Given that many today demand
Shari'ah Muslim law in the U.S., a crucial and unavoidable question must be addressed: Can Muslim law be established in America? If so, would it be desirable? Despite rumblings from many uneducated liberals, the answer is a resounding-- "NO!" Please read the following essay upon Muslim marriage when considering why this is the only sane answer.
Islamic Marriage Law
A. Overview of Islamic Law of Marriage
The concept of marriage is radically different under Muslim law than in Christian and Western practice. This is inevitable because Western marriage is based upon only
two people being joined, whereas Islam allows one man to wed up to four women. For example, adultery is not a grounds for divorce in Islam, according to David Forte in
Studies In Islamic Law.
Marriage in Islam is not a sacrament, but a private contract (
nikah) with no need of a ceremony. Under classical
Shari'ah doctrine, it is considered an agreement between two families where the woman's opinion holds no sway. Further, she can be married without being present, and divorced without her knowledge. Divorce can be achieved instantaneously by the husband, without courtroom or judge.
B. Choosing a Partner
Ancient "arranged marriage" is still used under Islamic law. In fact, under
Shari'ah, the woman's opinion is considered meritless when choosing a husband, according to
Mounira M. Charrad, in
States And Women's Rights, The Making of Postcolonial Tunisia, Algeria, and Morocco. Charrad writes,
A bride need not express her consent to marriage when the contract is established. The law actually does not require the bride's presence at the marriage contract (agreement) for the marriage to be valid. The bride has a "matrimonial guardian," usually the father or, in his absence, another male relative whom family members designate as her legal guardian...Only the guardian's verbal expression of consent, and not the bride's, makes the marriage legally valid.
A marriage contract is a simple private agreement between the parents or woman's guardian, and the groom. Even if she disagrees, this has no legal impact, as only the guardian's decision has legal standing.
Weddings were arranged in traditional Islamic society since no concept of courtship existed. Unrelated men and women could not mix or even see one another, according to David E. Long in
Culture & Customs of Saudi Arabia. Sometimes a "marriage broker" is employed, but often families simply work together.
C. Weddings
There is no necessity for a wedding ceremony under
Shari'ah law, as the act is not a sacrament as
Catholics define it. A marriage is considered legal if the participants could marry and there are two witnesses, according to Charrad. She writes,
Islamic law defines a marriage as a contractual rather than sacred institution. Marriage is a contract through which a man gives a bride price to a woman and commits himself to support her as long as they are married. In counterpart, the man receives the right to have sexual intercourse with her. The religious texts hardly mention the formation of a new family unit as a new social cell. Instead, they emphasize marriage as a legitimation of sexual relations.
Further, there is no need for any special event to mark the union. Charrad states,
The law does not require any ceremony, either religious or civil, for the marriage contract to be valid. The "offer" and "acceptance," which have to be made in the presence of witnesses, constitute the marriage contract. Once verbal consent has been expressed, the marriage is concluded.
D. Proxy Marriages
Legal acts done by proxy are not differentiated from those executed by the party, including weddings and religious rites (
niyaba), writes Schacht.
Marriage by proxy is legal in Islam. This not surprising given all unmarried women need a legal guardian (
wali) and also the common appearance of
child brides.
E. Polygamy
Polygamy is an ancient practice allowing men more than one wife. The Muslim word for marriage is
nikah, synonymous for
polygamy. Under
Shari'ah, a Muslim may have up to four wives, as long as he treats them equally, although the standard for this is never detailed under the law, according to Charrad. Warrant for polygamy comes from the
Qur'an, in
Sura 4, "The Women," sura 3:
Marry women of your choice, Two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from doing injustice.
The
reason given for polygamy is invariably so many women lost husbands during Muhammad's early reign, and so needed protection and support, according to Muhammad Iqbal Siddiqi in
The Family Laws Of Islam. Christianity was able to respond to the needs of
widows and orphans via charity. Be that as it may, Muhammad
himself married many women at the behest of Allah, who also allowed him to
marry his step-son's wife, meaning
adoption is forever banned in Islam. In brief,
Muhammad had a very
strong sex drive.
Given divorce is almost effortless in Islam, and temporary marriages also commonplace, an upstanding Muslim man with impeccable religious credentials could conceivably legally marry hundreds of women during his lifetime.
F. Temporary Marriage
A "
temporary marriage" in Islamic law is an agreement between a man and woman to enter into a union of convenience. The admitted reason for these pairings is sexual pleasure for the man and economic gain of the woman. The Shi'ah still have a formal temporary marriage agreement, called
mut'a, whereas the Sunnis condemn it, but still practice the activity, terming it
misyar.
1. Shiah Mut'a
Shala Haeri, in
Law of Desire, Temporary Marriage in Shi'i Iran, describes
mut'a in great detail.
Haeri writes,
Mut'a marriage is a contract, iqd, in which a man and unmarried woman decide how long they want to stay married to each other, and how much money is to be given to the temporary wife. The custom of mut'a of women, as it has been called, was outlawed by the second caliph, 'Umar, in the seventh century A.D., but the Shi'ites continue to consider his command as legally nonbinding and religiously ineffective. In response, they argue that mut'a marriage is sanctioned in the Qur'an 4:24, and that it has been permitted by the Prophet Muhammad himself. Despite the early prohibition of the institution, the custom of mut'a marriage did not completely die out among the Sunni, either. (Qur'an Sura 4)
2. Sunni Misyar
Much scorn is heaped upon
Sunni Misyar temporary marriage by the faithful, some referring to it as "
prostitution" and "
legalized promiscuity." But this has not stopped it from being chosen by 70% of Saudis who went to the alter last year.
The concept was legally recognized in 2006 by Saudi Arabia.
G. Intimacy
One critic of Muslim marriage claims the institution is designed to keep participants from experiencing real emotional intimacy, as celebrated in Western literature. Given the revolving-door nature of Islamic
Shari'ah marriage, one can hardly be surprised. Nonie Darwish, in
Cruel And Unusual Punishment, wrote this:
And lest we think polygamy is a great gift to men, consider this: because of his right to polygamy, a man is deprived of a wholesome monogamous relationship, its emotional depths, and a satisfying life partnership, which is the cornerstone of Western civilization. Instead, Sharia has cursed him into believing his wife cannot be trusted.
H. Non-Believers & Marriage
A Muslim man may marry a non-believer, but a female Muslim may not wed an unbelieving spouse. A person who leaves Islam becomes an apostate and their marriage(s) are immediately dissolved,
ipso facto, according to Joseph Schacht in
Introduction to Islamic Law.
I. Concubines
Under the law of
Jihad, any woman who has been captured by Muslims then becomes war booty, her marriages void,
used as a
concubine, or
sexual slave.
A
right to hold slaves is
still believed by some Muslims
per Qur'an. Further,
sexual slavery still occurs in the Muslim world. A recent story from Mauritania confirmed
slavery is still practiced in Islam. In fact, a well-respected scholar
recently stated slavery was never formally condemned by Islam, either:
Although Islam is much credited for moderating the age-old institution of slavery...it has never preached the abolition of slavery as a doctrine.
J. Husband's Right of Corporal Punishment
A husband may
physically punish his
wife under Shari'ah law. This
punishment must not be
excessive, meaning no permanent marks or damage. Further, it should not be done in front of the
children. This comes from the
Qur'an 4, Al-Nisa "The Women" in sura 34:
If you experience rebellion from the women, you shall first talk to them, then deserting them in bed, then you may beat them.
K. Marital Rape
Under Muslim law, the wife must submit to the man's request for
sex, instantaneouly and unconditionally. Technically, the concept of "marital rape" is meaningless under
Shari'ah. The
Qur'an states men may demand sex at any time, comparing the wife's body to farmland ready for plowing and seed. The
Qur'an says in
Sura 2 "The Cow," suras 222-223:
...ye may approach them in any manner, time, or place ordained for you by Allah...Your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah...
Instead of a past relic, the right of marital rape was
defended by a leading UK cleric in 2010. Also, a
Muslim husband was
let off charges of rape against his wife when an American judge allowed a
Shari'ah. (but
overturned on appeal.)
L. Female Age of Marriage
There is
no minimum age of marriage
for girls under Islamic
Shari'ah law.
Child brides are
not uncommon in Islamic society, but generally no marriage should be consummated (
dukhul) until the female hits puberty. Muhammad married his
wife A'isha when she was 6 and consummated the relationship at
age 9, according to the oldest accounts gathered in Martin Ling's
Muhammad, His Life Based On The Earliest Sources. (Lings employs 8
th--9
th century sources,
such as Bukhari. "...he married ‘Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old."
Bukhari vol.5 book 58 ch.43 no.236 p.153.")
A'isha was the daughter of Muhammad's oldest supporter, Abu Bakr. She recalled when her mother took her from the swingset while Muhammad introduced her to the marital bed. Alfred Guillame writes in
Islam, "Muhammad married A'isha when she was but a child playing with her dolls." A'isha herself is
quoted as saying, "The Messenger of God married me when I was seven; my marriage was consummated when I was nine." Some writers claim Muhammad was with A'isha
before puberty.
The practice of "
underage marriage" not only
worry medical and
mental health experts but also
raise the specter of
legislated pedophilia occurring
under Shari'ah, especially regarding the lack of the category of "
marital rape" under Muslim law. It is possible to
marry an infant under
Shari'ah.
The issue of
child marriage sometimes enrages
Muslim law apologists, and is a
sensitive topic for many Muslims. Yet, the issue is
still alive in the
Muslim world, given the
current practice of
child marriages, with some even
buying child brides from
poor Muslim districts, so must be addressed. Ultimately, all of Muhammad's acts are not just legally acceptable, but "
model behavior" to be imitated. For example, in Yemen, 50% of girls are married
before the age of 15. (
Obama's brother is taking part)
II. Islamic Divorce: Talaq--Triple Repudiation
Under
Shari'ah, a husband has the right to unconditional and instantaneous divorce, according to Charrad. Muslim women do not have the same rights, although they can initiate a divorce under certain circumstances. A
Muslim divorce, much like a marriage, does not need state sanction to become binding or permanent. The
Qur'an states in the "Divorce" Sura, 4, section 20: "But if you desire to give up a wife and to take another in her stead..."
A Muslim divorce under classical
Shari'ah came after reciting the
treble repudiation (
talaq thalatha), "I divorce thee, I divorce thee, I divorce thee." Originally, this repudiation must be separate in time, to protect the wife from temporary anger from her husband.
Wives and children are due support after a divorce. There is no community marital property under
Shari'ah, undoubtedly because the ease at which divorce is achieved would have caused chaos in property dispersal. Instead, both have their own marital property. This arrangement favors the man and divorced women can easily become paupers under
Shari'ah, writes Amira El-Azhary Sonbol in
Women of Jordan: Islam, Labor & The Law.
The ephemeral nature of Islamic marriage is seen in how easily divorce is achieved, even at times accidentally. For example, Joseph Schacht writes, "...if the wife kisses her stepson lustfully, her marriage becomes invalid." And a husband's
talaq, even pronounced in a state of intoxication, was considered binding for a divorce in the Hanafi school, according to Aharon Layish, in
Women And Islamic Law In A Non-Muslim State.
Should Shari'ah Be Enforced in America?
As can now be seen with greater clarity, ideas about law, marriage and justice are wildly divergent between Islamic
Shari'ah law and the West. This has not stopped several notable American jurists from calling for Islamic law for America. One wonders if
Obama friends like
Harold Koh have ever bothered studying
Shari'ah law, in depth? If so, were they not bothered by its barbarity, lack of doctrinal development, or incongruity with Western law? Would it even occur to these Obamatons as soon as we accept non-Constitutional laws, our Republic symbolically ends?
Shari'ah is only notable where it differs from Western law. Otherwise, there would be no reason to impose it-- correct? But often where differences exist, they are horrifying in nature. For example, will we really accept child marriage for girls, judicial amputations, beating of wives and marital rape? If not, then let's stop pretending we are actually going to accept
Shari'ah.
What is the purpose of building a humane civilization if we are then forced to return to barbarism in the name of contradictory doctrines such as Political Correctness and Multiculturalism? Let us throw off this leftist drivel and return to being the master's of our own fate by making decisions based upon real justice, not illiterate and illogical
groupthink.
