Walther, Wiebke 1981 Women in Islam,
Marcus Wiener, Princeton. ISBN 1-55876-153-9
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.
Wiebeke Walther, a member of the faculty of Oriental Studies at the University of Bamberg, Germany, is author of numerous books and articles. She is frequently a visiting scholar and lecturer in Morocco, Algeria, Tunisia, Egypt and Jordan.
If a man and a women are alone in one place,
the third person present is the devil. Muhammad.
Woman in Islamic Law, in the Koran and in Tradition
Islamic law, as described here in its broad outlines and as it applies to women, is still in force at the present time, although in most countries-in a modified form, one which takes modem social conditions into account. Turkey, which was massively secularized under Kemal Ataturk, introduced Swiss civil law in 1926, though not without encountering some difficulties in the course of time.
In the context of divorce, the Koran says that they (women) have the same right as is exercised over them, though the men have a rank above them." (2: 228) In each religion, every age has its own interpretation of the Holy Scriptures; this is true for Islam as well. Thus liberal Moslems now take the superiority of man over woman to refer only to his greater physical strength and to the responsibility he has toward women. A non-Muslim is inclined to interpret the statement in a way which takes into account the era in which the Koran was written and the circumstances of Muhammed's life; even the first Islamic historians relate the revelations to circumstances in the life of the Prophet. We would therefore say that the Koran retains the view, prevalent in Antiquity and in the Ancient Orient, that men are essentially superior to women. This is even clearer in another verse from the Koran: "The men are overseers over the women by reason of what Allah hath bestowed in bounty upon one more than another, and of the property which they have contributed. Upright women are therefore submissive, guarding what is hidden in return for Allah's guarding (them); those on whose part ye fear refractoriness, admonish, avoid in bed, and beat if they then obey you, seek no (further) way against them." (4:34/38) The economic superiority of men is thus clearly one basis for the superior status they have enjoyed, not only in the Arabian Peninsula of the seventh century but in many other countries of the world, down to the present day. Further, the sexual abstinence recommended here as punishment for an obstinate wife (nzishiza) is proof of the importance attached to sexuality and sexual fulfilment for women as well as men in Islam. In a polygynic society however, man can look for sexual satisfaction with one of his other wives or his slaves. The Koran is not the only source of Muslim law. Soon after the death of Muhammed, it was noticed that the prescriptions in the Koran were not sufficient for the shaping of a life which would be pleasing to God. And so his followers began by collecting narratives (hadith, in Arabic) of what Muhammed did, said or merely tacitly approved of in certain situations. The aim was to shape one's own life according to Sunna or "custom" the "fine example" of the Prophet, in other words. This even included such details as Muhammed's pronouncement that it was better to eat and drink with one's right hand, since the left was used by the Devil. From the eighth century on, these hadiths, which the orientalists call prophetic "traditions" were recorded in great compendia. Six of these compendia became canonical, particularly those of Bukhari (d. 870) and of Muslim (d. 875). If the hadiths, such as those which reflect attitudes toward women, are examined closely, it soon becomes apparent that they contain a very wide range of views, some of which are contradictory. In one place, Muhammed is reported to have said: "I have left behind no temptation more harmful to my community than that which women represent for men." [82, V, 2001 In another, the following saying is also attributed to him: "The whole world is delightful, but the most delightful thing in it is a virtuous woman." [82, 11, 168] In the traditions, there are anecdotes referring to towns that had not even been founded or captured during Muhammed's lifetime and to factions that emerged only after his death. It may therefore be assumed that this literature does indeed include the Sunna of the Prophet, but reflects to a greater extent the various trends and opinions within the Muslim community in the first two centuries after Muhammed. The representatives of different views and factions wanted to stabilize a social structure made up of the most diverse elements. They hoped to arrive at a standard of general validity by attributing to the Prophet Muhammed values and modes of behavior which they considered religiously and ethically appropriate. As proof of the authenticity of such traditions, the isnad or "chain of authorities" was produced, i.e. the names of those who claimed to have heard this tradition one from the other. Consequently, the ultimate authority always had to be one of Muhammed's companions or one of the members of his family. Since the Muslims realized, at a fairly early stage, that not everything said to have originated with Muhammed could, in actual fact, have been said by him personally, the successive narrators were the subject of criticism. Just as the collection of traditions became an independent branch of knowledge, with its representatives travelling among the Islamic countries to hear traditions from authorities in the various regions, so another branch of knowledge developed, concerned with the collection and investigation of the biographies of those who handed down these traditions. This was called "the Science of the Men," although a fairly large number of the traditions are attributed to women, to A'isha, Muhammed's favorite wife, for example. The last of six volumes in the collection of traditions of Ahmed Ibn Hanbal contains merely traditions attributed to a female authority. The Koran and the Sunna are thus the two principal sources of Islamic law, at least for the Sunnites. The Shi'ites accept only those traditions which go back to Muhammed's cousin and son-in-law Al! and his descendants. Nevertheless, Shi'ite law differs but little from Sunnite law in most cases, since the content of the traditions considered correct by both groups is often identical only the sources are different. It soon became apparent that passages in the Koran and in the traditions allowed for different interpretations. Another authority was needed, and this was found in the ijma', the "unanimous consensus, the concurrent opinion of all Muslim scholars alive at the same time in a certain period" [92, 46] on a given problem. This consensus was not established by any sort of commission, such as a council or synod, but had to emerge by itself. In the course of Islamic history, institutions and even doctrinal opinions which did not exist in early Islam have been sanctioned by ijma': the Caliphate, which only appeared after Muhammed's death, of course; the veneration of saints; and the doctrine of the Prophet's infallibility and freedom from sin, which conflicts with the message of the Koran. The validity of the ijma' is justified by the well-known tradition: "My community shall never agree upon an error." The fourth and final source of Islamic law is analogies (qiyas, in Arabic); in fact, this is a method of reasoning by. In those cases which are neither to be found in the Koran nor in the Sunna nor in the ijma', an independent decision was made on the analogy of examples contained in the sources. However, there were differences of opinion as to the extent to which analogies could be used. In the course of time, four different schools of law-the Hanafi, Maliki, Shafi'i, and Hanbali-developed in Sunnite Islam, and these acknowledged each other as alternatives. They are to be found in various regions of the Islamic world, but they do not vary very much in their dogmas. Since Islamic law deals with every aspect of life from a religious perspective, it also includes moral judgments. There are "Recommended," "Indifferent," and "Reprehensible" categories, as well as "Mandatory" and "Forbidden." This provides ample scope for differences of opinion. However, the application of the category in question is agreed to depend upon the circumstances leading up to the act. These categories have not applied in penal law. In addition to provisions concerning family law and penal law, Islamic law (shari'a) also contains prescriptions concerning the religious duties of Muslims. The role of women in Muslim observance is examined here.
A number of verses in the Koran are addressed both to men and women. Sura 33:35 reads as follow:
The self-surrendering men and the self-surrendering women, the believing men and the believing women, the obedient men and the obedient women, the truthful men and the truthful women, the enduring men and the enduring women, the sub missive men and the submissive women, the almsgiving men and the almsgiving women, the fasting men and the fasting women, the continent men and the continent women, the Allah-remembering men and the Allah-remembering women for them Allah has prepared forgiveness and a mighty reward.
Contrary to the belief that was widespread in Christendom for centuries, the Islam does not assert that women have no soul. They have the same claim to a place in Paradise as men (see 40:8). However, the misogynistic elements among the pious of the first few centuries, whose numbers evidently increased after contact with Christian asceticism in particular, circulated a tradition that was frequently quoted in later years. Muhammed is reported to have said: "I stood at the gates of Paradise, most of those who entered there were poor, I stood at the gates of Hell, most of those who went in there were women". [82, V, 209f.] This is also explained: "Those who tell secrets when they confide in someone, who are too obstinate when they request something and are ungrateful when they receive it." [82, V, 1371 Still, the Koran does not regard Eve as the seducer of Adam, as she is presented in the Old Testament-that is, as responsible for Man's expulsion from Paradise and for his arduous existence on Earth -but considers that Satan led both of them astray. (2: 34; 7: 19ff.) The religious duties imposed by Islam on the faithful apply to women just as much as to men, apart from the few restrictions concerning special physiological features of women. Like the sick, menstruating women are required to make up for corresponding fast days later and are likewise freed from prayer and from certain rituals of pilgrimage. This is tied in with concepts concerning the religious uncleanliness of a menstruating woman, a view widely held by many peoples in earlier times. From these few restrictions, the misogynists among the Muslims developed a body of arguments that they claimed established the inferiority of women in the religious sphere. In the same way, they asserted that women were intellectually inferior, pointing out that their testimony was considered to have half the value of a man's. [24, 6, 61 A woman should make a pilgrimage only if accompanied by her husband or a male relative. Opinions are divided as to whether and how long an unaccompanied woman should travel; they vary between not at all and two to three days. Apart from the obligatory prayers at the mosque on Friday, the Islamic day of rest, Muslims can say their prayers just as well at home as in the mosque. A large number of traditions indicate that in the first centuries of Islam, women took full advantage of their right to pray in the mosque. There are, however, traditions calling on them not to adorn or perfume themselves for their prayers in the mosque. One recommendation that was regularly observed by women entering the mosque for prayer was that they should pray separately from men and place themselves in a row behind them. This is similar to the practice in Orthodox synagogues where, down to the present day, women have their own gallery; likewise, in some village churches of Germany, symbols on the pews indicate that men and women used to sit separately. The purpose of these arrangements was certainly to prevent men and women from being distracted by each other in an unseemly manner in a House of God. But even at a relatively early period, efforts must have been made to prevent women from attending prayers in a mosque, since traditions warn Muslims against their doing so. With the social degradation of women that accompanied the economic and political decline of the Islamic countries, they were increasingly deprived of the right to pray in a mosque. A woman of any self-respect was not even expected to leave the house once she was married, unless she was obliged to. An example of this is to be found in the trilogy of the well-known Egyptian novelist Naguib Mahfouz (b. 191 1), set in Cairo in the first half of the twentieth century. Amina, the wife of a middle-class merchant, has never left the house since her marriage except in a closed carriage to visit her mother. Encouraged by her sons, the representatives of a new generation, she once satisfies her greatest wish during the First World War while her husband is away and visits the Hosayn Mosque, situated not far from her house. When her husband learns of this, he repudiates her, the mother of his five children, the wife who had shown him obedient affection for many years and who had never failed to meet his every wish. Even in the 1960s, a sociologist reported that women in small towns in Morocco did not enter the mosques, mostly because they were not familiar with the prayer ritual. Those familiar with it were afraid that people might say they only entered the mosque to meet their lovers. They only dared to visit a mosque in the large towns where nobody knew them.  In a few Islamic countries, however, women were allowed to participate in prayers at the mosque on major religious festivals. The Turkish authoress Halide Edib tells in her memoirs of how, as a child in the 1880s, she accompanied her nurse to a mosque in Istanbul for ceremonial prayer at the end of the month of fasting. She also relates how a sensitive Muslim sees Islamic prayer, the outward ritual of which appears so strange to a non-Muslim:
The Imam stood in front of the mihrab, his back to the people, and began the prayer It is wonderful to pray led by an Imam. He chants aloud the verses you usually repeat to yourself in solitary prayer. You bow, you kneel, your forehead touches the ground. Each movement is a vast and complicated rhythm, the rising and falling controlled by the invisible voices of the several muezzins. There is a beautiful minor chant. The refrain is taken up again and again by the muezzins. There is a continual rhythmic thud and rustle as the thousands fall and rise. The rest belongs to eternal silence. [39, 72]
Only in large harems, however (that is, before an exclusively female congregation) have women performed the office of the imam, the prayer leader. Still, it should be noted here that women played a considerable role in the religious life of the Islamic countries, especially in mysticism. But this is a subject that will be examined later. Now to family law. It is taken for granted that a distinction must be drawn between Islamic law per se and the law that was actually applied in the Islamic countries. "Tell me, what did we ever do that was permitted by law?" to quote the protest of a prince of Mosul in the eleventh century, when he was criticized for being married to two sisters at the same time. [14, 17f.] Expressed as this may be in particularly crass terms, a great deal of literature on legal loopholes exists, showing that ways and means were always being sought to lessen or circumvent the application of the sometimes strict prescriptions. It was certainly not just pettifoggers who indulged in this but also celebrated jurists, famous for their skill in interpreting rules in a pragmatic manner. One of the punishments laid down in the Koran, flagellation for drinking wine or other alcoholic beverages, was seldom, if ever, applied. At any rate, lyrics in Arabic in praise of wine have existed since the second Islamic century. Persian poets such as Umar Khayyam and Hiifiz lauded wine-drinking as a form of opposition to Orthodox Islam. In any case, it was probably always true that people mainly felt bound by the provisions in Islamic law concerning the family. As already noted, the Koran explicitly stresses the superiority of men over women, and in actual fact women are legally at a disadvantage in some respects. Down to the present time, according to the Koran (2: 282) the evidence of two women is considered equivalent to that of one man in certain cases of law in Islamic countries, where it is impossible to adduce one male witness. Nevertheless, Islamic law led to an improvement in the position of women in comparison with the pre-Islamic period, especially as regards the laws of marriage and succession. In the pre-Islamic period there was no question of a woman being an heir, since property had to stay within the tribe. Under Islamic law, she inherits half of what male members of the family receive. Marriage is recommended to the faithful in Islam both in the Koran (24:32) and in the Sunna, but it is not a sacrament as it is in the Catholic Church. It still has a certain sacral character according to the Koran, which speaks of a "firm compact" (4: 25/21) between husband and wife. The same expression is used in the Holy Scriptures of the Muslims for the alliance of Allah with Muhammed and with the prophets of the other "book" religions. In Islam, marriage is based on a civil law contract which, in the first centuries, according to the prescription in the Koran and just as in Roman law, did not have to be in written form. The parties to the contract are the bridegroom and the bride's guardian (wall), i.e. her closest male relative, usually her father or brother or, if need be, even the judge himself. Two free male witnesses, or one male and two female witnesses, must be present. The Sunna recommends that the bride should not be married without her consent. However, silence is sufficient indication of agreement in the case of a virginal bride, since she is considered to be too shy or timid to speak for herself. When the girl is a minor, her guardian can also force her into marriage, but she has the right to annul this as soon as she is of age. The Maliki, Shafi'i and Hanbali even permit an adult woman to be forced by her guardian to contract marriage. On the other hand, the Hanafi allow an adult woman to arrange her own marriage, on condition that she chooses a man of her own rank and fixes an adequate dowry. According to a large number of traditions, Muhammed recommended that anyone wishing to marry a girl or woman should see her first. However, the content of some of these traditions indicates that this was certainly not or no longer customary at the time they appeared or were handed down, and resistance was encountered. In one tradition, for example, a man attempting to look at a girl is reproached by the narrator as follows: "You, a companion of the Prophet, will do this?!" The other replies that Muhammed had recommended it. [82, IV, 225] All of the traditions end with the appearance of the girl being pleasing to the narrator and with his marrying her. Clearly, this was a way for the narrator to reinforce his argument. An important part of the marriage contract is the fixing of the dowry (mahr or saddq, in Arabic). To begin with, the mahr was not a purchase price, as has often been said, but a kind of compensation the bridegroom had to give the parents of the bride for the loss to the tribe of the sons the woman would bear. The evidence for this is that the mahr was not paid when the girl married her cousin on her father's side; that is, when she remained in the tribe. This is still true among Bedouins today. The saddq was the wedding gift the girl received. As early as the time of Muhammed, a distinction was no longer made between these two terms. The mahr or the saddq was given to the bride, and it symbolized the status that she had. In Europe, for centuries, it was customary for parents to give their daughter a dowry when she got married. Not seldom, this led to the bride's being considered an unavoidable addition to property one could only acquire by marriage. If, in the Islamic Orient even today, the man is required to give the woman a dowry upon marriage, the European form of "marriage for money" is certainly excluded. The Islamic custom provides an opportunity for the parents of the bride to deny an unwelcome suitor their daughter, by making excessively high demands.
The mahr was, and mostly still is, used for the purchase of furnishings for the household and of clothing for the wife. In earlier times it even consisted of such articles. The various schools of law quote different minimum and maximum figures for the dowry; but marriage contracts that have survived indicate that the top limit could be greatly exceeded. The origin and rank of the bride, her age or rather her youth, her beauty-in short, whether or not she was a desirable match determined the size of the dowry. In the early Muslim community, it was obviously recommended to give a suitor the chance to marry by fixing a dowry appropriate to his circumstances. Thus one tradition tells of a man who wanted to marry but possessed nothing he could give to the woman as dowry. Muhammed decided that he should have her for the sections of the Koran he knew by heart. [24, 67, 14] Incidentally, this woman had offered herself in marriage to the Prophet himself, and it is said that she was not the only one to do so. This is proof of the magnetism Muhammed must have had for those around him. It is also evidence of a self-confidence on the part of women in Ancient Arabia that is totally lacking not only among Muslim women of later centuries. There are reports of other women who were married to Muhammed but who, when he came to them in the bridal chamber, said: "I take refuge from you in God." At this, so it goes, he had them sent back to their families without delay. [87, VIII, lOOff.] This, too, shows that Arab women at the time of Muhammed were assertive enough to make no secret of their desires or disinclination.
It was often agreed in the marriage contract that a part of the dowry was to be paid only in the event of divorce, so as to protect the wife from hasty action by her husband. Payment in instalments was also possible if a fairly large down-payment was made at the time of the wedding. Islam allows a man to have more than one wife at a time. Opinions differ as to whether polygyny was prevalent on the Arabian Peninsula before the time of Muhammed. Recent European research [158, 62, 81; 176, 274ff.] indicates that there is no unequivocal evidence of this, at least as far as Mecca and Medina are concerned. Admittedly, early Islamic historians tell of a man having several wives, but they also list the various husbands of many women. These early historians assume that for the women it was a question of marriages contracted one after the other, as was true in later periods. However, this could equally well have been the case for men. It is a fact that there were polygynous marriages in other countries of the Middle East, such as Iran, in the pre-Islamic period. It is just as certain that very loose sexual mores were the rule in pre-Islamic Arabia. It was actually through Islam that the institution of marriage contracts was first introduced to the Arabian Peninsula. The verse in the Koran from which the right of man to a polygynous marriage has been derived for centuries reads as follows: "If ye fear that ye may not act with equity in regard to the orphans, marry such of the women as seem good to you, double or treble or fourfold -but if ye fear that ye may not be fair, then one (only) or what your right hands possess; that is more likely to secure that ye be not partial . . . " (4:3) Modem Muslims often interpret this verse as essentially an exhortation in favor of monogamy, since at another point the Koran states that a man who is married to several wives at the same time cannot be equally just to all of them. (4:128/129) Still, the first part of the verse might suggest that Muhammed was concerned here with the maintenance of the widows and especially the daughters of men killed in battle during the early years of Islam. Muhammed, himself an orphan, often regarded himself as the advocate of the weak and underprivileged. Consequently, at a time when marriage represented the only way for a woman to be provided for, the Koran recommends marriage to widows and female orphans. This assumption is supported by the fact that the verse quoted probably dates from the time immediately after the battle of the Muslims against the Meccans at Ukhud in which many Muslims lost their lives. Muhammed himself set an example for his community and married two widows of slain Muslims. Indeed, in most of his marriages, if not in all of them, he is said to have had the solidarity of his community in mind. Islamic law requires a man to provide each of his wives with a household of her own. Thus polygyny was usually the privilege of the prosperous who, in addition to their wives, could also select any number of concubines from among their slaves. As impediments to marriage, Islamic law lists situations and conditions similar to those that preclude marriage in many other societies; an excessively close blood relationship, for example, or a relationship by marriage (4: 26ff.) or by foster-relationship. Furthermore, the law prescribes that a man may not be married to two sisters at the same time. A Muslim woman may not marry a non-Muslim, but a Muslim man is permitted to marry a Jewish or a Christian woman. The man should not be of a lower rank than the woman, but the converse is permissible (except for the Shi'ites). After the death of her husband, a free woman must observe a period of mourning of four months and ten days. After a divorce, she must wait three months before remarrying. Men, however, are permitted to remarry immediately. (2:234, 228) The waiting period for the woman was introduced by Muhammed in order to determine whether the woman was expecting a child, so that the paternity could be established without any doubt. If the woman was pregnant, she could only re-marry after the birth of the child. As in the pre-Islamic time, extreme youth was no bar to marriage, at least not in medieval Islam. Muhammed himself married his favorite wife A'isha, the daughter of Abu Bake, one of his closest associates and future first caliph, when she was six years old. When she came to him, she was nine and still played with dolls, according to historical reports. It was later laid down that a mentally healthy Muslim became marriageable at puberty, but there is a difference of opinion as regards age.
The duties of the man in marriage include providing his wife or wives with shelter, food and clothing. If she is accustomed to being waited on, he must provide her with a female servant. At least according to the law, the wife cannot be required to contribute to the upkeep of the household by doing work or by a financial contribution. However, among the poor, she would certainly have been obliged to do so. In Islamic marriage, there is no joint ownership of property. The wife can therefore freely dispose of her own property and in this respect is in a substantially more favorable position than European women have enjoyed for centuries. According to early traditions, the duties of the wife include feeling responsible for her husband's household and for those belonging to it. Traditions of later periods, it is true, give the husband the highest possible authority not only over the wife's possessions, but also over her sexual behavior toward him, over her decision to fulfil her religious duties and even over her merely leaving the house. [see 120, IV, 41 lf.] They thus contradict the sharia but doubtless reflect the customs of later centuries. The Koran has this to say about the relations between husband and wife in marriage: "Amongst His signs is that He hath created for you of your own species spouses that ye may dwell with them, and hath set love and mercy between you." (30: 20) Here, as in later traditions in which women are defined as mothers, sisters, and daughters, their roles are defined from a man's point of view, women are seen in their family relations and in their sociability with men. We have similar anthropological patterns in Judaism and Christianity. But it is to be emphasized that the Koran and the greater part of the traditions define these relations as based on love. One of the few marriage deeds that has survived, dating from thirteenth-century Egypt, contains the recommendation that the husband should "make his relations with her (his wife) pleasant" and that she is under the same obligation toward him. [35, 1701 Traditions urge the man to treat his wife well, as in the following, which refers to the concept prevalent in the Ancient Orient that woman was created from one of the ribs of man: "Treat the women well, for woman was created from a rib, and the most curved part of the rib is the top part. Should you try to bend it straight, you will destroy it, but if you leave it as it is, it remains curved. So treat the women well!" [24, 60, 1] A modem woman would certainly object to this lofty attitude of male superiority, but it should be recalled, for instance, that as late as the seventeenth century, there were arguments in central Germany as to whether women were human beings at all. [741 The ideal image of a good Muslim wife is to be found in a tradition that relates how Muhammed answered the question of what the best wife should be: "She who pleases him when he looks at her, obeys him when he commands, and does not oppose him in things which he rejects for her and for himself." [82, 11, 251 She should thus be pretty and submissive, although later chapters will show that intelligent women were often prepared to accept anything but this ideal of submission to the will of a man. The famous theologian, mystic and religious reformer al-Ghazdl-i (I 05 8-1 11 1), in the part of his Revival of the Religious Sciences which deals with marriage, defines the advantages of marriage:
What is notable here is the completely male-oriented, thoroughly patriarchal standpoint of this famous theologian. He was born in Khorasan, near the modern Meshhed, was later a professor at the Nizamiyya, an Islamic High-school in Baghdad, and one of the most outstanding figures in the town. In his opinion, a woman in her role as housewife and spouse is a man's helper to religion, a helper on his way to God and to paradise, because she protects him against carnal desire and spares him tiresome work like the household affairs mentioned above. Men, by comparison, are the intellectual guides for women on their way to religion and paradise. Al-Ghazali, who quotes a large number of traditions confirming different standpoints towards women and marriage, sees women from an ambivalent perspective. On one hand, he states that "in intimacy with women there is a rest, which does away with sorrow and refreshes the heart, and for the souls of the pious men relaxations by permissible actions are necessary." On the other hand, concerning the fifth point listed above, he explains that it consists in "patience towards womens' characters, in enduring the trouble and insults from them, in the effort to encourage them and to guide them in the right way to religion." The famous theologian seems to have been somewhat absent-minded when he wrote this part of his voluminous and well-known religious work-which was and is regarded as the pious Muslim's guide to a life pleasing to God-because there is a certain disorder in the points and their explanations. When he speaks about the evils of marriage (he gives three disadvantages and five advantages) and mentions as the first and strongest one "the difficulties of providing for the family's legitimate keep in these times of disturbances of living," one gets a glimpse into the social circumstances of the time. This chapter of Al-Ghazali's book is a rather dry and rational debate of the reasons that speak for and against marriage. It is the debate of a man, who, as a religious reformer, is famous for assigning equal importance to heart and intellect, but of whose personal life, especially his own relations to women, we know practically nothing. But in speaking about the sexual life in marriage he stresses women's right to sexual fulfilment and admonishes men to try to avoid premature climax. The Arabic word zina' that is often translated by the word "adultery" really means something more than that, namely any sexual relations between a woman and a man who are not bound to each other by a legal marriage, and, as long as slavery existed, intimate relations between a man and a slave who did not belong to him. All this is punishable in Islam for man and woman alike.
In the name of Allah the merciful, the compassionate. Basmala
In Sura 24: 2, it is stated: "The fomicatress and the fomicator scourge each of them with a hundred stripes; let no pity affect you in regard to them in the religion of Allah, if ye have come to believe in Allah and the Last Day." A number of the faithful should be present as witnesses to this punishment. At a relatively early stage, it became the custom, deriving from Jewish penal law, to stone the adulterous pair and not to flog them. The application of such a harsh punishment was greatly restricted, however, by the demand specified at another place in the Koran (4: 19) that four witnesses must be able to testify to the adultery. Since they were required to have witnessed the act itself, it must have been difficult in most cases to find the necessary witnesses. A man who accuses a woman of infidelity and cannot provide four witnesses of this is to receive eighty strokes of the lash for slander. To avoid this punishment, however, he can repeat his allegation four times, calling on Allah to witness the truth of it. His wife can defend herself by likewise swearing four times that her husband has lied. After this fourfold oath, the two of them must call on Allah to curse them should they not have told the truth. (24: 6-9) It was an episode that took place in Muhammed's own family that led to this severe punishment for libel. Muhammed usually drew lots before he set out on a military expedition to determine which of his wives should accompany him. Thus it happened that he took his wife A'isha along on one of his campaigns against a Bedouin tribe; she was thirteen years of age at the time and accompanied the train in a closed litter on the back of a camel. One evening, while the people were preparing to set off again, A'isha went away from the others to answer a call of nature. On the way back, she later said, she noticed that she had lost her necklace and retraced her steps. When she at last returned to the camp, she found that Muhammed and his band had already departed. At that time, A'isha was a slight little person-she herself said it was a result of the Muslims' frugal diet-and the men who placed her litter on the camel did not even realize that she was not in it. A'isha wrapped herself in her robe and lay down in the desert sand, hoping that the others would return when they noticed she was missing. A young man then appeared, one of the followers of Muhammed, who for some reason had also been left behind by the others. A'isha did not yet wear a veil, so he recognized her immediately and tried to talk to her. But she gave him no answer, she subsequently said. He placed her on his camel and led the animal along. When they finally caught up with the others on the following morning, her absence had not yet been noticed. But now the storm broke. All those to whom the young woman was a thorn in the flesh because she was so greatly favored by Muhammed, as well as those who bore ill will toward him, contributed to the gossip about her. As A'isha later said, she was the last to hear of all this. She only noticed that Muhammed was not so friendly to her as hitherto. She fell ill and with Muhammed's pen-mission returned to her parents to be looked after. Muhammed, deeply wounded and confused, asked others for their advice. A variety of opinions was expressed. The harshest was that of his cousin Al!, who may have been goaded by his wife, Fatima, Muhammed's daughter, who maybe resented the privileged position of her youthful stepmother. "There are women enough," he said, "you could make another her successor"-a remark for which A'isha never forgave him, as future events would show. But in the end, Muhammed decided in favor of A'isha. He visited her at her parents' house to urge her to show remorse, but she wept and refused since this would have been an admission of guilt. It was then revealed to Muhammed that all the rumors were "slander" and that those who had spread them were 'liars," and it was this revelation which led to the provisions described above. Some of those whose words had been especially harsh received eighty strokes of the lash. The wise A'isha subsequently remarked that hitherto she had considered herself too slight and insignificant for Allah to have revealed a verse of the Koran on her account, one which was then recited in the mosque and used in prayer; she had only hoped that God would reveal her innocence to Muhammed in a dream. [84, 736ff.] A large group of the Shi'a also recognized another form of marriage, which was still common in the early years of Islam until it was prohibited by Caliph Umar, a man of strict morality. This was the muta, which is generally translated as "temporary marriage" or "marriage of sexual pleasure." A Shi'ite was allowed to contract a "marriage" for a certain period of time. This usually happened when a man was travelling, since it was not customary for a wife to accompany her husband. The sole purpose of such a "marriage" was to enable a man to satisfy his sexual desires in a legal manner but without founding a household or producing children. Nevertheless, when a child resulted from such a union, it enjoyed equal rights with children from other marriages under the law of succession. All other forms of "marriage" practiced in Arabia up to the time of Muhammed were done away with by Muhammed. These included, for instance, the custom whereby a man whose wife had remained childless would send her to another, preferably to one of high social rank, for a short time, so that she might conceive, or the group marriage of several men with one woman, or a form of marriage in which a son inherited his stepmother from his dead father or his sister-in-law from his deceased brother, so that they would be looked after. In Islam, like in Christianity, the death of one of the two spouses in a marriage signifies the end of that marriage. However, a marriage might also be dissolved by talaq, the repudiation of the wife by the husband. Islamic law permits every man in a healthy mental state to do this without having to give any reason for it and without consulting a judge. However, there are traditions which describe the talaq as the act most hateful to God among all acts permitted by law. The form of the talaq that emerged as customary, until the law was modified in many Islamic countries in recent decades, was as follows: The man pronounces the formula of repudiation-variations in the choice of words exist-twice, either in immediate succession or with a month in between. At that point, he can still take it back. Only after the third time is the divorce valid. It is laid down in the Koran that after the divorce the husband must provide for a wife who is suckling a child until it is weaned this can extend to a period of two years. (2: 233) If the man desires to remarry the woman, even though he has repudiated her three times, there is a provision for this which may seem odd at first sight. The original idea behind it, however, was doubtless to protect the wife from a hasty step the husband might take. According to this provision, a wife who has been repudiated must first marry another and be repudiated by him in turn before she can go back to her first husband. (2: 230) This led some men, usually those who were not believed to possess excessive virility, to make themselves available (in return for a fee) for fictitious marriages, after which they would quickly repudiate the women who could then remarry their original husbands. In a pleasant little story, the Egyptian author Mahmiid Taymar (1894-1973) presents such a "good sheikh," to whom men entrust their divorced wives in the belief that he is too unworldly to touch them. In the end, however, he falls in love with one of these women and does not wish to give her back. There is only a limited number of ways in which a wife can free herself from her husband. The khul', or redemption, was adopted from heathen practice and consists in the wife's purchasing her freedom from her husband by the payment of a certain sum-frequently equivalent to the dowry. But the wife or her guardian can also have a clause included in her marriage contract specifying that she can oblige her husband to pronounce the talaq under certain conditions: if he beats her, for example, or wishes to marry a second wife. Nevertheless, the extent to which a woman can take really advantage of this possibility depends, to a very great degree, firstly on her self-confidence and secondly on the social position of divorced women in general. In Muslim India, for instance, this type of marriage contract was widespread in the 1950s, but in Egypt, as I was informed in the spring of 1977 by several sources, including a deputy of the Minister of Justice, only a few women had the courage to have a marriage contract prepared in this form. In certain instances, such as when she can prove that her husband is not able to provide for her, is impotent or is suffering from a mental disorder, an adult woman can demand that a judge dissolve the marriage. The provisions determining whether children are regarded as legitimate, apart from those actually born during a marriage-according to Hanafite law, every child born within two years after the dissolution of the marriage is legitimate-are to be explained by the medical knowledge, or rather lack of medical knowledge, of the time. The mother has the right of custody for girls until they are of age or until they marry and for boys until puberty or the age of seven years. However, the father is the legal guardian of the children; only when they are poor he is obliged by law to maintain them. Thus the mother usually returns to her family, which maintains her, with the children she has to look after. One of the numerous anecdotes of classical Arab literature tells of how a mother fought before a judge for her son, who was claimed by the father, the child probably having reached the age of seven years.
She said "This is my son. My womb was a vessel for him, my lap a courtyard to play for him, my breasts were milksprings for him. When he awakes I care for him with delight, I protect him when he sleeps at night. For several years I have done this, and now, when he is fully weaned, his limbs are well formed and his character has proved to be fine, his father wants to take this son of mine." The judge then said to the husband "You have heard the words of your wife, what do you have to answer them with?" The man replied: "She has spoken the truth, but I carried him in me before she gave birth to him, and I placed him in her before she put him in the world. I will teach him knowledge and wise wisdom." The judge turned to the woman: "What is your answer to this, woman?" She replied: "He is right in what he says. But he carried him when he was weak and light, while I was burdened with his weight. He put him in me yearningly, while I put him to the world with agony." Her words were pleasing to the judge, and he ordered the man: "Give her her son, for she has more right to him than you." [ 19, 6ff]
If this little story is to be believed, judges were sometimes led by the well-chosen words of a clever woman to turn a blind eye to legal regulations and to show more humanity than was provided for by the law. In Islamic law, slaves occupied a special position in a certain sense. Like Judaism and Christianity, Islam did not do away with slavery, which existed as an institution throughout the Ancient Orient. It did attempt, however, to improve the living conditions of the slaves. In the Koran the emancipation of slaves is recommended as a meritorious act (2: 177), and traditions refer to slaves as the 'brothers" of Muslims and advise the latter to treat them well and to provide for their maintenance. Only those captured as infidels in war or born into slavery could be slaves in Islam. For a debtor, say, to sell his children or others or even himself into slavery was prohibited by law, but it probably happened on occasion. Incidentally, the slave trade between Christian and Islamic countries of the Mediterranean area was a flourishing and profitable business for centuries. In law, slaves were regarded as objects or things. Good-looking and well-educated female slaves often served as valuable gifts with which to obtain the favor of high-ranking persons. In fact, under certain conditions, both male and female slaves could rise to very influential positions and achieve great prosperity. There were, for instance, slave dynasties, such as the Mamluks in Egypt. Clever and adroit slaves were often employed in shops and in trade. There was no industrial slavery. Basically, slaves had no legal power, but they had certain rights as persons. With the consent of their master, they were allowed to marry up to two female slaves, or up to four among the Maliki. Still, a slave owner could force his slaves to marry. A female slave could marry a free Muslim; the children of such marriages were slaves. But she could not marry her own master unless he first set her free. In this case, her children were also free. Slaves could be used as concubines by their masters, but only by them; slaves could not be forced into prostitution, as had obviously often been the case in pre-Islamic Arabia. A free Muslim woman clearly did not have the right to concubinage with one of her slaves. According to the Maliki, the female slave had the right to share the nights of her master with his free wife on an equal basis, but other schools of law allowed her only one night in every three. In other respects, too, certain conditions and responsibilities which Islamic family law imposed upon free persons were restricted as far as slaves were concerned. The punishment for immorality (zina') and for slander in connection with immorality, for example, was only half of that fixed for a freeman. The period a widowed or divorced female slave was required to wait before remarrying was shorter than for a free person. A slave could repudiate his wife but could take her back only after one taldq had been pronounced. The owner of a female slave who was married, regardless of whether her husband was free or a slave, did not have the right to make her his concubine. Nor was this allowed when a female slave was owned by several men. The owner of a female slave who had borne her master a child was no longer entitled to sell her, give her away, or use her as a pledge after the birth of the child, and she became free on her master's death. In law, the children of legal concubines had exactly the same status as the children of free wives. As will subsequently be seen, this provision was of great importance in the further development of Muslim society. Since the mid-nineteenth century, starting with the more progressive Islamic countries, decrees were issued for the restriction of slavery. Most Islamic countries officially ended slavery in the constitutions adopted after the First World War. In conservative countries of the Arabian Peninsula, such as Saudi Arabia and Bahrain, slavery was ended only recently. It is thus evident that the Shari'a draws social distinctions between men and women and between free persons and slaves. However, all free women are equal before the law, whatever social stratum they belong to. In the 33rd Sura of the Koran, dating from the time spent by Muhammed as the respected head of the Islamic community in Medina, there are special provisions concerning the position within the young Muslim community to be held by the wives of the Prophet, by then nine. The same Sura emphasizes Muhammed's right to special provisions unlike all other Muslims, who were permitted to have four legal wives at most. It is unlikely that those around the Prophet would have criticized the special privileges he claimed for himself. They probably considered it self-evident that an exceptional personality like Muhammed should enjoy special rights. In the same 33rd Sura, the additional name of "Mother of the Faithful" is given to the wives of Muhammed, and they are forbidden to marry again after his death. Much has been written and said about the wearing of the veil by women in Islam. Basically, there is no binding prescription for this in Islamic law, but there are suggestions, as in the 33rd Sura, which says: "O prophet, say to thy wives, and thy daughters, and the womenfolks of the believers, that they let down some (part) of their mantles over them; that is more suitable for their being recognized and not insulted." (33: 59)
A verse from another Sara, which is quoted as evidence of the exhortation to women to veil themselves, reads:
Tell the believing women to cast down their eyes and guard their private parts and not show their omaments, except so far as they (normally) appear, and let them throw their scarves over their bosoms and not show their ornaments except to their husbands or their fathers or the fathers of their husbands, or their sons or the sons of their husbands, or their brothers or the sons of their brothers, or the sons of their sisters, or their womenfolk, or those in their possession (i.e. slaves) ... (24: 31)
In neither of these two passages is there any specific mention of veiling the face, only of a certain more general covering. The second of the two verses quoted seems to assume that certain parts of the body were visible anyway. Opponents of veiling, such as the freethinker Jahiz in the ninth century [49, 57 ff.], have also pointed out that while on a pilgrimage, one of the "pillars" of Islamic faith-in the state of ihram (ritual consecration), as it is called-men and women are required to uncover face and hands. It is known that noble ladies of the trading city of Mecca wore veils even before Islam. In one tale, set in the market place of the Ancient Arabian city of Ukaz, a group of jaunty youths struck up a conversation with a young girl from another tribe. The young lady was veiled and wore a gown with a train. Full of admiration, they bade her to reveal her face, but this favor she refused them. One of the youths then approached her from behind and, without her noticing it, fastened her train to the neck of her robe-the others probably distracting her attention by talking to her. When she stood up, she unwittingly revealed her naked back to the rowdy throng. The layabouts hooted with laughter and mocked her: "She refused to let us look at her face, now we can see her back." This demeaning treatment of a young woman caused a bloody feud. [104, 15ff.] Incidentally, the story also indicates that women of that time, even though they were veiled, could converse freely with men. The veil already existed in countries that were conquered by the Muslims, such as Persia. In the Ancient Near East, among the Assyrians and Babylonians, the veil was a symbol of class distinctions. It was the right of free women to wear it. In contrast, the slave who did this was liable to be punished. An early Arabian historian explains Sura 33: 59 in this way; Muhammed's wives had been bothered by his opponents in Medina when they left the house at night to relieve themselves, because they took unveiled women for slaves [87, VIII, 126ff.]
The custom of wearing the veil spread quickly, at least in the upper tiers of society. In the countryside, among the Bedouins and wherever women had to perform heavy physical toil, the veil was more of a nuisance, and the custom of wearing it has never been strictly observed. The veiling of female slaves was likewise not taken seriously, and the Koran permits women "past child-bearing" a less strict covering. (24: 60) If we wish to use miniatures as documentary evidence, we must conclude that even high-ranking ladies did not always strictly adhere to the wearing of veils, not only in the urban society of thirteenth century Iraq (Fig. 13), but also that of fifteenth-century Iran (Fig. 3). We often find examples of distinguished ladies without veils meeting with freemen who were not related to them, at least in their own gardens and palaces, but not only there. Admittedly, these miniatures are illustrations to literary texts, but one may assume that the painters were inspired by their environment. Moreover, reports by European travellers confirm these observations, for fifteenth-century Iran in any case. [64, 171f.] When visiting the mosque (Fig. 12) and also when female aristocrats mixed with the people, the hair and the lower part of the face were certainly always covered. But when ladies of noble houses appear without veils on Indian miniatures of the Mughal period, we know that these ladies did not sit for the portraits themselves; one of their female slaves did it for them. At times, certain men, such as social revolutionaries who appeared in the garb of a prophet, also wore veils. One such was the leader of the Zanj insurrection by black slaves who were used for the drainage of swamps in Southern Iraq in the second half of the ninth century. In most later miniatures, the Prophet Muhammed is shown with a veil over his face, but it is not like the veil worn by women, as the eyes were covered. (Fig. 7)
Closely connected with the veil is the exclusion of women from public life. This is based on a verse in the Koran which clearly refers to the wives of the Prophet: ". . . When ye ask them (i.e. the wives of the Prophet) for any article, ask them from behind a curtain; that is purer for your hearts and for theirs." (33: 53; see also 33: 55). It is reported in an Arab historical work dating from the ninth century that this revelation originated at the marriage of Muhammed to the beautiful Zaynab Bint Jahsh, former wife of his adopted son Zayd Ibn Haritha. Muhammed had once seen Zaynab in her undergarments as he was about to enter Zayd's house and had coveted her from then on. Zayd, who was very much attached to his adoptive father, wanted to divorce her immediately so that Muhammed could marry her, but Muhammed did not want to accept Zayd's offer. But Zaynab had been married with Zayd against her will and now displayed a clear lack of affection for him. In the end, her marriage with Muhammed took place. Toward the end of the wedding feast, the guests showed no signs of departing. Muhammed impatiently left the room several times and went out into the courtyard, hoping that he would finally be left alone with his new bride. But this was not the case. It was now that the verse quoted above was revealed to him. [87, VIII, 74ff.] This shows that Zaynab's attractiveness for her guests-at the time, she was in her mid or even late thirties-was considered to have been very great. In Sassanid Persia, it was the custom for high-ranking persons to be hidden by a curtain from the sight of ordinary mortals. We do not know whether Muhammed was aware of this. However, even the first Umayyad Caliph Mu'dwiya was often separated from his subjects by a curtain, especially when he was not in full control of his senses, on account of an excessively high alcohol consumption. In later times, some of the Islamic dynasties, such as the Fatimids in Egypt, evolved their own ceremonial in connection with this. Thus, originally the veil and the curtain were symbols of honor and rank. The restriction of women to the domestic area, which grew out of the use of the veil and curtain, and their exclusion from public life, which was paralleled by increasing limitations on their opportunities for education, proved to have unfavorable consequences for the social position of women and for the development of the whole of society in the Islamic countries in the course of later centuries.