Muslim women's rights in the global village: Challenges and opportunities

Journal of Law and Religion

Volumn 15, Issue , 2001, Pages 37-66

  al Hibri, Azizah Yahia ^a  

^a UNIVERSITY OF RICHMOND   (United States)

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[No Author keywords available]

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EID: 85008395234     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.2307/1051514     Document Type: Article

References (216)

1. [Editor's Note: Translation of all Qur'anic cites herein were provided by the author who relied heavily on The Meanings The Holy Qur'an ('Abdullah Yusef 'Ali trans., Brentwood 1992).]
2. See Qur'an 16:90, 49:9
3. Muhammad 'Amara, Al-Islam wa Huquq at-Insan 55–68 (Beirut: Dar al-Shuruq 1939) (arguing that justice leads all other values in Islam)
4. al-Mawsu'a al-Fiqhiyya vol. 30, 5–14 (Kuwait: That al-Salasil, Ministry of Awqaf & Islamic Affairs 1983) (describing the different types of justice required in Islam and that Justice is one of God's names).
5. Among recent jurists who were vocal in their support of women's rights generally, or in certain arenas, is the late Abdul Halim Abu Shuqqah, who wrote Tahrir al-Mar'ah fi 'Asr al-Risalah, 5 vols. (Kuwait: Dar al-Qalam 1990).
6. Earlier this century, Muhammad Rashid Ridha also presented a Qur'anic interpretation which was more equitable towards women. See e.g. Muhammad Rashid Ridha, Huquq al-Nisa' fi al-Islam (Beirut: al-Maktab al-Islami repr. 1975) [hereinafter Ridha Huquq]
7. Muhammad Rashid Ridha, Tafsir al-Qur 'an al-Hakim (Beirut: Dar al-Ma'rifah 1947).
8. See also a work by Sheikh Mahdi Shams al-Din, a contemporary jurist who argued for the woman's right to assume political power entitled Ahliyyat al-Mar'ah li Tawatli al-Sultah (Beirut: al-Mu'assasah al-Duwaliyyah li al-Dirasat wa al-Nashr 1995).
9. Some of these matters were discussed in Azizah Y. al-Hibri, Islamic Law and Muslim Women in America, in One Nation Under God 128–142 (Routledge 1999) [hereinafter al-Hibri, Islamic Law]
10. Azizah Y. al-Hibri, Legal Reform: Reviving Human Rights in the Muslim World, 20 Harv. Intl. Rev. 50 (1998) [hereinafter al-Hibri, Legal Reform]
11. Azizah Y. al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or A History of Borrowing? 1 U. Pa. J. Const. L., 492–527 (1999) [hereinafter al-Hibri, Constitutional Law].
12. For more on this, see my discussion in Azizah Y. al-Hibri, Islamic Law and Muslim Women in America, in One Nation Under God 128, 134–135 (M. Garber & R. Walkowitz eds., Routledge 1999).
13. Muslims believe that the Qur'an is the Word of God revealed to the illiterate Prophet Muhammad through the Archangel Gabriel. For more on this and a quick description of Islamic law, see Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of Democracy, 24 Case W. Res. J. Intl. L. 1, 3–10 (1992) [hereinafter al-Hibri, Islamic Constitutionalism].
14. Al-Hibri, Islamic Constitutionalism, Case W. Res. J. Intl. L.
15. Azizah Y. al-Hibri, Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. J. Intl. L. & Policy (1997) [hereinafter al-Hibri, Islam].
16. See Qur'an 4:1, 6:98, 7:189; Khutbat al-Wadaa' by the Prophet, in which he stated: O People, all believers are siblings. Your God is one and your father is one. You are all from Adam and Adam is from dust. The most favored amongst you in the sight of God is the one who is most pious; no Arab is favored over a non-Arab except on the basis of piety.
17. Hassan Ibrahim Hassan, Tarikh al-Islam vol. 1, 186 (7th ed., Cairo: Maktabat al-Nahda al-Misriyyah 1964) (also recounting that some Muslims objected to the fact that the Prophet gave his permission for a free woman to marry a slave, and that the Qur'anic verse 49:13 was revealed on this occasion).
18. For a translation of the full text of verse 49:13
19. see infra n. 94.
20. See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 283–296 (1991)
21. Subhi Mahmassani, Al-Awda' al-Tashri'iyyah ft al-Duwal al-'Arabiyyah 438–442, 479, 481 (3d ed., Beirut: Dar al-'Ilm li al-Malayin 1965) [hereinafter Mahmassani, Al-Awda']
22. al-Hibri, Islam, Al-Awda' al-Tashri'iyyah ft al-Duwal al-'Arabiyyah, at 6–7
23. Ali Haidar, Durr al-Hukkamfi Shark Majallat al-Akkam vol. 1, 40–46 (Beirut: Dar al-Kutub al-'Ilmiyyah n.d.) (explaining the importance of acknowledging and defining the role of custom in Ottoman law, and quoting the hadith that what Muslims deem to be good, is good in the sight of God)
24. Subhi Mahmassani, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah 59–93 (Beirut: Dar al-'Ilm li al-Malayin 1962) [hereinafter Mahmassani, Muqaddimah] (noting, among other things, that the permission to change a law as a result of change in time or place relates only to matters of mu'amalat, that is, dealings among people, and does not apply to Qur'anic text or to 'ibadat, that is, matters of worship).
25. See Haidar, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at vol. 1, 40
26. Kamali, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 284
27. Mahmassani, al-Awda', Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 438–439
28. al-Hibri, Islam, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 61.
29. See Haidar, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at vol. 1, 40
30. Kamali, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 284
31. Mahmassani, al-Awda', Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 438–440 (but noting that some Muslim countries have given preference in their modern laws to custom over shari 'ah)
32. al-Hibri, Islam, Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 6.
33. For an excellent discussion of this point, see Mahmassani, al-Awda', Muqaddimah fi ‘Ihya’ 'Ulum al-Shari'ah, at 433–475.
34. A good example of this is Pakistan's zina (adultery) laws. For an excellent discussion of these laws which are claimed to be based on Islam, see Asifa Quraishi, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective, 18 Mich. J. Intl. L. 287(1997).
35. The most obvious instance of this fact is reflected in the Muslim family law of the various countries. For a detailed discussion, see al-Hibri, Islam, Mich. J. Intl. L., at 10–14
36. Azizah Y. al-Hibri, Marriage Laws in Muslim Countries, 4 Intl. Rev. Comp. Pub. Policies 227, 229–241 passim (1992).
37. See Mahmassani, Muqaddimah, Intl. Rev. Comp. Pub. Policies, at 35–55
38. al-Hibri, Constitutional Law, Intl. Rev. Comp. Pub. Policies, at 506, 509.
39. For a discussion of the various considerations that could lead to differences of opinion and thus different formulations of the law, see Kamali, Intl. Rev. Comp. Pub. Policies, at 197–228, 245–309 passim
40. Mahmassani, al-Awda', Intl. Rev. Comp. Pub. Policies, at 478–482
41. al-Hibri, Constitutional Law, Intl. Rev. Comp. Pub. Policies, at 505–511.
42. Qur'an 2:256.
43. See Mahmassani, Muqaddimah, Qur'an, at 67. The most salient example of this fact is that of Imam al-Shafi'i, who changed aspects of his jurisprudence after he moved from Iraq to Egypt.
44. See id. at 40
45. Taha Jabir al-'Alwani, Usui al-Fiqh al-lslami (The Foundations of Islamic Jurisprudence) 33–36 (Intl. Inst, of Islamic Thought 1990)
46. Muhammad Abu Zahrah, Al-Shafi'i 145–146 (n.p.: Dar al-Fikr al-'Arabi 1948)
47. ‘Ala’ Al-Deen al-Samarqandi, Tariqat al-Khilaf bayn al-Aslaf (The Method of Disagreement Among the Predecessors) 13 (Beirut: Dar al-Kutub al-'Ilmiyyah, 11th Cent. repr. 199?.).
48. See Tariqat al-Khilaf bayn al-Aslaf.
49. Mahmassani al-Awda', Tariqat al-Khilaf bayn al-Aslaf, at 477–478
50. al-Hibri, Islam, Tariqat al-Khilaf bayn al-Aslaf, at 7
51. al-Hibri, Legal Reform, Tariqat al-Khilaf bayn al-Aslaf, at 50–53.
52. Mahmassani, Muqaddimah, Tariqat al-Khilaf bayn al-Aslaf, at 20–22, 39
53. Al-Hibri, Constitutional Law, Tariqat al-Khilaf bayn al-Aslaf, at 522–523.
54. Muhammad Abu Zahrah, Al-Ahwal al-Shakhsiyyah 9 (n.p.: Dar al-Fikr al-'Arabi 1997) (arguing that Hanafi law is no longer suitable in some respects for modem times). Only recently did Morocco abandon the Maliki rule that a father may force his virgin daughter into marriage against her will.
55. See al-Hibri, Islam, Al-Ahwal al-Shakhsiyyah, at 11, 15 (stating that other Muslim jurists disagreed with Malik on this matter). Also, some countries continue to have in effect laws based on a jurisprudence that assumes that women can be easily swept by emotions and hence need the protection of men.
56. See id. at 15.
57. Moroccan Code, infra n. 83, Royal Decree No. 193347, bk. 1, tit. 3, ch. 12 (1993) (deleting old bk. 1, tit. 3, ch. 12(4) & revising old bk. 1, tit. 3, ch. 12(1)-12(3)).
58. Al-Hibri, Islam, infra, at 14–15.
59. See Abu al-Hussein Bin Muslim, Sahih Muslim bi Sharh al-Nawawi vol. 9, 202–205 (9th Cent., repr., n.p.: Dar Ihya' at-Turath al-'Arabi n.d.) [hereinafter Sahih Muslim] (quoting the Prophet as saying that a virgin may not become married without her permission).
60. See al-Hibri, Islamic Law, Sahih Muslim bi Sharh al-Nawawi, at 129
61. al-Hibri, Constitutional Law, Sahih Muslim bi Sharh al-Nawawi, at 522–523.
62. See also Abu Hamid al-Ghazali, Ihya' Vlum al-Din 33–34 (Matba'at Mustafa al-Babi al-Halabi 1939)
63. 'Abd al-Rahman Ibn Khaldoun, al-Muqqadimah 209 (14th Cent., repr., Kitab al-Qalam 1978)
64. Ibrahim al-Wazir, 'Ala Masharif al-Qarn al-Khamis 'Ashar al-Hijri 42 (Beirut: Dar al-Shuruq 1989)
65. Hassan al-Zein, al-Islam wa al-Fikr al-Mu'asser 45–46 (Dar al-Fikr al-Hadith 1997).
66. Cf. al-Ghazali, al-Islam wa al-Fikr al-Mu'asser, at vol. 2, 337–351 (providing instances where people who spoke out to the ruler directly were not punished).
67. See al-Hibri, Islamic Law, al-Islam wa al-Fikr al-Mu'asser, at 134–135.
68. Most significant among the recent attempts are the works of Abd al-Razzaq al-Sanhuri, Fiqh al-Khilafah Wa Tatawwuruha (Cairo: al-Hay'a al-Masriyyah al-'Ammah li al-Kitab 1989) (argues that the Islamic system of government is quite similar to the system of government in the United States).
69. See Tawfic al-Shawi, Fiqh al-Shurah (Dar al-Wafa' 1992).
70. The most famous example is that of the great jurist Imam Malik who was tortured by the ruler for refusing to mislead Muslims about the fact that coerced consent was not binding upon them. See a reference to this incident and others in al-Wazir, Fiqh al-Shurah, at 42.
71. Another example is discussed in al-Hibri, Constitutional Law, Fiqh al-Shurah, at 520–522 (recounting the story of Yazid, one of the Khalifahs who attempted to gain legitimacy by the use of force).
72. See Fiqh al-Shurah.
73. For a comprehensive study of this topic see Kamali, Fiqh al-Shurah.
74. See al-Hibri, Constitutional Law, Fiqh al-Shurah, at 507–511
75. al-Hibri, Fiqh al-Shurah, at 24–25. For this reason, a Mufti, grand or otherwise, may not bind others by his opinion (fatwa).
76. See Fiqh al-Shurah.
77. See Fiqh al-Shurah.
78. See Qur'an 4:1, 6:98, 7:189.
79. See Qur'an 7: 20–22 (stating that Satan succeeded in tempting both Adam and Eve to taste the fruit of the tree of eternity and power), 20:120–121 (stating that Satan tempted Adam, so both Adam and Eve ate the fruit of the tree).
80. See Qur'an.
81. See Qur'an 20:122.
82. See Zaidan ‘Abd al-Baqi, Al-Mar'ah Bayn al-Din wa al-Mujtama’ 194–199 (Cairo: n.p. 1977)
83. Ridha, Huquq, ‘Abd al-Baqi, Al-Mar'ah Bayn al-Din wa al-Mujtama’, at 5–37
84. 'Abd al-Karim Zaidan, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim vol. 4, 173–186, especially 184 (Beirut: Mu'assasat al-Risalah 1994) (arguing that the rule in Islam is the equality of the two genders but listing and explaining exceptions in the area of mu 'amalat, i.e., dealings).
85. See 'Abd al-Baqi, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at 196–199
86. Ridha, Huquq, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at 20–22
87. Zaidan, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at vol. 4, 184–186.
88. See Ridha, Huquq, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at 19–20
89. Zaidan, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at vol. 4, 291–297, & at vol. 7, 334–343 (concluding that while the Muslim woman is free to spend her money as she wishes, it would be desirable for her to seek her husband's permission before she gives away her money in order to preserve good relations with him).
90. See Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim.
91. See Mahmassani, Muqaddimhah, Al-Mufassal ft Ahkam al-Mar'ah wa al-Bayt al-Muslim, at 496–497 (stating that a husband is obliged to support his rich wife, but that she may not be forced to spend any of her money on him)
92. al-Jaziri, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a vol. 4, 563, 582, 584 (Beirut: Dar Ihya' al-Turath al-'Arabi 1969) (stating inter alia that if a husband is unable to maintain his wife, any amounts she spends from her own money for her maintenance (nafaqah) becomes a debt of the husband, even if she is wealthy)
93. Zaidan, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 4, 290–291, 297.
94. Additionally, once the husband gives his wife her nafaqah (maintenance payments) for food or clothing, for example, she is free to spend the money as she likes and not necessarily on food or clothing, so long as she does not harm or weaken her health or detract from her appropriate dress, see Zaidan, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 7,214–215.
95. See Abu Zahrah, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at 415–416 (explaining the rules for determining which male is required to provide maintenance to a woman)
96. al-Jaziri, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 4, 553, 581 and n. 1 (stating that when the husband is unable to support his wife, the duty falls upon certain other males in her and his family, in accordance with a specified order).
97. See Abu Zahrah, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at 246 (stating that the well-to-do father of a married woman, who is not receiving maintenance from her spouse, may be obligated to maintain her, but the expense becomes a debt of the husband)
98. Zaidan, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 4, 151.
99. Abu Zahrah, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at 175
100. al-Jaziri, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 4, 96–107
101. Mahmassani, al-Awda', Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at 467, 494
102. Zaidan, Kitab al-Fiqh 'ala al-Mathahib al-Arba 'a, at vol. 7, 69.
103. See Keith Hodkinson, Muslim Family Law: A Source Book 132 (London: Croom Helm 1984)
104. Mahmassani, al-Awda', Muslim Family Law: A Source Book, at 467–468.
105. See Abu Zahrah, Muslim Family Law: A Source Book, at 174
106. al-Jaziri, Muslim Family Law: A Source Book, at vol. 4, 153–156.
107. See Abu Zahrah, Muslim Family Law: A Source Book, at 174
108. Zaidan, Muslim Family Law: A Source Book, at vol. 7, 90.
109. See Ridha, Huquq, Muslim Family Law: A Source Book, at 19–20
110. Mahmassani, al-Awda', Muslim Family Law: A Source Book, at 476
111. Zaidan, Muslim Family Law: A Source Book, at vol. 4, 291–297.
112. See Qur'an 4:32.
113. Ibn Hisham, Al-Sirah al-Nabawiyyah (The Biography of the Prophet) v. 1, 187–188 (Beirut: Al-Maktabah al-'Ilmiyyah n.d.)
114. Hassan, Al-Sirah al-Nabawiyyah, at 76
115. Akram Dia' al-'Umari, Al-Sirah al-Nabawiyyah Al-Sahihah (The Authentic Biography of the Prophet) 112–114 (al-Madinah, Saudi Arabia: Maktabat al-'Ulum wa al-Hikam 1994).
116. See al-Hibri, Islamic Constitutionalism Al-Sirah al-Nabawiyyah Al-Sahihah, at 12.
117. For a detailed discussion of the right of Muslim women to work, see Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain fi Daw' al-Qanun al-Maghribi wa al-Fiqh al-Islami 77–78, 155–169 (Marrakesh L. Sch. 1993).
118. See Muhammad Abu Zahrah, Ahkam al-Tarikat wa al-Mawarith 100–150 (Dar al-Fikr al-'Arabi 1963)
119. Ridha, Huquq, Ahkam al-Tarikat wa al-Mawarith, at 20–21
120. Zaidan, Ahkam al-Tarikat wa al-Mawarith, at vol. 11, 261–311.
121. See Qur'an 4:11.
122. See Qur'an 4:1,6:98, 7:189
123. See Qur'an 7:189, 30:21.
124. See Qur'an 30:21.
125. See Qur'an 2:187.
126. Ali, Qur'an, v. 4:34.
127. See my discussion of this point in Islam, Law and Custom, 12 American U. J. of Intl Law & Policy 1,28(1997).
128. A detailed discussion of this verse, including the conditional and temporal (zarfiyyah) aspects implicit in it, appears in al-Hibri, Islam, American U. J. of Intl Law & Policy, at 25–34.
129. Id. at 28–30.
130. See Abu Zahrah, Id, at 166 (stating that while some jurists disagreed, the major jurists Abu Hanifah, Malik and al-Shafi'i have all stated that the marriage contract was for marital companionship and not for service benefits)
131. Bennani, Id, at 143–144 (mentioning this view as one of three differing positions among jurists).
132. See Bennani, Id, at 143–144
133. Zaidan, Id, at vol. 7, 302.
134. Zaidan, Id, at vol. 9, 475–480 (stating that Hanafi's, Shafi'is and Hanbalis, with minor qualifications, do not require the mother to nurse the child. Malikis do, unless the wife is from an upper class!).
135. Qur'an 2:233 (parents consult about weaning their child); Abu Shuqqah, Id, at vol. 5, 104–109 (providing examples in support of the thesis that spouses consult each other in the Muslim family).
136. Abu Abdullah I. al-Bukhari, Sahih al-Bukhari bi Hashiat al-Sindi vol. 4, 47 (9th Cent. repr., Beirut: Dar al-Ma'rifah n.d.) [hereinafter Sahih al-Bukhari]
137. Sahih Muslim, Sahih al-Bukhari bi Hashiat al-Sindi, at vol. 16, 102.
138. Ibn Majah, Sunan Ibn Majah vol. 2, 930 (9th Cent, repr., Beirut: Dar al-Kutub al-'Ilmiyyah n.d.) [hereinafter Ibn Majah]
139. Abu 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi vol. 6, 11 (Beirut: Dar al-Kutub al-'Ilmiyyah n.d.) [hereinafter Sunan al-Nasa'i].
140. Ibn Hisham, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 160–176 (stating also that the Prophet often mentioned this fact as part of his identity)
141. Al-'Umari, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 102–103.
142. Ibn Hisham, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 162–163, n. 9.
143. The Prophet was returned to his mother when he was about five years old. Al-'Umari, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 105 (noting also that reports varied as to the prophet's age upon his return, ranging between four and six)
144. Hassan, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 75.
145. See 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi. Islam recognizes children who nurse from the same wet nurse as “milk siblings.” This recognition results in duties and obligations. For example, milk siblings must inquire after each other, and may not marry each other. The Prophet inquired after his wet nurse. Ibn Hisham, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at vol. 1, 161, n. 6 (also listing the names of the Prophet's milk siblings).
146. For a discussion of this point, see al-Hibri, Marriage Laws in Muslim Countries, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 231–232
147. al-Jaziri, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at vol. 4, 54–60
148. al-Hibri, Islam, 'Abd al-Rahman al-Nasa'i, Sunan al-Nasa 'i bi Sharh al-Suyuti Wa Hashiat al-Imam al-Sindi, at 16, n. 74 (recounting the story of Sheikh Yusuf Ali, a distinguished Egyptian journalist of poor origins, whose marriage earlier this century to Safiyya al-Sadat, an aristocratic woman, was annulled for lack of eligibility).
149. See also infra n. 99. For a discussion of the concept la 'ah (obedience)
150. see al-Hibri, Islam, infra, at 18–21.
151. For a discussion of the concept of bayt al-ta'ah (house of obedience) and its legal operation, see Ashraf Mustafa Kamal, Qawanin al-Ahwal al-Shakhsiyyah passim, especially 148 et seq. (Cairo: Naqabat al-Muhamin 1990)
152. Mu'awwab Abdul Nawwab, Al-Wasit 175 et seq. (Cairo: 'Alam al-Kitab 1982).
153. For a discussion of the Qur'anic philosophy of gradualism, see al-Hibri, Islamic Constitutionalism, Qawanin al-Ahwal al-Shakhsiyyah passim, at 9–10.
154. See also. Abd al-Hamid Mutawalli, Al-Islam 71–72 (Alexandria: Mansha'at al-Ma'arif n.d.).
155. Qur'an 2:219, 4:43, 5:90. See short discussion in al-Hibri, Islamic Constitutionalism, Al-Islam, at 10.
156. Qur'an 2:178, 4:149, 7:199, 24:22, 42:40. For a discussion of Islamic criminal law and the concept of forgiveness, see Azizah Y. al-Hibri, The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723–1732, especially 1728–1729 (1996) [hereinafter al-Hibri, Muslim Perspective].
157. See e.g. Qur'an 49:13, 24:33, 8:70. See also Ibn Majah, The Muslim Perspective on the Clergy-Penitent Privilege, at vol. 2, 1216–1217 (quoting the Prophet as saying that slaves are “your brothers under your control, feed them of what you eat, dress them of what you wear, and do not charge them with tasks beyond their capabilities. If you do, then help them.”). See infra n. 111 for hadiths relating to women.
158. Sahih al-Bukhari, The Muslim Perspective on the Clergy-Penitent Privilege, at vol. 3, 262 (quoting the Prophet as admonishing his male audience: “Let not one of you whip his wife like a slave, then have sexual intercourse with her at the end of the day.”)
159. Ibn Hisham, The Muslim Perspective on the Clergy-Penitent Privilege, at vol. 4, 604 (quoting the Prophet, in his Khutbat al-Wadaa' as saying to men: “Be good to women; for they are powerless captives (awan) in your households. You took them in God's trust, and legitimated your sexual relations with the Word of God, so come to your senses people, and hear my words …,” also providing the meaning for the word ‘“awan”)
160. Abu Ja'far al-Tabari, Jami' al-Bayan fi Tafsir al-Qur'an vol. 4, 212 (9th Cent, repr., Beirut: Dar al-Ma'rifah 1978) [hereinafter al-Tabari, Jami' al-Bayan] (quoting the same passage quoted by Ibn Hisham).
161. This passage comes from Khutbat al-Wadaa', and was also mentioned in Abu Ja'far al-Tabari, Tarikh al-Tabari vol. 2, 206 (9th Cent, repr., Beirut: Dar al-Kutub al-'Ilmiyyah 1988) [hereinafter al-Tabari, Tarikh al-Tabari].
162. See Tarikh al-Tabari, regarding a hadith on slaves; & infra n. 112, for another hadith on slaves. The Prophet recognized that the status of women was often no better than that of slaves, a fact which reflected his deep concern for women. Many authors have paired the two categories in their writings.
163. See e.g. Ala al-Din al-Kasani, Kitab Bada ‘i’ al' Sana'i' 'fi Tartib al-Shara ‘i’ vol. 2, 334 (12th Cent. repr., Beirut: Dar al-Kutub al-'Ilmiyyah 1986) [hereinafter al-Kasani] (stating that a husband is entitled to punish his wife as he does his slave).
164. See also al-Hafiz ibn Kathir, Al-Bidayah wa al-Nihayah vol. 5, 148, 170, 202 (Maktabat al-Ma'arif, 2d printing of a 14th Cent, repr., Beirut: 1977) [hereinafter ibn Kathir, Al-Bidayah wa al-Nihayah].
165. For a discussion of the Qur'anic view of slavery, see Hassan, Al-Bidayah wa al-Nihayah, at vol. 1, 186–192 (explains that the Qur'an recognized slavery only as a transitional condition and that it provided various methods for its elimination; recounts hadith that all believers, whether free or enslaved, are siblings, and no Arab is better than a non-Arab except to the extent of the former's piety). A variant of this hadith is mentioned in al-Tabari's account of Khutbat al-Wadaa' (The farewell speech of the Prophet)
166. Tarikh Al-Tabari, Al-Bidayah wa al-Nihayah, at vol. 2, 206. See also Qur'an 49:13. Despite this Qur'anic position, slavery was not abolished from all Muslim countries until earlier this century, and only after the international community denounced the practice.
167. See Sa'id al-Afaghani, Al-Islam wa al-Mar'ah 21–29 (Damascus: Tarraki Press 1945)
168. al-Hibri, Islamic History, in Women and Islam 209 (London: Pergamon Press 1982).
169. Hassan, Islamic History, in Women and Islam, at vol. 1, 4–8, 52–61.
170. Nasr al-Din al-Baydawi, Tafsir al-Baydawi 111 (19th Cent, repr., n.p. Dar al-Fikr 1982) (recounting the story of a woman who came to the Prophet to complain about her abusive husband).
171. Id. For more on the concept of qisas, see al-Hibri, Muslim Perspective, Tafsir al-Baydawi, at 1727–1730.
172. Al-Tabari, Jami' al-Bayan, Muslim Perspective, Tafsir al-Baydawi, at vol. 5, 37
173. Ibn Majah, Muslim Perspective, Tafsir al-Baydawi, at vol. 1, 637.
174. Abu Dawud al-Sajistani al-Azdi, Sunan Abi Dawud vol. 2, 252 (9th Cent, repr., Beirut: Dar al-Jil 1988)
175. Ibn Majah, Sunan Abi Dawud, at vol. 1, 637.
176. Manna' al-Qattan, Mabahith fi 'Ulum al-Qur'an 83–84 (Cairo: Maktabat Wihbah 1981)
177. Badr al-Din al-Zarkashi, Al-Burhan fi 'Ulum al-Qur'an vol. 1, 35–50 (15th Cent, repr., Beirut: Dar al-Jil 1988).
178. Al-Tabari, Al-Burhan fi 'Ulum al-Qur'an, at vol. 4, 215.
179. Zaidan, Al-Burhan fi 'Ulum al-Qur'an, at vol. 7, 234–235.
180. See al-Hibri, Islam, Al-Burhan fi 'Ulum al-Qur'an, at 13 (especially footnotes 58, 59 & related text).
181. Id. See also Hassan Hassan Mansour, Al-Muhit fi Sharh Masa'il al-Ahwal al-Shakhsiyyah 213, 214 (Alexandria: al-Mu'assasah al-Wataniyyah li al-Tiba'ah wa al-Nashr wa al-Tawzi' 1998)
182. Ahmad Ghandour, Al-Ahwal al-Shakhsijyah fi al-Tashri' al Islami at 234 (Kuwait: Jami'at al-Kuwait Press 1972).
183. Sahih al-Bukhari, Al-Ahwal al-Shakhsijyah fi al-Tashri' al Islami, v. 4 at 57.
184. Ibn Majah, Al-Ahwal al-Shakhsijyah fi al-Tashri' al Islami, at vol. 1, 638.
185. Ahmad Fa'ez, Dustur al-Usra fi Thilal al-Qur'an 161 (Beirut: Mu'assasat al-Risalah 1982) [hereinafter Fa'ez]
186. Ibn Majah, Dustur al-Usra fi Thilal al-Qur'an, at vol. 1, 637.
187. Ibn Majah, Dustur al-Usra fi Thilal al-Qur'an, at vol. 1, 637.
188. Al-Ghazali, Dustur al-Usra fi Thilal al-Qur'an, at vol. 2, 354.
189. See also Abu al-Hassan al-Nadawi, Al-Sirah al-Nabawiyyah 370 (Jeddah: Dar al-Shuruq 1977).
190. Muhammad al-Dusuqi, Al-Usrah fi al-Tashri' al-Islami 164 (Doha: Dar al-Thaqafah 1995)
191. Abu Zahrah, al-Ahwal, Al-Usrah fi al-Tashri' al-Islami, at 163
192. Zaidan, Al-Usrah fi al-Tashri' al-Islami, at vol. 7, 313–314.
193. See e.g. Fa'ez, Al-Usrah fi al-Tashri' al-Islami, at 157
194. al-Tabari, Jami' al-Bayan, Al-Usrah fi al-Tashri' al-Islami, at 40.
195. See also infra n. 142.
196. Ibn Kathir, Al-Bidayah wa al-Nihayah, infra, at vol. 5, 148
197. al-Tabari, Tarikh al-Tabari, Al-Bidayah wa al-Nihayah, infra, at vol. 2, 206. Other reports, even by al-Tabari and Ibn Kathir themselves add the element of “disobedience” to the concept of nushuz, as presented by the Prophet in his last address.
198. See Tarikh al-Tabari, Al-Bidayah wa al-Nihayah, infra. See also Abu Zakaryyah al-Nawawi, Rawdat al-Talibin vol. 5, 177 (13th Cent, repr., Beirut: Dar al-Kutub al-'Ilmiyyah 1992) [hereinafter al-Nawawi] (arguing that nushuz includes leaving the marital home without permission (but not for verbal abuse), abstaining from sexual enjoyment, refusal to cohabit).
199. See e.g. Ibn Kathir, Al-Bidayah wa al-Nihayah, Rawdat al-Talibin, at vol. 5, 202–203
200. al-Tabari, Jami' al-Bayan, Al-Bidayah wa al-Nihayah, Rawdat al-Talibin, v. 4 at 212. These variations are the result of independent reporting of the address by various parties. The Qur'an does require the husband to stop “hitting the wife when she obeys,” but her obedience is not directed to the husband per se. Rather, it is a response to his admonishment (wa 'th) that she shun adulterous behavior, a major sin in Islam. Qur'an 4:34.
201. See e.g. Ibn Manthur, Lisan al-'Arab vol. 10, 192 (2d printing of a 13th Cent, repr., Beirut: Dar Ihya' al-Turath al-'Arabi 1992) (quoting Ibn al-Athir as defining fahishah mubayyinah, occurring in the Prophet's last address, as adultery; also stating that others define it as extreme sin and as leaving the marital home without permission)
202. Muhammad Murtadha al-Zabidi, Taj al-'Arus vol. 4, 331 (18th Cent. repr., Beirut: Manshurat Dar Maktabat al-Hayat n.d.) (quoting al-Jawhari and Ibn al-Athir as defining fahishah mubayyinah as adultery. Also stating that others defined it as extreme sin, and that al-Shafi'i defined it as verbal abuse towards the wife's in-laws).
203. See e.g. al-Kasani, Taj al-'Arus, at 334 (the conjunction “and” in the revelation requires a sequence of actions: first admonishing the wife, then deserting her bed, and finally “hitting” her)
204. Wihbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuh vol. 9, 6855–6857 (Damascus: Dar al-Fikr 1997) [hereinafter al-Zuhayli].
205. Cf. al-Nawawi, Al-Fiqh al-Islami wa Adillatuh, at 177 (quoting al-Hinati who argues that the sequential interpretation is only one of three possible ones).
206. The majority of scholars take the sequential approach. According to them, the husband must first admonish, then desert his wife's bed, and finally resort to hitting, although some argue that it is better not to reach the third stage at all. See text accompanying Al-Fiqh al-Islami wa Adillatuh about the sequential approach. Al-Zuhayli, Al-Fiqh al-Islami wa Adillatuh, at vol. 9, 6857 argues that it is better to threaten without actually “hitting.” He bases his view on the fact that the Prophet never hit a woman.
207. Other limitations are mentioned in al-Tabari, Jami' al-Bayan, Al-Fiqh al-Islami wa Adillatuh, at vol. 5, 43–45 (the man may not hit the woman in the face, or hit hard or leave an (harmful) effect (dharb ghayr mubrah wala mu'ath.thir)
208. al-Nawawi, Al-Fiqh al-Islami wa Adillatuh, at vol. 5, 676–677 (Hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages.)
209. al-Zuhayli, Al-Fiqh al-Islami wa Adillatuh, v. 9 at 6856–6857 (citing medieval jurists as requiring that the “hitting” does not cause fear in the wife, is not directed against the face or abdomen, and other places that could result in serious harm).
210. Abu al-Barakat Ahmad al-Dardir, al-Sharh al-Saghir vol. 2, 512 (18th Cent. repr., Dar al-Ma'aref 1972) (noting that the hitting may not affect the wife's bones or flesh. The husband may not resort to hitting his wife if he knows that it would be useless. If the husband hits his wife despite this knowledge, she is entitled to divorce and retribution).
211. See also al-Nawawi, al-Sharh al-Saghir, at vol. 5, 676–677 (hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages)
212. al-Zuhaili, al-Sharh al-Saghir, v. 4 at 6856–6857 (noting that the Hanafi and Shafi'i schools of thought would find the husband liable if he harmed his wife. Hanbalis would not.)
213. Al-Tabari, Jami' al-Bayan, al-Sharh al-Saghir, at vol. 4, 44
214. Al-Nawawi, Jami' al-Bayan, al-Sharh al-Saghir, at vol. 5, 676–677 (hitting may not cause harm or be heavy, cannot be on the face or other vulnerable areas. If it causes harm, the woman is entitled to damages)
215. al-Zuhayli, Jami' al-Bayan, al-Sharh al-Saghir, v. 4 at 6856.
216. The word “dighth” in Qur'anic verse 38:44 means a handful of grass or even basil. See Ibn 'Abdin, Raddal-Muhtar vol. 5, 659 (19th Cent., repr., Beirut: Dar al-Kutub al-'Ilmiyyah 1994) (explaining the meaning of “dighth” as a handful of basil, also noting that others stated that it meant “a handful of grass or thin branches”). Cf. Ibn 'Abdin argues that the use of basil by Job is a special case, reflecting God's mercy, and cannot be generalized to other women. Yet major medieval scholars appear to implicitly disagree. They limited the husband to the use of a miswak or what is similar to it