The Case for Abolishing Polygamy / Polygyny Under Islamic Jurisprudence

The Case for Abolishing Polygamy / Polygyny Under Islamic Jurisprudence

Introduction

Polygyny has been noted to be a major violation of women’s rights and a tradition that is contributing to, rather than tackling, gender disparity. This article is an endeavour to engage with the legal status of this practice in Tunisia and Saudi Arabia, two countries arguably standing at two extremes, using ideas from modernists and Islamic feminists to prove that polygyny is in fact justifiably abolishable under the very tools of usul ul fiqh that have been used to establish its validity.

Classical Jurisprudence

Polygyny is often perceived as a ‘fundamental right’[1] endorsed by the Quran because Q4:3 makes allowances for a man to marry up to four women of his choice, ONLY if he can deal justly with each of them.[2] The authority for polygyny within the Sunnah lies in various Hadith reports regarding the Prophet’s polygamous marriage as well as in Malik’s Muwatta, according to which a convert who had ten wives was told by the Prophet (peace be upon him) to ‘keep four of them and divorce the others’.[3]

There is juristic consensus among the Shafi’i, Maliki, Hanbali and Hanafi schools of thought that polygyny is ‘merely permissible’ and that the ability to treat the wives justly and equally is a prerequisite for its permissibility.[4] However, many hold the view that this is merely a moral requirement which only appeals to the husband’s conscience without there being legal punishment or sanction. The Maliki school states that even though this is a moral condition, it has indirect legal consequences in that the co-wife who does not receive equal treatment in a polygamous marriage is entitled to claim judicial dissolution of the marriage on such grounds.[5] Contrarily, Hanbali jurists hold that the ‘mere apprehension’ of being unable to be just between co-wives removes the permissibility of polygyny entirely.[6]

Grounds for the Abolishment of Polygyny

1. Re-interpretation of textual sources

The basis for the abolishment of polygyny is laid out in careful readings of the main sources of Islamic law. Quran 4:3, in its allowance for the marriage of a man to more than one woman, cannot be read in isolation. Scholars place emphasis on reading verses in the context of the chapters they are in; for example, the first verse of this surah establishes that both sexes have been created from Nafsin Wahidatin (single being) and hence enjoy equal status.[7] The Quran repeatedly states that a marital bond is based on ‘love’, describing it as a ‘lasting bond between a pair for a lifetime’,[8] while spouses have been described to be like ‘garments’ for one another.[9] This reveals that the ability to do justice amongst co-wives is evidently not only limited to financial means but also to emotional means.

Therefore, the rationale used by Saudi Arabia in permitting polygyny, if the husband is equal in material terms between the wives, is flawed. In Saudi Arabia, the Quran and the Sunnah have been classified as the country’s Constitution; due to this, the country lacks any form of judicial precedent.[10] This Hanbali–based legal structure results in uncertainty in determining the scope and content of the country’s laws and leaves room for the ulema to issue rulings based on biased personal preferences.[11]

Reformists read verses Q4:3 and Q4:129 in conjunction with one another to present a basis for polygyny to be abolished. Q4:129 states that even if it is men’s ‘ardent desire to do so’, they will never be able to deal justly with more than one wife.[12] Rahman engages in a modernist reading of the Sharia sources by placing them in what he refers to as ‘situational context’,[13] which had also been the basis for Tunisia to abolish the practice of polygyny in 1956 through Bourghiba’s Code du Statut Personnel[14] following the undisputable conjecture that the essential prerequisite for polygyny was incapable of being fulfilled.[15]

Polygyny cannot be removed from the historical period in which it was first introduced; a period where war had been prevalent. The timing of the revelation of Q4:3 was relevant as it occurred after the Battle of Uhud which resulted in the death of many Muslim soldiers[16] and led to a progressive reduction of the male population, leaving many women and children widowed and orphaned. At the time, women were hardly able to support their families financially and so marriage was a sense of security for them. Therefore, Q4:3 cannot be read as a general authorization to engage in polygamous unions, but as a highly specific temporary arrangement to provide women and children with economic support.[17]

Contrary to popular belief, polygyny was not introduced through Islam, it was widely practiced by the jahaliya in pre-Islamic Arabia where men were permitted to have an unlimited number of wives and consider them chattel. With the advent of Islam, an enlightened code of family values was introduced when women were given legal personal status and the existing practice of polygyny was restricted to four wives only.[18]

2. Use of Ijtihad

Islamic law is often viewed as a conservative discipline in its validation of the institution of polygyny, largely due to the unwillingness of jurists to engage in the process of ijtihad after Islam’s third century because they believe that a point has been reached where all questions of law have thoroughly been discussed without the need for further deliberation. This notion is often referred to as the ‘closure of the gates of ijtihad’, a tool once utilised by jurists to formulate rules of law based on evidence found in the sources.[19]

The fear of Islam’s prevalence diminishing after the Prophet’s death led the jurists to adopt the law rigidly; as a result, the jurists grappled with the development of such rules from a male-centric approach that was reflective of the socio-cultural landscape of that time and built their patriarchal assumptions into their usage of usul ul fiqh. Maulavi Amir Ali has spoken about how this prohibition on ijtihad is a ‘blight’ that has fallen upon Muslim nations, stating that this has been a scapegoat for Islamic jurists to neglect the idea of abolishing polygyny.[20]

Many scholars, however, advocate that the ceasing of the exercise of such interpretation has never taken place.[21] This can be supported by the fact that if the sacred texts would not be sources of law, they would constitute a divinely given code of law itself.[22] Therefore, human interpretation is not just optional, it is necessary in the application of Islamic law. Usul ul fiqh largely serves as a toolkit for the rendition of ijtihad and the fact that different schools have opposing stances on certain issues is proof that such provisions on marriage are open to radically different interpretations. It is also supportive of the very essence of Islam and Sharia law, which is that of change and reform.[23]

The Tunisians utilised ijtihad to abolish polygyny entirely.[24] The Tunisian Law of Personal Status abolished this practice based on Q4:129, justifying that equal treatment between co-wives was impossible. Tunisian law considered the Quran’s injunction to be legal, thus enabling them to constitute polygyny as a criminal offence.[25] Tunisia is a unique example because, unlike Turkey’s ban on polygyny (which stemmed from the secularisation of the legal system), Tunisian law was the first prohibition that used a fundamental Quranic precept in its legal reasoning.[26]

3. Use of Maslahah

Another basis for the abolishment of polygyny lies in the jurisprudential concept of maslahah. The Quranic verse believed to advocate for this principle states that God ‘forbids what is shameful and oppressive’ and teaches Muslims to ‘take heed’ of their actions.[27]

Arguably, the institution of polygyny has been detrimental, rather than beneficial, to public welfare. Polygyny has been a practice that has caused ‘much pain amongst women’ and should no longer be applicable in the 21^st century. It can be argued that it is in fact a mafsadah that needs to be eradicated.[28]

In her study of polygyny in Saudi Arabia, Yamani collects interviews of women to reveal the true picture of the effects that it has had on their lives. Firstly, inferiority towards women has seeped into societal norms; this is largely due to what Yamani identifies as male superiority born out of female competition amongst co-wives for the attention of one man.[29] Furthermore, according to sources within the Saudi court system, many qazis find the voices of female applicants offensive and often tell such applicants to ‘shut up and let men handle the court of justice’.[30] Property and land disputes are also not uncommon amongst the sets of families within a polygamous marriage.[31]

Studies report that polygamous marriages severely damage women’s mental health as well. A Saudi woman has narrated in an interview how her husband’s polygamy has turned her life ‘upside down’ to the point where she experiences anxiety attacks, weight loss and insomnia.[32] Further studies also indicate that there is a higher prevalence of depression and somatization amongst polygamous wives in comparison to those engaged in monogamous marriages.[33] Such effects are not only limited to co-wives but also to children due to a decline in paternal involvement, which has proven to adversely affect children’s academic achievements and social adjustment.[34] In light of the stresses exerted on the family from the instance of polygyny, the ‘public benefit’ of such a practice can hardly be proven. This means that the eradication of polygyny, a mafsadah, is not only recommended but is necessary.

Conclusion

Reflecting on the aforementioned arguments, it is therefore justifiable to say that the abolishment of polygyny, through a feminist and modernist reading of sacred texts, is not only possible, but is a necessity. It is evident that even modern Muslim majority states have not engaged in a modernist reading of the Sharia. Countries such as Saudi Arabia need to view things from the perspective of the Tunisian prohibition and reevaluate the ways in which they view Sharia law and its tools in order to have an optimistic assertion and appropriate interpretation and understanding of fiqh.

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Bibliography

Quran (The Noble Qur’an (Sahih International) accessed from https://quran.com/)

1. Q 2:187

2. Q 4:3, Q 4:129

3. Q 16:90

4. Q 30:21

Legislation

1. Code of Personal Status in Tunisia 1957 (Republic of Tunisia).

Books

1. Asad M, The Spirit of Islam (Islamic Foundation 1979).

2. Barlas A, “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an (University of Texas Press 2002).

3. Gatje H, The Qur’an and its Exegisis (One World Publications 1996).

4. Hinchcliffe D, Polygamy in traditional and contemporary Islamic Law (Jaima Nagar 1970).

5. Ibn Anas M, Al-Muwatta of Imam Malik (Aisha Bewley tr, Madina Press 200).

6. Ibn Rushd, Bidāyah al-Mujtahid (Nyazee tr, Garnet Publishing 1999).

7. Landau R, Islam and the Arabs (Routledge 2007).

8. Pearl D and Menski W, Muslim Family Law (Sweet & Maxwell 1998).

9. Yamani M, Polygamy and Law in Contemporary Saudi Arabia (Ithaca Press 2008).

Journal Articles

1. Al-Krenawi and Graham, “Divorce Among Muslim Arab Women in Israel” [1998] 29 Journal of Divorce & Remarriage 103.

2. Alexandre M, “Big Love: Is Feminist Polygamy an Oxymoron or a True Possibility” [2007] 18 Hastings Women’s Law Journal 3.

3. Codd R, “A Critical Analysis of the Role of Ijtihad in Legal Reforms in the Muslim World” [1999] 14 Arab Law Quarterly 112.

4. Hallaq W, “Was the Gate of Ijtihad Closed?” [1984] 16 International Journal of Middle East Studies 3.

5. Khadduri M, “Marriage in Islamic Law: The Modernist Viewpoints” [1978] 26 The American Journal of Comparative Law, 213.

6. Marcotte R, “How far have reforms gone in Islam?” [2003] 26 Women’s Studies International Forum, 153.

7. Rahman F, “A Survey of Modernization of Muslim Family Law” [1980] 11 International Journal of Middle East Studies 451.

8. Shepard L, “The impact of polygamy on women’s mental health: a systematic review” [2013] 22 Epidemiology and Psychiatric Sciences 47.

9. Weiss B, “Interpretation in Islamic Law: the Theory of Ijtihad” [1978] 26 The American Journal of Comparative Law 199.

10. Zaidi T, “Polygamy in the Perspective of Islam” [2016] 2 Social Sciences International Research Journal 201.

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[1] Doreen Hinchcliffe, Polygamy in traditional and contemporary Islamic Law (Jaima Nagar 1970) 13.

[2] Qur’an 4:3.

[3] Malik ibn Anas, Al-Muwatta of Imam Malik (Aisha Bewley tr, Madina Press 200).

[4] Ibn Rushd, Bidāyah al-Mujtahid (Nyazee tr, Garnet Publishing 1999).

[5] Hinchcliffe (n 1).

[6] ibid.

[7] Terasa Zaidi, “Polygamy in the Perspective of Islam” [2016] 2 Social Sciences International Research Journal 201.

[8] Qur’an 30:21

[9] Qur’an 2:187

[10] Maha Yamani, Polygamy and Law in Contemporary Saudi Arabia (Ithaca Press 2008).

[11] ibid 127.

[12] Qur’an 4:129

[13] Fazlur Rahman, “A Survey of Modernization of Muslim Family Law” [1980] 11 International Journal of Middle East Studies 451.

[14] Roxanne Marcotte, “How far have reforms gone in Islam?” [2003] 26 Women’s Studies International Forum, 153.

[15] Michele Alexandre, “Big Love: Is Feminist Polygamy an Oxymoron or a True Possibility” [2007] 18 Hastings Women’s Law Journal 3.

[16] Zaidi (n 7)

[17]Asma Barlas, “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an (University of Texas Press 2002).

[18] David Pearl and Werner Menski, Muslim Family Law (Sweet & Maxwell 1998).

[19] Majid Khadduri, “Marriage in Islamic Law: The Modernist Viewpoints” [1978] 26 The American Journal of Comparative Law, 213.

[20] Muhammad Asad, The Spirit of Islam (Islamic Foundation 1979).

[21] Wael Hallaq, “Was the Gate of Ijtihad Closed?” [1984] 16 International Journal of Middle East Studies 3.

[22] Helmut Gatje, The Qur’an and its Exegisis (One World Publications 1996).

[23]Rom Landau, Islam and the Arabs (Routledge 2007).

[24] Rachel Anne Codd, “A Critical Analysis of the Role of Ijtihad in Legal Reforms in the Muslim World” [1999] 14 Arab Law Quarterly 112.

[25] Code of Personal Status in Tunisia, Art. 18.

[26] Khadduri (n 20).

[27] Qur’an 16:90.

[28] Bernard Weiss, “Interpretation in Islamic Law: the Theory of Ijtihad” [1978] 26 The American Journal of Comparative Law 199.

[29] Yamani (n 10).

[30] Ibid.

[31] Al-Krenawi and Graham, “Divorce Among Muslim Arab Women in Israel” [1998] 29 Journal of Divorce & Remarriage 103.

[32] Yamani (n 10)

[33] Lindsay Shepard, “The impact of polygamy on women’s mental health: a systematic review” [2013] 22 Epidemiology and Psychiatric Sciences 47.

[34] Yamani (n 10).

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.