About a week ago I returned home from a fascinating criminal law conference in Antalya Turkey.  Truly extraordinary internationally respected academics in attendance, from Muhammad Munir (Islamic International University of Islamabad) to Sadiq Reza (New York Law School).

In addition, there was a huge bevy of strong traditionalists led perhaps most prominently by the Syrian cleric Muhammad al-Zuhaili.   I was placed on one of the two reformist panels I think, or at least it was the internationals who wanted to tease out particular notions of fiqh and subject them in my case to some level of scrutiny, criticism and (re)consideration. This definitely put me in the minority relative to those who stood shoulder to shoulder with Zuhaili whose views let’s just say are not widely shared in the company I normally keep.  This is not a criticism of the conference, I find it important to engage with such people even if they don’t appreciate my own position and dismiss it as so much Westoxification.  If you want change, you can get everyone in a room and air the differences and hear the cross concerns, even it gets acrimonious, or you can think invading their country will work better. I’ll play by the former set of rules.

In any event, a wonderful conference, well organized and administered. It left me with two lingering thoughts, related to but perhaps distinct from the contrasting views of reform and tradition about which much has been and will be written.  I set them out below.

1.  The field of Islamic criminal law really needs  more rigorous empirical work.  Some of the things being stated seemed so obviously contrary to basic empirics that if those who pronounced them were aware of it, they might avoid some of the silly self congratulation that seemed totally unwarranted.  For example, the argument runs, the hudud, the strict Islamic crimes involving (depending on the crime) lashing, amputation, crucifixion, stoning and other forms of corporal punishment, help to deter crime. Hence Western societies which have banned the death penalty suffer from high crime rates, and societies that have kept capital punishments do not have similar problems.

So, first, the irony was that one of the people saying this was an Iraqi.  One of the countries where capital punishment is the most widely used.  And trust me, as one who has been to Baghdad many a time, it is not as safe as Oslo.  That doesn’ t mean an academic can simply stand up and say the death penalty acts as no deterrent, look at Baghdad and Oslo, that’s almost as silly. But the question, do the hudud deter? is purely empirical, and a study could assess the truth of it.  That wouldn’t settle the debate, of course, whether or not they deter has nothing to do with whether or not they are morally reprehensible (killing a mother’s children if the mother commits a crime might also deter, after all).  But it would answer the empirical question being raised, or rather being answered as proof of something without the answer being itself backed up by any sort of data at all.

The empirical problems run deeper.  In response to the reformist “but isn’t it just a wee bit Stone Agey to be killing people with rocks for having sex with the wrong people”, the traditionalist retort at the conference was something along the lines of the fact that the hudud are not often applied, because the conditions to meet them are so strict.  Fornication is the most common example–either you confess, four times, and you can recant up to the time that the rocks start hitting you, or four Muslim men have to have witnessed vaginal penetration, which is hardly an easy standard to meet.

The problem here of course, relating us back to the original point at issue, is that this completely undercuts the idea of the hudud as deterrence. You can’t both barely ever apply something and then claim it is a deterrent. If social science studies have taught us anything, it is how real what is called the valence effect is.  The presumption is that good things happen to us, and bad things happen to other people. So if you tell someone this truly horrible result will come out if they commit this crime (i.e. I will sever your hand if you commit a theft), then that might deter.  Tell them that there are 30 conditions to execution of that sentence and less than 3% of the people convicted will lose their hand, and the deterrent value is all but dissipated due to the valence effect. Nobody actually thinks they’ll be one of the unlucky 3%.  (Or, to bring the matter home, I tell my contracts students that if they are in the bottom 20% of the class there are particular things they should do to ensure effective bar passage.  Every single one, and I mean every one without exception, asks me what they have done to make me think they will be in the bottom 20%. The answer is of course nothing.  Except I’m looking at 80 people, and 16 of them by definition are going to be there, a fact they all intellectually know, but assume means it’ll be some 16 other than them.)

Now if you want to argue that valence effect doesn’t apply here, then that would be interesting indeed. But you’d have to have data.  You can’t just say “the hudud deter, and are rarely applied” without realizing you are saying something terribly contrary to what social science seems to suggest and use it as a form of self congratulation for Islamic criminal law.  And if you want to respond to me, as some did, that I am failing to realize God’s wisdom and that’s the problem, I’ll say here what I said there, “you didn’t say God is Wise and He thinks we should apply the hudud sparingly.” If you did, I’ll answer accordingly based on texts and religious interpretation and you can dismiss me as a silly liberal masquerading as an Islamic scholar if you like, and then we’ll part ways.” But you said, “the hudud deter and they are rarely applied.” That’s not a metaphysical or moral question, it’s an empirical one.  So defend it empirically.

2.  While the Middle East is overrun by defensiveness and insecurity, it runs particularly rampant among defenders of Islamic criminal law.

I neither know nor care whether the actual idea of a presumption of innocence in Western law came from Islamic law, as some claimed at the conference.  It certainly is true that Islamic criminal punishments are not imposed absent proof, though it can be said at times the proof is formalistic and not necessarily an attempt to determine the likelihood of something happening.  (After all, pregnancy is a far better determinant of whether someone had sex than four men.  Four men can lie, virgin births are quite rare.)  Whether or not this idea was taken in Spain or somewhere else and developed into our modern system is not something I’ve spent ten minutes thinking about.

I do know that Western notions of legality (there is no crime except when set forth in a preexisting law) did not come from us.  That is not to say it is inconsistent with the core texts of Islamic thought, Muhammad Munir has done excellent work suggesting it is a core principle of Islamic law, but it is fair to say it is not one emphasized in the classical texts at all, a point he makes in his good work on the subject.  So even if we had it, we didn’t emphasize it, though we should have, so they didn’t get it from us.

But the need, the compelling push, to insist that all great Western ideas on crime and punishment came from Islamic law seemed overwhelming among many.  And this was absent any explicit historical link, as if correlation proved causation.  (I.e. we ate fish before the Norwegians, so it must be that they learned that fish are edible from us.  No other possible explanation, including maybe they figured it out on their own, what being near the ocean and all).  Then there was the need to say the West is not a model for Islamic societies, which wasn’t a point I think anyone was making (do X because America does wouldn’t sell in France, let along Saudi Arabia). My favorite, however, was that the West removed Islamic criminal law and imposed colonial transplants because it realized how great Islamic criminal law was and felt jealous of it and sought to excise it.  Which of course when put together with the first claim that demonstrated insecurity (their criminal law is based on ours) renders the matter incoherent. They took our law, made it theirs, and then hated us for coming out with it, so they removed it in our societies and replaced it with their law, which is of course our law so aren’t we around full circle and in that case, what are we talking about?

This sort of anticolonial we aren’t the West and refuse to submit to it can prove useful in some contexts, but positively blinding in others including questions of Islamic law tradition and reform.  The fact is that Islamic political movements like the Muslim Brotherhood and Ennahda do not and did not (in the case of the MB, even when it ruled) actually make much noise about instituting Islamic criminal law.  Usually, they do as much as they can to distance themselves from it. The same is true of the Islamist parties of Iraq–in fact, it’s more often the caricature of the secular parties, precisely because everyone knows, if you want to lose votes in these highly imperfect sort of democratic states, you start talking about amputations and stonings.  So long as everything is attributed to the West as omnipresent demon, and a fair and full accounting of what the actual Muslim people want is ignored, or dismissed as only so much Western brainwashing, then solutions of a sort that will fit individual Islamic societies will continue to evade us.

Again, great conference, thanks to all at the respective Turkish universities for the opportunity.

HAH

Followers of the blog might recall that some time ago, I had a bit of a row with a few folks over female genital mutilation in our Shi’i tradition.  Most of the comments were unpublishable frankly, a few suggested I had fallen under the influence of Zionism, but the more sensible ones at least expressed disagreement with my description of the practice as having some pedigree within Shi’i traditions.  I noted then that when I had some time I’d go back and do a more thorough search of materials.  I did that, and think I probably understated the case. I’d say now it’s a pretty well established part of Shi’i jurisprudence, just a part that contemporary jurists would prefer not to talk about.

The passage below I stumbled upon mainly in connection with an article I’m doing on the truly awful draft Ja’fari Personal Status Code that the Fadhila party had promulgated a little before ISIS took over Mosul, and collective attention was then (rightly) redirected elsewhere.  (For the avoidance of doubt, despite many, many flaws, no FGM in that draft Code).  Anyway, the following is from perhaps the most influential juristic compendium of early modernity, one that is the subject of intense study in contemporary Najaf, and one that effectively provides the model for modern juristic compendia.  To those for whom it’s not obvious from that introduction, it’s Muhammad Hasan al-Najafi, Jawahir al-Kalam, which is itself a commentary on Muhaqqiq al-Hilli’s Shara’i al-Islam, perhaps the most influential work on Shi’i jurisprudence there is after the original sources.  Anyway, Muhaqqiq’s words appear below in quotes and italics, the rest are from Sahib al-Jawahir, vol. 31 p. 242 in my version:

As for females, it is referred to among the companions as “the curtailing of the maidens” and it is “recommended” without disagreement. To the contrary the consensus supports it, and the [original] sources are plentiful or incontrovertible, and present the matter in its entirety. It is not required for the guardian [to do] before puberty, nor upon them after it. The manifest opinion is that the time for them is seven years. Indeed based on the report of Giyath ibn Ibrahim from Ja’far ibn Muhammad [al-Sadiq] from his father [Muhammad al-Baqir], peace be upon the latter two of them, “do not curtail the maiden until she reaches seven years.”

It is required not to uproot it in its entirety. From the Sahih of Ibn Muslim, from Abi Abdillah (peace be upon him), when the women emigrated to the Apostle of God (peace be upon him), a woman emigrated with them who was called “Um Habeeb”, and she was a curtailer, who curtailed maidens. When the Apostle of God, peace be upon him, saw her, he [peace be upon him] said to her, “Um Habeeb, the work that you used to do, do you do it now?” She said to him [peace be upon him], “yes, Apostle of God, unless it is forbidden, and you tell me to avoid it.” So he said, “no it is permissible. Come near me, so I may teach you.” She neared him, and he said, “Um Habeeb, if you do it, then do not destroy and do not remove entirely, but mark it, for this brightens the face and is more pleasurable for the husband.”

“And” in any event what is clear from what we have mentioned is that “if an uncircumcised nonbeliever becomes a Muslim, he must circumcise” himself “if he was of old age. . . . and” it is clear also that “if a woman becomes a Muslim” then “she is not obligated to be circumcised” but that is ”recommended” for her. In the report of Abi Basir, “I asked the father of Ja’far, peace be upon him, about the maiden who comes from the land of polytheism and she becomes Muslim, and she asks for one to curtail her, but she is unable to find a woman [to do it], so he said, “the Sunna [i.e. the practice of the Prophet and the Imams] for circumcision is for men, and not for women.”

 This follows a set of rules on the circumcision of “males”, and those with both female and male organs, the khuntha in Arabic.  Hence, he lays out the rules for males, the rules for the khuntha, and then, Sahib al-Jawahir tells us, the rules for females, or anath.  He further tells us that such rules are referred to by the companions, then quoting Muhaqqiq, as curtailment of the maidens.  (In the abstract, the term for maiden, or jariya, is at least ambiguous, as it could be translated as slave girl.  From the context, however it does not.  He says as much–when it comes to women, it is referred to as “curtailment of the maidens.” What could be clearer than that.) He describes this as recommended, suggests there should not be a cliteroctemy in the process, and further suggests that even if a woman (woman–mar’a) converts, it is recommended for her, though not required.  It calls upon original source material to defend its conclusions and describes them as very numerous and declares juristic consensus on the point.  Those interested could find the source material to which the Jawahir refers in Usul al-Kafi which makes specific recommendations on “circumcision” of “women” not “slaves.”  Here’s one:

عدة من أصحابنا، عن أحمد بن محمد، عن الحسين بن سعيد، عن بعض أصحابه، عن عبدالله سنان، عن أبي عبدالله عليه السلام قال: الختان في الرجل سنة ومكرمة في النساء

Are the sources really plentiful mustafida or incontrovertible mutawatir?  Not from what I’ve seen.  Can their provenance be challenged? Yes, I think so. But then you’d have  to challenge the juristic consensus that Sahib al-Jawahir claims, or you’d have to challenge his reading of Muhaqqiq, or you’d have to challenge Muhaqqiq’s reading of the main source material. Any of those are plausible approaches to change, but let’s be clear, you’re definitely in the liberal or reformer camp if you do any of those. (Welcome to the revolution, we’ve been waiting for you to arrive.) What you can’t be is a traditionalist who demands fealty to the Shi’i rules as they have existed throughout the centuries and then somehow have a problem with me for pointing out that those rules support the mutilation of female genitalia. The fact is that they do support it. Indeed, they recommend it.

That of course assumes that my Jawahir al-Kalam, published in Teheran, is accurate. There remains the possibility that Zionists secretly broke into my house and surreptitiously changed volume 31 in an undetectable manner so as to humiliate and embarrass us Shi’a.  So Zionists, if you did that, please stop. Totally not cool.

HAH

I have been as moved as anyone else by the scenes in France, and what appears to be an admirable determination to carry on, and not to be intimidated from free and open speech in deference by horrific acts of violence.   I hope they find these killers, and lock them away, forever.  If there is a place for the death penalty, here is where it lies.

But I cannot help but remain skeptical that in fact the heroic determination exhibited at these mass demonstrations throughout Europe is real.  That is, I am not convinced that is true that this sort of intimidation exhibited by these terrorists will fail, much as I would like it to.

I don’t mean violence always works, naturally that is not true.  My fellow Arabs and Muslims who think you can actually frighten all the Jews out of Jerusalem are living a dream from which for their own sakes they need to awake.  Yes Hezbollah succeeded in getting Israel out of southern Lebanon, through persistent guerilla violence. Southern Lebanon.  Not Jerusalem. It’s not a damn vacation they’ve landed on, so scare them a little and they’ll pick their luggage up and go, like Iowans in Giza or something.  At least try to understand Jewish history before you decide what it is you’re going to do to advance your own interests.

But in this case, in the matter of parody of the Prophet or insult to Islam, while it’s pretty to think violence doesn’t work,it seems to me it will achieve its effect.  How many people are quite as willing as the Charlie Ebdo cartoonists to risk their lives parodying the Prophet Muhammad, or even talking about him, when there are so many more accessible targets that won’t get you killed? How many more will be now?  Imagine you’re a cartoonist in Pittsburgh, and you’ve got a lovely wife, and two kids in school. You can draw Buddha giving Jesus a blow job and the most you’ll get is an eye roll from a religious person wondering why it is you never left middle school before they carry on with their day.  (Precisely my reaction by the way).  Or you can portray the Prophet frustrated that he’s so beloved by idiots as per Charlie Ebdo and end up dead, your wife a widow, your children orphans condemned to live without their father.   (I actually found that cartoon pretty good, and not at all insulting of the Prophet.  I imagine that greatest of men has to be frustrated by the idiots claiming to act in his name.) And even if you are so willing to risk it all, will your editor back you? If he does, will the paper let it go and risk a firebombing?

We already know the answer, we’ve seen it everywhere.  The Prophet is out of bounds, and every other holy figure is not. Why?  Obvious. People don’t want to die, companies don’t want to be targeted, nobody wants to be firebombed. I don’t think this changes the equation.  After emotions die down, if anything, it will only lead to more caution.

It’s an ugly truth, but a nonetheless real one. Here, violence works.

HAH

The surprising thing in Egypt to my mind is not so much that a judge sentenced three respected journalists to seven years in prison each on evidence that was, to call it what it is, bullshit.  It is more that a judge thought nothing of giving such a sentence in a public trial after the prosecution offered nothing but evidence that anyone even faintly familiar with modern criminal process would have regarded as completely, utterly, uncompromisingly, almost inspiringly, ridiculous.  That, frankly, did surprise me.  I had always had a little more respect for Egyptian judges.  Perhaps it was the respect I had for my Egyptian academic friends in Egyptian law schools, or perhaps it was the influence of my friends in US law schools who write on Egypt (though on courts far different from a criminal trial court, of course), but I just thought them better.

Of course, based on the Egypt criminal cases where I had read opinions, and there haven’t been many, less than a hundred I think, there seemed to be the same heavy reliance on confessions that there is in much of the Arab world, and of course, it is hard to believe all such confessions were freely given. As a final of course, I was aware that political opponents spent time in prisons in Egypt based on evidence that was often flimsy. Still, I somehow figured that a judge wearing a robe had just a shred of professional dignity and self respect, and would have some clue how to organize a criminal trial more effectively than, say, an Afghan tribal warlord who is handed a robe and told to adjudicate a state trial.  I’m no longer sure of that.  Procedurally, certainly, they are more self aware than elements who have never seen a court before. But substantively?  It’s no less ridiculous.   

So I expected a sham, same sham used to convict Ayman Nour, but I expected one that would preserve the pretense of judicial credibility.  At the very least, assuming an unscrupulous and opportunity seeking judge with no moral conscience, I’d expect that he’d have called up Sisi (well, naturally not Sisi, naturally an underling whom Sisi could claim never to have spoken to about this), and told him this whole thing was bullshit, there was no evidence, and if they wanted a conviction, they’d need more.  He might even suggest they send over a couple of guys to confess, the tried and true Arab way to hold a trial. They’d admit they met with Greste to conspire to destroy Egypt and give it to the Jews, or something, and get sentenced with him, and three months and $10,000 each later, they’d be quietly released, nobody would remember who they were, and all would be good.  At least you’d have some evidence.  The idea that a judge who had any sense and any professional pride and sense of office could, after this trial, issue this sentence, demonstrates the sad, sad state of the Egyptian judiciary.

And you cannot tell me that this is a new thing, as I have heard on some media reports recently., and judges were better before.  The judiciary is a profession–one is trained in its methods over years, socialized into it over decades by colleagues, one cannot simply take a person decently trained, socialized into particular methods, tell them “pronounce this guy guilty” and not expect them at least to be aware of what evidence they’d need to make the claim even remotely credible.  The fact is that this court, and while we’re at it similar Egyptian courts who seem to regard it as due process to convict 183 people and sentence them to death after a one day trial and then uphold that on appeal, was trained years ago, and somehow still believed all of this in some way made sufficient sense to withstand scrutiny.  Tell me Sisi is gambling that American aid will still come notwithstanding the sham, okay.  He might even be right. but tell me these judges knew how to judge until recently? impossible. They haven’t a clue.

And here’s the scariest part. The place where most of the legal intelligentsia of the Arab world is from?  Yup, Egypt. We’re in a scary place now.

HAH

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