A Jurisprudential Re-Reading of the Marriage Contract from the Perspective of the Theory of the Influence of Time and Place on Jurisprudential Rulings
Examination of the Jurisprudential Dimensions of Spousal Violence/27
Note: According to a report by Contemporary Jurisprudence, the third phase and second session of the series of scientific sessions examining jurisprudential and legal issues concerning women was held this time under the title “A Jurisprudential Re-Reading of the Marriage Contract from the Perspective of the Theory of the Influence of Time and Place on Jurisprudential Rulings (A Strategy for Preventing Certain Instances of Violence against Women).” The session was organized by the Vice-Presidency for Women and Family Affairs and the Department of Law at Mofid University, and was held virtually with the participation of Hujjat al-Islam wal-Muslimin Sayyid Mohammad Ali Ayazi, a seminary researcher and author and a faculty member of the Science and Research Branch of Islamic Azad University, and Ms. Akhavan Sarraf, a seminary researcher and university professor, who also participated virtually. A report on this session, held on February 24, 2021, follows below.
At the outset of the session, Hujjat al-Islam wal-Muslimin Ayazi stated: This issue is significant in that some of the problems and challenges relating to women’s rights stem from the type of outlook we hold regarding certain subjects. Certainly, the discussion of the “subject matter” in jurisprudential rulings is noteworthy in this respect: when a jurist seeks to derive a ruling, he refers to the evidences for the ruling itself, but the subject matter must be taken from custom and from rational people, unless the subject matter is itself a matter of religious law. However, if the subject matter is one that originates from outside [the religious sphere], it must be derived from custom and from rational people.
He continued: What has happened with regard to the subject matter that necessitates a re-reading and review? Many of the subjects raised within custom change gradually and imperceptibly; we observe that the meaning, connotation, and particular features of a concept transform over time. On the surface, the title of the subject remains the same; however, when referred to specialized custom, it is recognized as having changed. The jurist must pay attention, when deriving a ruling, to whether the subject still retains the same qualifications and characteristics or not.
The seminary and university professor added: Many scholars and learned individuals have spoken on the issue of the transformation of the subject matter; however, the figure who raised this issue at the level of great religious authority was Imam Khomeini (may God have mercy on him), who, in the Charter of the Clergy, used the expression that time and place are determinative in ijtihad. A matter that had a particular ruling in the past may, in appearance, remain the same matter; yet within the relations governing the politics, society, and economy of a given system, it may acquire a new ruling—meaning that through a precise understanding of social and political relations, that same original subject matter, which outwardly has not changed from the past, has in reality become a new subject matter and therefore necessarily requires a new ruling. The Imam, in fact, points to this important matter: that sometimes concepts change gradually, beneath the surface of society, without notice; yet when we refer to books of jurisprudence, we see that the title of the subject, as originally set forth, remains unchanged.
The faculty member of the Science and Research Branch of Islamic Azad University said: One of the issues in this regard that merits discussion is the matter of marriage within the family. In jurisprudential books, when marriage (nikah) is discussed, two characteristics are set forth for it: first, that in marriage a dower (mahriyyeh) is given, and this dower is given in exchange for the woman’s budh’ (sexual right); once the budh’ is transferred and the contract is concluded, the woman becomes “belonging” to the man, although she of course retains her own independent identity in life.
Ayazi stated: In jurisprudence, the man then becomes the guardian (wali) of this woman, and since another person—the
owner of her is someone else, all authority over her rests with the man; and practically, once this occurs, all of her family rights and duties fall under the man’s dominion. My question is this: does society today, at the time of the marital bond, hold such a perception of marriage—namely, that the man becomes her authority-holder—or not? In order to clarify this matter, [we must ask]: when specialized custom and the rational community speak of marriage today, does it carry the same meaning found in the jurisprudential books, or not?
The seminary and university professor continued: What transformations have occurred in the way of life within human society, and have these transformations led to a change in the form of life’s relations, or not? Has the status of women changed compared to the past? What view does specialized custom and rational people hold regarding these changes? What is the criterion in transactions, and are contracts devotional (ta’abbudi) in nature? Is the foundation of contracts based on explicit conditions, or are implicit/customary conditions (shurut-e ertekazi) also counted among the conditions? Does adherence [to the original ruling] persist, or is mere usage of the term sufficient? In my view, we must arrive at answers to these six questions.
Necessity, Expediency, and Secondary Rulings in Jurisprudence
He stated: One noteworthy point is that if a jurisprudential and legal ruling is announced and a form of reluctance, objection, and protest arises in public opinion, this indicates that the legal and statutory concept differs from what people think and understand.
The faculty member of the Science and Research Branch continued: We have numerous bills related to the rulings on marriage that have been framed under secondary titles, and the reason for this lies in the challenges and lack of acceptance [of the existing forms], which compelled [legislators] to abandon the framework found in jurisprudential books and turn instead to these titles. In matters such as a woman’s departure from the home, child custody, and leaving the country, we observe issues such as necessity and expediency.
Ayazi said: In social relations, I observe that over these past forty years, society has undergone significant transformations in terms of lifestyle and characteristics. In this regard, we must pay closer attention to the impact of increased education, individuals’ awareness of their position and capabilities, and a heightened sense of identity and independence; family relations are changing. For example, children feel that they themselves should choose their way of life, their occupation, and even their place of residence, and this holds true for women as well—this is precisely identity-seeking and the demand for independence.
Referring to the fact that in the past the capacity for risk-taking was limited, and that identity-seeking has led to greater risk-taking—risks that sometimes lead to changes affecting one’s entire life—he stated: Islam was prepared for transformation and established laws against the superstitions concerning girls that prevailed during the Age of Ignorance (Jahiliyyah); in the early period of Islam, women engaged in social activities that had not existed before Islam.
The faculty member of the Science and Research Branch stated: In the contemporary era, following the Revolution, we have witnessed transformations in the domain of women; women have entered various fields extensively, such as academic education, research activities, and employment, and today’s women are decision-makers who possess an independent identity when they enter into married life.
Ayazi said: The laws enacted in Parliament are noteworthy in that they conflict with the traditional apparatus; yet the demands that society holds have led to the passage of expediency-based and secondary laws.
He stated: Without doubt, individuals must refer to specialized custom regarding concepts and subjects. When the rational people of Iran speak of marriage and wedlock, they do not intend the meaning found in jurisprudential books, and this important point must be attended to. There is a category of concepts related to marriage—for example, all jurists have stated that a woman must offer tamkin (sexual compliance); yet rational custom today holds that if the woman’s consent is absent, such compulsion constitutes violence.
The seminary and university professor, referring to his own book titled An Introduction to Quranic Jurisprudential Research, stated: 80 or 90 percent of the rulings found in the Quran and the traditions (riwayat) are the very things that existed before Islam, but they underwent changes—particularly in transactions in the broad sense. When we speak of a concept, we must examine what custom dictates, provided the matter is not devotional (ta’abbudi), fixed by religious text (tawqifi), or specifically intended by the Lawgiver.
The faculty member of the Science and Research Branch, referring to the dependency of contracts upon [certain] principles, remarked: Are explicit principles intended here, or not? In my view, even implicit/customary (ertekazi) principles suffice. In the marriage contract today, there exist implicit conditions arising from the relations of life. For example, a woman who is pursuing her education receives a marriage proposal and has not explicitly stipulated that she will continue her studies; yet, on the other hand, marriage does not prevent her from studying, and the right to will, identity, and decision-making of individuals does not negate this.
Ayazi stated explicitly: If we accept that the relations of life have changed and that the personhood of both women and men has acquired an independent identity, then necessarily the manner of rulings must also become subordinate to this right to will, identity, and independence. For instance, in the present age, if there is a child who does not yet possess this identity and right to will, and whose age is below the age of maturity, rational people do not consider such a marriage reasonable.
He said: In accordance with the identity and independence of individuals, the duties of marriage, expectations, and demands also change; the right to choose how to spend leisure time, to visit one’s parents’ home, to pursue education, and spiritual and psychological needs are all among the implicit conditions arising from these circumstances and relations of life.
The faculty member of the Science and Research Branch stated explicitly: For example, regarding the condition that a woman may not leave the house without her husband’s permission, I ask the religious authority: if such a situation arose for their own daughter—that her husband would not permit her to visit her father’s house—my question is: would they also tell their daughter to accept her husband’s condition?
The seminary and university professor continued: Based on the evidence I have presented, the title of the marriage contract remains the same as in the past, but the subject matter has changed, and therefore its ruling must change as well. One should not refer to the tradition (riwayat) [in this regard], because the tradition addressed that past subject matter and those particular characteristics; it is not possible to consider the subject matter apart from social relations and its particular features and characteristics, and a ruling must be given in accordance with the present subject matter.
Violence Is an Evolving Concept
Akhavan Sarraf, continuing in the second part of the session, referring to Article 42 of the Dignity Bill, said: Violence is a concept whose instances evolve—that is, something that was not once considered violence may today, under contemporary rationality, be regarded as violence; and if we have a legal gap in this regard, it must be addressed.
She continued: Linguistically, violence means harshness and severity; behaviorally, it is a state in which, with the aim of inflicting harm through the use of physical or non-physical force, a violent person imposes his own will upon others.
This seminary researcher stated: Instances of violence are determined by custom, and we must examine what contemporary custom identifies as violence against women; it may well be that many things regarded as violence today were not considered violence in the early period of Islam or in any other time or place.
The university professor stated: Whatever is said or critiqued here does not pertain to the Quranic concept of spousal companionship (zawjiyyat), but rather to jurisprudential matters that arose within a particular temporal and spatial context. The present critique and examination does not concern the marital covenant as mentioned in the Quran; for example, in Surah Ar-Rum it is stated: “And among His signs is that He created for you spouses from among yourselves, that you may find tranquility in them, and He placed between you affection and mercy.” In our view, human societies ought to be guided toward the ideal indicated by this verse, and our contemporary marriages should resemble this verse rather than the jurisprudential framework.
Referring to the fact that physical, psychological and verbal, economic, sexual, and modern violence are all types of violence against women, she added: I now wish to examine more closely the evolution of the nature of marriage (nikah) across time and place—for example, by examining the nature of marriage in the Age of Ignorance and the nature of marriage in ancient Iran, that is, before Islam.
Marriage in the Age of Ignorance, Ancient Iran, and the Present Era
Akhavan continued: With its emergence into the society of the Age of Ignorance, Islam gradually and gently transformed matters that could not be changed all at once; we should not assume that whatever appears in the principles of jurisprudence or the Quran represents an exclusive Islamic prescription or requirement—rather, it addresses what already existed and pertains to reform and gradual accommodation to enable society’s transition from one stage to another.
This seminary researcher said: The context of marriage among the Arabs in the early period of Islam was a context for masculine desire and the one-sided benefit of the man from the woman; for the woman—who was regarded as a sexual commodity, and whose pleasure was not the intended purpose—received something in exchange, whether monetary, in the form of a dower, some benefit to her family, or a privilege to her tribe.
The university professor stated explicitly: In ancient Iran, marriage was entirely lawful, and illegitimate and impure relations between men and women were not common; the formation of a family and the bearing of children constituted the fundamental basis of the family and held great importance—and from this perspective, it differs entirely from the Age of Ignorance, in which the pursuit of desire was the primary concern.
Akhavan said: In Islamic sources, both permanent and temporary marriage exist. In permanent marriage, elements such as the dower, maintenance (nafaqah) under conditions of tamkin, divorce being in the hands of the man, and the woman’s observance of the waiting period (‘iddah) are present; in temporary marriage, only the element of mutual agreement between the parties regarding the amount and duration is present.
She stated: What is at issue in marriage, and what distinguishes its types, is not whether it is short-term or long-term, but rather the purpose of the marriage. If, in a relationship, the aim is the man’s exclusive benefit from the woman in exchange for payment—regardless of whether its duration is fixed or not—then this marriage is, in any case, mut’ah, meaning sexual enjoyment; but if the purpose is other than this exclusive, one-sided enjoyment of the man from the woman in exchange for payment, then this marriage is non-mut’ah.
The university professor remarked: Within the jurisprudential tradition, there exist two schools of thought regarding the nature of marriage and the dower. The first view holds that marriage is an exchange and a transaction, in which the woman, in return for taking ownership of the dower, grants the man the right of sexual enjoyment of herself. The second view holds that marriage is not among the exchange-based contracts, and this perspective has sought to diminish the exchange-based nature and the transactional character of marriage; yet, taken together, it emerges that the marriage whose subject matter is governed by jurisprudential rulings is, in essence, based on exchange, whereby the woman grants her right of sexual enjoyment to the man and exchanges tamkin for maintenance.
This seminary researcher stated explicitly: We come to realize that, in reality, if we do not read these jurisprudential perspectives, we do not fully understand the shared marital covenant—although traces and effects of these views persist among certain members of society as well. The marital covenant is a commitment to shared life within a civil society, and to the sharing of resources and benefits for the purpose of building a life together, the flourishing of both parties’ talents, mutual cooperation in raising the next generation optimally and nurturing shared children, and the preservation of peace and tranquility in the shade of companionship, affection, and mercy.
Akhavan said: Compelling a woman into a lawful sexual relationship is itself also a matter worthy of reflection; sexual tamkin in contemporary marriages is not an inherent requirement of the marriage contract itself, but rather a matter between the two parties, and absolute compulsion is not valid. The necessity of the woman’s consent in all forms of lawful sexual relations must be recognized, as this is one of the primary sources of violence in marital relationships.
She continued: The lawful and legitimate legal recourse available to a man whose wife refuses to engage in a relationship is to pursue the legal path—that is, to refer to the judicial authority in accordance with his obligations and contract, and to proceed according to law. If the legislator has accepted the evolution of marriage, then a reciprocal right must also be provided for a woman whose husband does not consent to sexual relations.
Source: IQNA.