Polygamy in the Muslim Experience: Interpretations and Attitudes
And if you fear that you will not deal justly among the orphans, then marry of women those who seem good to you--two or three or four. But if you fear you may not deal evenly between them, then one, and that is the nearest to not deviating from the right course.
. . .
And you will never be able to deal evenly between women even if you took care, so lean not with all of your energies and thus blow one of them away as if she were hanging, and if you make amends and fear God, then God is most forgiving and merciful.
So reads my own translation of Qur'an verses 4:3 and 4:129, the verses that address polygamy (I hate most conventional translations, but that's a separate post I think). But let's take this apart as lawyers might, to show how pointless that is at understanding Muslim outcomes, in this context.. . .
And you will never be able to deal evenly between women even if you took care, so lean not with all of your energies and thus blow one of them away as if she were hanging, and if you make amends and fear God, then God is most forgiving and merciful.
The first interpretation is the orthodox conservative version. Polygamy is permitted, up to four wives. You do have to deal evenly, if you can't then just one. This is not an encouragement, but it is permission. That's more or less classical doctrine. So when you take the classical doctrine very seriously, that's what you sort of have. Now that doesn't mean you have to embrace polygamy, you could take the position that the state has the ability to restrain it for any number of public interest reasons--after all, in that case the state is not in fact requiring one to sin, only limiting something that isn't encouraged anyway. My friend Mohammad Fadel says precisely that in a very interesting article here. You could also imagine a Westernized judiciary disgusted with the very idea of polygamy making the rule a dead letter through restrictions that appear in the doctrine too (means requirements, etc.). Professor Horowitz makes it sound like the Malaysian courts in some states within the nation do just that. Something like that also happened when Zia imposed the Islamic criminal punishments in Pakistan--judges were so repulsed by it they more or less refused its application wherever they could.
But not everyone wants to stick to the classicists anymore, or distinguish polygamy away through arguments about public interest or restrictions that swallow up the rule. The liberal Muslim wants something else. He wants something more normative, I don't think God actually wants men to be able to marry more than one woman, he argues. And so he says to hell with classical doctrine, I'm opening it up. We're breaking down the fabled gates of ijtihad and we are looking at the Qur'an anew. Irshad Manji calls this "Operation Ijtihad".
So how does this argument go? Generally it was first developed by civilian lawyers, so it sort of adopts the reasoning that civilian lawyers would be comfortable with, which is mostly deductive (to my mind, to make law appear more certain in application than it really is, but what would you expect from me, I'm a common law Realist).
1. Polygamy is sanctioned with a condition of equal treatment.
2. God says equal treatment cannot be done 126 verses after he sanctioned it.
3. Therefore, polygamy is banned.
You could also be a common lawyer, and talk of how the first sentence of 4:3 is the permissive one, the second sentence the restrictive one, and how the second sentence therefore limits the first and the first cannot be understood absent the significant impediment of the second, which itself is further explained in 4:129 as being effectively insurmountable. It's different reasoning, but the same result.
It's also plausible. Obviously, it's an indirect way of suggesting a ban, but the liberal could explain that on temporal grounds, the Prophet couldn't tell these heathen Arabs of his day they couldn't marry more than one woman, it takes time to bring in the proper values, hence the indirection.
The other problem is 4:129 sure doesn't sound like a ban, more a "do your best under the circumstances" sort of thing, but then again, the verbs of 4:3 and 4:129 are the same, one says deal evenly or just one, and the other says you can't deal evenly so to read 4:129 as saying "do your best" and not as a ban sets up a verse contradiction. So you can play it both ways.
The Muslim can also do something else. If he calls upon common law reasoning, he can say the first part of 4:3 is in fact not permissive. It has a qualifying opening phrase, concerning dealing justly with orphans. And thus polygamy is not just limited by even dealing, but also by a societal problem in which there's a bunch of orphan girls, and you can't figure out what to do with them, and so bring them into your homes and feed them and if you can't be just and fair to them that way, then marry them too.
In fact, it's actually a stronger argument I think. It copies the liberal reading of the second amendment to the US Constitution ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"). The first phrase, concerning the Militia, argues the liberal, must mean something. You don't just put words in there for no reason. And the same argument can be made on 4:3.
Of course this argument, while actually pretty good, is not frequently made for obvious enough reasons. Liberals are rather sickened by the notion that the proper way to treat orphan girls of limited means is to try to be nice, but if you can't control your sexual urges, then go ahead and marry three or four of them. We tend to think there must be better ways of making sure that orphans are treated well--distributing the costs of their care among all members of society for example. And conservatives have no use for something that restricts polygamy, and hence this interpretation more or less withers away, ignored.
So then the liberal says, here is the solution. We just leave the classicists behind, we point out the errors of their ways, we present our own interpretation, and all problems are solved.
Actually, not true. Once you leave the classicists behind all other sorts of options pop up too. One that just appeared on NPR, concerning particular groups of inner city African American Muslims, is here. Hold on, says this select group (which is let me emphasize not all African American Muslims by any means). The PREFERENCE is for polygamy if you read this right. What it says is marry two, or three or four. But if you can't manage to deal evenly, if you're just hopeless in this regard, then marry one. So in other words, for the weak, one. For the others, more. Plausible? I can't see why not.
I think the conclusion is liberals can put far too much stock in this idea of all we have to do is reinterpret, and all is well. I've seen it in the US too, you will see the left argue for the constitution to encompass all sorts of things, from reproductive rights to sexual rights. And that's all well and good, but the thing is reinterpretation can work both ways--witness John Yoo's readings of Article II of the Constitution.
Once you leave the classical world, and I'm of those who think everyone has to one extent or another (nobody actually runs a medieval commercial society these days), large numbers of possibilities open up, not just liberal ones. You can easily read the two verses above to prohibit polygamy. Or you can read them to enable it. Or even encourage it. And you can argue about the words, and the way they are structured, and how one phrase qualifies another (for the common lawyers) or how one conclusion follows from another (for the civilians), but it's not going to give you very much by way of guidance. The text doesn't up and smack you in your head when you get it wrong, and angels don't descend from the heavens to kiss you when you get it right. Or maybe they do actually, but you won't be able to detect it, or prove that it happened anyway, to be of any use to us struggling here in the profane world.
Really, fundamentally, it's about the norms of the Muslim societies themselves, the living tradition as Fazlur Rahman would call it. Bring forward the liberal Muslim society, and they're not going to have much of a problem banning polygamy and reading the Qur'an to do just that. Bring forward Muslims who seek to reject the liberal society, who want to resist it, and they will either insist on its legality or even encourage it. In the Middle East, that insistence is more legal than substantive. No Islamist leader I know has two wives, much less three or four. If, say, Abdul Aziz al Hakim or Ibrahim Ja'fari took second wives, or anyone in their Islamist parties did, it wouldn't do wonders for their careers, even within their organizations. It's not what the well bred are supposed to do. I understand much of the Middle East is similar. But tell them we should legislate monogamy, and they go crazy. We are different, we are Islam, we won't ape the West, etc. etc. Professor Horowitz notes a similar dynamic in Malaysia.
In the inner city in the US, of course, you can't actually legislate the resistance, and yet it's going to be there, clearly large numbers of African Americans are dissatisfied with certain aspects of American political and social order, and given everything that's happened in this country, you're not going to find me apportioning any blame for that. So you can't legalize, and if you sort of say polygamy is permissible but not encouraged that doesn't help much, and hence an interpretation arises, a modern one, one that departs from the classical doctrine, but in precisely the opposite direction than the liberal wanted. And so you have SOME African American Muslims adopting the notion that you should be polygamous, a notion much, much less prevalent among immigrant Muslims.
I know, I know, I should be taking the efforts at interpretation more seriously I am told. People do think they're operating based on them. But I've looked at them, they're all laid out in brief above, can you really say it's mostly about restrictive clauses and conclusions following from one verse to another one 126 verses later? It's really not about whether or not people like or don't like polygamy, it's not about that outcome and how people feel about that outcome, it's about grammar? Just not how I see things.
HAH
Asalaamu Alaykum brother,
I've been on vacation and I'm catching up on your mental meanderings. A buddy of mine called me about the NPR story when I was away. It had Blackamerican Muslims up in arms brother! As a people we are ill-equipped to head down this road at this point in our development. A lot BAMs aren't making enough money to do something like this and they are totally forgetting their convert status. I mean, what happens when the spouses' non-Muslim families start weighing in heavily? My Nabi(peace be upon and his family) came with a message NOT destroy family-ties; well, a lot of these brothers are doing just that by pimping these women. If you haven't read the horrible stories about this let me know. As a convert, my folks would have a fit, and moving down the timeline, presumably when my children have children(hopefully Muslims) it doesn't negate the reality that the majority of their not-so-distant relatives will not understand or like this crap at all. Oh, and another thing; I find it funny that the Black Muslims in Philly have selective memory when the discussing polygyny. Just last year a Black Salafi woman there murdered her husband because he was going to Morocco to impregnate his new Moroccan wife. Shot him dead. And Philly is known for giving birth to notorious Muslim criminals! Seems to be a bunch of "my brothers" just can't be 'normal' and insist on some sly form of anarchist, anti-establishment thought.
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Brother Charles, Alaikum Assalam! I was worried about you when I hadn't heard for some time, but happy to see you are back. Your comments and insights are always valued and especially on matters like these, given how much closer you are to the African American Muslim community than I am. Thanks.
Haider
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Haider,
There is also one very important question that your otherwise thorough discussion leaves out, and I point it out because in some respects, it goes to the notion that often we fail to think like lawyers when we address questions like polygamy. The issue I have in mind is remedial: let's suppose that in fact the liberal reading is right, and that God in fact does not allow polygamy. Does that mean that the man and his second wife are adulterers? Would children from such a union be considered to be illegitimate? Even the question of the conditionality of the permission raises these difficult remedial questions: what if one of the two wives, for example, is indifferent to unequal treatment? I think all these remedial difficulties that arise out of alternative readings of the verse may ultimately explain why the historically orthodox position prevailed, and continues to prevail: any legal prohibition of polygamy creates insuperable remedial problems in criminal law (as we are now witnessing in liberal jurisdictions which anachronistically claim to criminalize bigamy) or in family law. Let us remember that at common law, bigamy was a capital crime and that illegitimate children had even less rights than they do in classical Islamic law. For example, in the Supreme Court case prohibiting discrimination based on legimitacy, the child in that case was born out of wedlock and when his mother died intestate, he was not entitled to inherit from her estate because the mother had failed to include him in her will. (In Islamic law, an illegitimate child maintains descent from the mother, but not the father.) I often think we are so obsessed with the morality of polygamy that we forget the difficulty of providing meaningful legal remedies for breaches of monogamy. As a legal realist, I would have thought you would emphasize that
Mohammad
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It's a good point, though I think it should be qualified. The Kurds in northern Iraq criminalized polygamy and don't really much think about that. When I talk to Kurdish lawyers about the legal status of those with multiple wives, they tend to brush it off, nobody has two wives anymore anyway, they would say, except the people in the villages and they're going to keep doing whatever they do no matter what we say. (That's where my ideas of Legal Pluralism start to work their way in, the villages are clearly following a "law" as I would define the term, but not state law.)
Now that was purely legal not normative. These guys aren't really thinking about shari'a, they don't much give a damn about it quite honestly, but the point remains that when you get this sort of dismissiveness, this idea that polygamists aren't really respectable people, they're uneducated peasants, then the class driven nature of so many Middle Eastern societies in some ways might work to minimize the elite's concerns over the matters that you raise. A problem that only poor people have is not one the legal system deals with very well or very thoughtfully, I think it's fair to say is true actually beyond the Middle East. Though admittedly there are a few folks out there who do have two wives who would fall within higher levels of income and it would matter there. I think our former president Yawer is one. And according to Horowitz, there are rather influential really rich people in Malaysia who want two wives (particularly film stars and the like) and I understand in Bollywood as well, so the concerns might be heightened in those countries, who knows.
Anyway, it is a factor, and I didn't emphasize it not because I dropped my realist pose but only because I hadn't much thought about it. I won't claim to be comprehensive in my blog posts, though I will aspire to be.
HAH
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I really doubt polygamy is limited to poor peasants in the countryside, if you include de facto polygamy. In addition, in Egypt you have people engage in polygamy secretly by not recording second marriages (zawaj 'urfi), and in any case, how common could polygamy ever be? Even so, would it shock you if 1% of urban marriages involve polygamy? This is certainly a small number, but in the aggregate, that would still be a meaningful number of polygomous marriages. The rubber hits the road when children are born, jilted wives demand support, etc. It turns out that Canadian remedial law contemplates polygamy, and provides for support for multiple spouses, even if it does not recognize, as a legal matter, the existence of plural marriage. This all confirms the difficulty of legally mandating monogamy (unless one has some really draconian punishments for violations of the norm, e.g. the common law death penalty for bigamists).
At the end of the day, I think the most that can be gleaned from the Quran is a moral rule, not a legal one. I think the liberal reading is quite plausible as a matter of morality, but it cannot generate any reasonable basis of regulating families.
MHF
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Well, I thought the concern was that what we'd be doing is declaring a whole bunch of existing people already in polygamous unions adulterers and a whole bunch of current kids illegitimate. and that would be a real mess given how bad adultery is in Islamic law and illegitimacy is in most Muslim societies. Or we'd have to justify why we were not doing that, and how a grandfathering could work if we've already decided God doesn't allow that second marriage and how we could possibly be close to fair by just telling them they've violated God's Law when a year ago it wasn't God's Law. I thought it was the transition that concerned you.
In that case, "secret" polygamous unions aren't really an issue, the law generally just ignores them as it ignores all forms of adultery, unless there are kids. and yes then it will get hairy, but unless the law doesn't recognize marriage at all, this will happen. For example, the man marries five wives. Or the woman has three husbands. None of this is recognized in Islamic law, I guess the Shi'a can grab the first case under mu'ta, the mut'a wife doesn't inherit so it's still an issue. And yet you still have questions of jilted spouses and children demanding support, etc.
I guess my point is I see "transition issues" as relevant and causing hesitation. I don't see general workability issues leading to the same result, because they are always going to exist, whether Muslim polygamy is recognized or it isn't.
HAH
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It's not just the transition, but the problem of what to do with de facto polygomous relationships. As I mentioned, in Canada, de facto polygomous relationships are recognized to the extent necessary to provide economic support for second wives, but not how that "undermines" the legal requirement of monogamy: a second wife, which is supposed to be a legal impossibility, is given a claim to the earnings of the husband. Since this is a distributive game, it inevitably comes out of the first wife's (or the legally recognized wife's) pocket. I simply view this as a technical remedial problem: that it is impossible to enforce a ban on polygamy if one remains committed to other liberal values regarding the irrelevance of legitimacy and that equitable factors should determine maintenance obligations.
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Who says the "liberal reading" has to result in a restriction on polygamy? In the literal "libertarian" sense, wouldn't "liberal" point towards permissiveness (ibaha)?
But even from from a justice-liberal perspective, I am not convinced that this is something which liberal or reformist or modernist Muslims "have" to find a path to. I think there is a strong case that polygamy ought to be legal in liberal states. It seems that for liberal or reformist or modernist Muslims the key questions are consent, equality and resources for wives, not a formalist banning of polygamy.
The conservatives tried to spook us that once you allow gay marriage, polygamy is next. I say bring it on. Maybe the liberal state should get out of the marriage business the way it gets out of the religion business. That is, it focuses on protecting the rights and voice of the vulnerable (thus: could still intervene in cases like Texas) not drawing artificial boundaries around what kinds of practices or choices are inherently unacceptable.
Of course, this is a kind of (J.S.) Millian argument for a society like America. (Who am I to say that Hamoudi or Fadel or Hugh Hefner can't make autonomous choices together with their wives - maybe I will even learn something new from their experiments about valuable lives?) But isn't the concern in certain Muslim countries not that polygamy is an inherent injustice, but that it is *associated* with a host of other practices which are indicative of injustice? So if you are a (justice-)liberal Muslim and you care about equality and fairness this is why you go after polygamy.
But there here is the paradox: do liberal or reformist or modernist Muslims really want to get into the business of arguing that the path to modernity/reform/equality is to go back and derive precisely *ahkam* from the proof-texts - ahkam which are "modern" in ethical content but equally categorical, deontological, and pre-political to the conservative rulings? Shouldn't the liberal or reformist or modernist Muslim rather argue something like this: "The texts can be understood in multiple ways and I do not think all Muslims need a fixed consensus on correct hermeneutics and methods of practical ethics. I live in this world in this time and care that my fellow believers (or citizens, or persons) have the resources to develop their capabilities and moral personalities. When that is consistent with polygamy I am not bound to oppose it, but when it happens that polygamy contributes to subjugation, I believe that just Muslim communities are entitled to act collectively to oppose subjugation, and that may involve limiting or discouraging polygamy."
In other words, I do not see polygamy as something like slavery - which a Modernist Islam absolutely has to find a way to shed at all costs, i.e., something which is inherently and unequivocally incompatible with justice. Polygamy is all about the circumstances and shouldn't be a proxy cause for fighting other, harder things.
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All good points. Clearly there is a difference between consensual polygamy and slavery. So that when Romney says he can't think of anything worse in the world than polygamy, I literally thought, as he was saying that, dude you're in a country that once enslaved millions of black people, what are you taking about?
That said, taking off the Muslim hat for a second (that's got to be kufr and bid'a and ridda all at once!), I think the standard objection to polygamy would be that if it were not gender neutral, it shouldn't be permitted, and that if it were gender neutral, what you'd be suggesting, as a logistical matter I think the only thing you could be suggesting, is to remove marriage from state recognition entirely. Just do whatever the hell you want, we don't care. Otherwise how does it work exactly? I get how you deal with health care when its same sex marriage, I guess I could get it if a man can marry three women, it's burdensome but it works, but if a man marries twelve women each of whom marries twelve men who exactly is covered by what? Who inherits what from whom? What legal protections do you grant to spouses in these types of relationships? I think ultimately what you'd be saying is we're just going to treat all of this under the laws of contract and quasi-contract/unjust enrichment (and inheritance and wills) and forget about any other relationship they might have.
We could debate the merits of that, though I'm going to being a realist and wonder why we would waste our time. I think it's sort of like debating whether or not the Catholic Church should be entitled to a tax exemption when it doesn't allow women priests (I have to credit my friend Caroline Corbin on this example). There's a logic to it after the IRS denied Bob Jones University a tax exemption for racial discrimination at one point, though I think they've changed their policies since then. But the logic isn't going to carry through, we know that. To me as a realist I think I know why (people are okay with religions discriminating against women to some limited extent, they regard it as holding to tradition, they are not okay with religions discriminating against black people in any capacity, they, including me, regard it as horrible bigotry that must be combatted). I'm sure that's not an answer that will satisfy the philosopher, it is mine though.
HAH
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