An Equitable Marriage Contract in Islamic Law
FAKBIK
Submitted: December 17, 2013
Revised: April 20, 2014
An Equitable Marriage Contract in Islamic Law
Critics of Islam often focus on the relationships between men and women and argue that Islamic marriages are inherently sexist. Apologists agree that in practice, certain interpretations “have so severely restricted woman that marriage becomes an institution of oppression for her.”1 Wadud argues that using marriage as the “means by which a woman is stripped of her individuality and her self-respect as a human equal in humanity and in spiritual capacity to any man” is inherently against the Qur’anic intent.2
While the Qur’an gives specific stipulations and restrictions on marriages, it does not provide an exact model for a marriage contract. In Islam, only adults can enter into contracts, and a man or a woman becomes an adult when they are a “legally and morally responsible person, who has reached physical maturity” and are of sound mind.3 The contract is derived through Islamic law and, “is constantly being negotiated, interacting with particular historical current” despite that it is considered to be an imposed law.4 The permanent marriage contract, nikah, is rooted in patriarchal expectations of marriage and only addresses the needs of heteronormative relationships. In this essay I attempt to identify sources of inequity in nikah as well as provide some initial footwork in identifying a potential alternative. A novel model for marriage contracts, based on classic contracts of partnerships from the Hanafi and Maliki schools, could be used to replace the current model, which defines itself on a sale contract that inherently defies messages of marriage equality in the Qur’an.
The Status Quo
Haeri argues that because the Qur’an is addressed to men and has been interpreted and elaborated by male theologians and legal scholars, patriarchal Islamic law has been able to perpetuate itself while maintaining “an outsider’s perspective on women,
Submitted: December 17, 2013
Revised: April 20, 2014
An Equitable Marriage Contract in Islamic Law
Critics of Islam often focus on the relationships between men and women and argue that Islamic marriages are inherently sexist. Apologists agree that in practice, certain interpretations “have so severely restricted woman that marriage becomes an institution of oppression for her.”1 Wadud argues that using marriage as the “means by which a woman is stripped of her individuality and her self-respect as a human equal in humanity and in spiritual capacity to any man” is inherently against the Qur’anic intent.2
While the Qur’an gives specific stipulations and restrictions on marriages, it does not provide an exact model for a marriage contract. In Islam, only adults can enter into contracts, and a man or a woman becomes an adult when they are a “legally and morally responsible person, who has reached physical maturity” and are of sound mind.3 The contract is derived through Islamic law and, “is constantly being negotiated, interacting with particular historical current” despite that it is considered to be an imposed law.4 The permanent marriage contract, nikah, is rooted in patriarchal expectations of marriage and only addresses the needs of heteronormative relationships. In this essay I attempt to identify sources of inequity in nikah as well as provide some initial footwork in identifying a potential alternative. A novel model for marriage contracts, based on classic contracts of partnerships from the Hanafi and Maliki schools, could be used to replace the current model, which defines itself on a sale contract that inherently defies messages of marriage equality in the Qur’an.
The Status Quo
Haeri argues that because the Qur’an is addressed to men and has been interpreted and elaborated by male theologians and legal scholars, patriarchal Islamic law has been able to perpetuate itself while maintaining “an outsider’s perspective on women,
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