Authority figures

§ TO understand the wide variety of applications of Islamic family law that we will encounter in this study it is important first to realize that the Muslim population in the USA is made up of a complex and continuously changing demographic.

Of the estimated 6 to 8 million Muslims in the United States, about half are immigrants from Asia, the Middle East, Africa, Europe — literally, all over the world.³ The other half is indigenous — meaning not only African Americans and European Americans, but also Native Americans and Latinos, as well as second- and third-generation children of immigrant parents. Moreover, of all the above ethnicities, any number can be converts to Islam or raised in the faith from birth.

This wide range of backgrounds is fertile ground for the pluralism of Islamic law (its ikhtilaf structure of simultaneously valid differing opinions)⁴ and results in a healthy diversity of ideological perspectives among Muslims in the USA. Thus, we find Muslims on all sides in debates around topics such as polygyny, gender roles and adoption, to name just a few.⁵ In finding a legal opinion to apply in their own lives, individuals can choose between the guidance of local Muslim scholars, community leaders, activist organizations, or their own personal interpretive efforts on a given question. Obviously, this plurality of sources creates a wide variety of applications of marriage and divorce procedures in the Muslim community - applications surveyed in more detail below.

Another wrinkle in US Muslim family law practices stems from the structure of authority in Islamic jurisprudence. Because there has never been an official church certifying individuals to speak on behalf of the religion, the field is open for any dedicated Muslim to seek to act as imam and lead a community. In a large Muslim society, there are usually societal checks to help maintain a sufficiently qualified cadre of these spiritual leaders.

Even further, in Muslim countries with a formal system of 5Aobey her husband and to initiate divorce.

Another aspect of considerable scholarly study is the Muslim marriage contract and its various elements. Works here include Farah (1984), Rapoport (2000), Shaham (1999) and el-'Alami (1992). Azizah al-Hibri (1993) compares Muslim marriage contracts with prenuptial agreements in an inter-faith symposium article and Mohammed Tabiu (1990-91) addresses the implications of defects in Muslim marriage contracts.

Finally, the complicated area of dissolution of marriage is also a subject of considerable academic writing, such as by el-Arousi (1977), Carroll (1996) and Quick (1998). The latter addresses this subject in the particular context of Muslims in North America, and reviews the efforts and actions taken by Muslim organizations in the West to achieve dissolution of marriage by an Islamic authority.

For those seeking a more practical resource on Muslim marriage, there are works such as the pieces by Maqsood (1998) and al-Khateeb (1996) which take a conversational tone to offer guidance based on Islamic law and principles to Muslim married couples. Works like these are not legal references on Islamic family law, but rather are focused on translating the basic Islamic rules of marriage for the average Muslim in plain language. Maqsood, whose book offers frank advice on the emotional, spiritual and sexual aspects of married life, has been called ‘the John Gray of the Muslim world’.⁷ A similar book by Mildred M. el- Amin (1991) begins each chapter with ‘Dear Couple’ or ‘Dear Sister/Brother’. Al- Khateeb’s article includes a sample marriage contract, examples of stipulations, and a short list of Islamic legal rules affecting marriage (see ‘Terms of the contract’, in Chapter 11 for further discussion of the resurgence of interest in Muslim marriage contracts).

Resources on Islamic family law often overlap with literature on the continually popular topic of women and Islam, as is evident from the number of Muslim family law works including the word ‘women’ in their titles.

Many of these authors seek to critique classical Islamic family law with an eye to a women’s empowerment, sometimes urging new interpretations of old texts.⁸ Specifically US examples of this are included among the essays in Webb’s Windows of Faith: Aluslim Women Scholar-Activists in North America (20c0) by well-known American Muslim legal scholars Azizah al-Hibri and Maysam al-Faruqi. Al-Hibri’s piece, An Introduction to Muslim Women’s Rights’, includes an overview of marriage relations in Islam (e.g. contractual terms, guardianship, maintenance, divorce procedures) emphasizing how Islamic principles promote women’s liberty in a way contrary to how these principles were applied and interpreted in patriarchal Muslim societies, ultimately leading to biases in the law itself. Maysam al-Faruqi’s chapter, ‘Women’s Self-Identity in the Qur'an and Islamic Law’, focuses on particular Qur'anic verses often cited on the subject of women’s rights (e.g. male superiority over female, obedience of wives, beating), providing a critical analysis of juristic interpretation of each. Articles and collections like these testify to the emergence of a new contribution to the field of women and Islamic family law: the contribution of a specific US Muslim scholarly literature written by women. Gisela Webb says in her introduction to Windows of Faith that such works are ‘evidence of the lively, creative, critical, and self-critical discussions currently taking place in the academy and in Muslim communities and professional organizations in the United States, raising issues of religious pluralism, democracy, gender, and modernity as they relate to Islam and Muslim identity’ (Webb 2000: xii). Khaled Abou el Fadi’s Speaking in God’s Name: Islamic Law, Aiithoritj and Women (2001) similarly takes up issues of Islamic family law in the context of his critical analysis of authority and authoritarianism in Islamic law and society.

Consistent with Webb’s observation, Muslim organizations are also a rich source of information on Islamic law, and Muslim women’s organizations are especially interested in disseminating information about family law, often with a progressive look at well-known issues.

For example, the Muslim Women’s League, ‘a non-profit American Muslim organization working to implement the values of Islam and thereby reclaim the status of women as free, equal and vital contributors to society’, includes among its many position papers those titled ‘An Islamic Perspective on Sexuality’ and An Islamic Perspective on Divorcek⁹Another example is Karamah: Muslim Women Lawyers for Human Rights, an organization which defines its objectives as seeking to ‘increase the familiarity of the Muslim community with Islamic, American, and International laws on the issues of human rights’, and ‘provide educational materials on legal and human rights issues to American Muslim women’.¹⁰ Karamah^,s website lists publications for further study, including family law titles such as ‘Family Planning and Islamic Jurisprudence’, and ‘Marriage and Divorce: Legal Foundations’, both by Azizah al-Hibri, founder of Karamah.

Of course, not all Muslim organizations take a progressive, reformist attitude towards the subject of Islamic family law and women’s rights. Many Muslims advocate more traditional interpretations such as encouraging wifely obedience (in all but directly anti-Islamic behaviour), the primacy of motherhood and discouraging public careers involving cross-gender interaction. Examples of this end of the ideological spectrum can be found on websites such as that of Alsala- fyoon, which posts pieces such as ‘The Duty of a Woman to Serve her Husband’,¹¹ and in books like Muhammad Abdul-Rauf’s Marriage in Islam (1995), which, for instance, describes household management as the wife’s primary responsibility, though acknowledging that individual couples may agree on other arrangements.

The final arena of readily accessible resources on Islamic family law is the internet. This modern technology has created several avenues for the dissemination and exchange of information on Islam, and Islamic family law is no exception.

These fora range from discussion groups (e.g. members of the ‘sisters’ list moderated from Queens University in Canada¹² often discuss the legal and social parameters of Muslim marriage and divorce) to online universities (e.g. the College of Maqasid Shari’a¹³ offers a twenty-credit ‘Introduction to Family Law’ course) and websites devoted to education of family law-related issues, such as which describes itself as ‘a complete portal site for information and resources regarding Muslim marriage, weddings, family relationships, and parenting’. On its website are posted articles describing the proper relationship between spouses, raising Muslim children, sexuality and Muslim cases in the courts. There is even a list of recommended scholars to contact for fatwas (Islamic legal opinions), complete with their email addresses.¹⁴ Another site, called ‘Loving a Muslim’, includes a summary of Islamic family law in its effort to address the ‘non-Muslim woman in a loving relationship with a Muslim man’.¹⁵ Finally,, the popular inter-faith site on religion, includes several links to family law issues in its Islam section.

Reviewing all these sources in the context of current discourse in the United States, one aspect of Islamic family law stands out as being of particular interest: the concept of the Islamic marriage contract. This subject has attracted recent and continuing attention, stemming largely from the fact that Ihejurisprudential importance of marriage as a contract makes drafting a marriage contract an important tool to particularize individual marital relationships, and has in fact been used as such throughout Islamic history. As Sharifa al-Khateeb puts it in her 1996 article in a Muslim women’s magazine: ‘The Islamic marriage contract is meant to solidify the [purposes of an Islamic marriage] and specify stipulations important to the woman and man.’¹⁶ Interest in the Islamic marriage contract is growing, prompting a full weekend conference at Harvard Law School,¹⁷ a panel at the 2001 national conference of the Islamic Society of North America (see Lieblich 2001), numerous Muslim magazine articles, and website discussions, all of which have contributed to educating the public (both Muslim and non-Muslim) about this now underutilized shari'a tool (ibid., p.

1). These efforts highlight the fact that Muslim marriage contracts can contain a myriad of additional clauses, from a promise of monogamy and a wife’s delegated right of unilateral divorce, to equal participation in household chores and the right to complete one’s education.¹⁸ Some note that Islamic schools of thought differ over the enforceability of these clauses, though these details are not always fully explained in the Islamic law summaries available for the layperson’s practical use.¹⁹ Finally, addressing the question of the Muslim marriage contract in the United States, the Karamah organization lists among its projects ‘drafting a model Islamic marriage contract which meets the objections of those American courts that have found Islamic marriage contracts unenforceable’²⁰ - a project whose importance will become apparent in Chapter 12, summarizing the treatment of Muslim marriage contracts by US courts.

Islamic law on divorce is also a popular topic among American Muslims, as the divorce rate rises and Muslims seek to understand their marital status under both religious and secular law. The lay Muslim’s knowledge about divorce generally includes awareness of talaq, the husband’s unilateral right to divorce by oral declaration, but details on its practical application (terminology, revocability, voidability) are less well known. Alternative methods of divorce such as khul' (divorce for remuneration conducted through mutual consent) andJaskh (judicial dissolution) are further from public consciousness, and the situation becomes more complicated when one adds in the potential for a wife to include a delegated talaq right in the marriage contract.²¹ Besides analyses of divorce law in the literature mentioned elsewhere in this review, some contributions by Muslims and Muslim organizations in the USA go beyond the classical Islamic law on the subject, offering instead non-mainstream interpretations. For example, the Muslim Women’s League position paper, An Islamic Perspective on Divorce’, after explaining the basic elements and types of divorce in Classicaljurisprudence, goes on to comment: ‘The controversy with divorce lies in the idea that men seem to have absolute power in divorce. The way the scholars in the past have interpreted this is that if the man initiates the divorce, then the reconciliation step for appointing an arbiter from both sides is omitted. This diverges from the Qur'anic injunction.’²² With this argument, the Muslim Women’s League critiques the established fiqh allowing unilateral husband-initiated divorce, by appealing to the Qur'anic verse stating ‘if you fear a breach between them, then appoint two arbiters, one from his family and the other from hers; if they wish peace, God will cause their reconciliation’ (Qur'an 4: 35).

Whether it is in the form of summaries of classical mainstream jurisprudence or progressive interpretations of original religious texts, there is significant information on Islamic family law for Muslims in the USA seeking to educate themselves, either in the basics or the more complicated nuances of Islamic jurisprudence. The average Muslim carries around some understanding of the basics and very little of the jurisprudential nuances, but how he or she applies these Islamic laws in the context of US society varies widely, due somewhat to the varying levels of individual knowledge, but also because of ideological differences and simple practicalities. This variety in the practical application of Islamic family law is the subject of the next chapter.

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Source: Welchman Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. Zed Books,2004. — 328 p.. 2004

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