there are two phases to a marriage, both intertwined with the Shari'a rules. The first phase is known, both in Iran and in Morocco, as 'aqd (contract); it consists of a small ceremony during which the marriage contract is drawn up. The second phase is the wedding celebration, known as 'urs in Morocco and as 'arusi in Iran. It marks the social recognition of the contract made during the first stage, allowing the consummation of the marriage and the establishment of a marital home. There is usually a time lapse between these two stages. In Morocco, 'urs is delayed until all the conditions specified in the marriage contract regarding the payment of the sadaq are fulfilled; and in Iran 'arusi is delayed until the bride's trousseau is ready. The traditional distinction between these two stages, especially the time interval, was clear-cut until recently. Now they seem to be in the process of amalgamation, especially among the middle classes. The 'aqd is often conducted in the aftemoon, in the presence of the notaries; and the wedding celebration takes place in the evening. This is more evident in Iran, where the @qd is acquiring more importance at the expense of the 'arusi stage, whereas in Morocco, the 'urs stage is still associated with the public announcement of the union, giving it social legitimacy. In a socially complete marriage the 'aqd phase always precedes the consummation. It renders the couple halal (licit) to each other, but does not establish the conjugal unit. After 'aqd a girl is expected to save her virginity until the wedding ceremony which marks her transfer to her new home. I know of a case in Morocco where the 'aqd phase was done four years ago without any accompanying celebration, because of financial problems. The couple live together in the same house, again through necessity, but she is still a virgin and is determined to keep her virginity until the 'urs. She told me: 'I am not a street girl who sleeps with a man without a real marriage.' For her, the 'urs celebration is the true marker of a marriage, not the contract which is only the legal marker. By way of analysis of two types of disputes from Iran and Morocco involving the validity of marriage, I have attempted to examine the areas of tension between the Shari'a, the modem legal system and practice. The grafting of the Shari'a onto a modem legal system has given rise to the existence of two parallel but distinct notions of legitimacy. The resultant ambiguity is at times successfully manipulated by the petitioners in order to negotiate the terms of their relationships, using the court as an arena. The selectivity that both men and women exercise in conforming to the Shari'a suggests that the main motivation stems not from a desire to conform to religious precepts, but rather from a need to circumvent the law in order to achieve a different purpose. If this is so, it places the Shari'a on the same level as other systems of law and challenges general assumptions regarding the popular belief in its sanctity. It is significant that women are more likely to suffer the adverse consequences of the blurred boundaries between Shari'a and legal legitimacy, reflected in the fact that they constitute the bulk of court customers. This is not surprising as, whenever there is tension in a system, its repercussions are most severe on the weakest, here the women of lower classes. These women in their relationships have to grapple with disadvantages that stem from the dynamics of class and male domination. In taking their cases to court, their main aim is to gain legal identity and status for their children, an indication that the legal definition of marriage is gradually but steadily gaining ground at the expense of the other two. A valid marriage according to the Shari'a or social practice needs legal registration in order to become a fully effective marriage. This imparts something of the importance of legal rules in defining and regulating relations between the sexes, as well as of their capacity to protect the weak.