Where it exists, Sunni polemics often focusses on the mut’a marriage approved by Shi’i jurists as an example of Shi’i deviancy. The idea is that the Shi’a endorse a marriage that looks like prostitution, so obviously they are deviant. Hence, I’ve been asked by many a Sunni engaged in such polemics, would you dare to let your own daughter marry in a mut’a marriage?  The answer is supposed to be of course that as a man of decency I would not, and hence Shi’ism as a doctrine has thereby revealed a central flaw and deserves reconsideration as a creed to which I devote myself.  (Obvious qualification is that not all Sunnis engage in such polemics, I am merely referring to a frequently deployed canard in the endless Sunni-Shii polemical debates as and when they emerge.)

The problem with the Sunni polemics is not in their description of the mut’a marriage, but in their utter and complete failure to understand the very core of the marriage relationship in both Shi’i and Sunni fiqh, by the wide consensus of jurists.  So, yes, the mut’a is not terribly different from a relationship of prostitution.  The man pays a dower, a mahr, to his wife.  She is then his wife for a period of time the two of them specify, Sistani tells us an hour or shorter, a year or longer.  Then the marriage is over.  There are no financial obligations on the husband beyond the dower, none on the wife beyond sexual availability during the marriage.  Money goes one way, access to sex goes the other.  Even the reference the wife makes this quite clear. She is known, among other things,as المتمتع بها, she who is enjoyed. And, it needs be said, though I expect much hate mail for this, it is a rather sad dehumanization of women on the part of the Shi’i jurists.  “She who is enjoyed”?  Really?

So before you get smug, my Sunni friends, let’s review the actual rules of the nikah, the Islamic marriage, again by the wide consensus of the Sunni and Shi’i jurists.  First, the man, again, pays the dower.  Half is owed when the contract is concluded. It might not be due, if it is deferred, but it is owed.  (Much like my mortgage is currently owed now in full, though not due in full now).  When is the other half owed?  دخول to use the fiqh term, used commonly in Arab courts still.  Literally means “entry”, though usually I translate it as “consummation” when I translate Iraqi cases, as I currently do for my casebook contract with Aspen Publishers (to be out at some point, co-written with my colleague Mark Cammack).  I can’t imagine Aspen would want me to translate court decisions each time as “the plaintiff claims that the defendant is her husband, who has entered her legally and religiously.”
  ادعى المدعية ان المدعى عليه هو زوجها الداخل بها شرعا و قانونا  I make it “is her husband through a religiously and legally consummated marriage.” (Got a better translation? I’m listening.)

Anyway, the set price of the dower, the premoderns tell us, is roughly the price of a female slave.  Huh, imagine that.  (It is different, there is consent, you can’t sell your own bride, but the price is equivalent.)  Modern jurists absolutely say the dower is set on the desirability of the woman, and almost always put beauty and virginity one and two as examples of things that make the price higher. 

But we’re not done, all of that is indirect.  The man’s principal obligation is to support his wife, through providing all expenses of the household.  Food, clothing, shelter, etc, not at subsistence but in a manner enabling her to live as a woman of her station.  (Jurists differ on the details of this, suffice it to say though that a rich man who marries a rich wife has more obligation than a poor man who marries a poor wife). 

So what’s the woman’s obligation in the nikah?  Obedience. And let’s be clear what that means. It isn’t referring to nonemployment, or doing housework, or taking care of the kids, or setting up the garden.  The premodern jurists don’t mention that, and if modern jurists do, it’s in passing at best.  Sistani tells us they are recommended tasks for the wife, not obligatory ones.  What is the obedience in question then?  That which is called tamkeen, or enablement. The wife must enable the husband to enjoy her. (That’s again almost a direct quote).  Elsewhere it’s phrased as a requirement to stay in the marital home and the phrase is not tamkeen, but ihtisab biha (confinement of her).  She’s at home for a reason, he gets sexual access to her, whenever he wants, subject to some minimal limitations that should be obvious. If she’s praying the noontime prayer, he doesn’t have access. If she’s menstruating, etc. 

And I’m not playing this game again like I did on child marriage where all the Muslims who don’t actually know Islamic law start demanding source material because only an Islamophobe would say what I did. Then I waste time finding it trying to demonstrate something perfectly obvious to anyone faintly familiar with the fiqh.  My sources are Kasani and Sarakhsi, Ibn Rushid and Malik himself, and Shafi’i and Ibn Taymiyya and Ibn Qudama, and Sheikh Tusi and Muhaqqaq al-Hilli and M.H. al-Najafi and Sayyid Muhsin al-Hakim and Sistani. It’s everywhere in the juristic texts, I’ve specifically seen it in those places, you just have to go to just about any jurist you’d like to read, from any madhab, pull out the Kitab al-Nikah, and read it, beginning to end. Just read.  Then argue.  Or if you can’t read Arabic or want a useful summary compendium I recommend highly Kecia Ali’s Marriage and Slavery in early Islam.  Got it Sunday, finished it yesterday, really splendid.  Or wait for the Cammack/Hamoudi Aspen casebook, read the damn cases I’ve translated if you don’t believe me, and then go to their source material.  Anyway, onus isn’t on me to prove the obvious, just do some research, and you’ll find all of this.

Anyway, my Sunni brother, the deal is that we Muslims have a relationship where you pay a woman a sum of money, half of which is due when you agree to the obligations, and half is due when they are first performed, with the price you’d pay for a female slave as benchmark price.  Then you pay her to keep her in a good home, and with good food, and good clothing, and make sure her material needs are handled. You do this for as long as you would like to do it (and when you no longer like it, just declare her divorced, and it’s done). And she, in exchange, must do one thing, which is make herself sexually available to you when and where you like.  

And your problem with the mut’a is that it looks too much like prostitution? Seriously?  And let’s be clear, the premodern Sunni jurists never made that polemical point. So they never said You Shi’a trade sex for material! How dare you! Would you let your daughter do that! Because of course you would, all fathers did, that’s the contract.  The issue for them was that the contract was for a period of time that was set, rather than indefinite. That’s what really offended them.  A trade of sex for money for a temporary period of time was the problem.Sex for money for as long as the man liked? That’s called marriage. 

So how did this come to be?  Here’s what actually happened. We had these rules, and modernity struck. We were colonized, our attitudes towards the marital relationshi
p seemed antiquated, they underwent some sort of massive rupture, and we took what was our marriage contract, the nikah, and in our conception somehow turned it into some weird Victorian thing the colonizers had where sex wasn’t traded so much as it was implicit. Women looked after the home, men brought home the bacon.  It’s not the nikah, but it’s close enough to penetrate socially. Not judicially, as I’ve said cases from Egypt to Syria to Iraq make it quite clear, woman stays in the home and is sexually available, then the man owes support. If she doesn’t, he owes nothing.  But socially it’s the (false) conception. And of course once you do that, then you need another box for the mut’a and that one is easy, it’s prostitution. So marriage, which is not, or not primarily, about sex, and the mut’a, which is. Polemics follow.  Ahistorical, lacking juristic pedigree, facially ridiculous upon any inspection of juristic texts, but add in our colonial experiences, and it makes perfect sense, and  it is very good polemics. Who would let their daughter do a mut’a.  Of course read the nikah and I’m not so keen on that one either, but we just pretend it isn’t what it says it is, and we’re all good.

One final point might be made on this. In the end, I have suggested on this blog a radical reconceptualization of the marital relationship to include same sex marriage and a partnership founded on a more egalitarian footing.  The conservative and traditionalist does not adhere to this. This is not so much because I’ve been influenced by the West and he hasn’t. His entire conception has deep Western origins, as is obvious from his attachment to current Arab penalties on sodomy (transplanted from the West during colonization) and his insistence on a marriage relationship that looks more like Ozzie and Harriet than it does premodern fiqh. The difference between us, rather, is which version of the West we’ve been influenced by–1920’s England, in his case, or 2014 America, in mine.

HAH